England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE MCMULLEN QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/11/2012

Lord Justice Pill :

1. This is an appeal against a decision of the Employment Appeal Tribunal ("EAT"), His Honour Judge McMullen QC, dated 8 December 2011, in which he allowed an appeal by Sheffield City Council ("the Council") against a decision of an Employment Tribunal sitting at Sheffield, Employment Judge Trayler, on 10 March 2011 whereby it was held that the Tribunal had jurisdiction to hear a complaint by Ms J Dolby ("the appellant") of unfair dismissal for having made a protected disclosure. The issue has been whether the appellant had, before bringing her claim, complied with the now repealed requirements of paragraph 6, Part 2, Schedule 2 of the Employment Act 2002 ("the 2002 Act").

The Statute

2. Section 29(1) of the 2002 Act provides "Schedule 2 (which sets out the statutory dispute resolution procedures) shall have effect". Chapter 1 of Schedule 2 is headed "Standard procedure" and provides:

"Step 1: Statement of Grievance

6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

Step 2: Meeting

7. (1) The employer must invite the employee to attend a meeting to discuss the grievance.

(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 and employer 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 they are not satisfied with it.

Step 3: Appeal

(1) If the employee does wish to appeal, they must inform the employer.

(2) If the employee informs the employer of their wish to appeal, the employer must invite the employee to attend a further meeting.

(3) The employee or employer must take all reasonable steps to attend the meeting.

(4) After the appeal meeting, the employer must inform the employee of their final decision.

(5) Employees have the right to be accompanied at the appeal hearing."

3. Section 32 of the 2002 Act provides, in so far as is material:

"(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies 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.

(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if -

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and

(b) less than 28 days have passed since the day on which the requirement was complied with."

The requirement in paragraph 6 applied and, if it was not complied with, the Tribunal had no jurisdiction to hear the complaint. If it was complied with, sub-section (3) did not bar the appellant.

The facts

4. The appellant had been employed by the Council from 10 December 2001 as an Education Welfare Officer. She was involved in protracted attempts to investigate the absence from school of a child ("R"). It was found necessary to make a child protection referral to Social Services in May 2006. The father of the child was threatening, abusive and aggressive towards the appellant. R's family made a complaint about the referral to Social Services. On medical advice, the appellant stayed away from work from 9 May 2007 because of work-related stress.
5. On 12 November 2007, the appellant, in a long letter, made a formal complaint, under the Council's Dignity and Respect at Work Policy, against four of her colleagues. Her complaints related to an alleged lack of support during the investigation into child R and that she was subjected to harassment. An Initial Verification Meeting was held on 5 December 2007.
6. On 3 March 2008, the appellant lodged a grievance against the outcome of her earlier complaint stating that the investigation into her grievance had been insufficient. A formal grievance meeting took place on 28 April and the outcome was adverse to the appellant. On 2 May 2008, the appellant sought to appeal against that decision and a letter followed on 8 May 2008. It gave reasons for wishing to appeal and included a series of complaints under the heading:

"Those complaints, and my grievances, include the following individual grievances, which I hereby submit and/or re-submit as appropriate."

The list included the paragraph:

"I have been subjected to detriments as a result of the protected disclosures I made regarding my disabilities and as regards Case R – where the Council actually forbade me from reporting the matter to the police and/or other proper authorities."

7. The appeal hearing was adjourned by consent. On 15 July 2008, the appellant said that she wanted to return to work on 18 July but the Council refused until the appellant had medical clearance for her return. An appeal hearing was fixed for 15 August 2008. On 30 July 2008, the appellant resigned. She claims constructive dismissal on grounds including reliance on the protected disclosures.
8. On 8 August 2008, the appellant's former solicitors wrote to the Council on her behalf. Amongst other things, it was stated:

"Our client remains wholly dissatisfied with your response to her longstanding grievances and in particular to the issues surrounding her return to work on 18 July 2008 and it is for these reasons that she tendered her resignation with effect from 30 July 2008.

Our client has instructed us to pursue a claim for compensation for constructive dismissal and discrimination on the grounds of her disability and under the Public Interest Disclosure Act but before we do so please treat this letter as a formal grievance in relation to the matters referred to therein."

In a letter of 5 September 2008, the solicitors declined to provide further details about the grievance, stating:

"With reference to your request for further information to enable you to deal with our client's grievance dated 8 August 2008 we are of the view that you already have sufficient information to address the issues raised."

There was an agreement that the grievance be dealt with under the modified grievance procedure but the case has proceeded on the basis of the standard procedure in Chapter 1 of Schedule 2 and no point is or has been taken on the reference in the correspondence to the modified grievance procedure under Chapter 2 of Schedule 2.

Tribunal findings

9. Following an abortive hearing in July 2010, the case came before Employment Judge Trayler in February 2011. The Council admitted that the appellant had made a qualifying disclosure upon which a complaint of dismissal or being subjected to detriments could be founded (Tribunal's reasons, 3.7).
10. The Tribunal found, at 3.26:

"As a matter of law therefore I find that the Claimant has raised a grievance by that appeal document [8 May 2008] in relation to all previous complaints and identifies those as being because she had made a public interest disclosure, including in relation to case R. That being the case therefore I make the determinations below that the matters complained of to that date by the Claimant are complained of as detriments for making a public interest disclosure by reference to the appeal grievance."

11. The Tribunal accepted, at 3.27:

"So far as dismissal is concerned the only potential grievance is within the solicitors' letter."

and concluded, at 4.1:

"I conclude therefore that the Claimant has raised a grievance about dismissal being for reason of a public interest disclosure. I reach that conclusion applying the guidance in Edebi [below] that the letters in context can be fairly read in a non technical and unsophisticated way as raising a grievance as to constructive dismissal and that the background to this is the Claimant's again unsophisticated and non technical complaint of detriments within her appeal letter. The Claimant in my view has on a fair reading of those documents raised sufficient information so as to raise an expectation that the Respondent should appreciate that the relevant complaint is being made. To do otherwise would in my view require me to require the grievance to be made in an unduly legalistic or technical manner and that according to Edebi is not what the statute requires."

12. The Tribunal held, at paragraph 3.33:

"It is not possible in order to understand the letter of appeal by the claimant [8 May] and the details sent by the solicitor [8 August] to interpret them in any other reasonable way in my view and the letter from the solicitors therefore does complain of a constructive unfair dismissal by reason of making a public interested disclosure . . . The combination of correspondence from the complainant and her solicitors does identify the cause as being the public interested disclosure".

13. The Tribunal added, at 4.35:

"The [Council] asks me to find that this letter [8 August] means that the Claimant is not complaining of a dismissal or these matters as being caused by public interest disclosure. I think that it is an over technical interpretation of that letter even though it is written by solicitors and that the [Council] should have been aware that the Claimant's view is that a public interest disclosure has been made because of the correspondence it had already received from her and that she complains that actions on the [Council's] part are as a result of a public interest disclosure."

14. The EAT took a different view. It was accepted that the 8 May letter was a reference to a protected and qualifying disclosure. Judge McMullen stated:

". . . the only issue is whether it constitutes a grievance under the statutory regime."

He held that it did not, stating that the appellant had already been given a step 2 meeting and that the public disclosure point was a new matter which did not fall within the remit of an appeal against the grievance actually heard (paragraph 21). The step 2 meeting was not held to consider that point. "The [protected disclosure] point was a new matter and did not fall within the remit of an appeal against the grievance which was actually heard."

15. Judge McMullen added, at paragraph 24:

"Grievance in the context of a formal solicitors' letter means the two lodged by the Claimant under the [Council's] policies and not a new point sought to be taken on appeal."

16. The "new point" in mind was that in the letter of 8 May 2008 quoted in paragraph 6. Moreover, it was held that the complaint made on 8 May could not be considered a "long-standing grievance" within the meaning of that term in the solicitors' letter of 8 August. In relation to the constructive dismissal, Judge McMullen held, at paragraph 26:

"Neither of the solicitors' letters makes clear that the Claimant is resigning because of her [protected disclosure] complaint"

Submissions

17. On behalf of the appellant, Mr Short QC, accepts that in the long letter of complaint dated 12 November 2007 no mention was made of protected disclosure. He accepts that no reference to protected disclosures was made either at the meeting on 5 December 2007 or at the meeting of 28 April 2008. It was submitted that the letter of 8 May 2008 incorporated earlier complaints. The appellant relies on the grievance stated in the letter of 8 May 2008, together with the reference to protected disclosure in the letter on 8 August 2008, that is after the constructive dismissal is alleged to have occurred. These documents, read together, can be relied on. There was an express reference to protected disclosure in both documents and, read together, they satisfied the requirement of the statutory procedure.
18. As to the timing of the grievance, Mr Short submitted that a complainant is not limited to a single grievance. Late complaints may be more difficult to deal with but are capable of complying with the statutory requirement for a statement of grievance, which does not require all admissible complaints to have been made before the paragraph 6 procedure reaches stage 2 or stage 3. The only question is whether paragraph 6 of Schedule 2 is satisfied and that turns on whether the appellant has set out the relevant grievance in writing. If so, the Employment Tribunal had jurisdiction to hear the claim.
19. For the Council, Mr Oldham QC submitted that the document of 8 May 2008 could not serve two purposes, that of being an appeal and that of making a fresh statement of grievance for the purposes of Schedule 2. A document making an appeal cannot at the same time act as a statement of grievance. The steps in Chapter 1 of Schedule 2 provide a watertight procedure and new statements of grievance cannot be interposed within the procedure. This procedure had approached step 3 without the grievances now relied on being expressed.
20. Moreover, it was submitted, in context, the contents of the letter of 8 May did not sufficiently alert the Council to the grievance. It complains not of protected disclosures made, which is the complaint now made, but of the Council forbidding disclosures to the authorities. Moreover, the EAT was correct to hold, at paragraph 24 that, in context, a complaint made on 8 May 2008 could not be a "long-standing grievance" within the meaning of the solicitors' letter of 8 August. It is not disputed that the two communications may be read together.
21. In reply, Mr Short submitted that the complaint made in the letter of 8 May was of detriment resulting from protected disclosures. What follows the hyphen in the paragraph relied on is merely taking the complaint one stage further by way of emphasis. Further, if read in the context of earlier complaints, which were adopted, the complaint on 8 May could be regarded as a long-standing grievance within the meaning of the solicitors' letter of 8 August. That letter also expressed reliance on the events of July 2008 which post-dated the complaint relied on.
22. Mr Short also relied on regulation 2(2) of the Employment Act 2002 (Dispute Resolution) Regulation 2004, first mentioned by Toulson LJ. Appearing in the "Interpretation" regulation, it provides:

"(2) In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2)."

That establishes, it was submitted, that a written communication may fulfil a requirement of Schedule 2 even if included within a letter pursuing an appeal.

The Law

23. Canary Wharf Management Ltd v Edebi [2006] ICR 719 was cited by both Tribunals and is relied on by both parties to this appeal. The EAT, Elias J (President), stated:

"24. . . . The law in this area is directed at employees who in many cases - perhaps most – will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner. At the same time, it must not be forgotten that an employer who receives a grievance and is at fault in failing to take matters further is at risk of paying additional compensation if the claim ultimately succeeds. Indeed, if it succeeds he will have to pay additional compensation to the extent of at least 10% (save in exceptional circumstances: see section 31(4)). But he cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged.

25. It seems to me that the objective of the statute can be fairly 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. I do not think this formulation is essentially different to that urged upon me by Mr Solomon for the employers, namely 'how a reasonable employer, with the actual or constructive knowledge of the employer at the time he received the grievance, would have understood it', although I would prefer to avoid concepts of actual or constructed knowledge. . ."

24. More recently in Beddoes and Others v Birmingham City Council [2011] EqLR 838, the EAT, Underhill J (President), stated, at paragraph 54:

"This appeal is concerned with whether some 130 Claimants . . . satisfied the requirements of the dispute resolution regime under the Employment Act 2002, which was still in force at the time that their claims were presented. The effects of these ill-considered and ill-drafted provisions are mostly exhausted, but they continue to throw up problems in the context of the mass equal pay litigation because of the slow pace at which perforce these cases move. The present appeal illustrates yet again the plethora of satellite issues to which they can give rise. There is now a wealth of authorities – most authoritatively the decision of the Court of Appeal in Hurst [below] . . . emphasising that it is the duty of tribunals who have to interpret and apply these provisions to do so, so far as possible, in a way which minimises the risk of claimants foundering on the rocks of technicalities which have nothing to do with the justice of the case – though we accept that there are cases where that has proved impossible."

25. In Suffolk Mental Health Partnership NHS Trust v Hurst [2009] ICR 1011, Pill LJ stated, at paragraph 57(a):

"(a) The 2002 Act has the admirable purpose of discouraging the precipitate issue of proceedings and encouraging negotiation, conciliation and settlement (Shergold v Fieldway Medical Centre [2006] ICR 304). That purpose may, however, be frustrated if the procedure leads to satellite litigation on technical issues about whether a statement amounts to a grievance under paragraph 6 and whether a claim subsequently made to a Tribunal is the same claim as was included in the statement of grievance."

Conclusions

26. This is not a case in which complex factual analysis is required or complex issues arise. There are two issues, first, whether the relevant parts of the letters of 8 May and 8 August 2008, read together, amount to setting out the relevant grievance in writing within the meaning of paragraph 6 of Schedule 2 and, if so, secondly, whether the timing of the grievance disqualifies it from consideration as a step 1 statement. Mr Oldham put the second issue as the main one for decision.
27. There was, in my judgment, a sufficient setting out of the grievance in writing. The 8 May 2008 communication refers to "my grievances include the following individual grievances". One of the individual grievances specified is that the appellant had been "subjected to detriments as a result of the protected disclosures I made . . . as regards Case R". The nature of the grievance is stated, protected disclosures, and the context is specified, Case R. The further reference to forbidding reporting the matter is an additional allegation but does not supersede or detract from the grievance stated.
28. The letter of 8 August 2008 complains of constructive dismissal. It states that the letter is a formal grievance and identifies the context of the Public Interest Disclosure Act. That is a sufficient reference back to the complaint in the letter of 8 May 2008. I see no merit in the suggestion that the 8 May letter is excluded by the use of the words "longstanding grievances" on 8 August. The 8 May letter was written and the complaint plainly made in the context of alleged longstanding grievances.
29. I agree with the approach of the Employment Tribunal as stated in the passages quoted at paragraphs 10 to 13 above. The Council was told that the appellant was complaining of detriments as a result of "protected disclosures . . . as regards Case R". That was a sufficient indication to the Council for the purposes of paragraph 6 of Schedule 2.
30. As to the second point, that on timing, it must be kept in mind that the issue is whether the Tribunal was deprived of jurisdiction under Section 32(2) of the 2002 Act. That is the sanction on the employee for a failure to comply with paragraph 6 of Chapter 1 of Schedule 2. Subject to the requirement in Section 32(3) for the passage of 28 days, neither Section 32 nor Chapter 1 of Schedule 2 impose restrictions on the time at which the written grievance is sent to the employer. Providing a grievance in writing was sent to the employer under paragraph 6, as in my view it was, there is no prohibition on sending a grievance in writing while an earlier grievance is following the Chapter 1 procedure.
31. Nor, in my view, can such a prohibition or restriction be read into Chapter 1. It cannot be inferred in the absence of an express requirement. To infer it would be to introduce technicalities and uncertainties of a kind the courts have foresworn. Not to send the relevant grievance until 8 May may have been un-businesslike (the appellant was acting in person at the time) but does not defeat what I have found to be a statement of grievance. To allow it to proceed may be another quirk in a now discredited statutory scheme but the appellant, having made the Council aware in writing of her grievance, and waited 28 days, the Employment Tribunal was entitled to consider it.
32. I would allow the appeal and restore the finding of the Employment Tribunal.

Lord Justice Toulson :

33. I agree.

Lord Justice Munby :

34. I also agree.