Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wojcik v Moy Park Limited [2011] NIIT 02531_10IT (23 May 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/02531_10IT.html
Cite as: [2011] NIIT 2531_10IT, [2011] NIIT 02531_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2531/10

CLAIMANT: Malgorzata Wojcik

RESPONDENT: Moy Park Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant has raised a grievance in writing with the respondent in relation to sexual harassment but not racial harassment and that leave is granted to amend the claim form to include a complaint of sexual harassment.

Constitution of Tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant appeared on her behalf and was assisted by Miss Schmidt, as interpreter.

The respondent was represented by Miss R Best, Barrister-at-Law instructed the respondent’s Company Solicitor.

The Issues

1. The issues before the tribunal, as agreed at the Case Management Discussion held on 29 March 2011, were as follows:-

1. Whether the Claimant has lodged a written grievance with the Respondent regarding a complaint of racial harassment in relation to the conduct of:-

(1) (i) the disciplinary hearing and appeal;

2. the conduct grievance hearing and appeal; and

3. outcome of the disciplinary process.

2. If so, whether claim should be amended to include a claim of racial harassment in relation to;

1. the disciplinary hearing and appeal;

2. the conduct grievance hearing and appeal; and

3. the outcome of the disciplinary process.

3. Whether the claimant has lodged a written grievance with the respondent regarding a complaint of sexual harassment in relation to the spot check carried out on 17 July 2010.
   
   

4. If so, whether the claim should be amended to include a claim of sexual harassment in relation to the spot check carried out on 17 July 2010.

Sources of Evidence

2. The claimant gave evidence and the tribunal was assisted by a chronology presented by the respondent and documentation presented by the claimant.

Findings of Fact

2. Having carefully considered the evidence insofar as same is relevant to the issues before it, the tribunal made the following findings of fact:-

1. The claimant presented a claim form to the tribunal on 15 October 2010, with 11 attachments spanning the period from 18 July 2010 until 6 October 2010. In paragraph 6.3 of her claim form (which had been submitted following advice during a short meeting held with a Solicitor and completed with the help of the claimant’s husband), the claimant states that she has raised all of the subject matter of her complaints in writing with the respondent on 28 July 2010. There was no indication in her claim form that certain matters had not been raised by way of grievance because she had been subjected to harassment and had reasonable grounds to believe that putting the grievance in writing to her employer would result in further harassment.
   
   

2. The written grievance, dated 28 July 2010 which the claimant completed with the assistance of her Trade Union Representative, Mr Smith, reads in its original unamended form, as follows:-

“Malgorzata Wojcik

19 Bleachfield Park

BT71 7TY Moygashel

Clock Num. 00077349

Dear Kate Glendining

HR Department

I am writing to tell you that I wish to raise a grievance. This action is being considered with regard to the following circumstances:

I feel I was victim of unwanted harassment by Ms Dawn – Technical Manager W/E Shift on Saturday 17.07.2010 about 15.30.

She has shouted on me to show here, first my hand and than to show her my neck. She has stood by me and she said to me three times “Show me your neck”. In this situation I had to pull my polo-neck sweater and I have showed her my neck. I feel this was a form of bullying and should not have taken place on the line, in public, in front of my work colleagues and front of my Male Line-Manager. This was an insult to my dignity, humiliating, invasion of my privacy. Surely if I was to be searched or asked to remove part of my clothing this should have done in private. Importat is to using Common Sense.

This whole situation has caused me stress and anxiety.

I cannot find any Company Policy in my Handbook on being searched.

yours sincerely”

3. The claimant was also assisted by a senior Shop Steward, Declan Laverty during an investigation into health and hygiene issues on 18 July 2010. The tribunal considered this documentation in which the claimant asserts:-

“I feel as if I was discriminated against, I feel this almost like sexual abuse”.

This allegation appears to be related to the “spot check” on 17 July 2010. There was, however, no reference to racial harassment in the relevant documentation.

4. The relevant chronology of events for the purposes of this pre-hearing review, is as follows:-

Date	Event
Spot check	17th July 2010
Investigation meeting	18th July 2010
Disciplinary Meeting (Adjourned at Claimant’s request to allow her to submit grievance)	18th July 2010
Grievance raised by Claimant	28th July 2010
Grievance meeting	29th July 2010
Grievance outcome	17th August 2010
Grievance Appeal	26th August 2010
Grievance Appeal hearing	2nd September 2010
Grievance appeal outcome	8th September 2010
Disciplinary meeting	3rd October 2010
Claim Form Lodged in Tribunal	15th October 2010
Disciplinary Appeal meeting	16th October 2010
Disciplinary Appeal outcome	18th October 2010

5. The tribunal took into account the claimant’s evidence in relation to lack of knowledge of English in giving instructions to her trade union representatives. She had also contacted the Labour Relation Agency, and ACAS, as well as the Solicitor prior to presenting her claim form to the tribunal. The tribunal also considered relevant documentation.

The Law

2. (1) As Harvey on Industrial Relations and Employment Law (“Harvey”) states at T309FF:-
   
   

“Questions as to what constitutes compliance with the statutory procedure, in particular the requirement in para 6 of Sch 2 (the standard grievance procedure) that the employee must set out his grievance in writing and send it to his employer, have been considered by the EAT on a number of occasions since the inception of the procedure in 2004 (see Canary Wharf Management Ltd v Edebi [2006] IRLR 416, [2006] ICR 719, EAT; Shergold v Fieldway Medical Centre [2006] IRLR 76, [2006] ICR 304, EAT; Galaxy Showers Ltd v Wilson [2006] IRLR 83; Mark Warner Ltd v Aspland [2006] IRLR 87, EAT; Thorpe v Poat and Lake [2006] All ER (D) 30 (Jan), EAT). The general thrust of all these cases is to make clear that there is no special formality required of an employee when complying with para 6. In Canary Wharf Management v Edebi, the latest of the above cases to be decided, Elias J, the President of the EAT, agreeing with the analysis of the para 6 requirements made in the previous cases, summarised the general principles to be applied to the determination of whether there has or has not been compliance with the statutory procedure (see paras 15–31).

[309.01]

The main points to be noted are:

(i)     The grievance must be one falling within the definition in EADR SI 2004/752 reg 2(1), viz, 'a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him'. This definition can include a failure to act (Galaxy; Canary Wharf).

(ii)     Although there is no maximum time limit prior to the lodging of the claim to the tribunal in which the grievance must have been raised, the grievance must nevertheless be extant. In the Canary Wharf case, Elias J stated that 'if it can no longer properly be said to be an outstanding grievance, perhaps because it was apparently satisfactorily dealt with or because the employee has not pursued it in circumstances where it may 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' (para 19).

(iii)    There is no requirement that the grievance be in any particular form, as long as it is writing. It may be raised in a resignation letter (as in Canary Wharf, Shergold and Thorpe), or even after a dismissal has taken effect (Canary Wharf, para 20). It may be raised in solicitors' correspondence (Aspland), and it may be contained in a document which also deals with other issues (see EADR SI 2004/752 reg 2(2)).

(iv)    As to the content of the statement, the requirement imposed by para 6 is 'minimal' and does not require formality or technicality (Shergold, per Burton J, at para 30; Canary Wharf at para 23). It is enough that the employee identifies the complaint. There is no need for him to set out the basis of the claim (unlike the position in para 9 under the modified procedure). All that is required is that the complaint to the employer is essentially the same complaint that is subsequently made to the tribunal. The determination of this question is not, however, to be approached in a technical way. It is not necessary for the grievance statement to specify every instance that may subsequently be raised before the tribunal. It is not even necessary for the employee to indicate that he wants or expects the complaint to be dealt with; nor is he required to invoke a grievance procedure, statutory or contractual (Canary Wharf at para 22; Shergold at para 33).

(v)     In determining whether a grievance has been made, Elias J postulated the appropriate test as being whether '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' (Canary Wharf at para 25). As to the consequences of the employee not surmounting this hurdle, Elias J stated: 'If the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it' (ibid at para 31).

[309.02]

On the facts of the Canary Wharf case, the question was whether the employee had raised a complaint of disability discrimination by way of a grievance under para 6. Although he had referred to the conduct of his employers and the adverse consequences to his health in a letter to the employers, it was held that this did not, on the application of the above test, constitute the raising of a grievance under the DDA 1995 so as to confer jurisdiction on the tribunal to hear this particular complaint. In reaching his decision, Elias J referred to the fact that the employee had failed to identify any failures specifically to make adjustments, and made no allegation that he was treated less favourably than other relevant employees in the same situation. The letter was a generalised complaint that was relevant to his constructive dismissal complaint but not to a complaint under the DDA 1995.

[309.03]

In Cannop v Highland Council [2008] CSIH 38, [2008] IRLR 634 (on appeal from the EAT, sub nom Highland Council v TGWU [2008] IRLR 272), the Court of Session reiterated that the question of the correlation between the grievance statement and the subsequent employment tribunal claim should not be considered in an unduly technical or over-sophisticated manner, and that it is essentially whether the same grievance underlies the claim presented to the tribunal as was earlier communicated. The Court pointed out that the grievance document and the tribunal claim are designed to perform different functions and 'their language can accordingly be expected commonly to be different' (para 29). It also stated that the grievance statement need not necessarily be read in isolation and that earlier communications with the employer could provide a context in which it falls to be interpreted, and that subsequent events, such as communications between the parties at the step 2 stage, could illustrate the nature and scope of the grievance”.

(2) In relation to amendments, Harvey further states at T[311.03] ff:-

“A distinction has to be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

[312] Amendments falling within category (i) are not affected by the time limits, as the nature of the original claim remains intact, and all that is sought to be done is change the grounds on which that claim is based.

…

[312.01] So far as category (ii) is concerned, the tribunals and courts have always shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new ‘label’ on facts already pleaded.

…

[312.02] The position is, therefore, that if the new claim arises out of facts that have already been pleaded in relation to the original claim, the proposed amendment will not be subjected to scrutiny in respect of the time limits, but will be considered under the general principles applicable to amendments, as summarised in Selkent.

…

[312.04] “It is only in respect of amendments falling into category (iii) – entirely new claims unconnected with the original claim as pleaded – that the time limits will require to be considered. In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made (Selkent Bus Co Ltd –v- Moore [1996] ICR 836 at 843H). In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary, as a matter of construction, to examine the case as set out in the original application to see if it provides the necessary ‘causative link’ with the proposed amendment (see Housing Corpn –v- Bryant [1999] ICR 123, CA). In that case, the failure of the claimant to make any reference in her unfair dismissal claim to alleged victimisation defeated her subsequent application to amend the originating application to include a victimisation claim under the SDA, s4. According to Buxton LJ, the absence of a causative link in the application was fatal to the proposed amendment, which was ‘effectively an entirely new claim, brought well out of time’. Likewise, in Harvey v Port of Tilbury (London) Ltd (1999) IRLR 693, [1999] ICR 1030, EAT, a claimant who brought an unfair dismissal complaint, alleging unfair redundancy selection, was held not to be able to amend out of time by adding a claim of disability discrimination under the DDA s 8. Again, the basis of the refusal was that the proposed amendment was the addition of an entirely new cause of action unconnected with the original claim.”

Harvey continues at 312.07 as follows:-

“Although the decisions in the above cases seem to suggest that, where an entirely new claim is being advanced by way of amendment, the critical question is whether it is in time and, if not, whether an extension should be granted under the statutory ‘escape clause’ relevant to that claim, other divisions of the EAT have held that, even in the case of an entirely new claim made out of time, there is a residual discretion to allow the amendment to be made on the basis of the hardship/injustice criteria mentioned in Selkent, and in British Newspaper Printing Corpn (North) Ltd v Kelly [1989] IRLR222, CA (see para [314]), rather than on the statutory basis. Thus in Lehman Brothers Ltd v Smith (EAT/486/05, 13 October 2005), Judge Peter Clark upheld a tribunal decision allowing such an amendment to be made on this ground even though the relevant statutory criterion for granting an extension of time was reasonable practicability. And in Transport and General Workers Union v Safeway Stores Ltd (EAT/92/07, 6 June 2007), Underhill J allowed a new out-of-time claim under the consultation provisions of TULRA and TUPE to be made by way of amendment, and in doing so applied the hardship/injustice test, rather than reasonable practicability, which again was the statutory basis for extending time. Both of these decisions relied on Selkent and Kelly, where Lord Donaldson MR endorsed the seven-point procedure he set out in Cocking v Sandhurst, below, as authority for the proposition that the hardship/injustice test takes precedence over the relevant statutory test. According to Underhill J in the Safeway case, ‘the position on the authorities is that an employment tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time’ (para 7), though he did add: ‘No doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be discretionary consideration and not a rule of law’ (para 13).”

Submissions

2. The tribunal considered brief oral submissions from the respondent’s representative and the claimant.

Conclusions

2. Having considered the evidence together with the submissions and applied the principles of the law to the findings of fact, the tribunal concludes as follows:-

1. When considered in its wider context of the investigation meeting held on
   18 July 2010 and the notes referred to at 3(iii) above, the tribunal is satisfied that the claimant did lodge a written grievance with the respondent regarding a complaint of sexual harassment (although referred to as abuse by the claimant in the note of the investigatory meeting) in relation to the spot check carried out on 17 July 2010.
   
   

2. The tribunal is satisfied that the claim should be amended to include a claim of sexual harassment, as such an amendment falls within category (ii) referred to previously.
   
   

3. The claimant has not raised a grievance in writing in relation to an allegation of racial harassment and therefore the amendment issue does not fall to be considered in this respect.

Chairman:

Date and place of hearing: 13 May 2011, Belfast.

Date decision recorded in register and issued to parties: