Qualifying Public Interest Disclosures

The Employment Rights Act 1996 protects employees against detrimental treatment for whistle-blowing. In the case of Babula v Waltham Forest the Court of Appeal (CA) took a wide view of what kind of disclosures related to a criminal offence and failing to comply with a legal duty. An American employee disclosed to the CIA and FBI that another teacher's remarks had incited racial hatred and the college head had done nothing about it.

The CA decided whistle-blowers did not have to show an actual crime or failure to meet a legal duty. All that was required was a "reasonable belief" that this had happened and that the disclosure was made in good faith.

Fiduciary Duty

Shepherd Investments Ltd v Walker and Helmet Integrated Systems Ltd v Tunnard concerned the issue of when a 'fiduciary duty' is breached. The question was whether or not someone setting up a competing business whilst still employed breached the trust an employer should expect from its employees. Setting up in business once employment has ended is generally not a breach unless restrictions are placed in the contractual terms. However, in the case of Shepherd the directors and  employees were promoting their new business whilst still employed. It was ruled that they were in breach of their fiduciary duty by doing this.

In Helmet the issue was whether or not the preparatory activities for setting up in business is enough to breach a  fiduciary duty. It was held that there was no breach in this instance even though Tunnard was expressly bound to inform  the employer of any "competitor activity" as this apparently did not include his own.

Discrimination-Related Grievances 

If a complaint of discrimination relates to a dismissal, it should be dealt with during the dismissal procedure, and the  employee does not have to raise a grievance before lodging a discrimination claim with a tribunal. In Lawrence v HM Prison Service, the claimant complained of unfair dismissal and disability discrimination in the way the dismissal  proceedings had been conducted. The tribunal refused to hear the claim because he had not raised a grievance. The Employment Appeal Tribunal (EAT) held that the discrimination was connected with the dismissal, so no grievance was required.

Expired Disciplinary Warnings

Once a warning has expired, it cannot be used in subsequent disciplinary hearings. In Airbus Ltd v Webb the latter and his colleagues were having a break when they should have been working and were disciplined. Webb's colleagues had clean records and were given final warnings. But Webb, whose warning for a similar act had expired three weeks earlier, was dismissed. The EAT decided Airbus should not have taken his previous conduct into account. Once the warning had expired the slate was wiped clean. The EAT recognised that this could be unfair on employers but pointed out that the employer had  flexibility in drafting the disciplinary rules. It is possible to have a longer period of warning, especially when it is a substitute for dismissal.

Modified Statutory Grievance Procedure

Under the modified procedure there is no requirement for a step-one meeting as there is under the standard procedure. The legislation concerning the modified statutory grievance procedure states that an employee must put both their complaint and the grounds on which it is based in writing to the employer for the procedure to start.

In City of Bradford Metropolitan District Council v Pratt, the claimant submitted a post-employment grievance concerning an equal pay claim and agreed to use the modified grievance procedure. She did, however, fail to specify the grounds on which she based her equal pay complaint because she did not name her comparators and instead submitted that information separately at a later date. The Employment Appeal Tribunal held that Pratt had not complied with the modified statutory procedure and she was subsequently barred from bringing her claim.

Step 1 Grievance

London Borough of Hounslow v Miller concerned what tribunals should do when an ET1 claim is presented without a grievance letter having been sent (or if the required 28 days has not elapsed). Miller lodged a complaint of disability discrimination and unfair dismissal and the Tribunal Chairman stayed the complaint of disability discrimination pending compliance with the grievance procedures. The employers contended that a stay was not permissible as it was inconsistent with the statutory provision and the complaint should be rejected and a fresh one lodged by the claimant once the statutory procedures had been complied with. The Employment Appeal Tribunal agreed with the employer that the complaint should be rejected by the tribunal in these circumstances and upheld the appeal on this point.