Introduction

The case of Alitalia Airport Spa v. Akrif & Ors ([2008] UKEAT 0546_07_1703) centers on the application of the Employment Equality (Age) Regulations 2006 within the context of a collective grievance procedure. The dispute arose when twenty-one employees of Alitalia Airport Spa alleged age discrimination related to the closure of their final salary pension scheme and the subsequent introduction of a stakeholder scheme. The key issues revolved around whether the grievance procedures were duly followed and if the timing stipulated by the regulations was adhered to, thereby determining the tribunal's jurisdiction to hear the claims.

The parties involved included the twenty-one claimants employed by Alitalia Airport Spa and the company itself, which entered into negotiations with the Transport and General Workers' Union (T&G) and subsequently the GMB union following internal disputes. Union representatives, Mr. Gore and Mr. Barella, played pivotal roles in the collective grievance process that ultimately led to the tribunal claims.

Summary of the Judgment

The Employment Appeal Tribunal (EAT) examined whether the collective grievance lodged by the union representatives complied with the Employment Equality (Age) Regulations 2006, particularly focusing on Section 32 and Regulation 9. The central question was whether the grievance was lodged within the required 28-day period after following the grievance procedure.

The original tribunal had concluded that only seven of the twenty-one claimants were adequately identified within the collective grievance to meet the regulatory requirements. Consequently, the EAT held that the tribunal only had jurisdiction over these seven claims, while the remaining fourteen claims could not proceed due to non-compliance with the stipulated procedural timelines.

Additionally, the EAT addressed the timing of the cause of action, affirming that the discriminatory nature of the payments crystallized only upon their disbursement after the Age Regulations came into force, thus subjecting the claims to the regulatory framework.

Analysis

Precedents Cited

The judgment referenced several key precedents to contextualize its findings:

• H M Prison Service v Dr Barua [2007] IRLR 4: Introduced the term "rebarbative" to describe complex dispute procedures, highlighting the judiciary's critical stance toward cumbersome processes.
• Gloucester Working Men's Club v James [1986] ICR 603: Clarified that the act complained of in discrimination cases should be the final detrimental action (e.g., dismissal) rather than preliminary steps (e.g., notice of dismissal). This influenced the EAT's interpretation of when the cause of action accrues.
• Canary Wharf Management Limited v Edebi [2006] IRLR 416: Emphasized that regulatory provisions should not be interpreted in an overly technical manner, supporting a more pragmatic approach to compliance.
• Holc-Gale v Makers UK Limited [2006] IRLR 178: Reinforced that certain actions, like filling out questionnaires, do not constitute a formal grievance under the regulations.

These precedents were instrumental in shaping the EAT's approach to interpreting the relationship between collective grievance procedures and statutory timeframes.

Legal Reasoning

The EAT's legal reasoning focused on two primary aspects of the Employment Equality (Age) Regulations 2006:

1. Compliance with Grievance Procedures: Section 32 requires that an employee must follow the grievance procedure specified in paragraph 6 of Schedule 2 and observe a 28-day moratorium before presenting a complaint to the tribunal. Regulation 9 offers an alternative compliance route by allowing union representatives to present grievances on behalf of multiple employees.
2. Timing of the Cause of Action: The EAT had to determine whether the discriminatory act (payment of the stakeholder scheme) occurred after the regulations came into effect on October 1, 2006.

The tribunal initially held that the collective grievance lodged through Regulation 9 exempted the claimants from the 28-day requirement, allowing for immediate tribunal claims. However, the EAT disagreed, emphasizing that Regulation 9 only provided an alternative method to comply with the grievance procedure, not an exemption from the timing requirement.

Furthermore, the EAT analyzed whether the act of making the payments under the stakeholder scheme was a separate discriminatory action from the decisions made prior to the regulations coming into force. Drawing parallels with Gloucester Working Men's Club v James, the EAT concluded that the discriminatory nature of the payments only crystallized upon their disbursement, thus making the claims subject to the Age Regulations.

Impact

This judgment underscores the critical importance of adhering to both the procedural and temporal stipulations of employment discrimination regulations. Specifically, it clarifies that:

• Collective grievance procedures under Regulation 9 do not override the 28-day moratorium required by Section 32, thereby ensuring that employers have sufficient time to address grievances before tribunal claims are initiated.
• Identification of claimants within the collective grievance must be explicit and timely to ensure the tribunal's jurisdiction over each claim.
• The timing of the detrimental act in relation to the commencement of the relevant regulations is pivotal in determining the applicability of the regulations to the complaint.

Future cases will likely reference this judgment when addressing the interaction between collective grievance mechanisms and statutory timeframes, emphasizing meticulous compliance with procedural requirements.

Complex Concepts Simplified

Section 32 of the Employment Equality (Age) Regulations 2006

This section restricts employees from bringing a complaint to an Employment Tribunal unless they have first followed specific grievance procedures and observed a minimum period of 28 days after doing so. It ensures that employers have an opportunity to resolve disputes internally before formal legal action is taken.

Regulation 9: Collective Grievance Procedure

Regulation 9 allows a union representative to lodge a grievance on behalf of multiple employees. To comply with the regulations, the representative must identify in writing the names of at least two employees involved in the grievance. This facilitates a collective approach to addressing workplace issues but does not exempt the claimants from the required 28-day waiting period.

Cause of Action

The term "cause of action" refers to the moment when the claimant is legally entitled to sue for a breach of rights. In this case, it was determined to have occurred when the discriminatory payments were made, not when the initial agreement or decision was reached.

Collective Grievance

A collective grievance is a formal complaint raised by a group of employees, typically through their union representatives, against an employer for addressing issues that affect multiple employees, such as changes to pension schemes or discriminatory practices.

Conclusion