FAIR EMPLOYMENT TRIBUNAL

CASE REF:	36/06FET
	353/06
412/06

CLAIMANT:			Paul Graham		

RESPONDENT:		HFC Bank Ltd		

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimant’s claims of sex discrimination and religious discrimination are dismissed, as the relevant provisions of Article 19 of and Schedule 1 to the Employment (Northern Ireland) Order 2003 have not been complied with in relation to the requirement to send a grievance in writing to the respondent.

Constitution of Tribunal:

Chairman:			Mr S A Crothers (Chairman sitting alone)
	
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by E J Lavery & Co., Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Cleaver, Fulton & Rankin, Solicitors.	

1.	At the outset of the hearing Mr Potter withdrew the claimant’s claim in respect of alleged discrimination on the grounds of sexual orientation; and that claim is therefore dismissed.

2.	The issue before the Tribunal was whether the claimant is entitled to present claims of sex discrimination, religious discrimination, and constructive dismissal to the Fair Employment Tribunal in view of the provisions of Article 19(1) and (2) of the Employment (Northern Ireland) Order 2003 (“the Order”) regarding the requirement to present a grievance in writing to the employer and waiting 28 days before presenting the claim to the Tribunal.

3.	The Tribunal heard evidence from the claimant’s solicitor, Mr Edward Lavery, and was presented with a bundle of documentation.

4.	It was agreed by both parties that the Tribunal should approach the issue before it as follows:-

(i)	Was the grievance letter dated 16 November 2005 referred to in the claims before the Tribunal the relevant grievance letter or should an amendment be allowed to all claims substituting the reference to a letter of grievance dated 16 November 2005 by reference to a letter dated 26 January 2006, being the correspondence now relied on by the claimant as constituting a proper written grievance under the standard grievance procedure?

(ii)	If such an amendment were to be allowed, when was the letter dated 26 January 2006 sent to the respondent?

(iii)	On the basis that the Tribunal ultimately considers the correspondence of 26 January 2006 in the context of Article 19 of the Order does it mirror the complaints presented to the Tribunal and does it set out the basis for the grievances?

5.	Having carefully analysed the evidence before it, the Tribunal came to the following findings of fact:-

(i)	In relation to Case Reference Numbers 36/06FET and 353/06 the claims were presented to the Tribunal on 10 March 2006.  The only claim relevant to Case Reference Number 353/06 is constructive dismissal.  Case Reference Number 413/06 which includes the sex discrimination claim, was presented to the Tribunal on 5 April 2006.  The issues before the Tribunal were first raised in the Case Management Discussion dated 20 April 2007 and do not appear to have been referred to in the respondent’s responses to the claims.  The aspect of amending the date of the letter of grievance was first raised by Mr Potter, at this hearing.  Substantive hearings had been arranged from 11-15 June 2007 and 18-22 June 2007.

(ii)	The correspondence from E J Lavery & Co., Solicitors to the respondent dated 16 November 2005, and receipted on 17 November 2005 states, inter alia,

 “After review of his position they told our client that he was removed from his job and to go home at that stage.  There has been no Human Resources or disciplinary involvement to this stage.  We have advised our client that what has happened is Constructive Dismissal and that we would write to yourselves and let you know what had happened and make it clear to you that we are going to advise our client to take an Unfair Dismissal case against the company.

	We await hearing from you with your proposals and in the absence of hearing from you we will issue our application to the Industrial Tribunal”.

	Mr Lavery conceded that this was intended to be a letter of claim and it was referred to in the claims to the Tribunal as a grievance because it was the first letter on his file.  The correspondence from the respondent to E J Lavery & Co., dated 21 November refers to the correspondence of 16 November 2005.  The Human Resources Officer, Liz Speake, states,

	“… Please be advised that I am currently investigating the issues that have been raised and will respond to you in due course”.

	Further correspondence is forwarded to the claimant’s solicitors on 9 December 2005 and Ms Speake in the penultimate paragraph states,

	“… He (referring to the claimant) has been advised of the Company grievance process and a further copy is enclosed.  We would strongly suggest that Paul utilise that process should he feel aggrieved.  The Company would prefer to resolve matters directly and amicably with him but any legal proceedings will be defended.

	We look forward to hearing from either you or Paul soon”.

	Mr Lavery confirmed that he had received a copy of the grievance procedure with that letter.  Further correspondence emanated from the respondent directly to the claimant on 19 January 2006.  It contains the following paragraph -

	“I replied to your solicitor’s letter on 9 December 2005, but have not had any further contact from them.  I would therefore like to invite you to a meeting to discuss any work related issues you have.  This meeting can be held at a mutually convenient location … .  Please also confirm if you like this meeting to be classed as a formal grievance hearing or an informal discussion.  I have enclosed a further copy of the Company grievance procedure for your information”.

	The Tribunal finds that up to this point, as far as the respondent was concerned, no written grievance had been sent to it.

(iii)	The Tribunal accepts that in January 2006 Mr Lavery consulted with Counsel.  He forwarded a further letter to Ms Speake on 26 January the main body of which states as follows -

	“We confirm that our client has now instructed us to issue proceedings in relation to the constructive dismissal and put you on notice by way of a Statutory Grievance letter.  Please treat this letter as being that, he feels that he may have been unlawfully discriminated against on the basis of his sex, religious discrimination or/and his political discrimination.

	The circumstances are that our client has been effectively dismissed from his job without consultation and we need a substantial response from you for our client to consider whether this discrimination has been exercised by the Company. 

	In the absence of hearing from you we intend to use this correspondence in an FET1 application”.  The Tribunal found this correspondence to be confusing and lacking in clarity, particularly in 
relation to whether a grievance was actually being raised in relation to discrimination.

(iv)	The Tribunal finds that up to this point in time, the claimant’s solicitors had not intended to lodge and had not lodged a statutory grievance on behalf of the claimant.  The Tribunal does accept, on the balance of probabilities, that the claimant’s solicitors did send the correspondence dated 26 January 2006 to the respondent on or about that date.  Mr Lavery relied on an excerpt from the BBC website to show that there was an unofficial strike on 31 January 2006 at the Royal Mail’s Tomb Street Office in Belfast and this lasted until in or around 18 February 2006.  The claimant had personally written to Ms Speake on 31 January 2006 from Lisburn and his correspondence had been received by the respondent on 2 February.  However, the Tribunal has no reason not to accept Mr Lavery’s evidence on this point and finds accordingly.  On 21 February 2006 the respondent wrote again to the claimant’s solicitors having received their correspondence of 26 January 2006 on 20 February 2006 and confirmed that they were inviting Mr Lavery’s client to attend a grievance hearing.  A copy of the grievance policy was again enclosed and it was pointed out that a copy of the grievance procedure had been forwarded previously to the claimant on 17 November 2005.

	The Tribunal was shown the statement of grievance prepared by the claimant and forwarded to the respondent on or about 8 or 9 March 2006.  It refers to discrimination in a very general way and the last paragraph ends as follows -

	“I feel that Margaret had pre-determined the outcome of her visit long before she walked into the branch and had brought Liz Sutherland to enforce this decision.  I feel that Margaret has discriminated against me personally”.

	The Tribunal was also shown a detailed Notice for Further and Better Particulars dated 18 December 2006 which was sent from the respondent to the claimant’s solicitors.  Replies were not given until 5 April 2007 and these go into quite extensive detail regarding the allegations of religious and sex discrimination.  It was confirmed by the claimant’s Counsel that no case was being made in relation to discrimination on the grounds of political opinion although this had been referred to in the correspondence of 26 January 2006 to the respondent.

5.	The law in relation to the issues before the Tribunal is contained in Article 19 of the Order and Schedule 1 thereto in relation to a written grievance under the standard procedure.  The Tribunal also had regard to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 and its powers under Rule 17 thereof in relation to the conduct of Pre-Hearing Reviews.  The Tribunal was referred to relevant case law and in particular the cases of Shergold -v- Fieldway 

	Medical Centre [2006] IRLR 76 and Canary Wharf Management -v- EDEBI [2006] IRLR 416.

6.	The Tribunal, having considered the findings of fact in relation to the issue before it together with the relevant law and submissions made by both parties’ legal representatives concludes as follows:-

(i)	The claimant is granted leave to amend his claim to substitute the reference to correspondence of 16 November 2005 by a reference to the correspondence of 26 January 2006.

(ii)	This is a case in which the relevant procedure is the standard grievance procedure whereby the basis of any claim is not required to be set out at Stage I.

(iii)	The Tribunal has also carefully considered submissions made by both parties in light of the relevant case law together with Harvey on Industrial Relations and Employment Law at T309 et seq.  Paragraph 309.01(iv) states:-

	“As to the content of the statement, the requirement imposed by paragraph 6 is “minimal” and does not require formality or technicality (Shergold per Burton J, at para 30; Canary Wharf at para 23).  It is enough that the employee identifies the complaint.  There is no need for him to set out the basis of the claim (unlike the position in para 9 under the modified procedure).  All that is required is that the complaint to the employer is essentially the same complaint that is subsequently made to the tribunal.  The determination of this question is not, however, to be approached in a technical way.  It is not necessary for the grievance statement to specify every instance that may subsequently be raised before the tribunal.  It is not even necessary for the employee to indicate that he wants or expects the complaint to be dealt with; nor is he required to invoke a grievance procedure, statutory or contractual (Canary Wharf at para 22; Shergold at para 33)”.

	Harvey then goes on to state at (iv) that -

	“In determining whether a grievance has been made, Elias J postulated the appropriate test as being whether “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” (Canary Wharf at para 25).  As to the consequences of the employee not surmounting this hurdle, Elias J stated:-  “If the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim.  There is no overriding interest of justice which can be invoked to save it (Ibid at para 31)”.

(iv)	The Tribunal concluded that the correspondence of 26 January 2006, in light of the authorities referred to, does not constitute a proper written grievance in relation to the allegations of sex discrimination and religious discrimination but, on balance, does constitute a proper written grievance under the standard grievance procedure in relation to the allegation of constructive

dismissal.  The Tribunal agrees with Mr Justice Elias in the case of Canary Wharf Management Limited -v- EDEBI, (Supra) when he states at paragraph 41:-

“These regulations can operate in a harsh way and it gives me no pleasure to say that I find that the tribunal lacks jurisdiction to deal with the matter in this case.  But as I have said, we must bear in mind that the employers also suffer an adverse consequence if one does not read the letter fairly and assess whether in all the circumstances it can properly and reasonably be said to have raised a complaint which has subsequently been put before the employment tribunal”.

The claims of religious discrimination and sex discrimination are therefore dismissed.   	        	

Chairman:

Date and place of hearing:	2 May 2007, Belfast.

Date decision recorded in register and issued to parties: