When an employee is made redundant while on maternity leave there is no need for her to engage the statutory grievance procedure before filing a sex discrimination claim.
In ADM Milling v Hodgson the EAT recently considered the fairly common scenario of a woman being dismissed as redundant while on maternity leave.
She immediately filed a claim of sex discrimination with the employment tribunal. Should she have raised this as a grievance under the statutory procedures before filing her claim?
The employment tribunal said No and the EAT has now agreed. They approve of the recent decision in Lawrence v Prison Service. The exception in Dispute Resolution Regulations reg. 6(5) applies because the grievance is 'that the employer has dismissed or is contemplating dismissing the employee'. The employee may bring her claim without any prior warning or notice to the employer
Points to note:
- If the employer had started disciplinary (as opposed to dismissal) proceedings against the employee, the situation would be different. If the employee wished to raise a grievance on the basis that the disciplinary action amounted to unlawful discrimination or otherwise about the grounds on which the action had been taken, he or she would have to send a written statement of grievance to the employer before the disciplinary appeal hearing took place so that all relevant issues could be considered together at that hearing without any procedural duplication – but the full statutory grievance procedure would not apply.
- As the statutory procedures are complex, and failure to comply with them can make an otherwise potentially fair dismissal unfair, it is worth employers taking advice to ensure that they are implementing the procedures properly.