FAIR EMPLOYMENT TRIBUNAL

CASE REF:   34/06 FET

CLAIMANT:		Sandra Patterson

RESPONDENT:		Sperrin Lakeland Health & Social Services Trust

DECISION ON A PRE-HEARING REVIEW

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

Appearances:
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.

Reasons

1.	The issue to be determined by the Tribunal in this matter was:-

“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.”

2.	The claimant presented a claim to the Tribunal on 16 September 2005, in which she made a claim of unlawful discrimination on the grounds of her religious belief and/or political opinion.  This claim (‘the first claim’) has been given by the Tribunal the Case Reference No: 173/05 FET.  Following the presentation of the first claim, the claimant then brought a further claim (‘the second claim’) which is the subject matter of this pre-hearing review.  

3.	The second claim was sent to the Tribunal on 20 March 2006.  The second claim relates to further claims of unlawful discrimination and/or victimisation, which the claimant claimed to have occurred since the presentation of the first claim; and, in particular, related to allegations of unlawful discrimination on the grounds of religious belief and/or politic opinion and/or victimisation involving ongoing harassment by the claimant’s line manager in contacting the claimant at her home whilst on sick leave, in relation to ongoing internal disciplinary procedures, and the alleged failure of the respondent to protect the claimant from such harassment.

4.	Mr Boomer fairly acknowledged that, in order for the Tribunal to have jurisdiction to consider this second claim, the claimant had to have submitted a written grievance to her employer in relation to the matters, the subject matter of the second claim.  The issue for this Tribunal, at this hearing, was whether the claimant had sent such a written grievance and waited the 28 days before presenting the second claim to the Tribunal.  The claimant had not herself sent any relevant document to the respondent before presenting the second claim; but she relied on correspondence sent on her behalf by her trade union official, Mr Boomer.  In particular, she relied on letters sent on her behalf by Mr Boomer dated 14 November 2005, 24 November 2005 and 5 January 2006.  There was no dispute between the parties that a letter sent, on a claimant’s behalf, by a trade union official could constitute a written grievance, for the purposes of the relevant legislation (see further Mark Warner Limited  v  Aspland [2006] IRLR 87, which was a case which related to correspondence sent on a claimant’s behalf by a solicitor, acting as agent for the claimant).

5.	I referred the parties to the recent decision of the President of the Employment Appeal Tribunal, Mr Justice Elias, in the case of Canary Wharf Management Limited  v  Edebi [2006] IRLR 416.

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”.

6.	Mr Harkin, after considering the terms of the said judgment indicated that the respondent now accepted that the said correspondence constituted the written grievance, for the purposes of this second claim, and that it satisfied the requirements of Article 20(1) and (2) of the Employment (Northern Ireland) Order 2003.  He also did not dispute that, having presented the said grievance to the respondent the claimant waited the relevant 28 days before presenting her claim to the Tribunal.  Having read the said correspondence, I am also satisfied that, in compliance with the said provisions, the correspondence raised a grievance, in writing, which is the subject matter of the second claim; and further that the claimant had waited the 28 day period following the last correspondence before presenting her second claim.

7.	The claimant was therefore entitled to present her claim to the Tribunal, having satisfied the requirement set out in Article 20(1) and (2) of the Employment (Northern Ireland) Order 2003.

Chairman:

Date and place of hearing:	25 September 2006, Belfast

Date decision recorded in register and issued to parties: