Industrial Tribunals Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 2/07 FET

8/07

CLAIMANT: Oonagh McCann

RESPONDENT: Tim Lewis Recruitment Limited

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 religion or disability or for a redundancy payment as she has not provided the requisite details in her grievance.

Constitution of Tribunal:

Chairman (sitting alone): Mr B Greene

Appearances:

The claimant appeared in person.

The respondent was represented by Ms Alana Jones, Solicitor, of Alana Jones-Campbell, Solicitors.

Sources of evidence

1. The Tribunal heard from the claimant and on behalf of the respondent from Mrs Ursula Neill. The Tribunal also received two bundles of documents amounting to 268 pages.

The claim and defence

2. The claimant claimed that she had suffered discrimination on the grounds of religious belief and disability, constructive dismissal and that she did not receive a redundancy payment. The respondent denied the claimant's claims in their entirety. The respondent also asserted that the claimant had not satisfied the requirements for a grievance in relation to her claims of discrimination on the grounds of religion or disability and her claim for a redundancy payment.
3. A pre-hearing review was arranged for 16 May 2007 to consider whether the claimant had satisfied the requirements in relation to the presentation of a grievance.

The issues

4. The issues to be determined at the pre-hearing review were:-

(i) Whether the claimant is entitled to present a claim to the Fair Employment Tribunal in view of the provisions of Article 20(1) and (2) 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.

(ii) 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.

Findings of fact

5.	(a)	The respondent employed the claimant as a Central European Project Co-Ordinator from April 2000 until 17 October 2006 when the claimant resigned.
	(b)	The respondent told the claimant on 20 September 2006 that her job was to be made redundant but she could apply for a new job as a Specialist Project Manager (European Operations). There had not been any consultation beforehand. The claimant believed that the new job was in fact the job she was already doing and she lodged a grievance. She lodged the grievance because she believed she was being made redundant on the basis of discrimination on the grounds of religion or disability and that she had not had any proper consultation in relation to the proposed redundancy.
	(c)	The claimant lodged her grievance with the respondent on 22 September 2006 by e-mail. She was asked to put the grievance in writing on 25 September 2006. The claimant put her grievance in writing on 27 September 2006. In that grievance letter she claimed that she had been unfairly selected for redundancy. Further e-mails passed between the parties and in an e-mail from the claimant on 5 October 2006 the claimant alleged that she had been unfairly selected for redundancy on the base of discrimination or victimisation. She repeated that claim in an e-mail of 10 October 2006 and on 17 October 2006 the claimant resigned. The claimant then presented her claims to the Fair Employment Tribunal and the Industrial Tribunals on 14 December 2006.

The law

5. 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 disability or for a redundancy payment if the employee has not set his grievance in writing and sent a copy of it to his employer.
6. Under Article 20(2) of the Employment (Northern Ireland) Order 2003 an employee shall not present a complaint to the Fair Employment Tribunal on the grounds of discrimination on the basis of religion if he has not set out his grievance in writing and sent it to his employer.
7. The EAT held in Shergold v Fieldway Medical Centre [2006] IRLR 76 that the grievance must relate to the subsequent claim and the claim must relate to the earlier grievance. The EAT also held that there is no requirement that the wording of the simple grievance and the likely more fuller exposition of the case set out in the proceedings must be any where near identical. What is necessary is that the employer should understand the general nature of the complaint being made. Provided that the general nature of the grievance in writing was substantially the same as the matter which then forms the subject matter of the claim, its different description or a difference by way of precise ingredients and particulars does not affect statutory compliance.
8. In Canary Wharf Management Limited v Edebi [2006] IRLR 416 the EAT held that the statutory requirement to set out a grievance merely requires that there should be the statement of the grievance in writing sent to the employer. The statement of the grievance is simply a statement of the complaint. The complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal.

The objective of the statute can fairly be 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. If the statement cannot in context fairly be read, even in a non-technical and unsophisticated way, as raising the grievance which is the subject matter of the complaint, then the Tribunal cannot hear the claim. There is no overriding interests of justice which can be invoked to save it.

9. In the case of Odoemelam v The Whittington Hospital NHS Trust [Appeal No: UKEAT/0016/06/DM] heard on 28 November 2006 the EAT considered further the contents of a grievance. It concluded that if a claim is to be considered by the Tribunal, the grievance is required to include that part of the action by the employer which made the complaint one which could be considered by a Tribunal. In the Odoemelam case, the EAT held that the essential feature was that the claimant had been treated less favourably than other employees would have been treated because she was black. That had to be spelt out in her grievance and it had not been done. In her letter of complaint she had complained of inconsistent treatment. In another letter of complaint which was not before the Tribunal she had complained of victimisation. The EAT held that even had that second letter been before the Tribunal it would not have made any difference. The Tribunal found that the letter did not state why the claimant was being victimised. For all a reader of the letter knew she could have been alleging victimisation in the lay sense of being targeted rather than in the technical sense in which it is used in the Race Relations Act 1976.

Application of the law and findings of fact to the issues

10. The claimant lodged her originating claims in which she claimed discrimination on the ground of religion and disability and sought a payment for redundancy.
11. The claimant lodged a grievance on 22 September 2006 and repeated it in a letter of 27 September 2006 in which she complained that the new position being advertised was the position in which she was currently employed. In the follow-up letter of 27 September 2006 the claimant complained that she had been unfairly selected for the proposed redundancy.
12. Neither the e-mail of 22 September nor the letter of 27 September 2006 satisfy the legal requirements that the employer, on a fair reading of the grievance having regard to the particular context in which it was made, could be expected to appreciate that the relevant complaint is being raised. Neither letter mentions discrimination on the grounds of religion or disability. Nor does it mention a redundancy payment.
13. The respondent contended that subsequent e-mails of 10 and 16 October could not be considered as they had not been adverted to in the claimant's originating claim. I do not accept this contention. Regulation 19(2) and 20(2) of the Employment (Northern Ireland) Order 2003 merely require that the grievance be set out in writing and sent to the employer. It further requires that 28 days must elapse before the claim is lodged. In this case the claim was lodged on 14 December 2006 so any statement of written grievance to the employer up to 15 November 2006 can be considered. Accordingly I consider also the e-mails of 6 and 10 October in considering whether the claimant has satisfied the statutory requirements of lodging a grievance.
14. Having considered the e-mails of 10 and 16 October and indeed the claimant's resignation letter of 16 October, I am not satisfied that the claimant has discharged the statutory requirements in relation to the lodging of a grievance. The e-mails merely refer to the claimant's unfair selection for redundancy on the basis of discrimination or victimisation. There is no mention of religious discrimination or disability discrimination or a redundancy payment. Nor, on any reasonable reading of either the e-mails or the earlier correspondence could that be deduced.
15. Accordingly, the Tribunal is not satisfied that the claimant has presented a grievance in accordance with Article 19(2) and 20(2) of the Employment (Northern Ireland) Order 2003 and therefore these claims cannot be accepted.
16. The claimant's complaint for constructive dismissal can now proceed to hearing.

Chairman:

Date and place of hearing: 16 May 2007, Belfast

Date decision recorded in register and issued to parties: