Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 386/07

CLAIMANT: Kim Dunn

RESPONDENT: Chief Constable of PSNI

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1) The claimant's claims of discrimination on the grounds of disability and breach of contract are dismissed, following withdrawal made orally to the tribunal.

(2) The claimant is not entitled to present her claim of sex discrimination to the tribunal, in view of the provisions of Article 19(2) of the Employment (Northern Ireland) Order 2003, in view of her failure to send a grievance in writing to the respondent. The tribunal therefore does not have jurisdiction to determine the claimant's claim of sex discrimination against the respondent and the said claim is therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr M Wolfe, Barrister-at-Law, instructed by Edwards & Company, Solicitors.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor's Office.

Reasons

1. This pre-hearing review was arranged to consider the following issues, namely:-

(i) Whether the claimant is entitled to present a claim to the industrial tribunal in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the tribunal?

(ii)(a) Was the claim presented within the specified time limit?

(ii)(b) If not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider this claim despite the fact that it is out of time?

(iii) Whether the claimant is estopped from pursuing a claim of discrimination on the grounds of disability in light of the dismissal of her previous claim of discrimination on the grounds of disability on 23 May 2006?

(iv) Whether the tribunal has jurisdiction to entertain the claimant's claim of breach of contract in view of the claimant's status as a police officer?

2. At the outset of the hearing, the representative of the claimant, without objection, orally withdrew the claimant's claims of discrimination on the grounds of disability and also of breach of contract. The said claims are therefore dismissed. In the circumstances, it was not necessary for the preliminary issues (iii) and (iv), as set out at Paragraph 1 herein, to be determined by the tribunal. In relation to the preliminary issues (i) and (ii), as set out at Paragraph 1 herein, the representatives of both parties confirmed that they did not wish to call any oral evidence; but rather would make oral submissions, on issues of law, on the basis of the facts and history of this matter, insofar as relevant, as set out in Paragraph 3 of this decision, and which were not in dispute between the parties.
3. 1 The claimant, who at all material times was a police constable, presented to the tribunal, on 9 August 2005, a claim form, which included a claim of sex discrimination. The claimant, was initially on a period of maternity leave, which expired on 27 November 2004; and then, during the period from 27 November 2004 to 23 March 2005, was absent from work on fully-paid sick leave. Upon her return to work on 24 March 2005, she became aware of the opportunity to apply to take examinations for the post of sergeant. On 1 April 2005, she applied; but her application was refused. She appealed the decision; but her appeal was dismissed by letter dated 13 May 2005, which was received by her on 15 May 2005.
4. 2 The central issue in her complaint of sex discrimination, which has been made to the tribunal, is that the decision to refuse her application to sit the said examinations constituted an act of sex discrimination; since the decision took into account a period of her absence of work, when she was on fully-paid sick leave, and which absence she contends was a period of sick absence which related to her pregnancy. The respondent denies the said claim; but, in particular, that the period of sick absence related to her pregnancy; and that, in the circumstances, the decision to refuse her application to sit the said examinations constituted an act of sex discrimination.
5. 3 The claimant's claim presented to the tribunal on 9 August 2005 was given the Pre-Acceptance Reference No: 180/05.
6. 4 Under the Industrial Tribunals Rules of Procedure 2005 (the Rules of Procedure) contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, after receiving the claim, the Secretary of the Tribunals was required, pursuant to Rule 2 of the Rules of Procedure, to consider whether the claim should be accepted in accordance with Rule 3 of the Rules of Procedure.
7. 5 Rule 3 of the Rules of Procedure provides, insofar as material and relevant:-

(1) The Secretary shall not accept or register the claim (or relevant part of it) if it is clear to him that one or more of the following circumstances applies –

(a) the claim does not include all the relevant required information;

(b) the tribunal does not have power to consider the claim (or that relevant part of it); or

(c) Article 19 of the Employment (Northern Ireland) Order 2003 (complaints about grievances: industrial tribunals) applies to the claim or part of it and the claim has been presented to the tribunal in breach of Paragraphs (2) to (4) of that Article;

(2) If the Secretary decides not to accept a claim or part of one for any of the reasons in Paragraph (1), he shall refer the claim together with a statement of his reasons for not accepting it to a Chairman. The Chairman shall decide in accordance with the criteria in Paragraph (1) whether the claim or part of it should be accepted and allowed to proceed.

(3) If the Chairman decides that the claim or part of it should be accepted he shall inform the Secretary in writing and the Secretary shall accept the relevant part of the claim and then proceed to deal with it in accordance with Rule 2(2).

(4) If the Chairman decides that the claim or part of it should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall as soon as is reasonably practicable inform the claimant of that decision and the reasons for it in writing together with information on how that decision may be reviewed or appealed.

(5) Where a claim or part of one has been presented to the tribunal in breach of Paragraphs (2) to (4) of Article 19 of the Employment (Northern Ireland) Order 2003, the Secretary shall notify the claimant of the time limit which applies to the claim or the part of it concerned and shall inform the claimant of the consequences of not complying with Article 19 of that Order.

…

8. 6 Rule 1 of the Rules of Procedure provides, insofar as relevant and material, as follows:-

(1) The claim shall be brought before an industrial tribunal by the claimant presenting to the Office of the Tribunals the details of the claim in writing. Those details must include all the relevant required information.

…

(4) … the required information in relation to the claim is –

……………………….

(j) whether or not the claimant has raised the subject matter of the claim with the respondent in writing at least 28 days prior to presenting the claim to the Office of the Tribunals; and

(k) if the claimant has not done as described in sub-paragraph (j), why he has not done so.

……………………….

9. 7 In Paragraph 5 of the claimant's claim form the claimant was asked, inter alia, at Paragraph 5.5 whether she had put her complaint in writing to the respondent; and, if yes, to give the date when she sent it to the respondent. At Paragraph 5.6 she was asked whether she had allowed at least 28 days between the date that she had sent her complaint to the respondent and the date she was sending the claim to the tribunal. At Paragraph 5.7 she was asked to explain why she had not put her complaint in writing to the respondent or, if she did, why she did not let at least 28 days to pass before sending her claim to the tribunal. The claimant did not reply to any of these said matters, as referred to above, in Paragraph 5 of the claim form.
10. 8 The Secretary of the Tribunals, pursuant to Rule 3 of the Rules of Procedure accepted the claimant's claim of sex discrimination and breach of contract; but she rejected the claim of disability discrimination, as the claim did not include all the relevant required information in respect of the details of the claim of disability discrimination. The claim was referred to a Chairman of the Tribunal, in accordance with the Rules of Procedure, who decided that that part of the claim, namely the claim of disability discrimination, could not be accepted for the reasons identified by the Secretary of the Tribunals, as set out above. Thus, the claimant's claim of sex discrimination and breach of contract were accepted and given the Case Reference No: 1158/05 and the parties were so informed. In a response dated 15 September 2005, the respondent denied liability, in respect of the said claim of sex discrimination by the claimant; and contended that the claimant's claim should be rejected as it did not include all the relevant required information.
11. 9 Article 19 of the Employment (Northern Ireland) Order 2003, insofar as material and relevant, provides as follows:-

(1) This Article applies to the jurisdictions listed in Schedule 3 [which said schedule includes a claim of sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976].

(2) An employee shall not present a claim 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 in which the requirement was complied with.

(4) 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 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;

…

(6) An industrial tribunal shall be prevented from considering a complaint presented in breach of Paragraphs (2) to (4), but only if:-

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings; or

(c) the tribunal is satisfied is as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under Article 9 of the Industrial Tribunals Order (Industrial Tribunal Procedure Regulations).

…

12. 10 Schedule 1 of the Employment (Northern Ireland) Order 2003, insofar as relevant and material, provides as follows:-

Grievance procedures

Chapter I

Standard procedure

Step 1: statement of grievance

6. The employee must set out the grievance in writing and send a statement or a copy to the employer.

Step 2: meeting

………………….

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.

Step 2: response

…………………."

13. 11 In addition to Case Reference No: 1158/05, the claimant also presented to the tribunal on 23 August 2005 a complaint of disability discrimination, which was accepted by the tribunal, and given the Case Reference No: 1216/05. Case Reference Nos: 1158/05 and 1216/05 were consolidated by an Order of the Tribunal dated 14 November 2005. In relation to Case Reference No: 1216/05, a preliminary issue arose to be determined by the tribunal relating to the claimant's complaint of disability discrimination; namely, whether the claimant's disability came within the scope of definition 'disability', as set out in the disability discrimination legislation. A pre-hearing review was arranged for 27 April 2006 to consider the said issue:-

"Whether the claimant had a disability within the meaning of the Disability Discrimination Act 1995".

However; by letter dated 12 April 2006, the claimant withdrew her claim of disability discrimination. (Case Reference No: 1216/05); and it was therefore dismissed.

14. .12 Thus, the claimant's claims of sex discrimination and breach of contract, (Case Reference No: 1158/05) remained to be determined by the tribunal. Following discussions between the parties, the tribunal agreed, on the application of the parties, in or about October 2006, to arrange a pre-hearing review to consider the following preliminary issues in relation to the said claims:-

(i) Whether the tribunal has jurisdiction to hear the claim in view of the time limit as set out in Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976.

(ii) If the claim is presented out of time whether it is just and equitable in all the circumstances of the case to extend the tribunal's jurisdiction to consider the complaint.

A hearing was arranged for 15 December 2006. The said hearing was postponed at the request of both the respondent's and the claimant's representatives. The pre-hearing review was then arranged for 21 February 2007. Immediately prior to this hearing, it became apparent to the representatives of the parties that a further issue required to be considered at the pre-hearing review; namely whether the claimant had failed to comply with the requirements of Article 19 of the Employment (Northern Ireland) Order 2003; and, if not, whether the tribunal had jurisdiction to hear the claimant's complaint in respect of her complaint of sex discrimination.

15. .13 A pre-hearing review was held on 21 February 2007 and by a decision recorded in the Register and issued to the parties on 9 March 2007, Mr S A Crothers, Chairman (sitting alone), made the following decision in relation to Case Reference No: 1158/05:-

"The decision of the tribunal is that the claim should not be accepted in accordance with Rule 3(8) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005."

The Chairman set out his reasons as follows:-

"1. the parties confirmed to the tribunal that there was no out of time issues outstanding in relation to the claimant's sex discrimination claim; and

2. the respondent accepted that the claimant was an employee for the purposes of the statutory grievance procedure;

3. the issue before the tribunal, as agreed by the parties, was as to whether the sex discrimination claim should be rejected in light of the fact that Article 19 of the Employment (Northern Ireland) Order 2003 had not been complied with in respect of the statutory grievance procedure;

4. it was common case that the claim had been presented to the tribunal on 9 August 2005. The section in the claim form beginning at Paragraph 5.5 had not been completed by the claimant but the claim form had been accepted by the Secretary to the Tribunals;

5. having considered the issue carefully together with submissions made by both counsel, the tribunal concludes, in accordance with Rule 3(8) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 that the claim should have been rejected by the Secretary to the Tribunals under Rule 3(1)(c) thereof."

16. .14 In light of the tribunal's decision, as set out above, the tribunal therefore did not have jurisdiction to hear the claimant's claim of sex discrimination (Case Reference No: 1158/05).
17. 15 On 20 March 2007, the claimant presented to the tribunal, a claim of sex discrimination, disability discrimination and breach of contract, which were accepted by the tribunal and given the Case Reference No: 386/07. The covering letter, dated 20 March 2007, from the solicitors for the claimant, enclosing the said claim referred to the decision of the tribunal in Case Reference No: 1158/05, which as stated above, was issued to the parties on 9 March 2007.
18. 16 The claimant's claims of sex discrimination and disability discrimination (Case Reference No: 386/07) were in similar terms to the claimant's previous claims of sex discrimination and disability discrimination - save that Paragraphs 5.5 and 5.6 of the claim form were answered by the claimant. In particular, the claimant stated that she had put her complaints in writing to the respondent on 10 August 2005 and that she had allowed at least 28 days between the date she sent her complaint to the respondent and the date of sending her claim to the tribunal.

The respondent presented a response to the claim on 30 April 2007, in which it again denied liability; but also contended that the claimant had failed to comply with the requirements of Article 19 of the Employment (Northern Ireland) Order 2003 and that the tribunal therefore did not have jurisdiction to determine the claimant's complaints of sex discrimination and disability discrimination. It also raised jurisdictional issues relating to time in respect of the said claims.

19. 17 By letter dated 23 May 2007, the tribunal agreed to list a pre-hearing review in respect of the issues set out in Paragraph 1 of this decision.

The pre-hearing review was arranged for 30 July 2007; but it did not proceed on that date, with the consent of both parties, due to the unavailability of counsel. In the event, it was subsequently arranged for hearing on 26 October 2007. As set out in Paragraph 2 of this decision, the claimant's claims of breach of contract and disability discrimination, which had also been contained in the claimant's claim under Case Reference No: 386/07, were withdrawn and dismissed; and it was not necessary for this tribunal to further consider them.

20. 18 It was agreed at this hearing by both representatives that, if this tribunal decided that the claimant had not sent a grievance in writing to the respondent and waited 28 days before presenting her claim to the tribunal, in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003, then the tribunal would not have jurisdiction to hear the claimant's claim of sex discrimination and it would have to be dismissed; and, in the circumstances, the tribunal would not therefore be required to determine the time issues set out in Paragraph 1(ii) of this decision..
21. 19 However, it was also agreed by both representatives at this hearing, that if the tribunal found that the said grievance had been sent to the respondent and the 28 day period had been satisfied, this tribunal would then, in those circumstances, also have to consider the time issues set out in Paragraph 1(ii) of this decision and, in particular, Paragraph 1(ii)(b). There was no dispute that the said claim, in those circumstances, would be out of time, and the issue to be determined related to whether time should be extended on the 'just and equitable' ground.
22. 20 The claimant made an application for leave to apply for a judicial review to the High Court on 10 August 2005, in accordance with Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980. In connection with that application for leave, she sought, inter alia, Orders for Certiorari/Mandamus and/or a Declaration, arising from the said decisions of the respondent, made on or about 13 May 2005, to dismiss her appeal to be allowed to sit the examination for the post of Sergeant. She swore an affidavit, in connection with the said application for leave, on 10 August 2005; and the affidavit was lodged in the Judicial Review Office on 10 August 2005. It is not necessary for the purposes of this hearing to refer to the full contents of the affidavit sworn by the claimant in connection with the said application for leave to apply for judicial review.

In Paragraphs 1 and 2 of the said affidavit the claimant stated as follows:-

"1. Introduction

I am the applicant herein and make this affidavit in support of my above entitled application for leave to apply for judicial review of a decision of the Police Service of Northern Ireland (PSNI) made on or about 13 May 2005 whereby the Managing Attendance Appeals Panel ('the Appeals Panel') dismissed my appeal against a determination that I was ineligible to sit Part III of the Sergeant's Examinations.

2. I feel that I have been discriminated against unfairly on the basis of my sex and, particularly, by reason of having taken a period of maternity-related absence. I believe that the PSNI policy on this issue is unlawful and discriminatory and, in any event, has been misapplied in my case."

23. .21 The claimant, in this hearing, has relied on the above paragraphs of the affidavit, and in particular Paragraph 2, as her grievance in writing to her employer in accordance with the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 and, in particular, Schedule 1, Paragraph 6 of the said Order. It was also the document she was referring to in Paragraph 5.5 of her claim form, as referred to above. There was no dispute between the parties that the claimant's claim of sex discrimination was a jurisdiction listed in Schedule 3 of the said Order and that the standard procedure, as set out in Paragraph 3.10 of this decision, applied to this matter.
24. .22 The claimant's representative, in accordance with the provisions of Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980, made the application for leave ex parte, by lodging the said affidavit and Order 53 statement in the Judicial Review Office; but she did not, as there is no requirement to do so, send a copy of the affidavit to the respondent or its representative. However, the respondent's representative was sent a copy of the said documents by the Judicial Review Office, which was received on 15 September 2007. Again, it was not disputed by either party, that this was sent by the Judicial Review Office, in accordance with the usual practice of that office, where the Judicial Review Judge, who is deciding the leave application, has decided to have a hearing before granting leave to the applicant, and has directed the applicant to attend; but has also directed the proposed respondent to be notified of the leave hearing and invited to attend the hearing, in order to assist the Court in determining whether or not leave should be granted.
25. .23 On 20 December 2005, there was an oral leave hearing, before Mr Justice Deeny, at which the applicant and the respondent were represented. Mr Justice Deeny subsequently gave judgment on 13 January 2006, in which he refused the applicant's application for leave to apply for judicial review. In the course of his judgment, Mr Justice Deeny, inter alia, referred to the absence of any authority that issues of promotion, within a police force, are matters of private law; but he also stated at Paragraphs 11 and 12 of the judgment as follows:-

"11. Fourthly and finally, Mr Maguire submits that the applicant has an effective alternative remedy before an industrial tribunal with regard to any alleged sex discrimination. Mr O'Donoghue very properly acknowledged that such an application had been lodged protectively. He finally said that this application was being funded by the Police Federation, with the implication that the other application was not. I can see no reason why, if an issue of principle rises here, why they should not choose to fund the industrial tribunal proceedings. As Mr Maguire pointed out there is statutory provision for such a tribunal to make a recommendation under Article 65(1)(c) of the Sex Discrimination Order if they considered that the policy to which I referred had a discriminatory effect. One could also observe that they are in a much better position to award compensation if there has been discrimination then this Court, which only very rarely does so in the judicial review context.

12. In the light of these submissions I have concluded that the applicant does not have an arguable case justifying the grant of leave and I refuse leave."

It is clear that the application to the tribunal, referred to by Mr O'Donoghue, as set out in the decision of Mr Justice Deeny, was the claim of sex discrimination brought by the claimant on 9 August 2005 (Case Reference No: 1158/05), which was subsequently dismissed by the decision, recorded in the Register and issued to the parties on 9 March 2007, as set out in Paragraph 3.12 of this decision.

26. 1 The first issue this tribunal had to consider was whether Paragraph 2 of the said affidavit was a grievance in writing, which had been sent to the respondent in accordance with Paragraph 6 of Schedule 1 of the Employment (Northern Ireland) Order 2003:-

"6 The employee must send out the grievance in writing and send the statement or copy of it to the employer."

27. 2 In relation to this issue there have been a number of decisions of the Employment Appeal Tribunal, namely in Shergold v Fieldway Medical Centre [2006] IRLR 76 at Paragraphs 28 - 36 and Canary Wharf Management Limited v Edebi [2006] IRLR 416 at Paragraphs 21 - 31. As was stated in the recent decision of the EAT in the case of The Governors of Alford House and Other v Mr J McDonald [UKEAT/0224/07/JOJ unreported 11 October 2007] these authorities are now well known and the position can be summarised, as set out below:-

" … the employee must set out the complaint but need not set out the basis for the complaint. The complaint may be expressed simply and need not contain the detail of the subsequent claim so long as they are essentially the same. No technical detail is required. The statutory context is that the employee will subsequently have to inform the employer of the basis of the complaint when doubts about its size/scope may be determined. The complaint need not invoke a grievance procedure … :

4.3 As the EAT President observed in Edebi:-

"These are complex and not happily structured regulations."

There is no doubt that, in the interpretation and application of the above provisions, the Employment Appeal Tribunal has also sought to avoid undue technicality and formality, and has stressed the importance of substance and flexibility (see further Galaxy Showers v Wilson [2006] IRLR 83, Paragraph 16 and Shergold v Fieldway Medical Centre [2006] IRLR 76, Paragraphs 26 – 27).

As stated in Canary Wharf Management Limited v Edebi, Elias J, stated:-

"If the statement cannot in context fairly be read even in an untechnical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, than the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it."

28. .4 In the course of her submissions to the tribunal, Ms Murnaghan referred to the Edebi case, and the judgement of Elias J and Paragraph 19 thereof when he stated:-

"19 First, the timing of the grievance. There is no maximum time limit prior to the lodging of the claim to the tribunal in which the grievance must have been raised. There is the minimum period of 28 days which must be allowed for the employer to deal with it and go through the relevant procedures, but no maximum period. That is not to say, however, that the act of raising a complaint months or years prior to lodging the tribunal claim will necessarily constitute the appropriate raising of the grievance. The grievance must be extant [the tribunal's emphasis]. If it can no longer properly said to be an outstanding grievance, perhaps because it was apparently satisfactorily dealt with or because the employee has not pursued it in circumstances which it may be properly be inferred that he no longer wishes to have it determined, then it will be necessary for the employee to raise the complaint again in written form."

Ms Murnaghan submitted that, if Paragraph 2 of the said affidavit constituted a grievance, for the purposes of the statutory procedures, then it was no longer a grievance which could be said to be extant. I am satisfied that the judgment of Mr Justice Deeny solely related to whether the application for leave to apply for judicial review should be granted, but cannot be taken to have resolved any grievance that may be said to be contained within Paragraph 2 of the said affidavit. I am therefore satisfied the said grievance, at all material times remained extant.

29. .5 The authorities of the Employment Appeal Tribunal in relation to this issue are not binding on this tribunal. However, they are of persuasive authority. There have been no decided authorities in relation to the proper interpretation of Article 19 of the 2003 Order by the Northern Ireland Court of Appeal. The decisions of the Employment Appeal Tribunal have not been the subject of any relevant appeal. It also has to be noted the statutory provisions in relation to these matters in both Northern Ireland and Great Britain are in similar terms. In the absence of any relevant legal authority in this jurisdiction I concluded that it was appropriate for me, in determining these issues, to follow the guidance set out in the case law of the Employment Appeal Tribunal, which I have referred to above.
30. .6 Having considered the authorities referred to above, and adopting the non-technical unsophisticated approach, as set out in the said authorities, I am satisfied that, subject to what I state below, that the words of Paragraph 2 of the said affidavit would be sufficient in themselves to constitute a grievance for the purposes of the said statutory procedures.

As Elias J in Edebi has made clear there is 'considerable flexibility' about the 'form of the grievance'. He made clear, and which has been confirmed by the more recent authorities, that the requirements for a statement of grievance in writing are not onerous. It has been held that it may therefore be raised in what is primarily a letter of resignation, or by a solicitor as an agent of the employee in a communication to the employer's solicitor, or in a letter before action. Further, it is irrelevant that other issues are raised at the same time as the complaint, whether additional complaints or otherwise, and an employee does not have to indicate that he/she wants or expects the complaint to be dealt with or that he/she is actively invoking the grievance procedure, statutory or contractual.

In this context it is necessary to note that, under Regulation 14 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, a statutory questionnaire under Article 74 of the Sex Discrimination (Northern Ireland) Order 1976 does not constitute a statement of grievance. However, this is a specific exception, which in my opinion is not of assistance in determining this matter (see further Holc-Gale v Makers UK Ltd [2006] IRLR 179).

31. .7 However, in relying on Paragraph 2 of the affidavit as a grievance, which affidavit was an essential proof of the claimant's application for leave to apply for judicial review (see Order 53 Rule 3(2)(b), of the Rules of the Supreme Court (Northern Ireland) 1980), the issue to be determined by this tribunal was whether such a statement contained in such an affidavit, as part of the judicial review proceedings, could also be a grievance for the purposes of compliance with the said statutory procedures. Ms Murnaghan contended that such an affidavit, brought in connection with the proceedings for judicial review, could not constitute a grievance for the purposes of the said statutory procedures – even if the tribunal was satisfied the words, in themselves, were sufficient to constitute a grievance. Mr Wolfe, adopting the approach of the EAT in the cases referred to above, submitted that it was irrelevant that the claimant's grievance had been set out in the affidavit, as part of the claimant's application for judicial review; it was enough that the complaint had been made and the form of the grievance was irrelevant, as emphasised by Elias J in Edebi, as referred to above.
32. .8 Given the flexible approach by the EAT to the interpretation of the statutory procedures and, in particular, what constituted a grievance and the concentration on avoidance of undue technicality and formality, I had considerable sympathy for the submissions made by Mr Wolfe on this issue. However, having decided that it was appropriate for me to follow the above authorities by the Employment Appeal Tribunal in this matter, it was also therefore necessary for me to consider any other relevant authority of the Employment Appeal Tribunal, which might have any bearing on the said issue.
33. .9 In the case of Gibbs v Harris [UKEAT/0023/07/RN, unreported dated 27 February 2007], Mr Justice Wilkie gave judgment in a case which, in my opinion, is of considerable persuasive authority, albeit it is not concerned with the contents of an affidavit in an application for leave to apply for judicial review; rather it was concerned with the content of a claim form presented to an employment tribunal on a previous occasion. In the case, the claimant resigned and claimed unfair constructive dismissal. The tribunal subsequently found that he had not previously raised a grievance and that there was no jurisdiction to hear his claim. He then brought a second claim and successfully argued before the Employment Tribunal that his first ET1 [ie his claim form to the tribunal] set out his grievance for the purposes of the second claim. Mr Justice Wilkie allowed the appeal.
34. 10 Mr Justice Wilkie, having referred to the decisions in Galaxy Showers, Shergold and Edebi, referred to above, stated in Paragraph 15 of his judgment:-

"15.

In my judgment, the employment tribunal was wrong in this case to conclude that an ET1 could constitute a written statement of grievance for the purposes satisfying the pre-conditions set out by Section 32 before an employee can present a complaint which the tribunal is obliged to accept. I accept the submissions made by Ms Dennis that the statutory structure is such that it envisages that a grievance procedure is invoked before litigation is commenced. Furthermore, once the grievance procedure has been invoked by the sending of a written grievance, the employee can immediately thereafter fire off the opening shot in formal litigation before the employer has had the 28 days within which to consider the matter and comply with the requirements of the standard and modified procedure by responding either by holding a meeting or responding in writing. It would run wholly counter to the statutory scheme if, in effect, the employee could litigate on the one hand and on the other hand oblige the employer to engage in the grievance procedure and then, the employer not having satisfied the employee in respect of the grievance thus raised, allow the employee to re-start litigation afresh. The two processes – the litigation process and the pursuit of a grievance – are separate and distinct and call for a separate and distinct approach."

35. 11 In the case of Kennedy Scott Ltd v Francis [UKEAT/0204/07/DN] [unreported 3 May 2007], Mrs Justice Cox, at Paragraph 43 of her judgment, approved, on its particular facts, the approach of Mr Justice Wilkie in the case of Gibbs v Harris; and his emphasis on the two processes, namely litigation and the use of an internal grievance procedure. " … each called for a separate and distinct approach, and that the claimant could not rely on an earlier form ET1 as constituting a statement of grievance …………… ".

I appreciate that, in this particular case, the document relied upon is not an ET1 form, which is part of the employment litigation process; and which would have had to be invoked if the grievance remained unresolved and the claimant wished to pursue the matter further to a tribunal. In this case, the affidavit, was a document, which was part of a different and separate litigation process.

However, I have come to the conclusion, albeit reluctantly given the non-technical approach which has been adopted by the Employment Appeal Tribunal, that the distinction drawn by Mr Justice Wilkie between the two processes, namely litigation, and the use of an internal grievance procedure, is a correct and valid distinction and that, in the circumstances, the claimant is not entitled to rely on Paragraph 2 of the affidavit as a grievance, for the purposes of the statutory grievance procedures.

36. .1 However, even if I am wrong and the affidavit can be relied upon as a grievance for the purposes of the statutory grievance procedures, I think there is a further difficulty facing the claimant. The affidavit was not sent by the claimant or her representative to the respondent or its representative; but rather was sent by the Judicial Review Office in the circumstances set out in Paragraph 3.20 of this decision.

A similar issue arose, albeit obiter, in the case of Gibbs v Harris where the ET1, the subject-matter of the grievance, was sent to the Tribunal Office by the claimant and which form was then, in accordance with the Rules of Procedure, sent to the employer in order for the employer, if it wished, to send a response form to the tribunal.

Mr Justice Wilkie stated at Paragraph 17 of his judgment:-

"17.

Furthermore, although Ms Dennis did not actively pursue the, no doubt technical, argument, I, for my part, do find it difficult to see how an employee can be said to have sent a statement of grievance to the employer when what the employee has done is commence litigation by presenting to the tribunal an ET1. There can be no question of a contractual relationship between claimant and the Tribunal Service whereby its acts as the employee's agent by sending the ET1 to the employer on behalf of the employee. Whether or not that is a good point, it rather points up the inappropriateness of regarding the commencement of proceedings at the same time constituting the implication of the statutory grievance procedure."

Further, in the case of Kennedy Scott Ltd v Francis, Mrs Justice Cox again approved the approach of Mr Justice Wilkie in Gibbs v Harris, at Paragraph 43 of her judgment, when she agreed that, where a claimant had sent an ET1 to the Tribunal Service, the Tribunal Service could not be said to be acting as an agent of the claimant when it sent it to the employer in accordance with the usual practice. In the Kennedy Scott Ltd v Francis case, Mrs Justice Cox had found that a Step 1 statement was sent by the employee to the employer when the claimant presented his complaint at a meeting with his line manager who noted it down accurately and contemporaneously.

37. .2 In this context, I think it is necessary to emphasis that the sending of the affidavit by the Judicial Review Office to the respondent, albeit as part of the said normal practice, is not a requirement of Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980; and the application for leave remains technically an ex parte application. In any event, it is only done in circumstances where the judicial review judge has decided that he wishes to have an oral hearing before leave is granted. Whilst such a hearing frequently occurs, it is not a certainty and is a practice which should only be adopted 'in appropriate circumstances'. (See further the discussion in 'Judicial Review in Northern Ireland – A Practitioner's Guide – by Larkin and Schofield', and its reference to the Court of Appeal decision in Re: Farrell's Application [1999] NIJB 143, at Paragraphs 4.13 – 4.17.)

In the circumstances, I am satisfied that the Judicial Review Office, when it sent a copy of the affidavit to the respondent's representative, was not acting as the claimant's agent, nor was there anything akin to a contractual relationship between the claimant and the Judicial Review Office in relation to the sending of the said affidavit by the Judicial Review Office to the respondent's representative.

38. .3 I am therefore not satisfied that the claimant has established that a grievance, as set out in Paragraph 2 of the affidavit, was sent to the respondent, in accordance with the provisions of Schedule 1 Paragraph 6 of the Employment (Northern Ireland) Order 2003, when the copy of the affidavit was sent by the Judicial Review Office to the respondent's representative. The said requirement in Paragraph 6 of Schedule 1 not having been complied with, the claimant is not therefore entitled, pursuant to Article 19(2) of the Employment (Northern Ireland) Order 2003, to present her claim of sex discrimination to the tribunal, in view of her failure to send a grievance in writing to the respondent. The tribunal therefore does not have jurisdiction to determine the claimant's claim of sex discrimination against the respondent and the said claim must therefore be dismissed.
39. .4 If I had been satisfied that the requirements of Paragraph 6 of Schedule 1 of the Employment (Northern Ireland) Order 2003 had been complied with, it is clear that the claimant had waited 28 days before presenting her said claim to the tribunal pursuant to Article 19(3) of the 2003 Order.
40. .5 As the tribunal does not have jurisdiction to determine the claimant's claim of sex discrimination, it was not therefore necessary (see further Paragraph 3.18 of this decision) for the said time issues, set out in Paragraph 1(ii) of this decision to be determined by this tribunal.

Chairman:

Date and place of hearing: 26 October 2007, Belfast

Date decision recorded in register and issued to parties: