Scottish Opera Ltd v. Winning

For the statutory grievance regime, the relevant grievance is identified by its substantial subject-matter. It may embrace both the complained-of act or omission and its consequences. A grievance about dismissal therefore falls within the dismissal exception in regulation 6(5) even where the tribunal claim is pleaded as a failure to make reasonable adjustments which caused the dismissal.

The exception does not extend to a separate claim for loss caused by failures to make adjustments independently of the dismissal. Amendments may clarify an already understood case where the added detail causes no prejudice, but discrimination pleadings should state the adjustments, relevant periods and statutory provisions with precision.

The respondent, a technician/driver, lost his HGV licence after a seizure and was dismissed following an incapacity process. His unrepresented ET1 pleaded unfair dismissal only, although it referred to possible alternative duties and engaging other drivers.

After obtaining representation, he sought to amend the claim to allege disability discrimination under the Disability Discrimination Act 1995, based on failure to make reasonable adjustments. The employer objected that no grievance had been lodged and that section 32(2) of the Employment Act 2002 barred the claim. The Employment Tribunal allowed the amendment. The issue on appeal was whether regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 applied where the pleaded failure to adjust was said to have caused the dismissal.

The appeal was dismissed. Permission was granted to amend the ET1 in the terms of the definitive draft.

1. Statutory framework. Section 4A(1) of the Disability Discrimination Act 1995 imposes the reasonable-adjustment duty where a provision, criterion or practice, or physical feature, places a disabled person at a substantial disadvantage. Section 3A(2) makes failure to comply with that duty discrimination, and section 4(2)(b) makes dismissal or other detriment in employment unlawful.
2. Meaning of grievance. Under section 32(2) of the Employment Act 2002, the grievance and tribunal complaint must correlate in substantial subject-matter. A grievance is a compendious concept. It need not be analysed into cause of action and loss and may include the consequences of the complained-of omission.
3. Dismissal exception. Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 applies where the substance of the grievance is that the employee was dismissed or that dismissal was contemplated. That remains so where the claim is framed as a failure to make reasonable adjustments which led to dismissal, rather than dismissal being pleaded as the discriminatory act itself. The formal distinction is immaterial.
4. Limit of the exception. If compensation is sought for breaches of the adjustment duty independently of their contribution to dismissal, section 32 applies and the grievance requirement is not avoided.
5. Amendment. The additional reference to alternative duties, the dismissal process and the causal connection between the adjustment failures and dismissal merely made explicit matters already apparent from the original pleading. No prejudice was shown. The Tribunal was entitled to allow the amendment, although clear and detailed discrimination pleadings should record the proposed adjustments, dates or periods, and relevant statutory provisions.

1. Employment Appeal Tribunal: The appeal from the Employment Tribunal’s decision allowing amendment was dismissed. The claimant was granted permission to amend in the definitive terms submitted.