Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01376_10IT.html
Cite as: [2011] NIIT 01376_10IT, [2011] NIIT 1376_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1376/10

CLAIMANT: David McAllister

RESPONDENTS: 1. Forest Service

2. Department of Agriculture and Rural Development

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1) the claimant complied with the requirements set out in Article 15 and Schedule 1, Part II, Paragraph 6 of the Employment (Northern Ireland) Order 2003 by setting out a grievance in writing and sending the statement or a copy of it to the respondents; and the claimant is therefore entitled to present his claim of disability discrimination to the tribunal, pursuant to Article 19(2) of the Employment (Northern Ireland) Order 2003; and

(2) the tribunal therefore does have jurisdiction to consider and determine the claimant’s claim of disability discrimination.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Mr M Potter, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Reasons

1.1 The claimant presented to the tribunal on 17 May 2010, a claim of breach of contract and a claim of disability discrimination, pursuant to the Disability Discrimination Act 1995, as amended, against the respondents. The claimant’s claim of breach of contract was rejected by the tribunal as the claimant was still employed by the respondents. The claimant’s claim of disability discrimination was accepted by the tribunal, as set out in the tribunal’s letter to the parties dated 24 May 2010. At Section 6.3 of the claim form, the claimant stated that he had raised a complaint in writing in relation to the subject-matter of the complaint with the respondents on 5 May 2008. The respondents presented a response to the claimant’s claim to the tribunal on 16 July 2010, in which the respondents, inter alia, denied liability for the claimant’s claim of disability discrimination. In particular, the respondents at Section 5.2, Paragraph 17, stated:-

“The respondent does not accept that the claimant has completed the grievance procedures pursuant to the Employment (Northern Ireland) Order 2003 and in particular Step 1 thereof. Consequently the tribunal does not appear to have jurisdiction to hear the complaint. It may be appropriate to have a preliminary hearing on this point.”

1.2 At a Case Management Discussion on 11 February 2011, as set out in the Record of Proceedings dated 22 February 2011, I directed, for the reasons set out in the said record, that a pre-hearing review be arranged to consider the following issues, namely:-

(1) Whether the claimant has complied with the requirements set out in Article 15 and Schedule 1 Part II Paragraph 6 of the Employment (Northern Ireland) Order 2003 by setting out a grievance in writing and sending a statement and copy of it to the respondents.

(2) If not, whether the tribunal has jurisdiction to consider the claimant’s claim of disability discrimination pursuant to the Disability Discrimination Act 1995, as amended, pursuant to the provisions of Article 19(2) of the Employment (Northern Ireland) Order 2003.

1.2 At this pre-hearing review the claimant and the respondents’ representative declined my invitation to call any oral evidence and informed me that they wished to rely on the documents/correspondence, which was produced in evidence to me, by agreement, during the course of the hearing, together with their oral/written submissions.

2.1 The tribunal, having considered the said documentation/correspondence and submissions, made the following findings of fact, insofar as relevant and necessary for the determination of the issues, the subject-matter of this pre-hearing review:-

(a) The claimant was off sick for a lengthy period of approximately nine months in or about 2007/2008, following an accident in February 2007, which resulted in the claimant suffering a number of severe physical injuries to his wrist/ribs/vertebrae/ leg. At the end of the said period of sick absence, the claimant began a phased return to work. A meeting took place on 29 April 2008, when the claimant was informed by Mr Watson, the District Forest Officer of the respondents, that his phased return to work was being suspended to enable the respondents to obtain a further medical opinion, as the respondents had various concerns regarding his health.

(b) By letter dated 5 May 2008, the claimant wrote to the respondents referring to the meeting on 29 April 2008. In the letter, he expressed a number of criticisms of the meeting including the fact that it was in a public car park, with no independent witness, the manner in which it was conducted and the absence of any official notification of his medical suspension. In particular, he concluded by stating the following:-

“I would be grateful if you would please advise as to what procedure was followed in relation to my suspension and if I am suspended with or without pay. Also what happens if OHS gives me the OK to return to work? … .”

“I refer to my previous letter of 5^th of May 2008, I urgently require an answer clarifying the reason for my immediate suspension for duties on Tuesday 29^th of April at 4.00 pm. I would like to reaffirm that I consider myself fit and ready and willing to work. This has been confirmed by both the OHS doctor and my own GP. I would like to point out that as I am willing to do my job and as you are unable to provide me with gainful employment that I should be receiving full pay while you have me on suspension.

I would also like to know who it was that told the doctor and Occupational Health Service that I was too ill to work and was unable to complete the tasks set for me.

I wish my previous letter to be taken as that of a grievance as I believe you have breached my contract of employment and your duty of care to me, due to the nature of the suspension.”

Mr Watson replied to this letter, by letter dated 16 May 2008. In the letter, in addition to confirming, as set out above, that the claimant’s return to work was being suspended to enable the respondents to obtain a further medical opinion as the respondents had concerns regarding his health, Mr Watson set out in some detail the discussions that took place with the claimant at the meeting. He set out, inter alia, the procedures he had followed and that the respondents believed the claimant’s performance on his return to work indicated he continued to have difficulty with a range of duties; and also that, if the present performance continued, he would have to consider the case under the inefficiency procedures and the claimant could ultimately be dismissed due to poor performance. Significantly, for the purposes of this pre-hearing review, as confirmed in the letter, the claimant, in response, suggested Mr Watson “was in fact discriminating against the claimant due to his current disability” [tribunal’s emphasis]; which suggestion Mr Watson had denied and had added that the outcome of the referral to Occupational Health should not be pre-empted.

(d) In a letter dated 2 June 2008, the claimant challenged much of what had been stated by Mr Watson in his letter dated 16 May 2008 and, in particular, challenged the reasons relied upon by Mr Watson for his medical suspension.

(e) The claimant wrote the above letters without any legal advice.

(f) A grievance hearing took place on 26 June 2008. Detailed minutes, together with an additional statement made by the claimant, of the grievance hearing were prepared, which dealt, inter alia, with the arrangements that had been made for the meeting on 29 April 2008, how it was conducted and what had taken place at the meeting, together with the reasons which had been given for the medical suspension and the claimant’s express challenge to those reasons and the difficulties the respondents believed he was having at work. In the course of the grievance meeting, as set out in the minutes of the meeting, and/or the additional statement by the claimant, there was no reference made by the claimant, or indeed the respondents’ representative, to the reference in Mr Watson’s letter of 16 May 2008 that, the claimant had suggested, during the course of the meeting on 29 April 2008, that he was being discriminated against due to his disability.

(g) The claimant in his claim form to the tribunal in Section 7.1 ticked the box discrimination/disability; and in Section 7.2 in answer to the question of the date or dates in which the matter about which he was complaining happened, in relation to the said discrimination, the claimant had replied 30 April 2008. In Section 7.4, when setting out the details of his claim, the facts relied upon by the claimant, as set out in his claim form, in relation to this claim for disability discrimination, are the same or similar to the facts which were the subject-matter of the grievance hearing; and, in particular, there was no express reference to disability discrimination and/or the Disability Discrimination Act 1995, as amended.

2.2 It was not disputed by the parties the central issue for the tribunal to determine, for the purpose of this pre-hearing review, was whether, in light of the facts, as found by the tribunal, the claimant had complied with the statutory grievance procedure, contained in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’).

3.1 There was no dispute that the statutory grievance procedures, pursuant to Article 15 and Schedule 1 Part II Paragraph 6 in the 2003 Order applied to the claimant’s claim of disability discrimination (see further the list of jurisdictions in Schedule 3 of the 2003 Order).

In particular, under Paragraph 6 of Schedule 1 Part II, it is provided:-

“The claimant must set out the grievance in writing and send the statement or a copy of it to the employer.”

3.2 Under Article 19(2) of the 2003 Order it is provided:-

“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 … of Schedule 1 applies, and

(b) the requirement has not been complied with.”

3.3 Under Regulation 2(1) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) grievance is defined as ‘a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him’. Beyond this, there is no further statutory definition as to what constitutes a grievance.

3.4 Although the many decisions of the Employment Appeal Tribunal in the Court of Appeal in England and Wales and the Court of Session in Scotland, in relation to the statutory grievance procedures, are not binding on this tribunal, the tribunal, in the absence of any relevant decisions of the Court of Appeal in Northern Ireland, has found that such decisions relating to such matters are persuasive and appropriate to follow – in particular, in circumstances where those decisions relate to provisions, which were then applicable in Great Britain, and were in similar terms to the relevant statutory provisions in Northern Ireland, to which reference has been made above.

3.5 The leading authority in relation to what requires to be contained in the grievance is to be found in the judgment of Elias P, as then was, in the case of Canary Wharf Management v Edebi [2006] IRLR 416, when he stated [tribunal’s emphasis] at Paragraphs 25 and 31 of his judgment:-

“It seems to me that the objectives of the statute can be fairly met if the employer, on a fair reading of the statement and having regard to the particular context on which it is made can be expected to appreciate that the relevant complaint is being raised … if the statement cannot in context be read even in an non-technical and unsophisticated way as raising the grievance which is the subject-matter of the tribunal complaint, then the tribunal cannot hear the complaint. There is no overriding interest of justice which can be invoked to save it … .”

The statutory requirements are minimum in terms of what is required (see Canary Wharf but also Shergold v Fieldway Medical Centre [2006] IRLR 76).

3.6 There is no doubt that in the claimant’s letters of 5 May 2008 and 13 May 2008, which letters, in my judgment, must be read together to constitute the claimant’s grievance (see further Cumbria Probation Board v Collingwood [2008] UKEAT/0079/08), there is no express reference to a claim of disability discrimination. Indeed, the claimant, in conclusion, refers in the said correspondence, after setting out the factual context, to the breach of his contract of employment and a breach of duty of care by the respondents arising out of his medical suspension. If this was all that was required to be considered and taken into account by the tribunal, I have no doubt the claimant has not shown in the said correspondence that he has complied with Step 1 of the statutory grievance procedure, which required him to set out a grievance in writing and send the statement or a copy of it to the respondents relating to his claim of disability discrimination.

3.7 I do not think that the minutes of the grievance hearing, which were recorded by the respondents, are of any assistance to the claimant. Firstly, as with the letters, dated 5 May 2008 and 13 May 2008, there is no express reference by the claimant to disability discrimination. Also, I do not consider, in any event, that the case of Kennedy Scott Ltd v Francis [2007] UKEAT/0204/07 assists the claimant. In the Kennedy Scott case it was held that a grievance in writing can be a grievance which is given orally but is written down by an employer’s representative, accurately and contemporaneously by agreement. It was held, in the particular circumstances of that case, the claimant had not made an oral grievance but rather his manager had assisted him setting out his grievance in writing, when the manager, by agreement, recorded what had been said; and he had therefore made a valid written grievance. The circumstances in this case were very different; and it is also to be noted that the reason for the above agreement between the claimant and his manager in the Kennedy Scott case arose because of the claimant’s dyslexia, which did not apply in this case.

3.8 In the Canary Wharf case, the claimant had raised a grievance, which clearly complained about his working conditions with reference, in particular, to the impact on his own health. However, on the particular facts of that case it was held that that was insufficient to raise a statutory grievance corresponding to a subsequent claim under the Disability Discrimination Act 1995. Elias P concluded at Paragraph 41:-

“But I do not think that it would just to these employers, on a fair reading of the letter, to say that his references to his health problems … raised, even in a non-technical and unsophisticated way, an issue which the employer could reasonably understand had arisen under the Disability Discrimination Act … .

… This was in my view a generalised complaint about the adverse consequences to health, both generally and to this particular employee, of the conduct of the employer. But I do not think that it did raise an issue under the Disability Discrimination Act.”

3.9 However, unlike the decision in the Canary Wharf case, as referred to above, there are relevant facts which I have found in this case, as set out above, which I consider establish the necessary context to show that the respondents could be expected to appreciate that the complaint of disability discrimination had been raised by the claimant, when he sent his letters dated 5 May 2008 and 13 May 2008 and concluded with his reference to the breach of contract and duty of care by the respondents when they medically suspended him, as set out in the said letters. In particular, as set out above, the claimant, in the course of the oral meeting on 29 April 2008, suggested to Mr Watson, who took the decision to suspend the claimant, that the medical suspension which had been imposed by the respondents was because of discrimination on the grounds of his disability. Although, in his letters of 5 May 2008 and 13 May 2008, the claimant did not expressly refer to this, Mr Watson, in his letter of 16 May 2008, which was stated at the outset of the letter to be in reply to the claimant’s letters of 5 May 2008 and 13 May 2008, expressly referred to the suggestion of disability discrimination, made orally by the claimant at the meeting on 29 April 2008.

In the case of Cumbria Probation Board v Collingwood [2008] UKEAT/0079/08, HH Judge McMullan QC emphasised the importance of context when considering whether a valid statutory grievance had been made by a claimant to his employer. In that case, it was known to the employer the claimant was absent because of depression and his letters were more difficult to articulate because of that (see further Paragraph 29). In light of this, it would seem context can be shown not only by what the employee has said prior to presenting the grievance, but also from what was already in the respondent’s knowledge. In this particular case, as confirmed by Mr Watson’s letter of 16 May 2008, he knew the claimant, at the meeting, was complaining of disability discrimination arising out of his medical suspension, albeit such discrimination had been denied by Mr Watson; and it was this meeting which resulted in the letters of 5 May 2008 and 13 May 2008, which constituted the claimant’s grievance.

In the case of Cannop & Others v Highland Council [2008] IRLR 634, the Court of Session, in Scotland, said at Paragraph 29:-

“A grievance document need not necessarily be read in isolation. There may have been earlier communications with the employer which provided context in which the grievance document falls to be interpreted … .”

In the case of Serco Group v Wilde [2006] UKEAT/0519, HH Judge Reid QC held there was a valid written grievance brought by a claimant about the fact that the claimant was paid less than her colleagues in circumstances where she failed to say comparators were all male. It was held that on the facts that at a prior meeting a few weeks previously the claimant had verbally stated she was not paid on an equal basis to men in the same role. (Since the case of Suffolk Mental Partnership NHS Trust v Hurst & Others [2009] EWCA Civ 309, this objection would probably now not be fatal in any event.) The Employment Appeal Tribunal in Serco Group concluded:-

“It can have come of no surprise to the employer that this grievance about pay … should be formulated as an equal pay claim … even though the claimant did not expressly refer to this.”

In the case of Sadare v London Borough of Lambeth [2009] UKEAT/0116/09, Underhill P referred to the Serco Group case; but stated the conclusion, in that particular case, was wholly unexceptional on the facts of the case; although he then went on to find the circumstances were not comparable to those in the Sadare case. In the Sadare case, Underhill P, whilst acknowledging that his decision could be viewed as harsh, found that on the particular facts of that case a valid grievance for a disability discrimination case had not been made. However, in my judgment, the facts in the Sadare case are very different to the facts in the present case. In particular, there was no previous oral complaint, in contrast to the present case, from which a relevant context could be established. Further, in the Sadare case, unlike the present case, there were clear indications found by the Employment Appeal Tribunal that in the written grievance the types of discrimination which the claimant wished to advance were of a completely different kind to that of discrimination on the grounds of disability.

3.10 I am therefore satisfied, in light of the foregoing, and on the particular facts of this case, that the claimant can rely on what was said at the meeting on 29 April 2008, in which he expressly suggested that the respondents were discriminating against him on the grounds of disability, to set the context to show that when he wrote on 5 May 2008 and 13 May 2008, referring to the breach of contract and duty of care by the respondents when medically suspending him, he had sent to the respondents a written grievance in relation to a claim of disability discrimination, which complied with the 2003 Order. It must be remembered the claimant wrote these letters without any legal advice. I am therefore satisfied, on the facts as found by me, applying the guidance set out in the above legal authorities, the respondents, on a fair reading of the statement contained in the letters dated 5 May 2008 and 13 May 2008, in a non-technical and unsophisticated way would have been expected to appreciate (or as stated in Serco it would have come as no surprise to the respondents) that the grievance which was being made by the claimant, as set out in the letters, was a grievance relating to a disability discrimination complaint; and which grievance was subsequently the subject-matter of his claim to the industrial tribunal. In my judgment, the necessary appreciation on the part of the respondents of the relevant context is confirmed by the fact that, in response to the letters of 5 May 2008 and 13 May 2008, containing the said grievance, Mr Watson, in response, expressly referred to the oral suggestion of disability discrimination made by the claimant at the meeting on 29 April 2008.

4.1 The decision of the tribunal is therefore:-

(2) the tribunal therefore does have jurisdiction to consider and determine the claimant’s claim of disability discrimination.

4.2 In light of the tribunal’s decision these proceedings will be further considered at a Discrimination Case Management Discussion, to be arranged in due course, and thereafter listed for hearing.

Chairman:

Date and place of hearing: 15 April 2011, Belfast

Date decision recorded in register and issued to parties: