Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 292/07

CLAIMANT: Colin Mark Gilmore

RESPONDENT: Western Health & Social Services Trust

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant is not entitled to present a claim of discrimination on the grounds of disability as he has not provided the requisite details in his grievance.

Constitution of the tribunal:

Chairman: Mr P Kinney

Appearances:

The claimant appeared in person.

The respondent was represented by Mr Mulqueen, Barrister-at-Law, instructed by the Directorate of Legal Services.

ISSUES

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.

BACKGROUND

The claimant lodged a claim with the Office of the Industrial Tribunals on 19 February 2007. He claimed that he had been unfairly dismissed and also had suffered discrimination on the grounds of disability. The respondent denied the claimant's claims in their entirety.

In his claim form to the tribunal the claimant alleged that he had been unfairly dismissed after an incident in January 2006. He was diagnosed autistic in February 2004 and after the involvement of an outside agency called Autism Initiatives he alleged that agreement was reached for making reasonable adjustments to the workplace. He alleged those adjustments were not made. Instead of being placed in the wash area of the laundry where he would work with the amendments as agreed he was placed in the finishing room an area where there was crowding. Enclosure would be detrimental to his condition.

At Section 5.5 of the claim form the claimant indicated that he had sent a grievance to the respondent on 7 May 2006 and had waited at least 28 days before lodging his claim with the tribunal.

There were in fact two letters sent by the claimant to the respondent the first on 2 May 2006 and 4 May 2006. The claimant confirmed the letter of 4 May 2006 was the letter he was referring to on his claim form. Both letters were concerned with the appeal by the claimant from his dismissal. Neither letter made any reference to discrimination within the course of his employment, less favourable treatment or need for reasonable adjustments.

The claimant had previously written to the respondent on 25 August 2005 to complain about his treatment by the laundry manager and to invoke the harassment procedure. This letter contains no reference to his disability.

The complaint of 25 August 2005 led the respondents to investigate the matter using an independent human resources consultant to carry out the investigation. The claimant provided the investigator with a statement and extracts from his diary for a period from September 2002 to September 2004. The claimant reviewed the confidential report prepared by the investigator and confirmed that the documents referred to were the entirety of the documents he had provided.

THE LAW

Under Article 19(2) of the Employment (Northern Ireland) Order 2003 an employee shall not present a complaint to an Industrial Tribunal where the complaint is of discrimination on the grounds of his disability if the employee has not set his grievance in writing and sent a copy of it to his employer.

In Canary Wharf Management Ltd -v- Edebi [2006] IRLR 416 the EAT considered the statutory grievance requirements. Mr Justice Elias stated that in analysing a statement of grievance one should not adopt an unduly technical or formal approach. At paragraph 25 he said

"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."

He went on to say at paragraph 31 "if the statement cannot in context be fairly read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it."

There is no need to set out the basis of the claim as long as the employee identifies the complaint. Nor is it necessary that the employee should indicate that he is invoking a grievance procedure. It is enough if a complaint is made.

TRIBUNAL'S REASONS

It is clear that a letter of resignation can constitute a grievance but in this case neither the letter of 2 May 2006 nor the letter of 4 May 2006 raise an issue which the employer could reasonably understand had arisen under the Disability Discrimination Act.

There is nothing in the earlier documents to assist the claimant. The letter of 25 August 2005 does not mention disability. It gives no grounds for the alleged harassment. The content of the confidential report and the information provided for that investigation by the claimant does not raise a complaint of disability discrimination.

In none of the documents is there any identified failure to make adjustments nor an allegation that he was treated less favourably than anyone else. On a fair reading of the documents there is no issue which the employer could reasonably understand had arisen under the Disability Discrimination Act.

Accordingly, the tribunal cannot be satisfied that the claimant has presented a grievance in accordance with Article 19 of the Employment (Northern Ireland) Order 2003 and therefore the claim for disability discrimination cannot be accepted.

The claimant's claim for unfair dismissal can proceed to hearing.

Chairman:

Date and place of hearing: 19 June 2007

Date decision recorded in register and issued to parties: