Industrial Tribunals Northern Ireland Decisions

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Cite as: [2006] NIIT 97_6, [2006] NIIT 97_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 97/06

CLAIMANT: Catherine Carson

RESPONDENT: Brooklands Nursing Homes Ltd

DECISION ON PRE-HEARING REVIEW

The unanimous decision of the tribunal is that the claimant has raised a grievance in writing to the respondent and has waited 28 days before presenting her claim to the tribunal. The tribunal therefore has jurisdiction to hear and determine her claim.

Constitution of Tribunal:

Chairman: Miss E McBride, President

Appearances:

The claimant was represented by Mr M Wolfe, Barrister-at-Law, instructed by

Campbell Fitzpatrick, Solicitors.

The respondent was represented by Mr P Moore of Peninsula Business Services

REASONS

On 13 January 2006, the claimant presented a claim to the Industrial Tribunal which contained four complaints against the respondent:-

(i) unfair constructive dismissal;

(ii) sex discrimination;

(iii) breach of contract in respect of notice pay; and

(iv) breach of contract in respect of petrol payments.

On 20 February 2006, the respondent presented a response in which they contended that the tribunal had no jurisdiction to hear the claim on the ground that the claimant had failed to raise a grievance with the respondent in accordance with the statutory grievance procedure requirements. Alternatively the respondent indicated that they intended to resist the claim.

, A pre-hearing review was therefore arranged to determine the following issue:

Whether the claimant is entitled to present a claim to the Industrial Tribunal in view of the provisions of Article 19(1) and (2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order) regarding the requirement to present a grievance in writing to the employer and waiting 28 days before presenting a claim to the tribunal.

At the outset of the hearing, Mr Wolfe and Mr Moore agreed that the issues for the tribunal to determine were:-

(i) which complaints are contained in the claim;

(ii) whether the statutory grievance procedures apply to those complaints;

(iii) if so, whether any statutory exceptions exist;

(iv) if not, which statutory grievance procedure applies;

(v) whether the relevant part of the applicable statutory grievance procedure was followed by the claimant before presenting her claim; and

(vi) if it was, whether the claimant waited 28 days, after raising her grievance, before presenting her claim to the industrial tribunal.

The tribunal heard submissions from Mr Wolfe and Mr Moore. In addition Mr Wolfe provided the tribunal with the following authorities:

Shergold –v- Fieldway Medical Centre (2006) IRLR 76 (EAT)

Commotion Limited –v- Rutty (2006) IRLR 171 (EAT)

Galaxy Showers –v- Wilson (2006) IRLR 83 (EAT)

Canary Wharf Management –v- Edebi (2006) IRLR 416

Poat & Lake –v- Thorpe Soleil Investments Limited (2006) All ER (D) 30 January

Articles

Happy Yew, Julian New Law Journal 13 January 2006

Unfair Dismissal Update: Edwards, M., Solicitors Journal, 21 April 2006

Exhausting the Options;

Gold, E., New Law Journal 12 May 2006

Legislation

The Employment (Northern Ireland) Order 2003 (the 2003 Order)

Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (the 2004 Regulations)

The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005

Mr Moore was given the opportunity to address those authorities.

Issue 1 – Which complaints are contained in the claim

At the outset of the hearing, Mr Wolfe withdrew the breach of contract in respect of notice pay on behalf of the claimant which is therefore dismissed. The outstanding complaints are:-

(i) unfair constructive dismissal;

(ii) sex discrimination; and

(iii) breach of contract in respect of petrol payments.

Issue 2 – Whether the statutory grievance procedures apply to those complaints

.1 There was no dispute that the 2003 Order and the associated 2004 Regulations introduced statutory grievance procedures which require employees to raise a grievance with their employer before bringing a claim to the industrial tribunal, in certain jurisdictions.

.2 Mr Wolfe accepted that the statutory grievance procedures apply to the jurisdictions of unfair constructive dismissal and sex discrimination but disputed their application to the breach of contract jurisdiction. Mr Moore contended that the statutory grievance procedures apply to all three jurisdictions.

.3 The relevant statutory provisions are set out at Article 19 of the 2003 Order and Regulation 6 of the 2004 Regulations.

Article 19(1) of the 2003 Order provides that the statutory grievance procedures apply to the jurisdictions listed in Schedule 3 to the 2003 Order.

Regulation 6(1) of the 2004 Regulations (which were made by the Department of Employment and Learning in exercise of powers conferred on it by Article 19(7) of the 2003 Order) provides that the statutory grievance procedures apply to the jurisdictions listed in Schedules 2 and 3 of the 2003 Order. The jurisdictions listed in Schedules 2 and 3 are identical, apart from the breach of contract jurisdiction which is listed in Schedule 2 only.

.4 Mr Wolfe contended that:

(i) Article 19(1) of the 2003 Order has delimited the parameters of the statutory grievance procedures to the jurisdictions listed in Schedule 3;

(ii) Article 19(7) of the 2003 Order does not grant the Department of Employment and Learning the legal power to make Regulations in respect of Schedule 2, as it is not contained in Article 19(1) of the 2003 Order;

(iii) Regulation 6(1)(a) of the 2004 Regulations, in so far as it requires employees to follow the statutory grievance procedures in respect of the jurisdictions listed in Schedule 2, is therefore plainly inconsistent with Article 19(1) of the 2003 Order and is ultra vires.

Tribunal's conclusion

.5 It is very important for employers, employees and their representatives to know whether the statutory grievance procedures apply to breach of contract complaints. I am satisfied that there is merit in Mr Wolfe's contentions as set out above. However I am not satisfied that I have the jurisdiction to declare the particular Regulation ultra vires. That power lies with the High Court. Therefore, unless and until Regulation 6(1)(a) is declared ultra vires, I am satisfied that the statutory grievance procedures apply to the claimant's breach of contract complaint as well as her unfair constructive dismissal complaint and her sex discrimination complaint.

Issue 3 – If the statutory grievance procedures do apply, whether any statutory exceptions exist

.1 Regulation 6(1)-(3) of the 2004 Regulations requires one of two statutory grievance procedures to be followed for all jurisdictions listed in Schedules 2 and 3 of the 2003 Order, unless one of the statutory exceptions, set out at Regulation 6(4)-(7), exists.

.2 Mr Wolfe did not contend and I am not satisfied that any of the statutory exceptions applies in this case.

Issue 4 – If none of the statutory exceptions exists, which statutory grievance procedure applies

.1` Schedule 1 to the 2003 Order contains two statutory grievance procedures: the standard procedure and the modified procedure.

.2 Regulation 6(2) of the 2004 Regulations provides that where, as in this case, no statutory exceptions exist, then the standard procedure must be followed, unless the modified grievance procedure, set out at Regulation 6(3), applies.

.3 Regulation 6(3) sets out the circumstances in which the modified grievance procedure applies. Those circumstances are:

"(a) the employee has ceased to be employed by the employer;

(b) the employer –

(i) was unaware of the grievance before the employment ceased;

(ii) was so aware but the standard grievance procedure was not commenced or was not completed before the last day of the employee's employment; and

(c) the parties have agreed in writing in relation to the grievance, whether before, on or after that day, but after the employer became aware of the grievance, that the modified procedure should apply."

.4 Mr Wolfe contended that:

(i) for the modified procedure set out at Regulation 6(3) rather than the standard procedure to apply, all three conditions at (a), (b) and (c) must be met;

(ii) in the present case Regulation 6(3)(a) had been met but Regulation 6(3)(b) and (c) had not; and

(iii) the standard procedure therefore applied.

.5 Mr Moore contended that:

(i) Regulation 6(3)(a) and (b) had been met although Regulation 6(3)(c) had not;

(ii) the modified procedure could apply whether or not all three conditions had been met.

The tribunal's conclusion

.6 Having considered Regulation 6(2) and (3), I am satisfied that unless all three conditions, set out at Regulation 6(3)(a), (b) and (c) have been met, the standard grievance procedure applies. The fact that Regulation 6(3)(b) provides two alternatives, only one of which must be met, does not affect that conclusion. As it is common case that the conditions have not all been met, the applicable procedure in the present case is therefore the standard grievance procedure.

Issue 5 – whether the relevant part of the applicable grievance procedure was followed by the claimant before presenting her claim

The facts

.1 On 7 December 2005 the claimant sent a letter of resignation to the respondent in the following terms:-

"Following the Appeal Hearing on Monday 14 November 2005, I verbally informed you I would be resigning from my position as Matron of Edenballymore Lodge, Brooklands Nursing Homes with immediate effect.

I am providing written confirmation of my resignation on the following grounds:

Breach of human rights

Constructive dismissal

Sex discrimination

Harassment

On receipt of this letter I will expect the following:

Payment of outstanding Annual Leave (from 1 April 2005)

PILON – Payment in Lieu Of Notice

P45

Petrol expenses as listed below."

The claimant then set out details of the petrol expenses in relation to six trips in her letter.

On 8 December 2005 the respondent replied to the claimant's letter in the following terms:

"We are in receipt of your letter dated 7^th December 2005 received in this office on 8^th December 2005.

We note that you have finally confirmed your resignation in writing with effect from 14^th November 2005 when your resignation was tendered by yourself. Thank you for this.

Regarding the balance of your letter, we will respond as follows.

We reject your inference as to the reasons for your resignation.

…

You have no contractual nor historical right to petrol expenses therefore, we reject your claim in this respect."

At paragraph 3.6 of the response the respondent stated:-

"The respondent contends that the letter dated December 7^th 2005 written by the claimant does not constitute a grievance. The letter merely states that the claimant is resigning 'on grounds of constructive dismissal and sex discrimination' but failed to provide any details of such claims in her letter. The respondent replied to her letter the following day accepting her resignation but rejecting the alleged reasons for her resignation. The claimant failed to provide any details to support her allegations subsequent to her letter dated December 7^th 2005."

.2 Mr Wolfe contended that the claimant's letter of resignation satisfied the requirements of paragraph 6 of Schedule 1 to the 2003 Order which is step 1 of the standard grievance procedure. In support of that contention, Mr Wolfe referred the tribunal to:

Article 19(2) of the 2003 Order;

Paragraph 6 of Schedule 1 to the 2003 Order;

Regulations 2(1) and (2) of the 2004 Regulations;

Shergold –v- Fieldway Medical Centre;

Commotion Limited –v- Rutty;

Canary Wharf Management –v- Edebi;

the respondent's letter of 8 December 2005 to the claimant; and

paragraph 3.6 of the respondent's response form.

.3 Mr Moore contended that the claimant's letter of resignation did not constitute a written grievance as required by Article 19(2) because it failed to include the basis or details of the complaints. In support of that contention, Mr Moore referred the tribunal to paragraphs 6, 7 and 9 of Schedule 1 to the 2003 Order and to the decision of the Employment Appeal Tribunal in Canary Wharf Management –v- Edebi.

.4 The real issue between the parties is whether it was sufficient for the claimant to simply identify her complaints in her letter of resignation or whether the claimant had also to provide the basis and details of her complaints to satisfy Article 19(2).

The Law

.5 Article 19(2) of the 2003 Order provides:-

"An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies 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.

Paragraphs 6 and 7 of Schedule 1 to the 2003 Order provide:-

"STANDARD PROCEDURE

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 ….."

Paragraph 9 of Schedule 1 to the 2003 Order provides:

"MODIFIED PROCEDURE

Step 1: statement of grievance

9 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."

Regulation 2(1) of the 2004 Regulations defines grievance as "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him".

Regulation 2(2) provides:

"In determining whether a meeting or written communication fulfils a requirement of Schedule 1, 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 1)."

Conclusion

.6 Having considered the helpful representations of Mr Wolfe and Mr Moore together with the facts, the relevant statutory provisions and the authorities to which I was referred, I make the following conclusions.

(1) A letter of resignation can amount to a written grievance even if it is dealing with other matters (see Canary Wharf Management –v- Edebi).

(2) The letter of resignation must however refer to claims subsequently made to the tribunal and the claim subsequently made to the tribunal must refer to the earlier complaints (see Shergold –v- Fieldway Medical Centre).

(3) Where, as in the present case, the standard grievance procedure is the applicable grievance procedure, the letter of resignation (the written grievance) need only identify the complaint to comply with Article 19(2) of the 2003 Order. The letter of resignation does not have to state the basis of or give details of the complaint. Although the Employment Appeal Tribunal made it clear in the Canary Wharf case that an employer "cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged", it also made it clear 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."

In relation to the content of a grievance the Employment Appeal Tribunal stated:-

"The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is no obligation to set out the basis of the claim. It is enough, that the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance."

.7 I consider that Mr Moore understandably confused the requirement of step 1 of the standard grievance procedure (set out at paragraph 6 of Schedule 1 to the 2003 Order) which only requires the claimant to identify the complaint with step 1 of the modified grievance procedure (set out at paragraph 9 of Schedule 1 to the 2003 Order) and step 2 of the standard grievance procedure (set out at paragraph 7 of Schedule 1 to the 2003 Order) which require the claimant to go further and to set out the basis of the complaint as well.

.8 In the present case, I am satisfied that by informing the respondent, through her letter of 7 December 2005, that she was providing written confirmation of her resignation on the grounds of constructive dismissal and sex discrimination and that on receipt of the letter she would be expecting petrol expenses as detailed in the letter, the claimant was making a complaint about action which the respondent had taken in relation to her. I am also satisfied that those complaints were subsequently made to the tribunal and that the claim form refers to them. I am satisfied from the respondent's letter of 8 December 2005 and from their response to the tribunal that they understood the complaints the claimant was making in her resignation letter of 7 December 2005 and that they rejected those complaints.

.9 I am therefore satisfied that the claimant, through her resignation letter of 7 December 2005, met the relevant requirements of the applicable statutory grievance procedure namely step 1 of the standard grievance procedure, which is set out at paragraph 6 of Schedule 1 to the 2003 Order. It is not therefore necessary to deal with Mr Wolfe's alternative submission in relation to the claimant's earlier letter of 7 November 2005.

Issue 6 - whether the claimant waited 28 days after raising her grievance before presenting her claim to the industrial tribunal

.1 The claimant's letter of resignation was sent to the respondent on 7 December 2005.

.2 The claimant's claim was presented to the tribunal on 13 January 2006.

The Law

.3 Article 19(3) of the 2003 Order provides –

"An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies 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 passed since the day on which the requirement was complied with."

Conclusion

I am satisfied that more than 28 days elapsed between the sending of the written grievance on 7 December 2005 and the presentation of the complaint on 13 January 2006 and that the claimant has therefore complied with Article 19(4).

Summary of the tribunal's decision

.1 The standard grievance procedure applied to the claimant's complaints of unfair constructive dismissal, sex discrimination and breach of contract in relation to petrol expenses.

.2 The claimant was therefore required to comply with paragraph 6 of Schedule 1 to the 2003 Order before presenting a claim to an industrial tribunal by sending a written grievance to the respondent.

.3 The claimant's letter of resignation dated 7 December 2005 constituted such a written grievance.

.4 The claimant was required to and did wait more than 28 days before presenting her claim to the industrial tribunal. The claimant has therefore complied with the statutory requirements to send a written grievance to the respondent and to wait 28 days before presenting a claim to the tribunal. The claimant was therefore entitled to present her claim to the tribunal and the tribunal has jurisdiction to hear and determine that claim. A case management discussion will be arranged in due course to progress a claim to a full hearing.

______________________________________

E McBride

President

Date and place of hearing: 5 July 2006, Belfast

Date decision recorded in register and issued to parties: