United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DUNCAN MURRAY (Solicitor) Messrs Morton Frazer Solicitors 30-31 Queen Street Edinburgh EH2 1JX
For the Respondent	MR STUART BRITTENDEN (of Counsel) Instructed by: Messrs Miller Samuel Solicitors RWF House 5 Renfield Street Glasgow G2 5EZ


 


SUMMARY

Practice and Procedure – 2002 Act and Pre-action Requirements

On the correct construction of Employment Act 2002 Dispute Resolution Regulations 2004 Reg 18, a claim presented on 1 October 2004 which related to action before then was not subject to the Regulations. Commotion Ltd v Rutty [2006] IRLR 171 was not applied as Reg 18 had not there been considered.

Regulation 18 applies the statutory grievance regime to grievances "where the action about which the employee complains occurs or continues after" 1 October 2004. The Claimant presented her claim on 1 October 2004 in respect of sex discrimination. On her limiting her claim to nine refusals to redeploy her between 2003 and June 2004, whether they are treated as nine separate acts or as a continuing act, the substance of her complaint, that is the action about which she complained to the Employment Tribunal, all took place before October 2004. So she was not disqualified for bringing a claim by having failed to present a grievance, step one. Her claim that, at first sight, appears to be of a continuing act up to and including 1 October 2004 is not action complained of in the proceedings and therefore is not the subject of a requirement to submit a grievance either.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the application of the statutory regime for the conduct of grievance proceedings internally, prior to the commencement of Employment Tribunal proceedings. The appeal arises out of a sequence of three Judgments given by Mr N W J McMillan, sitting as a Chairman alone at Glasgow on 19 and 22 July 2005, and 21 January 2006. I will refer to the parties as the Claimant and the Respondent. The Claimant was represented by a Solicitor at the Employment Tribunal, and today has the advantage to be represented by Mr Stuart Brittenden of Counsel. The Respondent has throughout been represented by Mr Duncan Murray, Solicitor.
2. Two issues were canvassed before the Chairman: the time bar point and the grievance point. Since I have decided in favour of the Claimant on the grievance point, it is agreed by Mr Murray that it is not necessary for me to deal with the time bar point, which is already, by direction of the Chairman, scheduled to be heard at a full hearing, together with the merits of the Claimant's case against the Respondent. I will say no more about that.
3. The grievance point relates to the commencement of the statutory grievance procedure regime on 1 October 2004, for in this case the claim presented by the Claimant was lodged on that date. The issue first raised by the Respondent related to the jurisdictional issue which prevented an Employment Tribunal from hearing the case if it related to a claim presented on or after 1 October. The Chairman held that the Claimant was entitled to bring proceedings. On the sift of this appeal before the Honourable Lady Smith considered that a full hearing should be conducted. An application was made by Mr Murray for permission to amend the notice of appeal to clarify or expand, or, as My Brittenden put it, introduce the point about the 2002 Act. I decided to hear the argument before deciding whether to given permission. It seems to me that this is not a new point but if it is, this is an exceptional case in which I should exercise my discretion. The matter was ventilated before the Employment Tribunal. There is no prejudice to Mr Brittenden, who was fully able to argue the point.
4. The short point is this: did the statutory regime coming into effect on 1 October attach to the Claimant's case by reason of the date on which it was presented? In order to understand the interlocking relationship it is necessary to say a few words about this system, for it is to be found in the combination of the Employment Act 2002 and the Employment Act 2002 Dispute Resolution Regulations 2004. Insofar as concerns the substantive issue between the parties, section 76 of the Sex Discrimination Act 1975 requires a claim to be presented to an Employment Tribunal within three months of it occurring, unless the Tribunal considers it just and equitable to extend time. For the purposes of determining when time runs it is provided by section 76(6) that any act extending over a period should be treated as done at the end of that period. This is known as a continuing act and the jurisprudence shows cases where a Claimant has alleged, notwithstanding that the claim appears to be out of time, that it relates to an ongoing act, a policy, a rule, a practice, or continuing state of affairs applied to him or her, which continued beyond the date so as to make it lawful for the claim to be presented where it might otherwise be out of time.
5. Insofar as the statutory regime is concerned, a Judgment of HHJ Burke QC and members in Commotion Ltd v Ms K Rutty [2006] IRLR 171 helpfully sets out the background to this legislation and I respectfully adopt it, albeit in that case the Tribunal was dealing with a different set of discriminatory complaints. The EAT set out the law in paragraphs 9 to 16 of the Judgment:

"9

The law

It is necessary for us to set out the law in a little detail in this case. Section 32 of the Employment Act 2002 provides as follows:

32. Complaints about grievances

(1) This section applies to the jurisdictions listed in Schedule 4. [We interpose that it is accepted that those jurisdictions include the unfair dismissal jurisdiction and the sex discrimination jurisdiction, but do not include the jurisdiction to consider and decide upon a complaint under the flexible working provisions of the 1996 Act].

(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if-

(a) it concerns a matter in relation to which the requirement in para. 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if —

(a) it concerns a matter in relation to which the requirement in para. 6 or 9 of Schedule 2 has been complied with, and

(b) less than 28 days have passed since the day on which the requirement was complied with'.

The requirement relevant to this case, as is agreed, is the requirement at para. 6 of Schedule 2 of the 2002 Act which relates to the standard grievance procedure. This was not a case which, under para. 9 of Schedule 2 to the Act, engaged the modified procedure; and, for present purposes, it is only necessary to set out para. 6 of Schedule 2 which provides as follows:

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

[2006] IRLR 171 at 174

There were no other and are no other formal requirements for the presentation of a grievance within s.32 and Schedule 2.

10

Subsection (3) of s.32 which relates to the time which must pass between the compliance with the requirement of para. 6 and the presentation of a complaint does not arise in this case because it is Commotion's case that no presentation of a grievance occurred at all, rather than that there was one which was too early.

11

Section 32(6) provides as follows:

'(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2)-(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

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with Regulations under s.7 of the Employment Tribunals Act 1996 (c.17) (Employment Tribunal Procedure Regulations)'.

12

It is necessary very briefly to refer to s.31. That section provides, to put it shortly, that in certain circumstances, if the statutory procedure, including, where required, the grievance procedure is not followed, the tribunal must, unless there are exceptional circumstances, where the failure to comply is that of the employee, reduce any award by 10% and may, if it considers it just and equitable to do so, increase that reduction up to 50%; but if there are exceptional circumstances, no reduction at all or a lesser reduction may be made.

13

These provisions of the 2002 Act are supported by the Employment Act 2002 (Dispute Resolution) Regulations 2004. These Regulations set out various circumstances in which dismissal and disciplinary procedures and grievance procedures do or do not or may not apply. None of the exemptions or exceptions to the requirement in s.32 and in Schedule 2 of the 2002 Act for the presentation of a grievance apply in this case. Many other provisions are contained within those regulations which are not relevant here and which are not considered in this judgment. That is an important point because not only in relation to the regulations, but generally, anybody who reads this judgment should appreciate firstly that this is, as far as we know (and this has been confirmed by counsel who have searched the website) the first appeal to the Employment Appeal Tribunal in which s.32 of the 2002 Act and the Dispute Resolution Regulations have been examined and, secondly, for that reason we wish to make it clear that, while we wish and propose to assist the parties with our views and conclusions on points which have been argued and which are necessary for our decision, we are in this appeal addressing only those points and the arguments that have been presented to us in this case on those points. We say the same about the position in relation to the flexible working provisions which, we are told by counsel, have also not been considered before at an appellate level. So far as the Dispute Resolution Regulations are concerned, it is only necessary for present purposes to refer to para. 2(2) of those Regulations which provide as follows:

'2) In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2).'

14

Schedule 2 there referred to is, of course, Schedule 2 of the 2002 Act and is the location of the requirement which is to be fulfilled pursuant to s.32 of that Act. Accordingly, para. 2(2) of the Dispute Regulations has the effect that a written document which sets out a grievance is capable of fulfilling the requirements of s.32 of the Act and of complying with the Regulations even though it may also fulfil the function of constituting a complaint or application or other communication of a different nature in relation to the same matter or a complaint or application or other communication about a different matter.

15

Finally, on the grievance issue, it is necessary to refer to the Employment Act 2002 (Commencement No.6 and Transitional Provision) Order 2004 which provides by para. 2(2) as follows:

'The following provisions of the Act shall, subject to Article 3, come into force on 1 October 2004'

and those provisions include s.32 and s.31 in so far as they are material for present purposes.

16

Paragraph 3 of that commencement order sets out transitional provisions, namely that ss.31 and 32 and Schedule 2 of the Act shall not apply in relation to a grievance where the employee has presented a complaint to the employment tribunal about that grievance prior to 1 October 2004."

6. It is, however, contended that the EAT's treatment of those provisions is inapt for our case, for it was held that in Commotion the Claimant had actually presented a grievance and so it was not necessary for the EAT to go further than it did. Secondly, the EAT was not shown a relevant provision relating to the central issue which should have been before it if it had held that no grievance was presented. Thirdly, it wrongly decided. I will deal with each of those points.
7. What is missing from the very helpful analysis by Judge Burke is a particular provision relating to transitional arrangements. The statutory regime came into effect by reason of section 32 of the 2002 Act. Section 32(7) allows for regulations to be made by the Secretary of State about circumstances in which a person is to be treated as having complied with the statutory grievance regime. The Act came into effect on 1 October 2004 in full, but there has been a number of commencement orders, including number 2003/1190, which brought into effect section 32(7), that is the regulation-making power. Regulations were made in the form of the 2002 Regulations, for these are expressly made under section 32(7). Contained within them is Regulation 18, which provides, so far as is relevant, the following:

"18. These regulations shall apply –

(b) in relation to grievances, where the action about which the employee complains occurs or continues after these Regulations come into force"

8. My attention has been drawn, as was Judge Burke QC and his members', to the commencement number 6 order SI2004/1717, which says this:

"Transitional provision 3, sections 31 and 32 of, and schedule 2 to the Act shall not apply in relation to a grievance where the employee has presented a complaint to the Employment Tribunal about that grievance prior to 1 October 2004."

9. Now at first sight that simply deals with the position of a completed application form, then known as originating applications, presented properly on or before 30 September 2004. By implication it seems that an application, now a claim form, presented the day after ie on 1 October 2004 or thereafter will attract section 31 and 32. That was the holding in Commotion, insofar as that Judgment dealt with the issue before me.
10. However, by the transition provisions in the Regulations themselves, which were issued on 12 March 2004, there is a different approach. Mr Brittenden contends that this is about substance rather than form. It contains two separate factors. The first is where an employee complains of an action which has occurred, and the second where the complaint is one which affects action which is continuing. The grievances which must be submitted have different results. It is contended that the action about which an employee complains will escape the rigour of the statutory regime if the complaint is made about it after 1 October 2004, provided the matters are self-contained prior to that date. To give life to this there are two approaches to the type of complaint a Claimant makes. I have been taken in detail through the application made in the form applicable to claims before they became mandatory in the new claim form.
11. I agree with Mr Murray that a large part of this relates to what might be described as a policy of discrimination against the Claimant, for she failed to get, on a large number of occasions, a job for which she applied and for which she was qualified. That may be a surprising way of looking at a submission by a Respondent. He of course does not accept on behalf of his client that there was such a policy or practice, but the implication of the language in the claim form, cast as it is in the present tense, is that at times since the Claimant became subject to a redundancy situation, which was in 2003, until the date of her final dismissal in January 2005, there was in place on the Claimant's case a practice, policy, regime, ongoing state of affairs, all of which corresponds to the language used in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 (CA). On that basis he contends that there was continuing, over the threshold of 1 October 2004, a matter about which the Claimant was required to submit a grievance if she put in her form, as she did, on or after that date.
12. Mr Brittenden, on the other hand, has made it clear, as was foreshadowed in correspondence sent by his Solicitors, that the Claimant relies on nine separate refusals to redeploy her. She identifies two comparators, Mr Connolly and Mr Doogan, who were treated differently and were redeployed. Her case now is these nine events were discriminatory, or they formed a single continuing act, beginning with the first and ending with the last in June 2004, upon which she raises a complaint and, albeit presenting it to the Employment Tribunal during the time of the new statutory regime, it relates to action before these regulations came into force.
13. In my judgment the correct approach is to look at the way in which discrimination cases are formulated, and I drew the representatives' attention to the Judgment I gave on behalf of the EAT in Coutts & Co Plc and Royal Bank of Scotland v Frazer and Cure [2005] ICR 1098, where we said this:

"28 The factual circumstances in which discrimination occurs have been illustrated in the authorities as falling into one of the following categories.

(1) A one-off act of discrimination, such as a refusal to promote, which has continuing consequences for the disappointed candidate.

(2) An act extending over a period of time, constituting a rule or policy, by reference to which decisions are made from time to time.

(3) A series of discriminatory acts, whether or not set against a background of a discriminatory policy.

A complaint in respect of category (1) must be made within three months of the act or, where specific statutory provision is made for a deliberate omission to act, within three months from the date when the relevant less favourable treatment was "decided on". Time runs for a category (2) complaint when the discriminatory rule is abrogated; and it will also run in the case of the specific application of the rule to any given employee, e.g in refusing promotion, from the date of that application. Time runs in a category (3) complaint where there is specific statutory provision for this, from the last in the series of acts."

14. The background to that astringent analysis of these cases was an examination of the Court of Appeal's Judgment in Cast v Croyden College [1998] ICR 500, which I canvassed with Mr Murray. Nevertheless Mr Murray presented arguments based upon several authorities, which Auld LJ had found to be unhelpful: see paragraph 32 of my Judgment, citing, for example, Clarke v Hampshire Electro Plating Co Ltd [1992] ICR 312.
15. The outcome of this case might also bear some consideration of the policy behind this statutory regime. Both representatives agreed that the policy is that disputes between employers and employees should be resolved first in the workplace and as quickly as possible. Thus there are disincentives placed in the way of those who do not carry on the statutory regime. But the difficulty is that if the regime was not in place in, let us say, June 2004, when the last event occurred, there was no obligation on the Respondent to carry out the meetings which occur following a step one grievance letter presented by the Claimant. I accept that by 2004 most employers, and certainly most employers in the public sector and of the stature of this one, would have had in place very sophisticated procedures which would include the kind of procedures set out as a minimum in the step one, two and three statutory procedure. But that policy did become mandatory until 1 October 2004. While it may have sounded in unfair dismissal, it was not actually a breach of any of the statutory regime for an employer to fail to carry out either the dismissal procedure or for an employee to seek to implement the grievance procedure prior to that date.
16. The correct resolution of the apparently disparate transitional positions set out above is to adopt Mr Brittenden's construction. In my judgment this is a matter of substance. The Claimant in our case was entitled to take proceedings against the Respondent, broadly speaking, on two bases. She could be, as I put it in Coutts v Cure, complaining of a rule or policy by reference to which decisions are made from time to time (a category two case); or she could have complained about a series of discriminatory acts, whether or not set against the background of a discriminatory policy. The fact that she has now squarely said that she relies upon the individual acts themselves, and not of an ongoing policy extending after the last of the rejections, or possibly the date from 4 July 2004 when the policy was finally implemented in her case and she would begin a probation period. In either of these scenarios the Claimant is entitled to put her case as she wishes. It is implicit in a category two case that there will be detriment in living under a regime which, on this hypothesis, continues to discriminate against women, and also when, from time to time, there are individual examples of its application which are also the subject of separate proceedings, but they may not be. The Claimant having now decided how she puts her case, it seems to me that she falls within regulation 18(b). In other words she is making no complaint about an action which occurs after the Regulations came into force, or which continues after her complaint is focused on what occurred up to, at the latest, July 2004. In those circumstances the Employment Tribunal Chairman made the correct judgment, albeit for slightly different reasons.
17. It appears to me that HHJ Burke QC's attention was not directed to regulation 18. This may be a surprising omission, given that it is recorded that Counsel in the case had gracefully acknowledged that his point had no substance when the commencement and traditional transitional provisions were drawn to his attention, presumably by the EAT. Nevertheless that extends only to the provisions cited by the EAT, and regulation 18 is not one of them.
18. The EAT in that case expressed its view without the necessity to do so, but obviously in an attempt to be helpful to the parties and to others, and without the relevant provision being drawn to its attention. It plainly made the right decision in that case, if I may respectfully say so. However, in the instant case I uphold Mr Brittenden's submissions: the regime did not bite upon this claim, as it is now articulated and clarified, but it would of course have bitten had the claim been made in respect of a regime, policy, and so on ongoing after 20 September 2004, , which I hold it is not.
19. I have canvassed with the parties the disposal of the appeal. The Claimant's case, both in relation to time bar and substance, will now be sent back to the Employment Tribunal for the order which it made to be carried out. I would very much like to thank both Mr Murray and Brittenden their help. The appeal is dismissed.