Employment Law E-Bulletin

Cases: August 2008

Handling a Grievance

The recent decision of Claridge v Daler Rowney Ltd, heard before the Employment Appeal Tribunal (EAT), clarifies exactly what an employer needs to have done when dealing with a grievance in order to show that the procedure that was followed is within the “range of reasonable responses” available to the employer when dealing with the complaint; and thus whether the employer’s response justifies the finding of constructive unfair dismissal.

Mr Claridge had been working for the paint manufacturers Daler Rowney Ltd for over 30 years, and had been promoted in the last three years. Following expansions to the business, however, Mr Claridge was reduced from supervisor to team leader, and was advised to “buck up his ideas” or risk demotion.  He claimed that this amounted to a warning that he was to be demoted and that this was a breach of disciplinary rules and his contractual rights.

When he took time off because of depression (caused by this warning), he was temporarily replaced. The employee who took his place was notified that this would only be temporary and that the terms of his contract would not be changed for this temporary deployment. It was at this point that Mr Claridge assumed that he had been demoted, or that he would be when he returned to work and the grievance process began. At first he made a general complaint that he could not be demoted without reason, but this was followed by a formal complaint about his demotion.

Various meetings were arranged, some of which were delayed for his mental health reasons and through no fault of the respective parties. However, between February and July, the delay in dealing with Mr Claridge’s grievance was caused by the way in which the grievance was handled by Daler Rowney Ltd.  When Mr Claridge was then denied the voluntary redundancy agreement he wanted, he resigned and started proceedings against the Company.  Mr Claridge’s claim was based upon three points: a) he was actually demoted; b) the employers had deliberately procrastinated; c) there were unreasonable delays in the grievance process. The tribunal dismissed the claim on all three grounds.

The Employment Tribunal based its decision upon the ruling of Abbey National plc v Fairbrother, which said that tribunals must not only look to see whether the actions of the employer were unreasonable, but also whether the actions were within the band of reasonable responses available to the employer. However, the EAT, which reviewed the Fairbrother case when reaching its decision, thought that this reasoning was a little odd because it potentially allows an unreasonable act to become reasonable. The Judge explained, “an employer cannot have reasonable and proper cause to act unreasonably”.

What the EAT in Claridge have done is change the reasoning set out in previous decisions so that, in future, a greater emphasis will be placed on establishing whether the employers behaviour, demonstrated during its dealings with the grievance, is such that a breakdown in trust and confidence between employer and employee has arisen. Therefore, the EAT held that greater focus must be placed on whether the employer’s actions were likely to have provoked a reaction along the lines of “you have behaved so badly that I should not be expected to have to stay in your employment”.

The consequences of this decision are that, when dealing with any grievance process, employers must always ensure that their conduct is not only reasonable, but should also not be capable of being placed in the category of being calculated to destroy or seriously damage the employer/employee relationship of trust and confidence. It appears that it is no longer enough simply to claim that the way in which the complaint was dealt with or the procedure which was followed by the employer was commonplace in the world of reasonable employers – the courts will now look to the true effect of the conduct in question.

Reasonable Adjustments

If an employer does not make ‘reasonable adjustment’ in order to overcome the disadvantages faced by disabled employees in his or her employment, an employer runs the risk of being found liable under Section 3A of the Disability Discrimination Act 1995. However, the case of Chief Constable of Lincolnshire Police v Weaver confirms that the “operational objectives” of the employer are just as valid a consideration as the expectations of the disabled employee when considering whether a requested adjustment is reasonable.

Mr Weaver had been a police officer since 1976 and in 2000 was placed on restrictive duties – tasks that did not require physical exertion – due to ill health. The ill health suffered was later diagnosed as hereditary motor and sensory neuropathy. In 2006, he reached 30 years service with the Force and was, therefore, entitled to retire at the age of 49 with a pension of 50% his then current earnings and a significant tax-free lump sum. However, he was also eligible to apply to the Home Office’s “Thirty + Retention Scheme”, which allowed an officer to retire, receive his pension but also be re-employed, whereby Lincolnshire Police would pay an additional sum to his pension to make up for his usual rate of income.

After receiving initially positive feedback when he raised the possibility of an application, Mr Weaver formally applied for the scheme but when he did so, was told that in deciding whether to retain him, his employers must decide whether it was “beneficial to the Force to retain [his] particular skills, experience and knowledge”. When this was considered by the decision makers, along with considerations relating to the financial position of Lincolnshire Police and the fact that able-bodied potential employees were being denied positions in the Police Force because Mr Weaver remained in employment, his application to the scheme was unsuccessful. However, he continued his employment under his normal terms and conditions.

Mr Weaver brought a claim on the grounds that, amongst other things, reasonable adjustments had not been made i.e. being placed on the scheme.

In answer to this claim, the EAT has now held that when considering whether reasonable adjustments can be made, the employer should be able to take matters into account beyond merely considerations as to the impact upon or feelings of the employee.  The EAT found that these wider considerations could include the objectives of the police force as a whole.  Furthermore, when examining whether there was any discrimination generally, one must not search for evidence indicating that “disabled persons” were at an advantage compared to able-bodied employees but, rather, for evidence that this individual was at a disadvantage. The EAT held that, when judged against these criteria, the adjustment was not reasonable in the circumstances of Mr Weaver’s case, particularly when other potential employees were being denied posts.

The advice to employers is therefore this – when dealing with matters as to disability and employees, an employer must make adjustments when it is reasonable to do so.  However, when coming to a decision about what is reasonable, an employer can consider a whole range of issues including the more general circumstances, be it those relating to the employee or those relating to the business.

Victimless Discriminisation

The case of Centrum voor Gelijkheid van Kansen en voor Racismebestrijiding v Firma Feryn is one which we have covered previously but the ECJ has now given its ruling and the decision will prove to have important implications on the domestic law concerning direct discrimination.

Feryn, the company in question, sold and installed doors which required the company’s employees to enter the house of the customer and fit the product. Following advertisements being placed for new recruits (none of which suggested any discriminatory recruitment policy), a director for the company remarked that, in the interest of complying with his “customer’s requirements”, the company was not prepared to recruit people of Moroccan origin. To do so would, in his opinion, have a detrimental effect on his business, as people would turn away any Moroccan person who came to fit a door. This, the director noted, was not his problem, but that of the Belgian people.

As no Moroccan had applied for a position with Feryn, no Moroccans had been refused a position at the company making the ‘crime’ a victimless act.  Nevertheless, an action was brought by the anti-discrimination group Centrum voor Gelijkheid van Kansen en voor Racismebestrijiding, claiming discrimination against Moroccans. In the opinion of the Advocate General (which came out earlier in the year), the remarks were more than just an indication that discrimination was a possibility, and that while the legislation of some member states did not permit claims by public interest groups, there was no reason why national governments could not choose to allow such actions.

The judgment of the ECJ, which came out on 10 July, has upheld this opinion.  The ECJ felt that statements like that made by the director would dissuade Moroccan applicants and would therefore hinder access to the labour market for persons of that nationality.  As a result, although the ‘crime’ appeared to be victimless, public interest groups should be allowed to bring claims for direct discrimination in these circumstances.  This decision re-defines the understanding of discrimination in this country as it effectively overturns the longstanding decision in Cardiff Women’s Aid v Hartup.  In that case, Hartup had complained of discrimination through advertising by the CWA Charity – the advertisement sought “black and Asian women” to fill a vacancy, which was lawful under the Race Relations Act and its provisions concerning opportunity for the underrepresented. With no application having been made for the job, it was held that only the Commissioner for Racial Equality could bring proceedings of s39 regarding the indication of an intention to act in a discriminatory fashion.  Hartup was unable to do so because the potentially discriminatory act had not been directed at her.  If the case was to be reheard now, in light of the Coleman reasoning, it is conceivable that such an application would be allowed, because, for while Hartup was not the intended victim of the discrimination (she had not applied), she was in some way connected to any possible victims. This creates a clear conflict with UK law (and legislation in a number of other member states) which requires a ‘victim’ and the ECJ has therefore advised that member states look to their legislation to determine whether a pressure group can bring an action without doing so on behalf of a particular complainant.

Although a change in English legislation may now be in the offing, the lesson which employers should draw from this decision is the level of attention which should be paid to recruitment policies and the comments that accompany a recruitment drive.  It would be surprising if the UK did not change its position following the criticism faced in this judgment so employers will need to be wary not only of the unhappy, rejected applicant but also the apparently victimless crime of the politically incorrect comment.

For further information contact Burnetts' employment law team on 01228 552222.

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