Parmar v East Leicester Medical Practice

A claim for post-termination victimisation under the Race Relations Act 1976 is justiciable under sections 2 and 4(2), rather than under section 27A. Where the claim falls within section 54 and Schedule 4 to the Employment Act 2002, the statutory grievance procedure applies. The modified procedure applies where employment has ended and the employer was unaware of the grievance before termination. The fact that the act complained of occurred after termination does not take the claim outside that wording. Non-compliance with the applicable grievance timetable is jurisdictional and may bar the claim.

The claimant was employed by the respondent between 1 October and 12 November 2007. He later amended his proceedings to include a claim under the Race Relations Act 1976 concerning a reference supplied after termination.

At a pre-hearing review, the Employment Tribunal held that a grievance was required and that the claim was barred because the claimant presented his form ET1 less than 28 days after relying on an alleged grievance. The claimant appealed on the single issue whether the statutory grievance procedure applied to post-termination victimisation.

1. Appeal dismissed. The claim concerning the post-termination reference was brought under sections 2 and 4(2) of the Race Relations Act 1976. Section 27A was limited to post-termination direct discrimination on grounds of race or ethnic or national origins. The same limitation applied to section 54A. The Court of Appeal’s decision in Oyarce v Cheshire County Council [2008] IRLR 653 established that section 54A did not apply to victimisation. The same conclusion followed for section 27A.

2. Following Rhys-Harper v Relaxion [2003] ICR 867, post-termination victimisation remained justiciable under sections 2 and 4(2).

3. The grievance provisions applied as a matter of statutory construction. Section 54 claims were included in Schedule 4 to the Employment Act 2002. Regulation 6(1) of the Dispute Resolution Regulations 2004 applied the grievance procedures to relevant non-dismissal complaints. Regulation 6(3) applied the modified procedure where employment had ceased and the employer had been unaware of the grievance before termination. A post-termination reference fell within that wording, notwithstanding the submission that the provision sat uncomfortably with a post-termination complaint.

4. The comparison with breach-of-contract claims did not alter the result. Such claims were exceptional within the Employment Tribunal’s jurisdiction and were also available in the civil courts. In any event, the relevant order was included in Schedule 3 to the Employment Act 2002, so non-compliance affected compensation rather than jurisdiction.

5. The EAT declined to express further views on the validity of the alleged grievance. Questions concerning limitation, issue estoppel and grievance validity in the claimant’s fresh proceedings were matters for the Employment Tribunal.

• Employment Tribunal: At a pre-hearing review, held that a grievance was required and that the claim was barred because the form ET1 was presented within 28 days of the alleged grievance.
• Employment Appeal Tribunal: The appeal was permitted to proceed on the single jurisdictional question and was dismissed.