CASE REF: 34/06 FET
CLAIMANT: Sandra Patterson
RESPONDENT: Sperrin Lakeland Health & Social Services Trust
The decision of the Tribunal is that:-
(i) The claimant has complied with the requirements set out in Article 20(1) and (2) of the Employment (Northern Ireland) Order 2003 to present a grievance in writing to the employer and to wait 28 days before presenting a claim to the Tribunal.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
The claimant was represented by Mr P Boomer, Trade Union Official, of NIPSA.
The respondent was represented by Mr Harkin, Solicitor, of Directorate of Legal Services, Central Services Agency.
"Whether the claimant is entitled to present a claim to the Fair Employment Tribunal in view of the provisions of Article 20(1) and (2) of the Employment (Northern Ireland) Order 2003 regarding the requirement to present a grievance in writing to the employer and to wait 28 days before presenting a claim to the Tribunal."
In the course of the judgment, Mr Justice Elias makes it clear that the only requirement in setting out the grievance in writing is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal. He makes clear that it must not be approached in a technical way, and it would be wrong to require the grievance to be made in any unduly legalistic or technical manner. He further stated, "the objective of the statute can fairly be met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised. If the statement cannot in context fairly be read even in a non-technical and unsophiscated way as raising the grievance which is the subject matter of the complaint, then the Tribunal cannot hear the claim. There is no overriding interests of justice which can be invoked to save it.
Although there is no maximum time limit prior to the lodging of the claim to the Tribunal in which the grievance must be raised, the act of raising a complaint months or years prior to lodging the Tribunal claim will not necessary constitute the appropriate raising of the grievance. The grievance must be extant. If it can no longer properly be said to be an outstanding grievance, perhaps because it was apparently satisfactorily dealt with or because the employee has not pursued it in circumstances where it may properly be employed that he no longer wishes to have it determined, it will be necessary for the employee to raise the complaint again in written form. That is not to say that earlier communications are to be ignored. They will sometimes be part of the context from which a later statement has been written. In certain circumstances, the content of the later statement can only fairly be understood by reference to earlier correspondence particularly where, for example, shorthand terms, perfectly understandable to the parties, may have been used".
Date and place of hearing: 25 September 2006, Belfast
Date decision recorded in register and issued to parties: