Maley v Royal Mail Group Ltd

The statutory dispute resolution regulations state that employees do not have to lodge a grievance with their employer if they have been dismissed or are about to be dismissed. In Maley v Royal Mail Group Ltd, the Employment Appeal Tribunal (EAT) said that they do not have to lodge a grievance if they have been dismissed following a failure to make reasonable adjustments under the 1995 Disability Discrimination Act (DDA).

Basic facts

Mr Maley was dismissed from Royal Mail on 15 October 2007 following a number of long periods off work. He said the reason for his absences was because he suffered from chronic dermatitis. An occupational health advisor and an occupational doctor both recommended that Royal Mail provide him with a cotton uniform but this did not materialise.

Both advisors also mentioned in writing that Mr Maley’s condition amounted to a disability under the DDA. Even his manager said she considered “Phil’s DDA” before she decided to dismiss him.

Tribunal claim

On 25 October Mr Maley lodged a tribunal claim for unfair dismissal, but did not fill in section 6 of the ET1 form relating to discrimination claims. He did, however, tick the box indicating that he had a disability.

In April 2008, he tried to amend section 6 of his ET1 by adding that he was disabled “within the relevant legal definition” and that Royal Mail’s “failure to make reasonable adjustments resulted in my dismissal”. In brackets he stated that “As the grievance is dismissal I understand that the Statutory Grievance Procedure would not apply”.

The tribunal judge refused to allow his claim to be heard because he had not lodged a written grievance prior to submitting his ET1 to the tribunal.

EAT decision

The EAT overturned the tribunal’s decision. It pointed to regulation 6.5 of the Dispute Resolution Regulations which states that “neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee”.

It said it was clear that Mr Maley was not complaining about the fact that his employer had failed to make reasonable adjustments (by not providing him with a cotton uniform). Instead, his complaint was about the fact that, as a result of that failure, he had been dismissed.

“There is not a separate compensation claim, as I understand it, for failure to provide a cotton uniform. Had the Claimant not been dismissed, there would have been no Tribunal claim at all.”

Referring to two other EAT cases - Lawrence v HM Prison Service and Otaiku v Rotherham Primary Care NHS Trust – the EAT said it had to construe regulation 6(5) broadly. The essential point was “that where the complaint is about the dismissal or matters pertaining to that dismissal, including the reason why it is said to be unfair or unlawful, these issues can be aired and considered through the dismissal process. That is, in my view, plainly applicable in this case”.

There was, therefore, no separate need for Mr Maley to raise a grievance about Royal Mail’s failure to provide him with a cotton uniform or for that to be separately considered by anybody else.

Comment

Mr Maley’s primary argument was that he would not have been dismissed if reasonable adjustments had been made. In those circumstances no grievance was required because the complaint was about dismissal. However, had he wished to bring a separate and distinct claim about the failure to make reasonable adjustments then he would have needed a grievance.

This decision also hints at a potential pitfall: if Mr Maley had lodged a grievance about the reasonable adjustments, but waited more than 3 months to lodge his dismissal claim thinking he had an extension, then he would have been out of time.