Title: Appeal No.
Author: FFARAH
Last saved by: viky.martzoukou
Company: Employment Tribunal Service

Appeal No. UKEAT/0487/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 2005

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR G M WORTHINGTON
MR A J HARRIS

Revised

MS V SHERGOLD	APPELLANT

FIELDWAY MEDICAL CENTRE 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant

MR RICHARD HIGNETT
(of Counsel)
Instructed by:
Messrs Ashby Cohen Solicitors Ltd
18 Hanover Street
London W1S 1YN

For the Respondent

MRS LOUISE PURCELL
(A Representative)
Messrs Irwin Mitchell Solicitors
150 Holborn
London EC1N 2NS

SUMMARY

2002 Act and Pre-action Requirements 

Claimant complied with the requirements of s32 and Schedule 2 of the Employment Act 2002 by setting out grievance in writing albeit in a letter giving notice of resignation. No need for such document (i) to set out the exact nature of the case or be identical to the content of subsequent proceedings, provided that there was material similarity (ii) to invoke or mention the Act or the company’s grievance procedure.

THE HONOURABLE MR JUSTICE BURTON

1.	This has been an appeal by the Claimant, Mrs Shergold, against the order by the Employment Tribunal at London (South), whereby it dismissed her claim for constructive unfair dismissal, by a judgment sent to the parties on 4 July 2005, upon the ground that the Tribunal had no jurisdiction to hear the claim. 

2.	The ambit of the dispute between the parties on appeal relates to the new provisions of s32 of the Employment Act 2002 and Schedule 2 to that Act, and the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the 2004 Regulations”).

3.	The judgment was given by the Employment Tribunal Chairman in the absence of the Claimant. The Respondent was represented below by Counsel, and has been represented today, very ably, by Mrs Purcell, a paralegal from the Respondent’s solicitors, and she has done her best to uphold the decision of the Employment Tribunal.

4.	There was no good reason for the absence of the Claimant from the Employment Tribunal hearing on 23 June 2005. It has been accepted by Mr Richard Hignett of Counsel, who has appeared for her today, that it occurred through the incompetence of someone in the Claimant’s solicitor’s office in failing to note the date of the hearing. 

5.	By a letter sent to the Employment Tribunal on 7 July 2005, on receipt of the judgment in favour of the Respondent, those solicitors wrote a lengthy letter to the Tribunal seeking a review upon the basis that the Claimant had not attended through no personal fault of her own, and that there was an arguable case said to be made more arguable by the content of that letter. The Employment Tribunal, by a letter dated 11 July 2005, rejected on paper the request for a review on the ground that there was no reasonable prospect of the decision being varied or revoked. 

6.	The Notice of Appeal has purportedly come forward both against the original decision of the Employment Tribunal and the refusal of the review. Technically, there should have been two Notices of Appeal, but the Appeal Tribunal has allowed the matter to go through to a full hearing on the basis of one Notice of Appeal in respect of both decisions. It has become entirely clear in the course of argument that, in reality, this appeal is against the original decision. The letter of 7 July added nothing which was not already at the hearing on 23 June and, consequently, if the decision was properly made on 23 June (and is not set aside on appeal), then there is no ground to challenge the conclusion of the Tribunal on the review that there was no reasonable prospect of success even had the Claimant’s solicitor or Counsel attended on her behalf. We have therefore dealt, and dealt only, with the appeal against the original decision.

7.	The circumstances are shortly found by the Tribunal in paragraphs 4 and following of the judgment.
“4.	The Claimant was employed by the Respondent as an Audit Clerk [the Respondent being a medical practice] from July 1987 until 24 December 2004” 
which was the expiry of a period of notice given by the Claimant. That termination came about by virtue of the Claimant’s writing, to the two partners in the practice, a letter dated 31 October 2004. That letter is in the bundle before us. It consists of three pages, with an additional schedule which has been added to our bundle, although it was before the Employment Tribunal. The letter begins
“It is with regret that I write to you to end my employment. I have found it impossible to return and be under the management of Jacqui Smith”.

8.	The Claimant had been employed by the Respondent for some 17½ years and it seems that Jacqui had also been employed for quite some time, but when she had arrived on the scene, it would appear that she had changed things, not to the Claimant’s liking, and that the more free and easy regime which appears to have been in place prior to Jacqui’s arrival was altered, including the requirement that the Claimant was not entitled to be at the front desk talking to patients but was required to be effectively in the backroom dealing with her job as an audit clerk.  

9.	Be that as it may, the letter set out, at considerable length, what was plainly the Claimant’s anger and irritation at what she saw to be the treatment of her and others by Jacqui Smith, and it sets out a substantial number of generalisations as to the form which this treatment took. In the first part of the letter there is also reference to the Claimant’s daughter, Nicola, who was herself employed by the Respondent, apparently from the age of 15 years, and she had been therefore employed by the Respondent some 14 years, and Nicola was, in some way, it seems, handicapped. The Appellant says in the first page of the letter:
“I was stopped from mixing with the patients by being told several times that I was no longer a receptionist and was banned from the front desk unbeknown to myself the reason why”.
As we have indicated, that appears to have been a matter that was instituted many years earlier. She then continued:
“Just like Nicola’s recent episode, it was decided while I was absent, humiliating as you can only imagine to be told on my return by the girls”.
She then refers again to her own, and allegedly Nicola’s, continued distress at the way they were both treated and the letter concluded as follows:
“I believe I have to give 8 weeks notice but owing to the nature of my departure in making me ill, I am only able to cover this time with medical sick certificates…I have on many occasions enjoyed working with you but it is with remorse that she has indeed made it impossible for me to return. I cannot work with anyone who gets pleasure from seeing other people suffer and causing it. I shall only regret not being able to leave on my retirement, again something taken away from me. I could go on and on telling you things but you choose not to want to know so I shall leave like all the rest quietly and quickly.”

10.	The response by the Respondent to that letter of 31 October was by a letter of 8 November, which was signed by both doctors at the practice, and said
“We are very concerned over the issues raised and would like the opportunity to meet with you to discuss your concerns and would be grateful if you would contact us to arrange a convenient time, [to] any meeting that would be arranged you are entitled to bring a representative with you. Please would you respond to this letter by Monday 22 November 2004”.
In fact, it appears that she must have responded considerably earlier than that, and no doubt orally, because there was a meeting set up between the two doctors and the Claimant and, it seems, her husband and one other employee, and that meeting took place at 7pm, no doubt after hours at the practice, on 19 November 2004, and there are detailed minutes of that meeting which, at any rate for the purposes of this hearing, have not been in issue. There is reference to the following matters:
“Vanessa stated that she had been to Dr Pawa and Dr Richards on a number of occasions regarding the situation with Jacqui – referring to the letter Vanessa had written prior to this meeting. Vanessa stated she was fed-up with the situation. Vanessa stated problems with Jacqui were still occurring with other members of staff but she did not want to mention any names. ….. Vanessa stated that she could not work with someone who makes the staff’s life a misery”.

11.	Dr Pawa is reported as saying that, if Vanessa had a grievance against Jacqui, then she would have to follow the formal grievance procedure. On the other hand, Dr Pawa is further on noted as saying 
“As Vanessa had put her problems in writing, she had taken it a step further.” 
Vanessa is recorded as stating that nothing is ever done despite 
“being told again and again about what Jacqui is like” 
and then the concluding note is
“Vanessa then stated the meeting was a complete waste of time and that she had handed in her notice already. She stated that she would not be coming back to work as she would be off sick during her notice period”.

12.	The Respondent wrote a letter dated 7 December 2004 to the Claimant saying:
“Dear Vanessa
Further to your meeting with the doctors and Rachel on Friday 19 November 2004, we write to confirm that we accept your resignation as per your letter dated 31 October 2004. Your last paid day of employment will be 24 December 2004”.
It was thus that her employment ceased on that date. 

13.	She put in an Originating Application to the Employment Tribunal, which was received on 23 March 2005, consequently just within the three month period from the date of termination of her employment. That ET1 contained inter alia the following passages.
“4.	….Over the following years, Jacqui continued to undermine me and everyone around her relentlessly …
6.	Jacqui made it impossible for me and my colleagues to talk to each other about the situation as she informed us all on different occasions that if any of us discussed her behaviour towards us, it would be a disciplinary  matter … 
7.	Over the years, I had become increasingly distraught about Jacqui’s impact on our working environment.  On too many occasions to count, I have spoken to Dr Pawa and to Dr Richards about her and the fact that she was making everyone so unhappy.
8.	The last time I complained about Jacqui was around the middle of September 2004 …
9.	I often contemplated leaving my job, but I had been at the surgery for so long, and had such a good relationship with the other members of staff and the patients, that I did not want to allow her to drive me away. However, there were two incidents that led me to such a desperate point that I knew that I had no option but to leave as it was making me physically ill. 
10.	The first incident occurred towards the end of September 2004 [and then she describes the situation in which she had come out to sit and talk to the receptionists and it is suggested that Jacqui walked in and asked her in an aggressive tone of voice what she was doing there]. This was such a humiliating question bearing in mind I had run the reception for seven years before she joined the Respondent, that I was stunned”.
She said this:
“Although this was a minor incident in itself, it symbolised her whole attitude in trying to make me feel stupid whenever the opportunity cropped up.  
And then in paragraph 11, there is a reference to the second incident which is said to have brought things to a head:
“In the beginning of October 2004, when Nicola came back from her holiday”
and then by reference to Nicola’s handicap the Claimant complains
“When Nicola went into work on 6 October after her holiday she was called straight into a meeting and informed that her office had been moved upstairs. This was only one week before her operation. I could not believe that Jacqui had done this as effectively it meant that Nicola would not be able to return to work after her operation. I was on holiday at the time so was not involved in these discussions and by the time I returned to work, Nicola was in hospital having her operation.
13.	I wrote a long letter to the two doctors on 31^st October, and although it began with me resigning, I set out my grievance in writing and repeated what I had said on so many occasions to them previously.  They called me in for a meeting ….I reminded them of all the times staff had been to them crying about bullying… I also tried to discuss the situation with Nicola’s office having been moved, but they refused to address this. They repeated again that they were hearing conflicting stories, and I realised there was absolutely no point continuing with the meeting as no action would be taken anyway. I therefore told them that I was leaving, and neither of the doctors tried to stop me”.

14.	The response by the Respondent in the ET3 at paragraph 2.6, having answered 2.5 by giving to the question “has the substance of this claim being raised by the Claimant in writing under a grievance procedure?” the answer “No”, was as follows
“The Claimant claims that the resignation letter that she sent to the Respondent on 31^st October 2004 in fact also amounted to a grievance. Rather than accept the Claimant’s resignation letter immediately, the Respondent invited the Claimant to a meeting in which the issues she raised could be discussed, in the hope that an alternative resolution could be found. During this meeting, the Respondent informed the Claimant that she could lodge a grievance in relation to the complaints she had. The Claimant at that time did not claim that her resignation letter amounted to a grievance and she failed to lodge a grievance after the meeting. The Respondent at that time also did not view this letter as a grievance but rather viewed it as a resignation letter.”

15.	The reason why the Tribunal dismissed the claim, which could not be recommenced because the limitation period had now expired, was because it concluded that there had been no compliance with s32 of the 2002 Act and Schedule 2.  S32 reads as follows:
“32    	Complaints about grievances [it might just as well have been headed ‘Grievances about complaints’]
 	(1) ….
(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies [and we interpose that Schedule 4 makes it plain that constructive unfair dismissal is just such a jurisdiction] if-  
	(a) 	it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
	(b) 	the requirement has not been complied with”.
The relevant part of Schedule 2 which is headed “Statutory Dispute Resolution Procedures” is Part II under the heading “Grievance Procedures”. In our case, we are concerned with the Standard Procedure, which applies when the employee was still at the material time in the employment of the employer which, on any basis, this Claimant was at the time she wrote the letter and indeed until 24 December 2004.  

16.	The relevant provision under the Standard Procedure, which is Chapter 1 of Part II, is paragraph 6 which is under the heading “Statement of Grievance” and it is described as step 1. Paragraph 6 is very concise. It simply says 
“The employee must set out the grievance in writing and send the statement or a copy of it to the employer”. 

17.	We have been told, in the course of argument, that in some cases there is jargon - to adopt the word “grieve” rather than “making a grievance”.  Thus “Has the employee grieved?” We would deprecate such use of what we see to be inappropriate use of language. If a verb is to be used, it plainly ought to be “make a grievance” and, of course, somebody might be aggrieved, but we hope that they are not going to be grieving. Indeed, we will hope that they will have no cause at any stage in relation to their employment to be grieving. Such is paragraph 6. It is extremely concise, as we have said. It falls to be contrasted with the provision under Chapter 2 which relates to the Modified Procedure, relating to the situation where the Claimant may no longer be an employee. Paragraph 9 provides in that regard:-
“The employee must 
(a)	set out in writing 
(i)	the grievance and
(ii)	the basis for it; and
(b)	send the statement or a copy of it to the employer”.
It is apparent that, for the purposes of the Modified Procedure, more needs to be said than simply setting out the grievance. There must also be a setting out of the “basis for it”.  

18.	There is no provision under the Modified Procedure for any requirement other than the fact that step 2 provides that the (ex-)employer must set out his response in writing and send the statement or a copy of it to the (ex-)employee. So far as the Standard Procedure is concerned, however, where the employee remains in employment, step 2 is a meeting. Paragraph 7 provides:
“(1)		The employer must invite the employee to attend a meeting to discuss the grievance, [that is the grievance which has been set out in writing under paragraph 6].
(2)	The meeting must not take place unless - 
(a)	the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6 and
(b)	the employer has had a reasonable opportunity to consider his response to that information.
(3)	The employee must take all reasonable steps to attend the meeting.
(4)	After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.”
and then step 3 relates to such an appeal.
19.	The 2004 Regulations, to which we referred earlier, provide, in material part, as follows. In paragraph 2, the interpretation paragraph, there is a definition of grievance. It means “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”. In subparagraph 2(2), the following is provided: 
“In determining whether a…written communication fulfils a requirement of Schedule 2, it is irrelevant whether the…communication deals with any other matter (including a different matter required to be dealt with in a … communication intended to fulfil a requirement of Schedule 2)”. 

20.	Reference has been made before us to some employment tribunal decisions and to one, in particular, we shall make reference later in this judgment, namely a decision of the Employment Tribunal at Nottingham by the Regional Chairman in the case of Noskiw v Royal Mail Group Plc, in a judgment sent to the parties on 7 March 2005. But, save for the purpose of general background and of recognising that this is an issue which is troubling the employment tribunals, it is not usually helpful for the Employment Appeal Tribunal to trawl through a series of employment tribunal decisions by which, of course, we are not bound. However, there are now, since this Notice of Appeal was issued by the Claimant, two decisions of this Appeal Tribunal to which we drew the parties’ attention, both of which are so recent that they would not necessarily have been known to either side. 

21.	The first is a judgment of this Appeal Tribunal, given by Judge Peter Clark on 18 October 2005, in Thorpe v Poat and Lake EAT 0503/05/SM. It is clear from paragraph 4 of that judgment that the alleged grievance in writing was “a 7-page letter chronicling a litany of complaints”. The response of the respondent in its ET3 in answer to the question “Has the substance of this claim been raised by the claimant in writing under a grievance procedure?” had been “yes”, and reference made both to the letter of 3 December 2004 and to a subsequent solicitor’s letter of 22 December 2004, which was said to have been responded to in full by the respondent’s letter dated 2 February 2005. Nevertheless, it was an issue before the employment tribunal in that case, albeit unsuccessful, because the respondent employers failed and appealed, as to whether the letter amounted to the setting out of a grievance in writing; and HHJ Clark addressed this in paragraph 24 of his judgment very shortly, where he said:
“24.		….It seems to me that any contractual grievance procedure is again not to the point. The question is whether under the statutory grievance procedure step one has been made out. In my judgment the Chairman was perfectly entitled to find that the contents of the letter of 3 December amounted to a grievance.  That is a complaint by the employees about action which the employer had taken in relation to them within the meaning of Regulation 2(1) of the 2004 Regulations.”

22.	In a further judgment of the Appeal Tribunal, Galaxy Showers Ltd v Wilson EAT 0525/05/CK, judgment was given by Langstaff J on 10 November 2005, again an employer’s appeal. In that case, a letter had been sent by the claimant, as appears from paragraph 3 of the judgment, by which the claimant had resigned, or given notice of his resignation, very similarly to this case. Langstaff J referred to it as follows:
“He resigned with effect from 31 December 2004 in circumstances in which he claimed he was entitled to do so by reason of the employer’s conduct towards him. A letter setting out his complaints, and indicating that unless they were resolved they would lead to his resignation on 31 December was sent by him to the general manager of the works on 9 December 2004”.  
Langstaff J referred to the statutory provisions, and said at paragraph 10:
“The definition of grievance does not upon the face of it contain any requirement that the complaint should go any further than being a complaint about what the employer has or has not done.  There is no particular formality required by the statutory wording.  There is no link at this stage which needs to be drawn between the making of the complaint and any intention to follow the complaint through to a grievance process or a further hearing or a meeting.  What is required at this stage is simply to identify whether there has been a complaint”.

23.	At paragraph 13 it is recorded that in that case the respondent’s witness gave evidence that it had not occurred to him to treat the letter of 9 December as a grievance, and so he had not considered setting up a grievance meeting for the purpose of discussing it. In paragraph 15, Langstaff J recorded the submissions of the respondent that
“the grievance within the Regulations is part of a process which is carefully designed to give the employer a chance to respond and the employee a chance to discuss the subject matter of any grievance or complaint so as to avoid the necessity or the time, trouble and waste of resources, both in terms of time and money of the Courts and the parties in the determination of the Tribunal claim. This purposive approach to the Regulations thus would require that the complaint should indicate that it is intended to be taken further”. 
That was the submission which had been rejected by the Employment Tribunal, and at paragraph 16 Langstaff J records that the Appeal Tribunal concludes that the Tribunal was entirely right to take the view it did:
“We consider that the only issue which arises for determination in a case such as this is whether or not there has been something in writing which complies with the definition contained in the 2004 Regulations. As we have already noted, that requires a complaint.  It does not in its terms require anything more than that, however desirable it might be for any letter or statement to indicate that that the complaint may go further.  What is looked at is a matter of substance.  The issue whether there was such a complaint in the present case was plainly resolved by this Tribunal”.  

24.	Finally, in paragraph 17, the respondent’s argument is addressed by Langstaff J which seeks to
“link the question of whether there was a sufficient grievance to comply with Step 1 of the grievance procedure under Schedule 2, with the question of whether there had been a meeting.” 

That, equally, was rejected by Langstaff J who was, apparently, told by counsel for the respondent that there had been a number of cases in which an employee had complained about circumstances which had subsequently given rise to his resigning and alleging that his resignation amounts to a constructive dismissal, and Langstaff J continued as follows:
“Apparently some Tribunals, even if he has complained before resigning, have taken the view that, such an employee is required to complain once again about the circumstances which have culminated in his constructive dismissal if he is to be able to pursue a claim before the Employment Tribunals.  The unreality of such a procedure in most cases is readily apparent.  We cannot say there may not be some cases in which it is appropriate but will merely observe, in case it may assist others, that what matters is that the statute is complied with”. 
Again, Langstaff J says that the statute simply requires that complaint is made in writing. :
“The statute does not require any particular timescale in respect of the complaint. It requires that the complaint is raised in writing.  It does not require any particular formality about it.”  

25.	We agree with the statements of both Judge Clark and Langstaff J. We are entirely satisfied that, in this case, there was the setting out of a grievance in writing in s32. But the Tribunal was not; and the reasoning set out by the Tribunal is contained in paragraphs 17 to 20 of its judgment. It reads as follows:
“17.		The Claimant’s letter of 31 October 2004 was a letter of resignation; not an invocation of any grievance procedure.
18.	The grievance would have given details at the very least of the two incidents which led to the Claimant to believe she had been constructively dismissed.  The letter of 31 October did not do so.
19.	The Respondent was never given the opportunity to respond to those two allegations.
20.	The Claimant never raised the grievance and it is too late to do so now as it is not possible for an extension of time to be granted to allow such a grievance to be raised.”.

26.	Before we give our reasons for disagreeing with the Tribunal, and for allowing the appeal, we would wish to say this. It is quite plain that the purpose of this legislation was to encourage conciliation, agreement, compromise and settlement rather than the precipitate issue of proceedings. It is not unlike the system of pre-action protocols in relation to High Court and County Court litigation, although hopefully it is even more likely to succeed because of the relationship, or the immediately preceding relationship, between the parties in an employment dispute.

27.	To that extent, therefore, the need for parties to understand each other’s position before proceedings are launched (and the opportunity for resolution short of litigation) is to be welcomed, but what must be guarded against, once such legislation has been enacted, is that it can create its own hostage to fortune and, in fact, introduce an entirely and, we are satisfied, unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides. 

28.	So far as the employee is concerned, the statutory wording is, so far as paragraph 6 of Schedule 2, Part II of the Act is concerned, very simple, and we believe that it was intended to be simple. Of course an employee, before this statutory procedure is invoked, must set out something in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly, so far as the Standard Procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the ‘writing’ exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here. It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the 2002 Act and the 2004 Regulations; otherwise they might find themselves down the slippery slope leading to an automatically unfair dismissal. It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those are sanctions, which should be very rarely used; the purpose of the legislation is quite other, as we have described.

29.	Against that background, we set out our reasons for allowing this appeal. 

30.	First, the statutory requirements, we are satisfied, are minimal in terms of what is required. It is simply that the grievance must be set out in writing. There is not only the distinction, that falls to be drawn between the setting out of the grievance in writing under the Standard Procedure and the need, under the Modified Procedure, as we have described, not only to set out the grievance in writing but also to set out the basis of it. But that is made even clearer by the provisions of the Standard Procedure itself, because under the Standard Procedure, step 1 requires the grievance to be set out in writing, and step 2 is then the meeting and, as we have described by quoting the relevant paragraph 7, a meeting does not have to take place unless the employee has, prior to that meeting, informed the employer what the basis for the grievance was.  Thus, if there is any doubt about what the grievance is, that is the time it can be clarified, namely before the meeting occurs. But the original setting out of the grievance itself does not require to be so particularised.  

31.	Secondly, the fact that the written grievance in this case was contained in a letter of resignation makes, in our judgment, no difference at all, provided that it is the setting out of a grievance in writing. That can be done in a letter which also serves as the notice of resignation. One can see that different matters might arise if the resignation is to have immediate effect. There may be some argument then as to whether the Standard or Modified Procedure applies, and other arguments might arise. But in this case, it is clear as, indeed, it appears to have been in the Galaxy case, that the grievance was set out in a letter which did not give immediate notice of resignation; and there was plenty of time prior to the termination of that notice for the resolution of that grievance, if such had been possible. Not only are we satisfied that there is nothing in the terms of paragraph 6 itself which prevents the grievance being set out in writing in a document which also doubles as something else, but that is made quite clear by the definition section at paragraph 2.2 of the 2004 Regulations, to which we earlier referred. That is enough to dispose of paragraph 17 of the Tribunal’s judgment. 

32.	In so far as the words used by the Tribunal in this paragraph are “not an invocation of any grievance procedure”, that is an unnecessary gloss on the wording of the statute, which we have set out. All that must occur is that the employee must set out the grievance in writing. The words in the standard from ET1 (question 2.5) are perhaps a bit misleading. 

33.	Thirdly therefore we make clear that it is not necessary to make it plain in the writing that it is a grievance, or is an invocation of a grievance procedure. The statute might have so provided; for example, s8 of the Employment Relations Act 1999 requires that a Trade Union making a request to an employer for statutory recognition is required to refer specifically to the relevant Schedule. No such requirement is made here. 

34.	Fourthly, there is equally no requirement that an employee must comply with any company or contractual grievance procedure. It is simply a question of setting out the grievance in writing. Whether that also triggers the relevant grievance procedure will be a matter of coincidence. It certainly triggers the operation of the Standard Procedure in this case. In fact, it seems that the Respondent very fairly and properly did react to this letter by holding a meeting, although it is clear that the Respondent has said that they did not regard this as a formal grievance. We have looked at the company grievance procedure, which is at page 45 of the bundle, and that grievance procedure is extremely informal. It requires for a grievance to be raised as soon as practicable but certainly within one month; and seemingly, there is no provision for that to be done in writing. It is only if, after reasonable endeavour to resolve the problem, the matter remains unresolved that it is required to be directed to one of the partners in writing. We are, in fact, far from satisfied that this was, in fact, if it were necessary, not a compliance with the company’s own grievance procedure, and therefore it was inapt, when the company was actually holding its meeting on 19 November, to suggest that anything further was required. But none of that matters, as we have indicated, because we are entirely clear that it is not a necessary requirement of compliance with paragraph 6 of Schedule 2 Part II to the 2002 Act that any company or contractual grievance procedure must be complied with: again we refer to the possibly misleading wording of question 2.5 of the ET3. 

35.	Fifthly, we turn to the live question, in terms of the helpful arguments of Mrs Purcell, before us, which relates to paragraph 18 of the Employment Tribunal’s judgment to which we have referred, and which we repeat: 
“18.		The grievance would have given details at the very least of the two incidents which led to the Claimant to believe she had been constructively dismissed.  The letter of 31 October did not do so”.
We agree with the submission of the Respondent that the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with. It is clearly no compliance with the requirement that there must be a grievance in writing before proceedings if the grievance in writing relates, for example, to unpaid holiday pay and the proceedings, which are then sought to be issued, are based upon race discrimination or sex discrimination with no relevance to any question of holiday pay. In those circumstances, it is likely that it will be found that the proceedings were issued in breach of the statutory procedure because no grievance in writing had been set out beforehand. In this context we refer to the employment tribunal decision in Noskiw above referred to. 

36.	But that does not begin to mean that the wording of the simple grievance in writing required under paragraph 6, and the likely much fuller exposition of the case set out in proceedings, must be anywhere near identical; not least, as we have described, because, at any rate where the Standard Procedure is concerned, the basis of the grievance does not have to be set out in the first instance. What occurred here was a lengthy exposition in the letter of 31 October, setting out the nature of the Claimant’s complaints about Jacqui, and they covered three pages and they constituted a cri du cœur if such it be, that the Claimant could not continue to be employed if such conduct by Jacqui was to continue. The Originating Application was on exactly the same basis. Mrs Purcell points, as indeed did the Tribunal, to the two “last straws”, specifically referred to in the Originating Application. The Tribunal appears to have found that neither of those two incidents were included in the letter. We are entirely satisfied that, so far as concerns the reference to Nicky and her allocation of a room upstairs, that does appear in the letter. It is perhaps not surprising that the Tribunal did not appreciate that, certainly unassisted by the Respondent, because there is no express reference to the room upstairs, and the words are simply “Nicola’s recent episode…decided while I was absent”. But if one in fact looks at the Originating Application and looks at that letter, it is totally clear, even without further education, that the brief description in the letter is a short-hand reference to the relevant episode and that both the sender of the letter and the recipient would have known exactly what was being referred to. If, as Mrs Purcell suggests, we have to find that the Tribunal was perverse in finding that that incident was not referred to in the letter, we so find. 

37.	So far as the second incident was concerned, however, it is accepted by Mr Hignett for the Claimant before us today that it was not, in terms, referred to in the letter, namely the incident described in the Originating Application when, in September 2004, Jacqui had had the embarrassing words with the Claimant (said to have effectively driven her to write the letter). But we are entirely satisfied that, even were it the fact that neither incident was mentioned in the letter, the letter was a grievance in writing setting out the complaint, namely “I can’t live with Jacqui in the light of the way she treats me and others” which led on to an Originating Application, which based a claim of constructive dismissal on the same case. It may well be that such constructive dismissal claim could not have any chance of success, if it has any chance at all, as to which we say nothing, if there had not been “last straws” and therefore that legally, the “last straws” be important, but that is only a question of legal interpretation. What is necessary, as indeed Mrs Purcell herself accepts, is that the employer should understand the general nature of the complaint being made; and nothing could have been clearer, in our judgment, than was the letter of 31 October. It is, in our judgment, quite inappropriate for there to be the kind of sophisticated analysis of what is intended to be a simple provision for a grievance in writing - without even its “basis” at this stage needing to be included - such as was carried out by this Tribunal. It is bound to lead to injustice.  In our judgment provided that the general nature of the grievance in writing was substantially the same as the matter which then forms the subject matter of the claim, its different description or a difference by way of precise ingredients or particulars does not affect the statutory compliance. It will be difficult to lay down guidelines as to precisely when there will be a material or substantial difference but, rather like an elephant, it will be apparent to a Tribunal. In this case, in our judgment, it is quite clear that the grievance and the claim related to the same matters. In those circumstances, we conclude that the Tribunal erred in law in its conclusion at paragraph 18. 

38.	Sixthly and finally we turn to paragraph 19 
“The Respondent was never given the opportunity to respond to those two allegations.” 
It is quite plain that this – if it was the case – is not a material consideration. The issue concerns looking at the grievance in writing at the date it was sent. Was it a grievance in writing? Of course the importance of having the grievance in writing is so that the Respondent can be then given the opportunity to understand its nature (and we have already addressed that). But to make a finding of fact, as here, that the Respondent was never given the opportunity to respond to the two allegations which, of course, is strictly correct, at least in relation to one of them, carries with it the implication that the Respondent was not given the opportunity to respond to the grievance, and, as it happens, that is not the case. Of course one might be facing here a situation such as it appears there was in the Galaxy case, in which the Respondent did not understand that there was a grievance. Here, it is clear that the Respondents, albeit they may not have understood that this was compliance with the Act, sufficiently understood that their long-standing employee had grievances and complaints, so that they set up a meeting. We have read out extracts from the minutes of that meeting, from which it is clear that there was, albeit perhaps not specific discussion of the September incident, certainly very full addressing of the nature of the Claimant’s complaint, including her complaint relating to Nicola. 

39.	In so far, then, as it matters at all, we would not agree that the Respondent was not given an opportunity to respond, at any rate, to the sufficient generality of the employee’s case. But, as we have indicated, whether the employer is given sufficient opportunity may go, in another case, to the issue as to whether an employer should be held liable for automatically unfair dismissal. But, so far as this case is concerned, where the issue is whether the employee should be driven from the judgement seat because she has not put in a grievance in writing, we are entirely satisfied that she did put in a grievance in writing, and that the Tribunal erred in law when considering that she did not. In those circumstances, this appeal must be allowed.

© Copyright 2005

UKEAT/0487/05/ZT

UKEAT/0487/05/ZT
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