THE INDUSTRIAL TRIBUNALS
CASE REF: 2130/06
CLAIMANT: Phu Tran
RESPONDENTS: 1. Northern Ireland Fire & Rescue Service
2. Ann Conley
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that
(i) the tribunal does not have jurisdiction to consider the claimant's claim of race discrimination against the first respondent which is therefore dismissed; and
(ii) the tribunal does have jurisdiction to consider the claimant's claim of race discrimination against the second respondent which will therefore proceed to a Hearing on its merits.
Constitution of Tribunal:
Chairman: President, Miss E McBride (sitting alone)
Appearances:
The claimant was represented by Mr M Wolfe, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.
The respondents were represented by P Ferrity, Barrister-at-Law, instructed by
Belfast City Council Legal Services Department.
- The title of the first respondent is amended from "Fire Authority for Northern Ireland" to "Northern Ireland Fire & Rescue Service", as set out above. The title of the second respondent is amended from "Director of Human Resources" to "Ann Conley", as set out above.
The Issues
- The issue for the tribunal, which was notified to the parties, was:
"Whether the claimant is entitled to present a claim to the industrial tribunals in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to present a grievance in writing to the employer and waiting 28 days before presenting a claim to the tribunal."
The Facts
- The following facts were not in dispute.
- .1 The claimant commenced employment with the first respondent on 30 March 1990 and is currently a Systems Support Co-ordinator.
- .2 In or about April 2006 the first respondent publicly advertised a vacancy for the post of Strategic Planning Manager.
- .3 The claimant applied for this vacant post together with a small number of the first respondent's employees and a larger number of external candidates who were not employed by the first respondent.
- .4 In or about mid-May 2006, the claimant was informed that he had not been shortlisted for the vacant post. An external candidate was later appointed to the post.
- .5 Shortly after being informed that he had not been shortlisted, the claimant entered into correspondence with the first respondent about his failure to be shortlisted. He did not indicate, in that correspondence, that he was complaining of race discrimination in relation thereto.
- .6 On 11 August 2006, the claimant presented a claim to the industrial tribunal complaining of race discrimination against both respondents.
- .7 At Section 5.5 of the claim form, the claimant was asked if he had put his complaint in writing to the respondent. The claimant ticked the "yes" box.
At Section 5.6 the claimant, was asked if he had allowed at least 28 days between the date of sending his complaint to the respondent and the date of sending his claim to the tribunal. The claimant ticked the "no" box.
If the claimant had not waited at least 28 days, he was asked at Section 5.7 to explain why. That Section informs claimants that it is a legal requirement to take these procedural steps in most cases and that claims will not be accepted unless these procedural steps have been taken or a valid statutory reason for not doing so is given. This Section also contained the following note for claimants:
"Please note that if your complaint is about discrimination in recruitment, you do not have to put your complaint in writing to the employer concerned and wait 28 days."
At Section 5.7, the claimant stated "this complaint is about discrimination in recruitment – thus exempt from this legal requirement".
- .8 By letter dated 31 August 2006, the claimant was notified, on behalf of the Secretary to the Tribunals, that his claim form had not been accepted by a Chairman for the following reason:
"Your claim in respect of discrimination on the grounds of race is rejected as you have put your complaint in writing to the respondent but have not waited 28 days prior to presenting your claim to the Office of the Tribunals and the reasons given at 5.7 of your claim form for not doing so, do not come within the exceptions outlined in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.
The complaint of discrimination on the grounds of race is one to which the statutory grievance procedure applies. It appears from Section 5.6 of your claim form that you have sent in your claim before the 28 day period has elapsed. Therefore, your claim form cannot be accepted and is being returned to you. If you wish to make a new claim, you must submit the claim on a new form (a revised claim pack is enclosed), quoting the pre-acceptance reference number, once the 28 days have elapsed. Please note that the original time limit for commencing these proceedings has been extended by three months to enable you to comply with this obligation."
- .9 On 4 October 2006, the claimant presented a new claim to the industrial tribunals on the same ground and on this occasion he confirmed that he had put his complaint in writing and had waited at least 28 days before lodging his claim.
- .10 By letter dated 24 October 2006, the claimant was informed, on behalf of the Secretary, to the Tribunals that this claim had been accepted.
- .11 By correspondence of the same date the respondents were sent copies of the claimant's claim form and were notified that they had until 21 November 2006 to lodge their responses.
- .12 On 20 November 2006, the respondents lodged separate responses, each denying that they had unlawfully discriminated against the claimant on the ground of race. At Section 3.6 of their responses, the respondents each contended that the claimant's grievance was not a legally valid grievance. They contended that was because while the claimant had made it clear that he disagreed with the panel's decision and sought details of the reasons for not being shortlisted, he had made no reference to race discrimination.
- The Statutory Provisions
The Employment (Northern Ireland) Order 2003 provides:-
Statutory dispute resolution procedures
15.-(1) Schedule 1 (which sets out the statutory dispute resolution procedures) shall have effect.
(2) The Department may by order –
(a) amend Schedule 1;
(b) make provision for that Schedule to apply, with or without modifications, as if –
(i) any individual of a description specified in the order who would not otherwise be an employee for the purposes of the Schedule were an employee for those purposes; and
(ii) a person of a description specified in the order were, in the case of any such individual, the individual's employer for those purposes.
Contracts of employment
16. - (1) Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure.
Complaints about grievances: industrial tribunals
19. - (1) This Article applies to the jurisdictions listed in Schedule 3.
(2) 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.
(3) 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.
19. (7) The Department may for the purposes of this Article by regulations –
(a) make provision about the application of the procedures set out in Part II of Schedule 1;
(b) make provision about what constitutes compliance with paragraph 6 or 9 of that Schedule;
(c) make provision about circumstances in which a person is to be treated as having complied with paragraph 6 or 9 of that Schedule;
(d) make provision for paragraph 6 or 9 of that Schedule to have effect in such circumstances as may be specified by the regulations with such modifications as may be so specified.
21. – (1) The Department may, in relation to a jurisdiction listed in Schedule 2 or 3, by regulations make provision about the time limit for beginning proceedings in respect of a claim concerning a matter to which a statutory procedure applies.
Schedule 1 provides:
PART II
GRIEVANCE PROCEDURES
CHAPTER 1
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
(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.
Step 3: appeal
8. – (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the appeal meeting, the employer must inform the employee of his final decision.
CHAPTER II
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.
Schedule 3 of the Employment (Northern Ireland) Order 2003 sets out the tribunal jurisdictions to which Article 19 applies. It includes complaints of race discrimination in the employment field under Article 52 of the Race Relations (Northern Ireland) Order 1997.
The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 provides:
Regulation 2(1)
"grievance" means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him.
Application of the grievance procedures
6. - (1) The grievance procedures apply, in accordance with paragraphs (2) to (7), in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to a tribunal under -
(a) a jurisdiction listed in Schedule 2 or 3; or
(b) Article 38 of the Order of 1998,
or could do so if the action took place.
(2) Subject to paragraphs (3) to (7), the standard grievance procedure applies in relation to any such grievance.
(3) Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance where -
(a) the employee has ceased to be employed by the employer;
(b) the employer -
(i) was unaware of the grievance before the employment ceased; or
(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) Neither of the grievance procedures applies where -
(a) the employee has ceased to be employed by the employer;
(b) neither procedure has been commenced; and
(c) since the employee ceased to be employed it has ceased to be reasonably practicable for him to comply with paragraph 6 or 9 of Schedule 1.
(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.
(6) Neither of the grievance procedures applies where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee unless one of the reasons for the grievance is a reason mentioned in regulation 7(1).
(7) Neither of the grievance procedures applies where regulation 11(1) applies.
General circumstances in which the statutory procedures do not apply or are treated as being complied with
11. - (1) Where the circumstances specified in paragraph (3) apply and in consequence the employer or employee does not commence the procedure that would otherwise be the applicable statutory procedure (by complying with paragraph 1, 4, 6 or 9 of Schedule 1), the procedure does not apply.
(2) Where the applicable statutory procedure has been commenced, but the circumstances specified in paragraph (3) apply and in consequence a party does not comply with a subsequent requirement of the procedure, the parties shall be treated as having complied with the procedure.
(3) The circumstances referred to in paragraphs (1) and (2) are that -
(a) the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person;
(b) the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment; or
(c) it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period.
15. – (1) Where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 or, as the case may be, under Article 38 of the Order of 1998, and –
(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;
The normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.
Contentions of the Parties
- Mr Ferrity's submissions in relation to the first respondent are summarised as follows.
- .1 Regulation 6(1) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (hereinafter called the 2004 Regulations) requires the statutory grievance procedures, which are set out in Schedule 1 to the Employment (Northern Ireland) Order 2003 (hereinafter called the 2003 Order) to be followed for any grievance about action by the employer that could form the basis of a complaint to a tribunal, under a jurisdiction listed in Schedules 2 and 3 of the 2003 Order (of which a complaint of race discrimination is one), where the person making the complaint to the tribunal is an employee.
- .2 The claimant was an employee of the first named respondent and if he had been successful in this recruitment exercise, which was open to both internal and external candidates, it would have meant an internal promotion for him.
- .3 Therefore unless the claimant has raised a valid grievance with the first respondent, in accordance with Article 19(2) and Schedule 1, Part II of the 2003 Order, the tribunal has no jurisdiction to consider and determine his complaint of race discrimination.
- .4 The fact that an outsider (i.e. a person who is not an employee), is entitled to make a complaint to the tribunal in respect of the same recruitment exercise, without having to raise a statutory grievance with the first respondent, is irrelevant.
- .5 Although Section 5.7 of the claim form refers to the word "recruitment", that word is not found anywhere in the legislation. Therefore, even if the word has been used incorrectly at Section 5.7 of the claim form, that does not change the statutory position. Further the claimant was notified by letter, dated 31 August 2006, on behalf of the Secretary to the Tribunals, that his complaint of discrimination on the ground of race was one to which the statutory grievance procedure applied. He was also notified that the time limit for presenting his complaint had been extended by three months to enable him to comply with his obligations under the statutory grievance procedure provisions.
- Mr Ferrity's submissions in relation to the second respondent are summarised as follows:
- .1 The decision of the Employment Appeal Tribunal in the case of Bisset –v- Martins & Castlehill Housing Associated Limited UK EATS/0022/06/RN that the statutory grievance procedure only applies between an employee and an employer and not between fellow employees is wrong.
- .2 Even if the Bisset case was correctly decided on that point, it can be distinguished because the second respondent in that case was identified as an individual whereas in the present case the second respondent was only identified as a job title which has no life outside its involvement in the corporate structure.
- .3 The Bisset case should not be followed because the decision appears to contain ambiguity or conflict as to whether a claim against a named fellow employee can continue when the claim against the employer has been dismissed.
- .4 It would drive a coach and horses through the intention of Parliament and it would be contrary to the overriding objective of the tribunal to deal with cases justly and the doctrine of proportionality, if an employee was permitted to continue to proceed against a fellow employee when his claim against the employer had been dismissed. That is particularly so in this case where the two respondents are effectively one and the same and are being represented by the same solicitor and counsel.
- .5 The reference to "employer" in Schedule 1, Part II Chapter 1 of the 2003 Order should be read widely to include "his servants and agents". If the Order was read in that wide sense, then a grievance by an employee against a fellow employee must be raised with the "employer, his servant and agents" as a condition of being permitted to bring a claim against a fellow employee.
- Mr Wolfe's submissions in relation to the first respondent are summarised as follows.
- .1 A complaint of race discrimination is one which requires Step 1 of the relevant statutory grievance procedure to be followed before an employee can bring a complaint against an employer to an industrial tribunal. Therefore if the tribunal concludes that the claimant was to be regarded as an employee of the first respondent for the purpose of this complaint, then it is conceded, on behalf of the claimant, that:
(i) he was required to send a valid written grievance to the first respondent as a pre-condition of bringing a complaint of race discrimination to the tribunal; and
(ii) his correspondence to the first respondent did not amount to a valid grievance in accordance with the 2003 Order and 2004 Regulations as interpreted by the Employment Appeal Tribunal in the cases of Shergold –v- Fieldway Medical Centre (2006) IRLR 76 and Canary Wharf Management –v- Edebi (2006) IRLR 416. That was because the claimant had failed to raise his belief that the treatment afforded to him was on the ground of race, in his correspondence.
- .2 However, for the purposes of the 2003 Order and the 2004 Regulations, the claimant is not to be regarded as an employee of the first respondent and was not therefore required to send a written grievance to the first respondent. That is because an employee is only bound to send a written grievance to his employer, where the matter about which the employee is complaining arises as an incidence of the employment relationship, ie. where the employee is complaining about the employer's action as an employer.
- .3 This interpretation is supported by the note at Section 5.7 of the claim form which stated:-
"Please note that if your complaint is about discrimination in recruitment, you do not have to put your complaint in writing to the employer concerned and wait 28 days."
- .4 Although the claimant is an employee of the first respondent, the position for which the claimant applied was not in the sense of an internal promotion because it was a recruitment process open to the public at large and the successful candidate was an external candidate.
- .5 If internal candidates for an external recruitment procedure are required to raise a grievance which external candidates are not, then the legislation is treating candidates for the same position inconsistently. The legislation would also be subjecting internal candidates to an additional hurdle which external candidates are not required to meet.
- Mr Wolfe's submissions in relation to the second respondent are summarised as follows.
- .1 The claimant's claim against the first respondent is one of unlawful discrimination by deliberately refusing or omitting to appoint him to the position of Strategic Planning Manager. The claimant's claim against the second respondent is a separate claim, permitted by the legislation, of aiding and abetting the first respondent in the commission of that discriminatory act. Even if the claimant's claim against the first respondent is dismissed on the ground that he was required to raise a grievance with the first respondent, that is not a reason for dismissing the claimant's separate claim against the second respondent unless he is also required to raise a grievance against the second respondent.
- .2 It is clear from the decision of the Employment Appeal Tribunal in the Bisset case and from the language of the legislation itself that the claimant did not have to raise a grievance against the second respondent who was an employee of the first respondent.
- .3 The fact that the claimant identified the second respondent by job title as opposed to an individual name:
(i) does not appear to have caused any confusion, as the second respondent was identified to the claimant by name in replies to the claimant's statutory questionnaire;
(ii) is not legally significant; and
(iii) can be corrected by an amendment of title.
- The Tribunal's Conclusion in relation to the first respondent
- .1 Parliament has introduced statutory procedures, through the 2003 Order and the 2004 Regulations, which require employers and employees to try to resolve certain disputes between themselves in the workplace without resort to an industrial tribunal. An employer is required to follow applicable statutory procedures before dismissing an employee. Failure on the part of the employer to do so will lead to any dismissal by the employer being treated as automatically unfair by an industrial tribunal. An employee is required to follow the first stage of the applicable statutory grievance procedure before bringing certain complaints (of which race discrimination is one) against his employer to an industrial tribunal. Failure on the part of the employee to do so will debar the tribunal from considering his complaint, unless a statutory exemption exists or the statutory procedure is deemed to have been complied with (Article 19(1) and (2) of the 2003 Order).
- .2 To ensure that a serious attempt is made to resolve the dispute in the workplace, the employee is required to wait at least 28 days after sending his written grievance to his employer before lodging proceedings with the industrial tribunal (Article 19(3) of the 2003 Order). To ensure that the employee is not prejudiced by this statutory process, the normal time limit for lodging a complaint is automatically extended, in certain circumstances, by an additional 3 months (Regulation 15 of the 2004 Regulations). If an employee lodges a claim of race discrimination with the industrial tribunal, within the normal time limit, but has failed to send a written grievance to his employer, his claim must be rejected by the tribunal. However the Secretary to the Tribunal must notify the employee of the procedure to be followed and of the extended time limit for lodging a new claim (Rule 3(5) of the 2005 Rules of Procedure).
- .3 I am satisfied that the clear wording of Article 19 and Schedules 1-3 of the 2003 Order together with Regulation 6 of the 2004 Regulations required the claimant to send a written grievance in relation to his complaint of race discrimination against the first respondent to the first respondent, as his employer, before bringing his complaint to the tribunal. That is unless a statutory exemption applied or the statutory procedure was deemed to have been complied with.
- .4 The 2004 Regulations provide for specific situations in which the statutory grievance procedures will not apply or will be treated as having been complied with. The Regulations do not provide examples; they provide specific situations which are set out at Regulations 6-11 of the 2004 Regulations. If Parliament had intended to exempt an employee from having to try to resolve his complaint with his employer, where he is applying for a position which is open to external as well as internal candidates, it could have made a specific statutory exemption in this situation, but did not do so. Further the definition of "grievance" in Regulation 2 of the 2004 Regulations could have stated that a grievance meant a complaint by an employee about action which his employer has taken or is contemplating taking "as an incidence of the employment relationship", in relation to him, but did not do so.
- .5 In those circumstances I am satisfied that the claimant who was and is an employee of the first respondent (his employer), was required to send a written grievance to the first respondent as a pre-condition of bringing a claim of race discrimination to the industrial tribunal.
- .6 The reference to recruitment at Section 5.7 of the claim form is incorrect as the legislation does not contain any exemption for recruitment of an existing employee. However, the claimant was not prejudiced by this incorrect note as he was able to lodge a fresh claim against the first respondent within the extended time limit.
- .7 In view of Mr Wolfe's concession that the claimant's correspondence with the first respondent did not amount to a valid grievance, his complaint against the first respondent is dismissed.
- The tribunal's conclusion in relation to the second respondent
- .1 Although the claimant did not identify the second respondent by name in his claim form, the second respondent was able to lodge a full and detailed response to the claim. There was also no dispute that the second respondent was identified by name in replies to the claimant's statutory questionnaire. I am not therefore satisfied that the claimant's claim against the second respondent should be dismissed because the second respondent was not identified by name in the claim form. I am satisfied that the title of the second respondent should be amended to Ann Conley, as set out in the title hereto.
- .2 I am satisfied that the claimant's claim against the second respondent, a fellow employee, is a separate claim of aiding a discriminatory act, which he is entitled to bring under Article 33 of the Race Relations (Northern Ireland) Order 1997. I am also satisfied that the claimant can bring and continue that claim where the claim against the first respondent is dismissed for failure to comply with the statutory grievance procedure, just as he would be entitled to continue with the claim against the second respondent, where, for example, the first respondent had established the statutory defence under Article 32(5) of the said Order, or where he had settled his claim against the first respondent. I do not accept that there was conflict or confusion about that right in the Bisset case or that such a right does not exist.
- .3 I am satisfied that the wording of the statutory provisions is plain and can clearly be understood without adding any additional words such as "servants and agents" to the word "employer" in Schedule 1, Part II, Chapter 1 of the 2003 Order. I am satisfied that the clear wording of the statutory provisions only requires the statutory grievance procedures to be followed between employees and employers, not between fellow employees. In making that finding I agree with the reasoning of the Employment Appeal Tribunal in the Bisset case which was approved by the Employment Appeal Tribunal in the case of London Borough of Lambeth & Others –v- Robert Wilfred Corlett UK EAT/0396/06/DA that:-
"It is inconceivable that the grievance procedures were intended to operate as between employees. They refer to steps that the "employer" must take which cannot be interpreted, in my view, as steps that could be required of a fellow employee. A fellow employee could not, for instance, be expected to notify a complainant of his right of appeal. Thirdly, it would not be possible to ascertain whether the standard or modified grievance procedure applied (paragraph 6 of the 2004 Regulations) that being a matter which depends on matters solely referable to the contract of employment. It is clear that Parliament did not have in mind that grievance procedures should operate as between employees. That was not the purpose of these provisions which are, rather, directed to encouraging the resolution of disputes arising out of the relationship of employer and employee without their having to have recourse to the tribunal."
- .4 The decision of the Employment Appeal Tribunal in the Bisset case that the Statutory Grievance Procedures do not operate between fellow employees was partly based on Section 30(1) of the Employment Act 2002 (the equivalent provision in Northern Ireland is Article 16(1) of the 2003 Order) which makes the requirement to follow the statutory grievance procedures a condition of every contract of employment. Although the Employment Appeal Tribunal, in the case Corlett pointed out that that statutory provision is not yet in force, it also stated that the reasoning of the Employment Appeal Tribunal in the Bisset case, that it was inconceivable that the Statutory Grievance Procedures were intended to operate as between employees, "is plainly correct".
- .5 In reaching the conclusion that the statutory grievance procedures do not operate between fellow employees, I have also noted that Article 15(2) of the 2003 Order allows the Department, by order, to amend Schedule 1 and to make provision for Schedule 1 (i.e. the grievance procedures) to apply as if – "a person of a description specified in the Order were, in the case of any such individual, the individual's employer for those purposes". No such Order has been made.
- .6 The claimant's claim against the second respondent should therefore proceed to a full Hearing. In view of my conclusion that the statutory grievance procedures do not apply as between fellow employees, it is clear that the claimant's first claim against the second respondent (which was received on 11 August 2006 and which is in identical terms to the second claim) should not have been rejected. In accordance with Rule 3(8)of the 2005 Rules of Procedure, it is the claimant's first claim against the second respondent which should proceed to a full Hearing with the second claim being treated as a duplicate. The second respondent's response to the second claim shall be deemed to be a response to the first claim.
______________________________________
E McBride
President
Date and place of hearing: 7 February 2007 and 4 April 2007, Belfast
Date decision recorded in register and issued to parties: