Employment Review - April 2007
In this month’s review we report on whether the statutory grievance procedure applies if the employee claims discrimination arising from a dismissal; the protection afforded to a whistleblower from detriment by his employer; a change in the national minimum wage rates; the tale of the most difficult litigant in person ever; and the start of the process to potentially abolish the statutory dispute resolution procedures.
The statutory grievance procedure does not apply where the essence of the claim is about the dismissal
A worker will be protected from detriment where he has a reasonable belief that the information he discloses relates to a criminal offence, even if that belief turns out to be wrong
Confirmation of the National Minimum Wage (“NMW”) rates
The tale of the tricky Claimant
Abolition of the statutory dispute resolution procedures?
Recent Work
The statutory grievance procedure does not apply where the essence of the claim is about the dismissal
This case addressed the question of whether the statutory grievance procedure applies when dealing with complaints other than unfair dismissal, where the essence of the claim was about the dismissal.
This is a case which was heard on appeal by the Employment Appeal Tribunal (“EAT”) concerning a claim for unfair dismissal, both on normal grounds and on the basis that Mr Lawrence had been dismissed because he was disabled.
Mr Lawrence worked at Her Majesty’s Prison in Norwich and suffered from eczema which caused intermittent absences from work. He was dismissed because of his absences from work and the dismissal itself took the form of termination of Mr Lawrence’s fixed term contract without a renewal.
In his Claim Form, he argued that the dismissal was unfair on normal principles and/or because it contravened the Disability Discrimination Act 1995.
The Employment Tribunal decided that Mr Lawrence could not pursue his claim for disability discrimination as he had not raised a grievance. Accordingly, the issue before the EAT was whether or not it was necessary for him to raise a grievance in order to bring such a claim.
The EAT decided in favour of Mr Lawrence on the basis that Regulation 6(5) of the Employment Act (Dispute Resolution) Regulations 2004 applied, meaning that the statutory grievance procedures do not apply where the complaint is about one particular kind of action, namely dismissal or a proposed dismissal.
The case was therefore remitted back to the Employment Tribunal to hear the substance of the complaint.
From a practical perspective, this means that where an employee claims discrimination arising from a dismissal:
- There is no obligation to lodge a step 1 grievance letter; and
- The employee will not be entitled to a three-month extension of time under Regulation 15(3) of the Dispute Resolution Regulations.
Lawrence v HM Prison Service
A worker will be protected from detriment where he has a reasonable belief that the information he discloses relates to a criminal offence, even if that belief turns out to be wrong
The Public Interest Disclosure Act 1998 protects those individuals who disclose information which they reasonably believe relates to criminal activity or a failure to comply with a legal obligation from any sort of detriment by the employer. This case looks at the meaning of “reasonable belief”.
A “whistleblower” is protected from any sort of detriment where, in his reasonable belief, the disclosure shows one or more of the following:
- That a criminal offence has been committed, is being committed or is likely to be committed; and/or
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
In this case, the Claimant, Mr Babula, had been employed at a College to teach the remainder of a GNVQ Access to Business Course. He was told by his line manager that the students were behind with their work. When Mr Babula subsequently set a task for the students to complete, none of them did so and he questioned why this had happened. The students told Mr Babula that instead of being taught their regular curriculum, the previous teacher had taught them religious studies. In addition, the previous teacher had informed the Muslim students that he wished that a September 11th incident would occur in London and had indicated an acceptance and happiness at the events in New York on September 11th 2001.
The Claimant reasonably believed that due to the previous teacher’s actions and comments there was a great risk that he could have incited racial hatred at a different educational establishment or even committed or conspired to commit an act of terrorism.
Mr Babula therefore reported this to the previous teacher’s supervisor who took the view that no action was required. Mr Babula therefore thought he had no option but to approach the CIA and FBI, given that he was an American citizen and he also informed the College immediately in writing that he had done so. Mr Babula’s disclosure led directly to a series of actions by the College which left him with no alternative but to resign and then claim constructive dismissal.
The Court of Appeal decided that what remains relevant is the whistleblower’s reasonable belief, and not whether or not it turns out to be wrong. In their view, the word “likely” in the legislation does not imply that the whistleblower must be right, or that, objectively, the facts must disclose a likely criminal offence or an identified legal obligation.
This case overturns the frequently criticised case of Kraus v Penna which said that a criminal offence had to exist before the whistleblower was actually protected against any detriment.
From an employer’s perspective, the message is clear:
- It will no longer be sufficient to try and defend a claim solely on the basis that the employer does not believe that the information relates to a criminal offence or failure to comply with a legal obligation;
- The true question is going to be whether or not the whistleblower’s belief in that information relating to a criminal offence or failure to comply with a legal obligation was reasonable or not. Although the whistleblower’s belief is ultimately subjective, it would be sensible for employers to look at the situation from an objective viewpoint to see whether or not the whistleblower’s belief could in fact be reasonable.
Babula v Waltham Forest College
Confirmation of the National Minimum Wage (“NMW”) rates
The DTI has now formally announced the increases to the NMW which will be effective from 1 October 2007. These changes are as follows:
- The standard (adult) rate for workers aged 22 and over will increase from £5.35 to £5.52 an hour;
- The developmental rate for workers aged between 18 and 21 will increase from £4.45 to £4.60 an hour;
- The young workers’ rate for workers who are aged under 18 but above the compulsory school age, but who are not apprentices, will increase from £3.30 to £3.40 an hour.
The tale of the tricky Claimant
This case addressed whether the Employment Tribunal who originally heard the claim was right to strike it out, particularly given that the Claimant had alleged bias on the part of the Tribunal Chairman.
Mr Khan brought a case against Kirklees Metropolitan Borough Council alleging disability and race discrimination. The Tribunal decided to strike out his claim as he deliberately refused to attend the hearing dates.
The question was whether or not the Tribunal was right to strike out his claim, particularly in light of the fact that he made numerous, inappropriate allegations against the Respondents and the Tribunal, including those of racism in terms of the Tribunal panel showing “repeated and racial Islamophobic allegiance with the Respondents”.
In addition, Mr Khan tried to force the Tribunal Chairman to stand down by obtaining information under the Freedom of Information Act in respect of the Chairman’s position as a School Governor, with a view to embarrassing him.
Ultimately, the EAT decided that the Employment Tribunal was correct to strike out Mr Khan’s claim. The EAT also determined that there was a no apparent bias on behalf of either the Chairman or the Tribunal and that they were correct to continue with the proceedings, despite the allegations made.
This summary of the case only provides a flavour of the lengths to which Mr Khan went in order to try and argue his claim and therefore, the full Judgment makes for captivating reading.
This case may provide a light at the end of the tunnel for those of you who deal with extremely difficult litigants in person, as the EAT also found that the Employment Tribunal was right to make an order for costs against the Claimant.
Khan v Kirklees Metropolitan Borough Council and Others
Abolition of the statutory dispute resolution procedures?
As you will probably be aware, the Employment Act 2002 (Dispute Resolution) Regulations 2004 introduced new minimum statutory dismissal and grievance procedures involving a three-step standard procedure, or a two-step modified procedure to be used in specified circumstances.
The Government’s main aim behind introducing the dispute resolution procedures in October 2004 was to encourage employers and employees to resolve disputes within the workplace, so that the Tribunal would only be used as a last resort. The Government gave its commitment to review the impact of the dispute resolution procedures two years after they were introduced.
To this end, Michael Gibbons, an independent reviewer, looked at the whole dispute resolution framework and his review involved business representatives, unions and others in considering the options for change.
Mr Gibbons’ review highlighted that the Dispute Resolution Regulations had “in reality had the effect of exacerbating and accelerating employment disputes, in many cases formalising disputes that could have been dealt with informally”. This, therefore, appears to be the opposite of what the Government intended. Furthermore, Mr Gibbons commented on the fact that both parties had tended to seek legal advice earlier on in the dispute leading to increased legal costs and that the procedures may not be appropriate to follow in certain circumstances, for example, the expiry of a fixed term contract or in a redundancy situation.
Mr Gibbons’ review makes 17 recommendations, which include:
- Repealing the statutory dismissal and statutory grievance procedures;
- Producing clear, simple and non-prescriptive guidelines on discipline and grievance issues, and dismissal in the workplace for both employers and employees;
- Introducing incentives for compliance with the new guidelines in terms of widening the Tribunal’s discretion to take account of conduct of the parties and the procedure followed when making costs orders and awards;
- Abolishing the fixed periods within which ACAS must conciliate; and
- Simplifying Tribunal application forms and providing free mediation services for employment disputes.
Consultation on Mr Gibbons’ report closes on 20 June 2007, so for the time being, employers must continue to comply with the statutory dismissal and grievance procedures in order to avoid a finding of automatic unfair dismissal and exposure to an uplift in the compensation awarded of anything from 10% to 50%.
The Gibbons report can be accessed via the following link: http://www.dti.gov.uk/files/file38516.pdf
In the last month we have:
- Advised an employer on how to deal with an employee’s intermittent absence for stress;
- Advised a well-known company on how to dissuade ex-employees from damaging its business links;
- Advised and carried out a consultation on a complex TUPE transfer and reorganisation;
- Provided an employment update workshop for local authority employment lawyers;
- Continued to advise employers on their obligations ahead of the workplace smoking ban on 1 July 2007;
- Advised an employer on an outsourcing affecting close to 2000 people;
- Defended 6 Tribunal proceedings following a purchase of assets from an administrator of a company.