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This equipment was donated by Thompsons solicitors

This equipment was donated by Thompsons solicitors. Employment Law Update: Protecting Vulnerable Workers; Promoting Equality at Work Wednesday 4 th October 2006. Case Study 1 Grievance Procedures. Nadia Motraghi Old Square Chambers.

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This equipment was donated by Thompsons solicitors

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  1. This equipment was donated by Thompsons solicitors Employment Law Update: Protecting Vulnerable Workers; Promoting Equality at Work Wednesday 4th October 2006

  2. Case Study 1 Grievance Procedures Nadia Motraghi Old Square Chambers Institute of Employment Rights Employment Law Update 4th October 2006

  3. Identifying the claims • Constructive unfair dismissal • Sexual harassment/sex discrimination • Unlawful deductions • Breach of contract Institute of Employment Rights Employment Law Update 4th October 2006

  4. Do the GPs apply? • The GPs apply for claims of: • Constructive dismissal • Sex discrimination/ harassment • Unlawful deductions • The GPs do not apply to breach of contract claims. Institute of Employment Rights Employment Law Update 4th October 2006

  5. Jurisdiction to hear the claim? Unfair dismissal • CM’s resignation letter is the relevant grievance letter and has been presented within the normal three month time limit. • Reg 15 extends the normal time limit for presentation of the ET1 by three months which is operative here. • As the effective date of termination was 8th February and this is the date of the grievance letter, the ET1 on 5th August is presented within time. Institute of Employment Rights Employment Law Update 4th October 2006

  6. Jurisdiction to hear the claim? Sexual Harassment/ Discrimination • CM’s grievance letter of 8th February referred to allegations of sexual harassment/discrimination. • The grievance was presented within the normal three month time limit. • Again Reg 15 extends the time limit for presentation of the ET1, therefore the ET1 presented on 5th August is within time. • The Tribunal has jurisdiction to hear the claim. Institute of Employment Rights Employment Law Update 4th October 2006

  7. Jurisdiction to hear the claim? Unlawful deductions (1) • The statutory dispute resolution procedures do apply. • The unlawful deduction took place on 18th February 2006. Letter of 8th February • The letter of 8th February does not raise unlawful deductions as an issue. (The deduction post dated this grievance). This is not the relevant Step 1 letter. Institute of Employment Rights Employment Law Update 4th October 2006

  8. Jurisdiction to hear the claim? Unlawful deductions (2) Letter of 12th September • The later letter of 12th September does relate to the unlawful deductions claim. • It was sent on CM’s behalf by her solicitors which is permissible. • It was sent out of time (over 5 months after the deduction). Time is not extended under Reg 15. • The Tribunal does not have jurisdiction to hear this claim (s32 EA 2002). Institute of Employment Rights Employment Law Update 4th October 2006

  9. Breach of Contract • The GPs do not apply to breach of contract claims. • CM could plead the failure to pay her for her last day at work and deduction for the freezer damage as breach of contract claims. • The time limit in the Tribunal for breach of contract claims is three months. • CM’s claim is out of time. The breach occurred on 18th February and the claim was not presented until 5th August. Institute of Employment Rights Employment Law Update 4th October 2006

  10. Uplifts under s31 2002 Act (1) SS has invited CK to a meeting which was refused. • SS should have attempted to obtain CM’s agreement to use modified procedure (Reg 6(3) 2004 Regs). • CM can argue that her failure to go through grievance procedure was because she had reasonable grounds to believe that she would be subjected to further harassment. (Reg 11(3)(b) 2004 Regs). Institute of Employment Rights Employment Law Update 4th October 2006

  11. Uplifts under s31 2002 Act (2) • If CM’s argument is successful, then compliance with the grievance procedure will be deemed and therefore no increase or decrease to the final will be made. • If unsuccessful, then the Tribunal must reduce the award to CM by a minimum of 10% (unless there are exceptional circumstances which make it unjust or inequitable to do so) and may, if just and equitable, make a total reduction of upto 50%. Institute of Employment Rights Employment Law Update 4th October 2006

  12. Amendment for breach of contract claim • There is no real scope to argue that the ET1 be amended to include a breach of contract claim. • The breach of contract claim is out of time in any event. • CM could however bring proceedings in the county court where the limitation period is six years. Institute of Employment Rights Employment Law Update 4th October 2006

  13. Summary of position • The Tribunal has jurisdiction to hear the claims of unfair dismissal and sex discrimination/ harassment. • The Tribunal will decide whether it is just and equitable to decrease the award under s31 2002 Act. • The Tribunal cannot hear the unlawful deductions claim. • CM may bring a breach of contract claim in the county court. Institute of Employment Rights Employment Law Update 4th October 2006

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