Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2007] NIFET 102_6, [2007] NIFET 102_06

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THE FAIR EMPLOYMENT TRIBUNAL

CASE REF: 102/06FET

CLAIMANT: Kevin Francis Kennedy

RESPONDENT: Department for Social Development

DECISION

The decision of the Tribunal is that it does not have jurisdiction to consider the claimant's complaint, as he failed to issue a grievance to the respondent about his complaint, contrary to Article 20 of the Employment (Northern Ireland) Order 2003. Accordingly I order that the claimant's complaint is dismissed.

Constitution of Tribunal:

Chairman: Miss E McCaffrey (sitting alone)

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Mr O'Lone of the Departmental Solicitor's Office

1. The Issues

.1 This was a pre-hearing review to consider whether the claimant's claim of discrimination contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 had been lodged within the time limit specified in Article 46 of that Order. In the event that the finding that the claim had been lodged outside the time limit, the Tribunal was then to consider whether, in all the circumstances of the case, it would be just and equitable to extend the time limit.

.2. At the outset of the hearing however it was acknowledged by both parties that this was a case where the claimant was obliged to lodge a grievance with the respondent contrary to Article 20 of the Employment (Northern Ireland) Order 2003 as a pre-requisite of lodging his claim. There was an issue as between the parties as to whether the procedure had been complied with. Although the issue was not formally before the Tribunal, both parties confirmed that they were content to deal with the issue of whether a grievance procedure had been complied with. If the grievance procedure was not followed, the Tribunal has no jurisdiction to deal with the claim. If it is established the grievance procedure was followed, I will then consider the time limit issues referred to at paragraph 1.1 above.

2. The Facts

1 The claimant is employed by the Department for Social Development and the relevant time was an Executive Officer I in Social Security Policy and Legislation Division. He applied for a promotion to the position of Social Fund Inspector and was advised on the 19^th of December 2005 and he had not been short listed to take the written test for this post. The claimant was disappointed by this result and the following day he appealed the decision in accordance with instructions. He also requested a number of documents, including the notes on the short listing process.

2 On the 11^th of January 2006 he was notified that his appeal had not been successful. In the meantime he received some of the paperwork which he had requested including the comments made by the panel on the short listing process. He had been advised that he had failed to meet a number of the essential criteria for the post. On the 19^th of January he received a letter from Katrina Doak of the Trawl Section indicating that he had met criteria 2, 3 and 5, one of these criteria's is that of communication. The claimant emailed Ms Doak on the 30^th of January and specifically asked in the email

"I would like to know which of my communication examples was the poor example. There were three examples given in the application. The panel's comment on communication is given in the singular".

3 On the 6^th of February Ms Doak replied and in her letter amongst other things she stated

"In relation to your queries about the examples you provided under the communication criteria – in the opinion of the panel, all the examples given were poor."

.4 The claimant was not satisfied with this response and on the 27^th of February 2006 he sent a detailed letter to the Trawl Section. A copy of this letter was made available to the Tribunal : it consists of six pages of closely written typescript and sets out very detailed queries and grievances in relation to this process. Specifically the claimant set out ten bullet points where he raised questions about the process.

He continued:-

5 "I should like to emphasise that the answers should be substantive to avoid the situation progressing further, as it is my strong impression that this incident is linked to another which is currently ongoing. To date I have had no rational explanation as to how someone so well placed to at least get a written test for this post was passed over. It would be extremely regrettable that a careless sift of applications for this Trawl should lead to further proceedings which would lead to stress for all concerned, and would only enhance my own extremely high stress levels."

6 This letter was acknowledged on the 3^rd of March 2006 by Katrina Doak but a detailed reply was not received until the 11^th of June 2006, after a reminder had been sent by the claimant. The reply was provided to the Tribunal: it was approximately two and a half pages long and addressed the issues raised by the claimant.

7 The claimant was not satisfied with the reply that he received and he wrote on the 11^th of July 2006 to Mr Alan Shannon the Permanent Secretary in the Department setting out the history of the matter, queries he had raised and forwarding a number of other papers. In an additional note, he stated the following:-

8 "In the light of the spurious reasons given by the selection panel for failing to shortlist me, I have drawn the conclusion that I have been black listed following my summary dismissal as a Staff Officer from the Policing Board in August 2004."

9 Later in that letter the claimant stated,

10 "My dismissal from the Policing Board is now before a Fair Employment Tribunal. The case is being supported by the Equality Commission and has not yet come to hearing. Also, I am suing the Chief Constable for damage to my career following my dismissal. The outcome of the application for this Trawl will be submitted as evidence of that. Hence I am copying the Equality Commission and my solicitor into this correspondence for information only at this time."

.11 Mr Shannon responded on the 22^nd of August 2006 and answered each of the ten queries raised by the claimant originally in his February correspondence. The final paragraph of his correspondence reads as follows:

12 You have also expressed concern about your grading. As I understand it that you successfully secured a Stamp Officer post in the Policing Board and when you left you returned to the DSD as an Executive Officer I. This is a practice of longstanding in relation to bodies external to the NICS. Many of the staff of Northern Ireland Assembly are liable to be treated in exactly the same way, if and when they return to us."

13 This is the only reference made in Mr Shannon's correspondence to the time spent by the claimant at the Policing Board.

14 In his evidence to the Tribunal the claimant agreed that the DSD would not have been aware in February 2006 that he had brought a claim against the Policing Board.

15 Although the claimant sent a letter on the 27^th of February 2006, he indicated to the Tribunal that he was not aware of the Statutory Grievance Procedure set out in the 2003 Order or the 2004 Regulations, or that he was obliged to follow it. His explanation to the Tribunal was that he wanted to give the Department every opportunity to explain why he had not been short listed. He did not consider that he needed to initiate legal action straight away. This was in spite of that fact that he had already lodged a claim of religious discrimination against the Policing Board and was aware of the time limits in relation to discrimination claims. His religious discrimination claim was supported by the Equality Commission, he had access to legal advice from his solicitor and was in contact with his union representative in relation to the Social Fund Inspector's post.

16 In his own professional life the claimant worked for the Social Security Commissioner and he was therefore aware of the procedures which were applied, the importance of time limits and the rules in relation to extensions as he applied to Social Security Appeals.

.17 When the claimant was asked if he thought that his treatment in not being short listed was connected with issues in relation to his employment by the Policing Board, his response was that he believed they were connected. He did not however say anything explicit in relation to his belief that he had been discriminated against on the grounds of his religious belief or political opinion either in his letter of the 27^th of February 2006 or in his subsequent memo to Mr Shannon dated 11^th July 2006. He also conceded that Mr Shannon would not have been aware of his claim against the Policing Board or that that claim raised issues of political or religious discrimination. Mr Shannon's response to the claimant was received on the 22^ndof August 2006 and the claimant lodged proceedings in the Office of the Fair Employment Tribunal on the 1^st of September 2006.

Relevant Law

.1 The relevant law in relation to claims before the Fair Employment Tribunal is to be found in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 which provides as follows:-

"46(1) Subject to paragraph (5), the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of –

(a) the end of the period of 3 months beginning on the day on which the claimant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

(b) the end of the period of 6 months beginning with the day on which the act was done ……"

(5) A Court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

.2 Article 38 of the same Order provides as follows:-

"(38)(1) A complaint by any person ("the complainant") that another person ("the respondent") –

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of any provision Part III; or

(b) by virtue of Article 35 or 36 is to be treated as having committed such an act of discrimination against the complainant,

may be presented to the Tribunal."

.3 In relation to the Statutory Grievance Procedure, the relevant provisions are to be found in the Employment (Northern Ireland) Order 2003 ("the 2003 Order") and in the Employment (Northern Ireland) (Dispute Resolution) Regulations (Northern Ireland) 2004 ("the 2004 Regulations").

.4 The 2003 Order provides as follows:-

"20–(1) An employee shall not present a complaint to the Fair Employment Tribunal under Article 38 of the Fair Employment and Treatment Order if –

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 applies and,

(b) the requirement has not been complied with.

"(2) An employee shall not present a complaint if –

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with and

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

"(3) An employee shall not present such a complaint if

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with, and

(b) the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint."

.5 The procedure referred to in Schedule 1 is the standard grievance procedure (set out in paragraph 6 of Schedule 1) under which the employee must set out his grievance in writing and send a statement or a copy of it to his employer.

.6 I have also considered whether any of the circumstances set out in the 2004 Regulations would absolve the claimant in this case of the requirement to follow the grievance procedure, and am satisfied that none of these provisions apply and that the claimant was obliged to lodge a grievance prior to the presentation of this claim by the provisions of Article 20 of the 2003 Order.

.7 I therefore turn to the question of what constitutes a grievance under the 2003 Order. I was referred to two decisions of the Employment Appeal Tribunal for England and Wales from which I have arrived considerable assistance.

.8 The first decision is that of Shergold v Fieldway Medical Centre [2005] UK EAT 0487_05_0512 and the second is that in the case of Canary Wharf Management Limited v Edebi [2006] UK EAT 0708_05_0303.

.9 In the Shergold case, the claimant had written a letter to her employers resigning from her post and setting out a number of grievances in relation to another member of staff. It was contended by the respondent that this letter did not constitute a grievance. The Employment Appeal Tribunal found however that the resignation letter was sufficient to constitute a grievance. In the course of their observations, Mr Justice Burton who gave the decision of the Employment Appeal Tribunal - said as follows:-

"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 there must be a grievance in writing before the proceedings if the grievance in writing relates, for example, to unpaid holiday pay and proceedings, which are then sought to be issued are based upon race discrimination or sex discrimination with no relevance to any question or holiday pay…………… 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 expatiation 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". (See paragraph 35 and 36 of the Judgment).

.10 In the Canary Wharf case, the Employment Appeal Tribunal went on to consider the content of the grievance. Mr Justice Elias, giving the judgment, refers specifically to the contrast between the Standard and Modified Grievance procedures and stated that this highlighted an important feature of the way in which the complaint must be made under the former (it is the Standard Procedure which applies in the instant case). He stated,

"As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore, that the employee identifies the complaint. The need to substantiate that with some evidence to justify the right arises under the Standard Procedure at the second stage where the employee has to inform the employer what is the basis of the grievance. The only requirement as Section 32 (2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal [Section 32(2) is the equivalent of Article 20 in the 2003 Order]."

.11 He continued, "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." (See paragraphs 21 and 25 of the Judgment).

.12 To sum up the situation, the complainant was aware that he had not been short listed on 19th of December 2005. Accordingly the time limit for lodging his claim with the Fair Employment Tribunal expired on 19th of March 2006. Under the provisions of Article 20 of the 2003 Order, he had until 19th of April 2006 at the latest to lodge a grievance. The effect of lodging the grievance would have been to extend the time for lodging his claim by three months beginning with the day after the day on which the time limit would otherwise expired (see Regulation 15 of the 2004 Regulations).

4. Decision

.1 The first issue for me to consider is whether the claimant followed the statutory grievance procedure and if he failed to do so, what effect this has on his complaint. If he complied with the grievance procedure, only then must I consider whether his claim was lodged in time. If it was not, I need to consider whether it would be just and equitable to extend the time limit for presentation of his claim.

.2 Given that the claimant was aware that he had not been short listed for the Social Fund Inspector's post on 19^th of December 2005 and he then had three months in which to lodge his claim, then the time limit expired on the 19^th of March 2006. He was obliged therefore to lodge his grievance with the employer either before the end of that three month period, or at the very outside within a further month from the expiry of the normal time limit ie 19^th of April 2006.

.3 This means that the only correspondence which might possibly be considered as a grievance letter is the letter of 27th of February 2006 sent by the claimant to the respondent. This letter sets out in some detail the grievances which the claimant had in respect of the trawl procedure for the Social Fund Inspector's post. He set out ten detailed bullet points and questions relating issues about the procedure. However, at no point in that letter did he allege that he had been the victim of discrimination on grounds of his religious belief or political opinion. The only reference in the letter to anything untoward is an oblique reference towards the end of the letter, suggesting that "this instance is linked to another which is currently ongoing." The claimant does not specify what that incident is. His evidence to the Tribunal was that for reason of confidentiality he did want to state what the claim was. He also conceded in cross examination that no one within the Department of Social Development would have had any knowledge at that time of the fact that he had taken a claim of religious discrimination against the Policing Board, which is not in fact part of the Northern Ireland Civil Service.

.4 While the letter certainly sets out the claimant's dissatisfaction with the procedure and in particular with his failure to be short listed, it is not at all clear from the letter that he is alleging that the Department for Social Development had discriminated against him in any way, whether on grounds of religion or otherwise. The Shergold decision makes it clear that the grievance in question must relate to the subsequent claim and the claim must relate to the earlier grievance. If the grievance in writing relates to a short listing process, then the proceedings which are sought to be issued must relate to that matter and not to another, different, claim, in this case one of religious discrimination. Accordingly I find that the letter of 27th of February 2006 did not constitute a grievance as required by Article 20 of the Employment (Northern Ireland) Order 2003.

5 The effect of the claimant's failure to present a grievance to his employer within a maximum of four months of the event complained of, setting out the nature of this grievance, is that the Tribunal does not have jurisdiction to deal with his claim, contrary to Article 20 (3) of the 2003 Order. Accordingly it is not necessary or appropriate for me to go on to consider the question of whether it would be just and equitable to

extend the time limit for the presentation of the claim, as it is not open to me to grant such an extension, given that the Tribunal does not have jurisdiction under Article 20 of the 2003 Order. I therefore order that the claim will be dismissed.

Chairman:

Date and place of hearing: 16 March 2007, Belfast