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July 2008 Updates

Statutory grievance procedure

The Employment Appeal Tribunal (“EAT”) has held that a grievance can constitute a statutory grievance even if it states that (in effect) it isn’t one. In this particular case, an employee wrote in with some concerns but expressly stated that what they were saying was an informal grievance only. Despite that wording, the EAT nevertheless held that their letter did in fact constitute a valid statutory grievance. This was because the letter fulfilled the criteria of a statutory grievance, namely that the grievance is set out in writing and sent to the employer. Although employers can be penalised by way of an uplift in compensation for failing to comply with the statutory grievance procedures, Employment Tribunals have the discretion not to apply any uplift if they consider that it would be unfair to do so. This is the sort of case where they might elect to take that approach.

Discrimination by association

The European Court of Justice has ruled that the Equal Treatment Framework Directive is intended to prohibit direct discrimination and harassment by association. This particular case related to a mother who was the primary carer for her disabled son. She claimed that her former employer had directly discriminated against her and harassed her on the grounds of her son’s disability. As a result of this important decision, not only will it be unlawful to directly discriminate against or harass a person on the grounds of someone else’s disability, but also on the grounds of someone else’s age, sexual orientation or religion or belief (as the Equal Treatment Directive applies to all of these categories).

Discriminatory job adverts

The European Court of Justice has also ruled that discriminatory job adverts can amount to direct discrimination. Prior to this decision, it was not possible for an individual to bring freestanding proceedings in respect of a discriminatory job advert. The Commission for Equality and Human Rights was the only entity that could do this. However, as a result of this decision, it would now appear that an individual can bring proceedings for direct discrimination against whoever was responsible for the job advert.

Statutory dismissal procedure - unreasonable delay

We reported in our June 2008 updates that the Employment Appeal Tribunal had held that, where an employer delays unreasonably in following any part of the statutory dismissal procedure, any subsequent dismissal will be automatically unfair. However, the Court of Appeal has now overturned this decision, holding that an unreasonable delay in following the statutory dismissal procedure (in this particular case, taking four months to deal with an appeal against the decision to dismiss) does not make the dismissal automatically unfair. The Court of Appeal held that a delay in following any part of the procedure does not mean that the procedure has not been completed.

Email: info@stewartlaw.co.uk


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