Parmar v East Leicester Medical Practice

Factual and Procedural Background

The case originated before the Leicester Employment Tribunal involving the Plaintiff, a medical doctor, and the Defendant, a medical practice. The Plaintiff was employed by the Defendant from 1 October to 12 November 2007. On 24 June 2008, the Plaintiff filed a claim alleging unfair dismissal and direct racial discrimination. Subsequently, on 16 December 2008, the Plaintiff amended the claim to abandon the unfair dismissal allegation and instead raised two claims: race discrimination and victimisation during employment, and victimisation under the Race Relations Act 1976 (RRA) concerning a reference provided post-termination by a representative of the Defendant dated 8 March 2008. The Plaintiff obtained a copy of this reference on 22 May 2008.

The focus on appeal was solely on the post-termination victimisation claim related to the reference. The Defendant contested all claims. A pre-hearing review was held on 6 October 2009 before Employment Judge Threlfell, where a key issue arose regarding whether the Plaintiff was required to raise a statutory grievance under section 32 of the Employment Act 2002 before lodging the claim concerning the reference. The Judge doubted the validity of the Plaintiff’s grievance submitted by email on 7 June 2008 and held that even if valid, the claim was barred because the claim form was lodged less than 28 days after the grievance, contrary to statutory requirements.

The Plaintiff appealed this ruling. On 29 March 2010, a preliminary hearing before HHJ McMullen QC allowed the question of whether a statutory grievance was required for a post-termination victimisation claim under the RRA to proceed to a full hearing.

Legal Issues Presented

1. Whether a statutory grievance procedure under section 32 of the Employment Act 2002 is required prior to bringing a claim of post-termination victimisation under section 54 of the Race Relations Act 1976.
2. The applicability of the statutory grievance and dispute resolution procedures to complaints of post-termination victimisation as distinct from other claims such as breach of contract.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff’s representative argued that no statutory grievance was necessary for the post-termination victimisation claim under section 54 RRA, relying initially on section 27A RRA which relates to post-termination direct discrimination, but later clarifying the distinction.
• It was contended that the wording of the relevant regulations did not comfortably apply to post-termination complaints, suggesting that Parliament did not intend for such claims to be subject to the section 32 grievance requirements.
• The Plaintiff relied on the exception of breach of contract claims, which are justiciable in Employment Tribunals without a statutory grievance, to support the argument that post-termination victimisation claims should be similarly exempt.

Respondent's Arguments

• The Defendant maintained that the statutory grievance procedure under the Employment Act 2002, as supplemented by the Dispute Resolution Regulations 2004, applies to post-termination victimisation claims under the RRA.
• The Defendant argued that the statutory scheme includes such claims within Schedule 4 of the 2002 Act, and the grievance procedures apply as a matter of statutory construction.
• It was submitted that the grievance requirement serves an important procedural purpose and that exceptions such as breach of contract claims do not undermine the application of the grievance procedure to statutory discrimination and victimisation claims.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing grievance procedures under the Employment Act 2002 and the Dispute Resolution Regulations 2004, focusing on their application to post-termination victimisation claims under section 54 RRA. The court rejected the Plaintiff’s initial reliance on section 27A RRA, clarifying that this section and the related reverse burden of proof provision do not extend to victimisation claims, consistent with the Court of Appeal’s ruling in Oyarce.

The court found that the statutory grievance procedure and the modified dispute resolution procedure apply to complaints listed in Schedule 4 of the 2002 Act, which includes claims under section 54 RRA. The court held that the reference complaint, being post-termination and unknown to the Defendant before employment ended, fell within the scope of the modified procedure as defined by the regulations.

The court considered the Plaintiff’s argument that post-termination claims should be exempt from grievance requirements by analogy with breach of contract claims, which are common law claims justiciable in Employment Tribunals without statutory grievance prerequisites. The court rejected this analogy, noting that breach of contract claims are exceptional and do not diminish the purpose or application of the statutory grievance regime for discrimination and victimisation claims.

Accordingly, the court upheld the requirement that a statutory grievance must be lodged and the requisite 28-day period observed before a claim form is submitted, thereby supporting the Employment Judge’s original ruling that the Plaintiff’s claim was barred for non-compliance.

Regarding the validity of the Plaintiff’s grievance email dated 7 June 2008, the court declined to make any further determination, deferring such issues to the Employment Tribunal in the event of a fresh claim and possible preliminary hearings on limitation, issue estoppel, and grievance validity.

Holding and Implications

The court DISMISSED the Plaintiff’s appeal against the ruling that the claim for post-termination victimisation under the Race Relations Act 1976 was barred due to failure to comply with the statutory grievance procedure and the 28-day waiting period required by section 32 of the Employment Act 2002.

The direct consequence of this decision is that the Plaintiff’s original claim related to the reference was properly struck out on procedural grounds. The court clarified the applicability of the statutory grievance procedure to post-termination victimisation claims, reinforcing procedural compliance requirements without extending or creating new substantive rights. No new precedent was established beyond confirming the current statutory framework’s operation in this context.