CHECKLIST FOR PRESENTING EMPLOYMENT TRIBUNAL CLAIMS

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1 CHECKLIST FOR PRESENTING EMPLOYMENT TRIBUNAL CLAIMS An abridged version of this article appeared in ELA Briefing volume 11 number 9 November 2004 As every employment lawyer will know, from 1 October 2004 the new rules relating to compulsory disciplinary, dismissal and grievance procedures came into force by virtue of the Employment Act 2002 (Statutory Dispute Resolution) Regulations 2004 (Regulations), implementing Part 3 of the Employment Act 2002 (Act). If any employment lawyer is not aware of the new procedures this begs the question where have you been for the last year! This article concentrates on time limits for presenting tribunal claims and how those time limits have been affected by the new procedures. Claims affected by the new procedures In most cases employees must raise a written grievance with their employer before a tribunal will accept a claim (rule 3(2)(c) of the Employment Tribunal Rules of Procedure 2004). Indeed the new ET1 Claim Form specifically provides a tick box that must be completed by claimants on presenting a tribunal claim confirming that s/he has raised a written grievance with the respondent and waited 28 days before presenting the ET1. As the use of ET1s will not become mandatory until 6 April 2005, claimants will have to actually provide a tribunal with this required information (rule 1(4) of the Employment Tribunal Rules of Procedure 2004) as an addition to the old IT1 Forms or by another medium. Regulation 2 defines a grievance as a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him. This definition will also cover the actions of a third party (eg a colleague) in cases where the employer could be vicariously liable for those actions. Regulation 6 states that the grievance procedures (ie standard and modified ) apply to any grievance concerning an employer s action that could form the basis of a tribunal claim under one of the jurisdictions set out in schedule 4 to the Act, which by virtue of section 32 bar tribunals claims. These are listed in Table 1. Table 1 Equal pay under section 2 of the Equal Pay Act 1970 ie like work, work rated as equivalent and work of equal value. Discrimination under section 63 of the Sex Discrimination Act 1975 ie direct/indirect discrimination against wo/men (sections 1 and 2), discrimination by reason of gender reassignment (section 2A), discrimination on marital grounds (section 3) and victimisation (section 4). Discrimination under section 54 of the Race Relations Act 1976 ie direct/indirect discrimination (section 1), victimisation (section 2) and harassment (section 3A).

2 Detriment on grounds relating to union membership and activities under section 146 of the Trade Union and Labour Relations (Consolidation) Act Detriment on grounds relating to union recognition rights under paragraph 156, schedule A1 of the Trade Union and Labour Relations (Consolidation) Act Discrimination under section 8 and section 17A of the Disability Discrimination Act 1995 ie direct discrimination (section 4(1)), failure to make reasonable adjustments (section 4A), harassment (section 4(3)). Complaints under section 23 of Part II of the Employment Rights Act 1996 ie unauthorised deductions from wages (section 13) and unauthorised payments to the employer (section 15). Complaints of detriment under section 48 of Part V of the Employment Rights Act 1996 ie detriment in relation to health and safety (section 44), detriment in relation to Sunday working for shop and betting workers, (section 45), detriment in relation to working time (section 45A), detriment in relation to trustees of occupational pension schemes (section 46), detriment in relation to employee representatives (section 47), detriment in relation to time off work for study or training (section 47A), detriment for making a protected disclosure (section 47B),detriment in relation to leave for family and domestic reasons (section 47C) and detriment in relation to a claim for tax credits (section 47D). Unfair dismissal under section 111 of Part X of the Employment Rights Act 1996 ie leave for family reasons (section 99), health and safety (section 100), working time (section 101A), employee representatives (section 103), protected disclosure (section 103A), asserting a statutory right (section 104), national minimum wage (section 104A), tax credits (section 104B), redundancy (section 105). Redundancy payments under section 163 of the Employment Rights Act Detriment under section 24 of the National Minimum Wage Act Complaints under section 30 of the Working Time Regulations 1998 ie daily rest (regulation 10), compensation related to entitlement to leave (regulation 14), payment in respect of periods of leave (regulation 16) and compensatory rest (regulation 24). Detriment relating to European Works Councils under regulation 32 of the Transnational Information and Consultation of Employees Regulations Discrimination under regulation 28 of the Employment Equality (Sexual Orientation) Regulations 2003 ie direct/indirect discrimination (regulation 3), victimisation (regulation 4) and harassment (regulation 5). Discrimination under regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003 ie direct/indirect discrimination (regulation 3), victimisation (regulation 4) and harassment (regulation 5). Claims that are not covered by section 32 of the Act are listed in Table 2.

3 Table 2 Breach of contract under article 7 of either the Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 or the Employment Tribunal Extension of Jurisdiction (Scotland) Order Complaints under the Trade Union and Labour Relations (Consolidation) Act 1992 ie unauthorised deduction of subscriptions (section 68), right to be exempt from or object to contributing to a political fund (section 86); right not to be refused employment on grounds relating to union membership (section 137); right not to be refused the service of an Employment Agency on grounds relating to union membership (section 138); right to time off for carrying out trade union duties (section 168); right to paid time off for carrying out trade union duties (section 169); right to time off for trade union activities (section 170); right to be consulted in redundancy situations (section 188) and an entitlement to a protective award (section 190). Victimisation under section 55 of the Disability Discrimination Act Complaints under section 11 of Part I of the Employment Rights Act 1996 ie right to written particulars of employment (sections 1 and 2), right to an itemised pay statement (section 8). Complaints under section 23 of Part II of the Employment Rights Act 1996 ie limits on amount and time of deductions made by the employer of a worker in retail employment (section 18) and limit on amount of payments to an employer of a worker in retail employment (sections 20 and 21). Complaints under section 34 of Part III of the Employment Rights Act 1996 ie right to a guarantee payment (section 28). Complaints under section 57 of Part VI of the Employment Rights Act 1996 ie right to time off work for public duties (section 50), right to look for work or arrange training (section 51), right to time off for ante-natal care (section 55), right to time off for dependants (section 57A), right to time off for pension scheme trustees (section 58), right to time off for employee representatives (section 61) and right to time off for a young person for study or training (section 63A). Complaints under section 70 of Part VII of the Employment Rights Act 1996 ie suspension from work on medical or maternity grounds (section 64). Complaints under Part IX of the Employment Rights Act 1996 ie protection of terms and conditions of employment during leave (sections 80A-E), flexible working (sections 80F-L), minimum notice (section 86) and right to a written statement of reasons for dismissal (section 92). Complaints under section 3 and/or section 7 of the Human Rights Act 1998 ie declaration of incompatibility (section 4) and acts of public authorities (section 6). Complaints under section 15 of the Data Protection Act 1998 ie right of access to personal data (section 7).

4 Complaints under Part IV of the Maternity and Parental Leave etc Regulations 1999 and the Maternity and Parental Leave (Amendment) Regulations 2002 ie protection of terms and conditions of employment during leave (regulation 17), right to return after additional maternity leave or parental leave (regulation 18), protection from detriment (regulation 19) and protection from dismissal (regulation 20). Complaints under regulation 8 of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ie less favourable treatment (regulation 5) being subjected to a detriment (regulation 7(2)). Complaints under regulation 7 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 ie less favourable treatment (regulation 3) and being subjected to a detriment (regulation 6(2)). Complaints under the Paternity and Adoption Leave Regulations 2002 ie protection of terms and conditions of employment during leave (regulation 12), right to return after paternity leave (regulation 13), protection of terms and conditions of employment during adoption leave (regulations 19 and 21), right to return after adoption leave (regulation 26), protection from detriment (regulation 28) and protection from dismissal (regulation 29). Bizarrely a claim of victimisation relating to all discrimination protected acts is covered by section 32 of the Act but victimisation relating to disability discrimination is excluded. Although the claims referred to above apply in part to workers, the disciplinary, dismissal and grievance procedures only apply to employees. Time limits admissibility of claims Section 32(2) of the Act provides that an employee who is under an obligation to use a grievance procedure shall not present a complaint to an employment tribunal under any jurisdictions listed in schedule 4 (above) arising from the subject matter, which the grievance relates unless s/he has complied with Step 1 of either the standard or modified grievance procedure. Moreover, even if the employee has done this no claim can be presented until 28 days after the date on which Step 1 was done (section 32(3)). A number of problems have been identified with this minimum 28-day period, during which an employee cannot present a tribunal claim: it continues to apply even after the employer has rejected the claim, or if the employer has failed to respond at all, so that an employee might be left in limbo waiting for the 28 days to expire; for the purpose of calculating the 28-day period, it is unclear whether time starts from the date the employee posts his grievance letter, or the date the employer receives it. This is a crucial distinction, because it could result in an ET1 being presented too early or too late; An employee will be further barred from bringing a claim even though s/he has sent a Step 1 letter, where Step 1 was progressed more than one month after the end of the statutory time limit for presenting the complaint (section 32(4)). However, an employee will not be prevented from presenting a claim to a tribunal about any breach of his/her employment rights arising from an action where the statutory dismissal and disciplinary procedure applies eg where the employee is dismissed, unless the treatment overlaps. For example where:

5 the employee takes disciplinary action against the employee and the employee raises a grievance about that disciplinary action or about something else, or resigns and complains of constructive dismissal; the employer has multiple disciplinary issues to address with the employee; the employee has multiple grievances to raise with the employer. Compliance with the statutory grievance procedures The statutory grievance procedures do not apply where an employee makes a protected disclosure within the meaning of the Public Interest Disclosure Act 1998, unless the employee actually intended the making of the disclosure to constitute the raising of a grievance. Therefore, the employee effectively has the right to choose whether to raise a concern as a grievance or as a protected disclosure. Nor do they apply where: the employee has ceased to be employed by the employer, neither procedure has been commenced and since the employee ceased to be employed it has ceased to be reasonably practicable for him to comply with the; or the employer has dismissed or is contemplating dismissing the employee (regulations 6(4) and (5)); The statutory grievance procedures will be deemed to have been complied with where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action ie conduct or capability related against the employee and the employee believes that: the relevant disciplinary action amounted to or, if it took place, would amount to unlawful discrimination; or the grounds on which the employer took the action or is contemplating taking it were or are unrelated to the grounds on which he asserted that he took the action or is asserting that he is contemplating taking it, eg the employee might feel the disciplinary action is being taken because a personality clash with the line manager, rather than his or her ability to do the job (regulation 7). The statutory grievance procedures will not apply where: at the time the employee raises his grievance there is a procedure in operation, under a collective agreement made between two or more employers or an employers association and one or more independent trade unions, that provides for employees of the employer to raise grievances about the behaviour of the employer and have them considered; and the employee is entitled to raise his grievance under that procedure and does so, the parties shall be treated as having complied with the applicable statutory procedure (regulation 10). An employee will not be prevented from presenting a claim even though the statutory procedures have not been followed if: s/he has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to him/herself, his/her property, any other person or the property of any other person; s/he has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his/her being subjected to further harassment; or

6 it is not practicable for the employee or employer to commence the procedure or comply with the subsequent requirement within a reasonable period (regulation 11). The new procedures are supposed to encourage parties to resolve disputes internally rather than resorting to tribunals. However, it remains to be seen how effective the new procedures will be in practice. It will be interesting to see whether the new procedures in fact reduce the number of claims presented or whether the tribunal system is clogged up with pre-hearing reviews on whether procedures apply or whether they have been complied with and whether time limits have therefore been met. Extension of time limits The Regulations provide for an extension of the time limit for presenting a claim under the jurisdiction listed in schedule 4 of the Act. Employment lawyers will be all too familiar with strict time limits for presenting tribunal claims and the tests for extending those time limits of reasonably practicable and just and equitable depending on the complaint. As an employee must use the statutory grievance procedure before presenting a claim this will effectively delays matters: by a minimum of 28 days, but possibly longer if both parties are trying to resolve their disputes by using the full grievance procedure (and appeal stage). Consequently, when the statutory procedures apply, the time limit for most claims will be extended by three months (six months for claims of equal pay and for a redundancy payment). If the disciplinary and dismissal procedures apply, the time limit will be extended: where the employee reasonably believes, when the normal time limit expired, that the employer was following a disciplinary and dismissal procedure which is the subject of the tribunal complaint. For example, the employer is still investigating, or has not notified the employee of the result of any appeal hearing, within the normal three month time limit for an unfair dismissal claim (regulations 15(1) and (2)). If the statutory grievance procedure applies, the time limit will be extended if either: the employee presents a claim to the tribunal within the normal time limit but this is rejected by the tribunal on the grounds of non-compliance with the statutory grievance procedure as s/he has not provided the employer with a step 1 letter or waited 28 days (regulation 15(3)(a)). In this situation there will still be an opportunity to present a valid tribunal claim within the extended time limit. If not, the employee will be barred from doing so (subject to the normal discretion of the tribunal to extend a time limit where it was not reasonably practicable to present the claim in time or it is just and equitable to extend time); or the employee has sent a step 1 letter to the employer within the normal time limit. It will not be necessary for either party to have contacted the tribunal in any way for this automatic extension to be triggered. This permits time for the internal procedures to operate and over and above the minimum 28-days during which the employee cannot present a tribunal claim, for the employee to prepare and present a tribunal claim (regulation 15(3)(b)). but if the step 1 letter was sent more than one month after expiry of the primary limitation period, then an employee shall not present a complaint to an employment tribunal (section 32(4)). This section actually uses the term original time limit but it is assumed that this is intended to bear the same meaning as normal time limit. In practice, most employees will be advised to present their claim before following step 1 of the grievance procedure to trigger the automatic extension of time. This will provide added relief to those employees that are ignorant of their obligation to provide the employer with a step 1 letter before presenting a claim.

7 However, the employee who has sat on his hand for almost three months and simply presents a claim within days of the time limit expiring will also trigger an automatic extension of time, which will fill most employers with dread. Flow Chart Do the statutory grievance procedures apply? NO Present claim to the tribunal within normal time limits YES Has step 1 of the standard or modified procedure been used? YES NO If claim is presented to the tribunal it will be rejected but the automatic extension of the time limit will be activated Wait 28 days (a claim cannot be presented during this period) YES Present claim to tribunal OR Wait up to 3 months (beginning with the day after the day on which the normal time limit would have expired) Has the grievance procedure been completed? NO BUT if claim is presented out of time Compensation will be reduced or increased by between 10-50% Pre-hearing review listed to establish whether should be allowed out of time: Compensation just and equitable reasonably practicable Claim accepted or rejected by tribunal

8 Section 31 of the Act provides that, where an employment tribunal complaint falls within the jurisdiction listed in Schedule 3 to the Act, then any compensation award is to be adjusted if the statutory procedures apply but have not been followed. If an employer or an employee fails to comply with the new statutory disciplinary procedure, then the tribunal must increase any award which it makes to the employee by 10% and may, if it considers it just and equitable, increase it by a further amount up to 50% (section 31(2)). However, where there are exceptional circumstances a tribunal is not obliged to make any increase to the award. There is no definition in the Act of exceptional and this will be left to the discretion of the tribunal. The percentage increase occurs before any reduction to the compensatory award for contributory fault (but not before any similar reduction to the basic award) and before the imposition of the statutory cap on the compensatory award (new section 124A of the Employment Rights Act 1996, inserted by section 39 of the Act). Therefore, it remains the case that a tribunal cannot exceed the statutory maximum for a compensatory award, currently 55,000. In addition, a flat sum of 4 weeks pay is payable to an employee if the dismissal is automatically unfair because of failure to comply with the statutory disciplinary procedure. This sum is deducted from any compensatory award (new sections 112(5) and 123(8) of the Employment Rights Act 1996, inserted by section 34 of the Act), and so is unlikely to make any difference in practice unless the compensatory award already exceeds the maximum. Marc Jones, Partner, Turbervilles For further information, please contact: Marc Jones Partner, Employment Department TURBERVILLES direct dial direct fax marc.jones@turbervilles.co.uk The material contained in this fact sheet is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken. Back to the top