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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mackay v. Hanna (t/a Blakes Newsagents) [2007] UKEAT 0181_07_1105 (11 May 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0181_07_1105.html Cite as: [2007] UKEAT 181_7_1105, [2007] UKEAT 0181_07_1105

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APPEARANCES

 

For the Appellant	MR TONY GREENSTEIN Instructed by: Brighton & Hove TUC Unemployed Workers Centre 4 Crestway Parade The Crestway Brighton BN1 7BL
For the Respondent	No appearance or representation by or on behalf of the Appellant


 


SUMMARY

Jurisdictional Points: 2002 Act and pre-action requirements

Age Discrimination

Appeal allowed in part. Claim for unfair dismissal on grounds of age discrimination does not require prior submission of grievance under S32(2) Employment Act 2002.


 


HIS HONOUR JUDGE SEROTA QC

1. This is a full hearing of an appeal from the decision of the Employment Tribunal at Southampton which rejected claims for age discrimination, claims under the part-time working regulations and for unpaid holiday pay as premature because they were presented before 28 days had elapsed from the presentation of a grievance. In addition, there was a claim for unfair dismissal which did not require a grievance to be issued and that was allowed to continue.
2. There is an issue upon which I do not propose to give judgment now as to whether the defect of prematurity could be cured by an amendment. As I have said, I shall give judgment at a later stage but it is clear, looking at the complaint in this case that so far as the complaint of age discrimination is concerned, it was not a freestanding complaint of age discrimination but it was a complaint that the dismissal was unfair because it was tainted by age discrimination.
3. In those circumstances, the question that has been raised by Mr Greenstein, who has appeared on behalf of the Claimant, having regard to the decision of the Employment Tribunal in Lawrence v Prison Service [2007] UKEAT/0630/06/CEA is, was a grievance required at all? The Lawrence case is an authority to the proposition that where a complaint is made of discrimination, which is not a freestanding complaint but relates to the manner of dismissal such as that a dismissal was unfair because it was on the grounds of race or a dismissal was unfair on the grounds of sex, it is unnecessary for a grievance to be raised. In those circumstances, that case completely covers the circumstances of the present case and so far as the complaint of age discrimination is concerned, there was no need to issue a grievance because there is no freestanding complaint as such in respect of age discrimination. The age discrimination relates to the dismissal and to the dismissal only.
4. In fairness to the Chairman, he did not have the benefit of the decision in Lawrence before him. The regulations with which we are concerned are notoriously difficult and have given rise to a great deal of litigation. I am quite satisfied in my own mind that if the Chairman had the authority of Lawrence before him, he would not have ruled as he did in relation to the age discrimination claim.
5. It was submitted on behalf of Mr Greenstein that the claim for holiday pay falls to be disposed of in the same way because this was somehow or other part and parcel of the dismissal claim. Unfortunately, I am not able to agree with that submission. It seems to me that the claim for holiday pay, albeit one that would normally only arise on dismissal because that is usually when claims for arrears of holiday pay can be said to crystallise, is a claim which is specifically required to be subject of the grievance procedure. The fact that someone claims to have been dismissed and has not been paid their holiday pay does not remove the need for there to be a separate grievance in respect of the holiday pay. The whole purpose of the grievance procedure is to enable an employer to consider a complaint that is made to him and to rectify it if it is something in his power to rectify. Therefore, the distinction is drawn between claims other than dismissal and unfair dismissal. It is only in relation to unfair dismissal that it is considered to be unnecessary or perhaps inappropriate for grievances to be raised. I am satisfied that it cannot be said that the failure to pay holiday pay is, in effect, part of the claim for unfair dismissal, and that claim, therefore, requires a grievance to have been raised.
6. I will not adjudicate now on the more difficult point raised by Mr Greenstein and that is whether his premature claims, as I have described them, in fact, there is now only one premature claim, can be cured by an amendment or whether he is required to issue fresh proceedings.
7. I note that, in fact, his clients are in no way prejudiced because, very prudently, Mr Greenstein issued fresh applications when the Employment Tribunal declined to allow his amendment.