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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Millican v Coleraine Area Rural Transport [2009] NIIT 439_08IT (11 March 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/439_08IT.html
Cite as: [2009] NIIT 439_08IT, [2009] NIIT 439_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 439/08
CLAIMANT: Sandra Christelle Millican
RESPONDENT: Coleraine Area Rural Transport Limited
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is:-
that the tribunal has jurisdiction to consider the claimant’s complaint of constructive dismissal in view of the requirements of Article 19 of the Employment (Northern Ireland) Order 2003; and
(ii) that the tribunal is not deprived of jurisdiction to determine these proceedings by virtue of any of the contentions set out at Paragraph 2(ii) below and that the claim form was rightly accepted.
Constitution of Tribunal:
Chairman (sitting alone): Mr D Buchanan
Appearances:
The claimant was represented by Mr A Stewart, Barrister-at-Law, instructed by Thomas Taggart & Sons, Solicitors.
The respondent was represented by Mr K Denvir, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.
The claimant, Sandra Christelle Millican, has brought a claim alleging constructive dismissal against her former employer, Coleraine Area Rural Transport Limited. She had worked for them as a Transport Manager. On 17 December 2007 she wrote to them resigning from this post as from 31 December 2007, and on 6 March 2008 she presented her claim of constructive dismissal to the industrial tribunal.
2. Following a Case Management Discussion before another Chairman of the Tribunals, the matter was listed for a pre-hearing review to determine the following issues:-
“(i) Whether a tribunal has jurisdiction to consider the claimant’s complaint of constructive dismissal in view of the requirements of Article 19 of the Employment (Northern Ireland) Order 2003.
Are the following contentions correct and, if so, is a tribunal for that reason deprived of jurisdiction to entertain these proceedings:-
(a) The claim form was defective in that it did not satisfy the requirements of the Industrial Tribunals Rules for starting a claim, in that it did not contain the required information stipulated in Rule 1(4)(j).
(b) By reason of that default, the claim was not ‘presented’ within the Rules.
The Secretary should not have accepted the claim form in accordance with the duties set out at Rule 3(1)(a) or alternatively 3(1)(b).
The Secretary should have referred the claim form to a Chairman, Rule 3(2).
Notwithstanding the lack of referral to a Chairman, the claim form is defective.
The omission from the claim form of any reference to the making of a statutory grievance is a material and significant omission, since the information omitted relates to jurisdiction.
It is open to a Chairman to review compliance of the claim form with the requirements of the Rules.
Against that background, the claimant has no entitlement in the circumstances to bring or contest the proceedings and the claim form should not have been accepted.”
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3. |
(i) |
The issue set out at Paragraph 2(i) above concerns what might be termed the substantive issue, namely whether the correspondence and other communications from the claimant to the respondent amount to a grievance as required by Article 19 of the Employment (Northern Ireland) Order 2003. The issue at Paragraph 2(ii) above may be termed the procedural issue, and while it has been sub-divided into various aspects, it essentially concerns the correctness or otherwise of the decision of the Secretary to the Tribunals to accept the claim under Rule 2 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. |
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(ii) |
In order to determine this matter, I heard submissions from Mr Stewart BL, for the claimant, and Mr Denvir BL, for the respondent. I am grateful to them both for their submissions, which were helpful and concise. I also had regard to documentary evidence in the form of an agreed bundle, mostly of correspondence, provided by the parties.
The facts which are relevant to the determination of the preliminary issues are set out in the following paragraphs. |
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4. |
(i) |
As stated above, the claimant resigned from her employment on 31 December 2007.
It appears that she had been unhappy there for some time. |
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(ii) |
On 11 October 2007 she had filled in a grievance form and submitted it to her employer. Her main complaints centred on stress, breach of health and safety policy/regulations (including an allegation that her line manager humiliated her by using patronising and condescending remarks), harassment and bullying, breach of contract (including allegations of breach of mutual trust and confidence, and a change in her way of working, done without any consultation), and unfavourable treatment in the payment of a bonus compared with another member of staff (although this allegation does not appear to be one of discrimination on a proscribed ground).
All these grievances pre-date the claimant’s dismissal. |
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(iii) |
There was some further correspondence between the parties leading to the setting up of a grievance hearing. Then on 17 December 2007, the claimant wrote to the respondent resigning her employment with effect from 31 December 2007. She referred to a meeting four weeks previously to discuss her grievances at which, according to her, she had been assured that the respondent’s Board wanted to support her return to work. However, despite an alleged promise to meet again, she had received no response. She stated:- |
“[Y]our lack of contact in the past four weeks proves that the Board have no intention in supporting me in a return to work.”
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She concluded:- |
“This situation is untenable and without the support you promised me, my only option is to resign from my post.”
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Her resignation letter dwells heavily, therefore, on an alleged lack of support. Mr Denvir BL, for the respondent, characterised this letter as the ‘trigger’ letter in respect of her subsequent complaint of unfair (constructive) dismissal. |
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5. |
(i) |
The claimant presented her claim form to the tribunal on 6 March 2008. The claim form contains various boxes, the responses to which are designed not only to elicit details of a claim, but also to ensure that a prospective claimant meets certain jurisdictional requirements for bringing a claim. |
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(ii) |
The relevant boxes here are 5.5, which asked if a claimant has put his/her complaint in writing to the employer, and if so, on what date; box 5.6, which asked the claimant if he or she has allowed at least 28 days to elapse between the date of sending the grievance and the date of submitting the claim to the tribunal; and 7.1 (to be provided in cases of unfair dismissal and constructive dismissal) requiring details of the claimant’s claim. |
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(iii) |
The claimant did not deal with the matters at 5.5 and 5.6. This should have been done by ticking the appropriate boxes. Box 7.1 was accompanied by a three page attachment. Towards the end of it the claimant referred to seeing her GP on 10 October 2007, going to work the next day (ie 11 October 2007) and putting in a grievance. |
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6. |
(i) |
The scheme for acceptance and rejection of claims is set out in Rules 1 – 9 of Schedule 1 of the 2005 Rules. A detailed exposition of the corresponding provisions of the identical English Rules is helpfully set out by Mr Recorder Luba QC in Hamling v Coxlease School Ltd, a decision of the Employment Appeal Tribunal handed down on 19 May 2006 [Appeal No UKEAT/0181/06/LA] at Paragraphs 6 – 15 inclusive. |
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(ii) |
The Rules provide, in general terms, for administrative acceptance or rejection of claims by the Secretary of the Tribunals. A decision to reject (or part-reject) a claim must be referred to a Chairman for judicial consideration, and his decision not to accept a claim (or a response, or a counterclaim) is subject to a review. |
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(iii) |
Rule 3(1) of the Rules provides that:- |
“[T]he Secretary shall not accept or register the claim (or a relevant part of it) if it is clear to him that one of more of the following circumstances applies:-
the claim does not request all the relevant required information;
the tribunal does not have power to consider the claim (or that relevant part of it); or
Article 19 of the Employment Order (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.”
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(iv) |
The required information in relation to a claim is set out in Rule 1(4), and in relation to the Article 19 grievance procedure the required information to be provided is as follows:- |
“(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
if the claimant has not done as described in sub-paragraph (j), why he has not done so.”
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7. |
(i) |
In Hamling v Coxlease School Ltd, referred to above, Mr Recorder Luba gives guidance on the consequences for a claimant of omitting to provide information in relation to his claim in the claim form.
In that case, both the Secretary of the Tribunals, and a Chairman, when the matter was referred to him, had rejected the claim because the claimant’s address had been omitted. (The claimant’s address is also required information under Rule 1(4).) However, although the claimant’s address had not been provided, the claim had been presented through a solicitor, and the name, address and other contact details of the solicitor had been provided. |
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(ii) |
The Learned Recorder, at Paragraph 34 of his decision, had regard to the policy background of the corresponding English Rules. He stated:- |
“It is plain that the purpose and function of the new Rules was to tighten up the previous procedures being observed (or breached) in the Tribunal Service and to ensure that in future more vigorous application of the Rules would be enforced by the Tribunal Service itself. On the other hand it is important to appreciate that the Rules are simply a procedural vehicle to enable important statutory claims to be advanced … .”
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He also quoted with approval, at Paragraph 35, the word of His Honour Judge Prophet in Grimmer v KLM Cityhopper UK [2005] IRLR 596 (at [8]), where the latter stated:- |
“The Chairman, unlike the Secretary whose functions are administrative has, as an independent judicial person, to do more than merely run down a check-list. He or she must have in mind the overall interests of justice. It is a very serious step to deny a claimant or for that matter a respondent the opportunity of having an employment rights issue by an independent judicial body ie an Employment Tribunal. Most Chairmen would not wish to feel forced to do so without there being a very good reason.”
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(iii) |
At Paragraphs 36 and 39 the Learned Recorder held that the question for a Chairman faced with a failure to give required information is to decide in the context of the particular claim whether the information was relevant and whether the omission was material or immaterial. At Paragraph 40 he stated that in asking and answering these questions, a Chairman is required to have regard to the overriding objective in Regulation 3.
In the case before him, where the claimant’s own address had been omitted, but it was clear she could have been contacted through her solicitors, he held that the omission was both irrelevant and immaterial. |
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8. |
(i) |
The approach of the Employment Appeal Tribunal in Hamling v Coxlease School Ltd is typical of the flexible and liberal approval taken by courts and tribunals to the apparently strict rules laid down by the pre-acceptance and rejection procedures. That approach is heavily influenced by a desire to ensure that litigants are not denied access to tribunals on technical grounds. The Rules have in any event become somewhat discredited, and the Employment Act 2008, to be implemented in Great Britain, will replace them in England and Wales, and Scotland. Of course, what is seen as a flexible and liberal approach towards claimants may appear to cynical respondents as an elastic approach designed to frustrate the operation of the Rules. |
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(ii) |
While the decision on appeal in Hamling seems to accord with justice and common sense, that flexible approach has its limits. It cannot be applied in the same way to all ‘required information’, and in particular, to information required about the grievance procedure under Rule 1(4)(j) and (k). This is because that information is required as a direct consequence of the existence of the statutory grievance procedure in the 2003 Order. The policy of the Order is to resolve disputes without recourse to tribunal proceedings, and to give employers notice of pending disputes so that they can be sorted out before they reach a tribunal.
The admissibility provision of Article 19 of the 2003 Order, which provides that a tribunal cannot hear certain disputes unless the grievance procedure is first used, and the claimant then holds off starting proceedings for 28 days, are reflected in Rule 1(4)(j) and (k) of the Rules. |
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(iii) |
In Shaikh v Salford NHS Primary Care Trust [ET Case No 22406491/04], the claimant had raised a grievance, but did not say so on his claim form. The claim was rejected on this ground, and the tribunal held that, even in the light of the overriding objective, it had to reject the claim since a mandatory requirement had not been complied with.
By way of contrast, in Mark Warner Ltd v Aspland [2006] IRLR 87, the claimant had not stated on her claim form that she had raised a grievance. She referred to two letters her solicitor had written to the employer setting out her complaints. It was held that these letters constituted a grievance, and that the claimant had complied with the statutory grievance procedure and the requirements of the procedural rules. The Chairman could see that she had raised the subject-matter of her claim with the respondent before she started proceedings.
In Basingstoke Press Ltd (in administration) v Clarke [2007] IRLR 588 the claimant’s claim of constructive dismissal had been accepted by the Regional Secretary of the Tribunals. It was, in due course, heard by a Chairman of the Tribunals, who found for the claimant and made an award of compensation in his favour.
On appeal to the Employment Appeal Tribunal, it was contended on behalf of the respondent that the tribunal had not had jurisdiction as, contrary to the provisions of Section 32 of the Employment Act 2002 (the equivalent of Article 19 of the 2003 Order), 28 days had not elapsed between the making of the grievance and the presentation of the claim as required by Section 32 of the Act.
In this case, the claimant had ticked a box on the claim form, indicating that the grievance procedure had been followed.
The Employment Appeal Tribunal was satisfied that in fact only 26 days had elapsed between submitting the grievance and lodging the claim. It held that the tribunal did not have jurisdiction to hear the claim.
Judge McMullen QC stated, op cit, 590:- |
“This is a matter of jurisdiction. The language we have cited from the statutes, the regulations and the rules above make it clear that the case cannot be heard. The purpose of the regime is to ensure that claims are dealt with by a employer before resort to an industrial tribunal … .”
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He continued at p591:- |
“We will deal with one further argument which relates to the construction of s32(6). It is whether a claim must be accepted if it is simply apparent on its face that the grievance procedure has been adopted. As in this case, a box is ticked on the claim form indicating that the grievance procedure had been complied with. That, on its face, would give the regional secretary power to accept the claim, but once the matter is before a Chairman or a tribunal, particularly when it is the subject of an application (as in this case) it must be looked at more carefully. A specious assertion cannot survive and so when a claimant asserts that he has complied with the grievance procedure, including allowing 28 days to elapse, the Secretary commits no error of law in allowing it to go forward. But if on analysis, it proves to be incorrect … the matter can be unpicked. The word ‘apparent’ does not assist in this analysis and an assertion that 28 days has elapsed, apparent on the form, will not allow it to survive if only … 26 days are found to have elapsed.”
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9. |
(i) |
Having set out the facts and the relevant law I now turn to address the questions for the tribunal set out at Paragraph 2. above.
Mr Denvir BL, for the respondent, contended that even on an extended reading of the claim form the claimant had not put the subject-matter of her complaint to the employer by way of grievance. He pointed to the potential for confusion between what he termed the pre-existing grievance procedure invoked by the claimant on 11 October 2007 and the statutory grievance procedure. The latter resulted in the claimant’s resignation of 31 December 2007, and the alleged breach of contract justifying the claimant’s resignation was the lack of support referred to in her letter of 17 December 2007.
The claimant had not met the requirements of the grievance procedure, and the tribunal had no jurisdiction to hear her claim, which had been wrongly accepted. |
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(ii) |
I am satisfied that in this case the claimant has set out a valid grievance in writing, and that she had therefore complied with Article 19 of the 2003 Order.
In this case, the claimant is alleging constructive dismissal. In a constructive dismissal case the grievance relates to the alleged repudiatory conduct on the part of the employer which caused the employee to resign. It is not about the dismissal itself (ie the employee’s resignation) since that occurred as a result of the employee’s own action. One also has to have in mind the potential applicability of the ‘last straw’ doctrine in a constructive dismissal case. Here, the state of affairs existing between the parties was very much an ongoing one.
A statement of grievance under the 2003 Order:- |
“is a statement of the employee’s complaint. There is no requirement that the employee use technical language. However, the statement made to the employer by way of grievance must be essentially the same complaint as is presented to the tribunal. This will be the case where the employer, on a fair reading of the grievance, and having regard to the particular context in which it is made, can be expected to realise what complaint is being made.”
See : Shergold v Fieldway Medical Centre [2006] IRLR 76; and Canary Wharf Management Ltd v Edebi [2006] IRLR 416
In the more recent case of Cannop and Others (appellants) v Highland Council (respondent) sub nom Highland Council v TGWU and Others [2008] IRLR 634, the Lord President (Lord Hamilton) in the Court of Session, Inner House, at 641, stated:-
“We hesitate to add to the judicial pronouncements on [grievance procedures and the relationship between the grievance and the tribunal claim]. We approve of the observations that, on this and related matters, an unduly technical or over-sophisticated approach is inappropriate (Shergold, Paragraph 27; Canary Wharf, Paragraphs 24 and 41).”
He continued, also at p641:-
“Moreover, the grievance document need not necessarily be read in isolation. There may have been earlier communications with the employer which provide a context in which the grievance document falls to be interpreted … .”
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(iii) |
It is clear from Shergold that a letter of resignation can constitute a grievance under the statutory grievance procedure. I consider that in this case the resignation letter of 17 December 2007 and the grievance of 11 October 2007 have to be read together. Although the former is couched in terms of lack of support, it is clear from its context that it relates back to grievance of 11 October 2007. It is also noteworthy that the allegations contained in the grievance of 11 October 2007 are typical of those made in constructive dismissal applications, and indeed it is couched in the language of constructive dismissal with reference to ‘breach of contract’ and a breach of ‘mutual trust and confidence’. |
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(iv) |
I am further satisfied, that while the appropriate boxes were not ticked at Paragraphs 5.5 and 5.6 of the claim form, there was a reference in the claim form (albeit a laconic one) to putting in a grievance, and a specific reference to the date of 11 October 2007 when a grievance was submitted (I have held above that the resignation letter of 17 December 2007 and the grievance of 11 October 2007 have to be read together).
I am therefore satisfied that, on proper analysis, the respondent was aware that a grievance had been raised. |
I therefore find:-
(i) that the tribunal has jurisdiction to consider the claimant’s complaint of constructive dismissal in view of the requirements of Article 19 of the Employment (Northern Ireland) Order 2003; and
(ii) that the tribunal is not deprived of jurisdiction to determine these proceedings by virtue of any of the contentions set out at Paragraph 2(ii) below and that the claim form was rightly accepted.
Chairman:
Date and place of hearing: 16 October 2008, Belfast
Date decision recorded in register and issued to parties: