Does the statutory grievance procedure apply when dealing with causes of action other than unfair dismissal, where the essence of the claim is about the dismissal? Thus, where an employee claims that his or her dismissal is discriminatory, is she obliged to lodge a step 1 grievance letter and wait 28 days?
Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the grievance procedures do not apply where the grievance is that the employer has dismissed the employee. But until now, it has been unclear whether that subregulation engages where the complaint is one of (say) discrimination, notwithstanding that it relates to the dismissal decision.
The EAT has now clearly held that the grievance procedure does not apply in those circumstances. So, where an employee claims discrimination arising from a dismissal:
- she is under no obligation to lodge a step 1 grievance letter; and,
- she is not entitled to a three month extension of time under regulation 15(3).