Lawrence v HM Prison Service
The so-called dispute resolution regulations have produced a flurry of cases recently. For instance, Lawrence v HM Prison Service, in which the Employment Appeal Tribunal (EAT) said that employees who have been dismissed do not have to lodge a separate grievance, if they want to argue that the dismissal was discriminatory as well as unfair.
Mr Lawrence worked at Her Majesty’s Prison in Norwich, but was dismissed because of intermittent absences due to his eczema. He claimed wrongful and unfair dismissal and that he had been discriminated against contrary to the Disability Discrimination Act 1995.
He did not lodge a grievance before submitting the tribunal claim. The question for the tribunal was whether he was under an obligation to do so before it could hear his claim of disability discrimination.
Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 states that “neither of the grievance procedures [standard or modified] applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.”
Arguments and tribunal decision
The employer accepted that Mr Lawrence did not need to lodge a grievance in relation to the unfair dismissal complaint, but argued that he did need to for the disability discrimination complaint. They said that the tribunal could not, therefore, hear that part of his claim until he had.
Mr Lawrence, on the other hand, said his complaint was clearly about the dismissal and that it should be dealt with through the dismissal procedures irrespective of the grounds on which he had alleged that it was unfair. “The grievance” he said “is a complaint about the action of the employer; it is not about the reasons for the action.”
However, the tribunal agreed with the employer saying that the exception in regulation 6(5) only related to dismissal. This was because the employer already knew that the employee had been dismissed. If employees did not have to use the grievance procedure for something that the employer was unaware of (in this case the disability complaint), it would defeat the whole purpose of the statutory procedure.
The EAT, however, agreed with Mr Lawrence. It said that regulation 6(5) was just a “rule mapping out the boundary between the use of grievance and disciplinary procedures.”
It said that “the essential point is 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.” The EAT accepted that this might mean that a tribunal could end up hearing a complaint that had not been raised directly with the employer, but thought it highly likely that it would get raised during the course of the disciplinary and dismissal procedures.
It concluded that it would create huge problems if the dismissal procedure had to be complied with for the dismissal, but issues “relating to the manner or reason for the dismissal had to be the subject of a separate grievance and be resolved according to a different set of procedural rules”. There was therefore no merit in having different procedures for different elements of the same complaint.
The EAT’s decision that dismissals are covered by the statutory disciplinary and dismissal procedure, and not the statutory grievance procedure is to be welcomed. To rule otherwise would lead to unnecessary duplication and delay.
However, if an employee considers that their dismissal is discriminatory it is sensible to make that known to the employer during the dismissal procedure. This not only allows the issue to be considered (and possibly resolved) but it also lays the necessary groundwork for an extension if the disciplinary process goes on beyond the three-month limitation process. By putting all their cards on the table at this stage, employees are able to show that the substance of their complaint is being considered at that time, thereby qualifying for the extension under regulation 15(2).