The statutory grievance procedure is intended to ensure that employees attempt to resolve disputes internally with their employer before bringing a claim in an employment tribunal. However, the wording of the regulations has cast a shadow over whether or not the grievance procedure applies to discrimination complaints during a disciplinary procedure, which ultimately results in the employee’s dismissal. The EAT has recently attempted to shed some light on this subject.

The statutory grievance procedure only applies where the employee’s complaint could form the basis of a tribunal complaint listed in the schedules to the Employment Act 2002. Complaints of discrimination are listed and as a result the employee will normally be barred from bringing a tribunal claim on these grounds unless they have set out their grievance in writing to the employer and have waited for a period of 28 days before submitting their claim. However Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Procedures 2004 stipulates that the grievance procedure does not apply where the grievance is about an actual or contemplated dismissal not including constructive dismissal.

As a consequence some employees have sought to rely on the exception in order to bring discrimination claims not only regarding the dismissal itself but also with regard to alleged acts of discrimination during the disciplinary procedure.

In Lawrence v HM Prison Service (2007) the Claimant sought to bring a claim of unfair dismissal and a further claim that the dismissal amounted to disability discrimination. The tribunal contended that they did not have jurisdiction to hear the discrimination complaint on the basis that the grievance procedure had not been complied with. On appeal, the EAT took the view that where the complaint was about dismissal or matters relating to that dismissal, including the reason why it was said to be unfair or unlawful, these issues could be aired and considered through the dismissal process. In the EAT’s opinion it would create difficulties if the dismissal and those aspects which purport to the dismissal had to be separated and dealt with under different procedures. Consequently, the EAT decided that there is no requirement for an employee to raise a grievance where the dismissal itself is claimed to be the act of discrimination.

In Department for Constitutional Affairs v Jones (2006) the EAT had to consider whether a tribunal had jurisdiction to hear a complaint where the employee was alleging that the employer had failed to make reasonable adjustments to its disciplinary procedure. The employee, who had been dismissed for gross misconduct, sought to establish that the grievance procedure did apply to claims regarding the manner in which the dismissal was carried out rather than the dismissal itself. Provided, the grievance procedure did apply the Claimant could rely on the automatic extension of time in order to being his disability discrimination claim. The EAT rejected his appeal and held that Reg. 6(5) should be interpreted broadly to the extent that:

• A grievance that the employer has dismissed or is contemplating dismissal includes a complaint about the manner in which the employer is contemplating dismissal i.e. the disciplinary procedure that was followed
• A grievance that an employer has dismissed an employee includes a grievance about the manner in which he has dealt with an appeal against dismissal

The EAT concluded that to do otherwise would result in an unnecessary and complicated duplication between the dismissal procedures and the grievance procedures.

These decisions beg the question as to what is the purpose of the overlapping dispute procedure if not to allow employees to raise a grievance during the dismissal procedure. This was the very argument put forward by the employer earlier this month in Otaiku v Rotherham Primary Care Trust (2007), which also concerned claims of discrimination during the disciplinary procedure. The employer insisted that Lawrence and Jones had both been incorrectly determined. They suggested that the regulations had specifically catered for the event where a grievance, such as a complaint of discrimination, was raised during the dismissal procedure. They argued the regulations did not exempt the employee from raising a grievance, as the tribunals had interpreted, but merely permitted the employer to deal with the complaint at the appeal meeting unless it was raised during or after the appeal stage, in which case the grievance procedure was required to be complied with in full.

The EAT in Otaiku, although recognising the strength of the argument put forward by the employers, were concerned  of the risk that an issue would not in fact be raised in the course of the dismissal procedures, even though it provided an opportunity to raise them. The EAT were reluctant to depart from the two earlier EAT decisions and so it was also held in this case that the grievance procedure did not apply. However, in making its findings the EAT did suggest that “where a claim for discrimination is raised for the first time in the tribunal proceedings, the tribunal will no doubt want to examine with some care the reason why it was not raised earlier and whether that fact casts doubt on the allegation.”

As a consequence of these decisions, it is now entirely possible that employers can be kept in the dark and a claim for discrimination can come out of the blue. The only good news is that the time limit for presenting a complaint of discrimination relating to dismissal will not automatically be extended by three-months even where a grievance is raised.