Arguing about equality rights

In October 2004, the government introduced new procedures for dealing with internal grievances and disciplinaries. The Thompsons' guide to the new rules, published as a supplement with October 2004's LELR, will help you find your way through them.

But apart from getting to grips with the new regulations themselves, which are far from straightforward, trade union representatives and officials also need to be aware of their impact on equality rights.

In this article the Head of Equality at Thompsons' Employment Rights Unit in London, looks at the procedures and flags up some of the potential pitfalls in relation to equality issues.

Are all equality claims covered by the new procedures?

In general terms, the new procedures apply to discrimination and equal pay claims in the same way as they apply to any other claim. However, there are a few cases to which the new procedures do not apply - see the box for details.

What happens to time limits?

It's important to identify the cases to which the new rules apply (or do not apply) because the time limits for lodging a tribunal application will vary accordingly.

If the procedures do not apply (for example, in flexible working) the time limit is the usual three months from the date of the act being complained about. If they do apply (for example, in sex discrimination) then it is the step one grievance that has to be lodged within three months, with the tribunal application following no less than 28 days later.

As a result, it is now very important to be clear about the legal basis for a member's tribunal claim.

Does the person's employment status matter?

In a word, yes. This is because the new procedures only apply to employees and not workers. Most discrimination legislation and the Equal Pay Act, on the other hand, apply to workers as well as employees.

So a worker bringing a race discrimination claim does not have to comply with the new procedures, but an employee bringing the same claim does. If it's not obvious whether someone is an employee or a worker, the best advice is to start - and complete - the new grievance procedure before the normal time limit for lodging a tribunal claim expires.

If that is not possible, then lodge a tribunal application (to protect the member's rights) with a covering letter explaining that the claim is being lodged without prejudice to the ongoing grievance. The step one grievance can then be pursued at the same time.

Can time limits be extended?

The regulations allow the normal three-month time limit to be extended, in certain circumstances: 

• if the step one grievance letter is sent within the usual time limit, the claimant will get an automatic three-month extension for submission of their tribunal application
• if someone submits a claim within the normal time limit, but does not send a step one letter, their tribunal application will automatically be rejected; they then have to submit the step one letter within one month of the expiry of the normal time limit, and send another application to the tribunal within three months
• if the person sends the step one letter in time, but does not allow 28 days to pass before submitting their tribunal application, they have to resubmit their claim form at the end of the 28- day period following the step one letter.

If the person submits their step one grievance in time, the tribunal is likely to keep its discretion to extend time limits (where it considers it just and equitable to do so). However, if someone submits their step one grievance late then the tribunal will probably have no discretion to allow a late claim.

That means that the old case law on when tribunals can let discrimination claims proceed may become irrelevant if someone misses the three-month deadline for submitting the step one grievance. This makes it essential for trade union officials and members to comply with the deadline.

What about equal pay claims?

As with discrimination claims, members have to pursue their grievance before they can lodge an equal pay claim. If there are multiple equal pay cases, however, the union can submit a single grievance listing each of the claimants.

Under the Equal Pay Act, the normal time limit for submitting a claim is six months from the date of termination of employment with that employer. If someone pursues a step one grievance, they will get a three-month extension of time automatically added on to that. But neither the Act nor the regulations allow for any additional discretionary extension of time.

What about time limits for questionnaires?

When time is extended by three months for lodging the tribunal claim, the person has to serve their questionnaire within the extended period - in other words, six months.

The questionnaire cannot, however, be treated as a step one grievance.

What do members need to include in a written statement?

The regulations define 'grievance' as 'a complaint by an employee about action which his employer has taken or is contemplating taking.' This suggests that members need to include a factual account of what their employer has done or failed to do, but not an account of the legal basis for the claim.

Where the discrimination relates to something that has gone on for a long time, the person should include all the acts about which they are complaining in the grievance (but not the evidence). If they have background information that is not part of the actual claim, they don't have to supply that in the grievance. However, it may make sense to do that to strengthen their grievance.

In relation to adjustments under the Disability Discrimination Act, it is probably not necessary to specify each and every adjustment that the employer should have carried out, as this is ultimately the employer's responsibility. But it is likely to be a good idea to suggest adjustments. Employees should also give an account of how the disability affects them.

What happens if there is an overlap with a disciplinary?

If the grievance relates to a discriminatory decision by the employer to discipline the employee, then the grievance procedure still applies, but the employee will be deemed to have complied with it if they send their written grievance to the employer before the disciplinary meeting.

If they do not send the grievance prior to the disciplinary meeting, they will need to comply with the full grievance procedure. Where the grievance relates to the actual conduct of the disciplinary action, again they have to follow a separate grievance procedure.