United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW YENDOLE (Solicitor) Messrs BPE Solicitors St James's House St James's Square Cheltenham GL50 3PR
For the Respondent	MR JAMES CORNWELL (Of Counsel) Instructed by: Messrs Pope & Co Solicitors Norfolk House 1 Hamilton Road Cromer Norfolk NR27 9HL

SUMMARY

11 - Unfair Dismissal

Chairman held that no statutory grievance of constructive unfair dismissal had been raised. Was he correct on the facts?


 


THE HONOURABLE MR JUSTICE ELIAS

1. This is an appeal from a decision of the Chairman of the Employment Tribunal sitting in Bristol when he held that the Appellant's claims of constructive unfair dismissal and disability discrimination should be struck out because of the failure to raise a statutory grievance in accordance with section 32(2) of the Employment Act 2002. It is accepted that the issue of disability discrimination was not raised as a grievance and the short point that I have to determine is whether the Chairman properly concluded that there had been no grievance raised in relation to the constructive dismissal. There were three letters which were relied upon before the Chairman as amounting to a raising of the grievance, and I will shortly come to those.
2. First, I briefly summarise the relevant statutory provisions. Section 32(2) of the Employment Act 2002 says this:

"(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 paragraph 6 or 9 of Schedule 2 applies, and

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

3. Subsection 3 indicates that moreover there have to be at least 28 days that have passed since the day on which the requirement was complied with before the complaint can be made to the Tribunal.
4. Paragraph 6 of the Schedule 2 sets out the first step in what is termed the Standard Grievance Procedure and that is agreed to be the relevant procedure here. It is as follows:

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

It is plain from the second step, which is outlined in paragraph 7, that it is not necessary when setting out the grievance to identify the basis of the grievance. That occurs at the second stage after the employer has invited the employee to attend a meeting.

5. The Employment Act 2002 Dispute Resolutions Regulations 2004 then define grievance in regulation 2 as follows:

""grievance" means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him;…"

6. I have analysed these provisions in Canary Wharf Management Ltd v Edebi [UKEAT/0708/05/DA] and I would repeat certain observations I made in that judgment about the obligations imposed by paragraph 6. In paragraph 16 I said this:

"16. Where the standard procedure is applicable, that merely requires that there should be the statement of the grievance in writing sent to the employer. However, since as I have indicated a grievance under the regulations means a complaint about action which the employer has taken or is contemplating taking in relation to him, it follows that the statement of the grievance is simply a statement of such a complaint. It must of course be a statement of the same complaint as the employee is seeking to have determined by the Tribunal."

7. Then at paragraph 20 to 22 I dealt with the form and the content of the grievance in the following terms.

"20. Second, the form of the grievance. There is considerable flexibility about that. It may be raised in a resignation letter (as here). It may even be raised after a dismissal has taken effect (indeed that is one of the conditions for the application of the modified procedures). It may be raised by a solicitor in a communication to the employer's solicitor (as in the Mark Warner case.) It matters not that other issues are raised at the same time as the complaint, whether additional complaints or otherwise. (See regulation 2(2).)

21. Third, the content. The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore) that the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance. The only requirement, as section 32(2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal. As Burton J succinctly put it in the Shergold case:

"the grievance must relate to the subsequent claim, and the claim must relate to the earlier grievance."

22. It is not even necessary that the employee should indicate that he wants or expects the complaint to be dealt with; he does not need to be actively invoking the grievance procedure, statutory or contractual. The paragraph is satisfied simply if the complaint is made. Once that occurs, the onus falls on the employer to arrange a meeting to deal with a grievance although the employee will then have to notify the employer of the basis of that grievance."

8. I turn then to consider the way in which the matter was approached by the Chairman. It was contended that the relevant complaint had been made in a letter of 8 April by Mr Martin, the Appellant himself and, in subsequent letters on 11 April and 16 June, by his solicitors on his behalf. The Chairman noted that the letter of 16 June could not be relied upon because it was sent less than 28 days before the claim was made and therefore fell foul of section 32(3). That is accepted by Mr Yendole who represented the Appellant before me.
9. In relation to the other two letters the Chairman said this:

"I regret to say that I do not think any of the letters constitute a written grievance within the definition in Regulation 2 of the Dispute Regulations because they do not constitute a complaint about action which the employer has taken or is contemplating taking against the individual. At best, there is a genera/reference to constructive dismissal which does not give any details as to what of the actions complained of which the employer has taken or is contemplating taking…"

10. The Chairman therefore concluded with, he said, some reluctance that the Tribunal had no jurisdiction to consider this particular claim.
11. It should be said at once that the Chairman did not have the benefit of any of the authorities because they were determined, or at least became widely known I am told, after he had reached his decision. I also note that he makes specific reference to the lack of detail in the letters. That seems to me, for reasons I have given, to disclose an improper approach. It is not necessary for detail to be set out at the step one stage when the grievance is simply identified in the statement.
12. The Chairman did not refer to any particular passages in the letters but I think that I ought to do so. Firstly, the letter of 8 April, as I have said, was a letter from the Appellant himself. It was in response to an earlier letter from the employers when they had amongst other matters complained of the fact that Mr Martin had not given notice. In this letter of 8 April, Mr Martin dealt with a number of issues and then he said this:

"In normal circumstances, I would have given the firm adequate notice for leaving. However, Jon's attitude towards me on many occasions during my employment with the firm has not made for a good working or personal relationship, and especially in the last few weeks I have felt bullied and intimidated by him. Easter Saturday was "the last straw" and I knew that I could not continue to work with him. I believed that once I gave notice of my intention to leave, working with him at the firm would have been unbearable."

13. As I have said, there were other issues raised in that letter and in conclusion he commented on the "good times" that the parties had had and that he was sorry that things had ended in the way they had.
14. Then on 11 April his solicitors wrote to the employers and the relevant paragraph is as follows:

"We are instructed that our client has resigned in response to your own repudiatory breach of contract, arid has done so, as he is entitled to do, without notice. The details of your conduct will form the substance of a grievance which will follow in due course. We have advised our client that such a grievance is now necessary prior to commencing proceedings in the Employment Tribunal for constructive unfair dismissal…"

15. Then later on in the later it says this:

"We look forward to hearing from you by return. If you have not repaid the outstanding sums within 7 days of the date of this letter, we are instructed to commence proceedings. In the meantime, we see little value in any meeting taking place, although we would expect our client to consider such once he has formulated his grievance regarding your appalling treatment of him."

16. Mr Yendole submits that these letters each identify what was essentially the case that was advanced before the Tribunal. The employee was complaining about a repudiatory breach by the employer which had caused him to resign from his employment. He specifically identified in the letter of 8 April the employer's attitude towards him and referred to an incident on Easter Saturday which was the last straw. Mr Cornwell, for the employers, submits that the issue here was one of fact for the Chairman of the Tribunal and that it can only be interfered with if his conclusion was perverse. He referred me to a judgment of HHJ Burke QC in the Employment Appeal Tribunal in Commotion Ltd v Ruttie [2006] IRLR 171 in which the Employment Appeal Tribunal considered the issue to be one of fact. I confess that it does not seem to me to be entirely a question of fact but one at least of mixed fact and law, namely whether the letters raised do constitute a grievance within the meaning of the statutory provisions. In any event in this case, for reasons I have given, I think the Chairman erred in his approach by stating that it was necessary for the detail to be set out in order for the relevant complaint to be a grievance within the meaning of the statute. So I can consider the matter afresh.
17. Mr Cornwell accepts that although there need not be detailed evidence. He recognises that that is the effect of the earlier decisions, including the judgment that I gave in Canary Wharf where I tried to bring the earlier authorities together. Nevertheless, he says that there has to be some identification of conduct in the complaint which matches that which is subsequently advanced before the Tribunal. In this case he says that the complaint to the Tribunal does not simply identify bullying conduct by the employer but in addition identifies complaints relating to working time, unlawful deduction of wages, and other alleged breaches of contract. He also points out that the letter of 8 April deals principally with other matters. As I noted in the Canary Wharf case, however, that does not prevent the relevant paragraph constituting a complaint, if it can be fairly read in that way.
18. As to the letter of 11 April, Mr Cornwell made a number of submissions in relation to that; in particular he notes that in the Canary Wharf case I had said this:

"It seems to me that the objective of the statute can be fairly met if 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."

19. He says that looking at the letter of 11 April, with that approach in mind, an employer would not fairly understand that the grievance was being raised. The language of that letter is consistent with the employer being told that a grievance will be raised in the future. The detail will follow, it says in the letter. And at the conclusion of the letter there is an express reference to the possibility of a meeting "once he has formulated his grievance regarding your appalling treatment of him".
20. He submits that in the light of that clear language from the solicitors, any employer would reasonably understand that although he will be informed about a grievance in due course, there is no grievance being raised there and then.
21. In my judgment these letters do raise a complaint in a way which does constitute a grievance within the meaning of the statute. In relation to the letter of 8 April the employee has made plain that he is leaving because of the employer's conduct towards him. He identifies a particular incident on Easter Saturday as being the final straw and he explains why he left without giving notice. As I have said, it is not necessary for the basis of the complaint of constructive dismissal to be identified in that letter; all that is necessary is that the relevant complaint is made. Mr Cornwell may be right that the case before the Tribunal will rely upon other matters in addition to the bullying which is identified specifically in the letter of 8 April. But in my judgment that does not prevent this letter from being treated as raising the relevant complaint.
22. I confess to having more difficulty with the letter of 11 April. It is true that it is written in a form which indicates that the grievance will be formulated later; and indeed it was formulated in the letter of 16 June, but it is accepted now by the Appellant that letter that cannot be relied upon. But at the same time it does in terms identify the fact that the employee had resigned in response to the repudiatory breach of contract. That lays out, in my opinion, the basis of the complaint which satisfies paragraph 6. The details of that conduct were going to be provided later, and were provided later, but on balance I would have concluded, if it had been necessary, that this letter too was sufficient to constitute the raising of the relevant grievance. In any event, as I have said, I am certainly satisfied that the first letter of 8 April did so and that is all that is necessary in order for the Tribunal to exercise jurisdiction.
23. Accordingly, notwithstanding the succinct and attractive arguments put by Mr Cornwell on behalf of his clients, I uphold this appeal and I find that the Tribunal has jurisdiction to hear this claim.