United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADAM SOLOMON (Of Counsel) Instructed by: Messrs DLA LLP Solicitors 3 Noble Street London EC2V 7EE
For the Respondents	MS SHEILA ALY (Of Counsel) Instructed by: Messrs Rae & Co Solicitors 2c Trinity Street London SE1 1DB

SUMMARY

Practice and Procedure – striking-out/dismissal

Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how Employment Tribunal should approach the question whether a grievance has been made about a relevant complaint.


 


THE HONOURABLE MR JUSTICE ELIAS

1. Section 32 of the Employment Act 2002 has sought to encourage the use of grievance procedures prior to an employee lodging certain claims before an Employment Tribunal. In such cases the employee must send to the employer a written statement of the grievance and wait until at least 28 days for the employer to respond. The Tribunal will not hear a complaint which has not first been raised in that way with the employer. If the grievance has been raised with the employer then in certain circumstances the time limit for lodging a complaint is extended by a further three months. So although the employee cannot register a claim with the Tribunal until at least 28 days has elapsed from the time he raised the grievance, he may thereafter have a more extended period within which to present his claim than would otherwise be the case. Furthermore, if either the employer or the employee fails to pursue the grievance procedure further through their own fault, then that will have an effect on the ultimate award of any compensation: see section 31. If it is the employer who has failed properly to process the grievance then the compensation will be increased by between 10% and 50% depending on what is just and equitable in all the circumstances. Conversely, if it is the employee who has unreasonably frustrated the process then there is a parallel power to reduce the compensation in a similar way. These procedures came into effect in October 2004.
2. The issue in this case is what is meant by a grievance" within the meaning of the Act and whether a relevant grievance had been raised.
3. This appeal is brought against a decision of the Chairman on a pre-hearing review. One of the issues she had to determine was whether the Claimant's claims for disability discrimination, constructive dismissal and unlawful deduction of wages should be allowed to go forward. The employers had contended that the claimant had not raised a grievance in writing with respect to any of these claims prior to their being advanced before the Tribunal. It was common ground that they were all jurisdictions caught by the relevant legislation. The Chairman found that the employee had sent a lengthy letter to the employer in which all these matters had been raised as a grievance. In fact, it was conceded at the Tribunal itself that a grievance had been raised as regards the constructive dismissal, and the finding of the Tribunal that there was also a grievance raised in relation to the claim for unlawful deductions is not the subject of an appeal. This appeal is directed solely to whether the employee has raised a grievance under the Disability Discrimination Act 1995.

The Relevant Legislation

4. Section 32(2) of the 2002 Act is as follows:

"(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."

5. By subsection 1 the jurisdictions to which the subsection applies are those listed in Schedule 4. These identify virtually all the employment rights which may constitute the basis of a claim to an Employment Tribunal. They include discrimination in the employment field under the Disability Discrimination Act. By subsection 3, it is specifically provided that where paragraphs 6 or 9 have not been complied with, the Tribunal will not have jurisdiction to hear a claim unless at least 28 days have passed since the day on which the requirement was complied with.
6. Paragraph 6 of Schedule 2 is found under the heading "Grievance Procedure", which is in Part 2 of the Schedule. (Part 1 deals with disciplinary and dismissal procedures.) Chapter 1 of Part 2 deals what is termed the "standard procedure" and chapter 2 with what is termed the "modified procedure".
7. The requirement identified in paragraph 6 is the first step 1 of the Standard Procedure. It is as follows:

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

Paragraph 9 is the first step in the modified procedure. It provides as follows:

"The employee must:

(a) set out in writing:

(i) the grievance and

(ii) the basis for it

and

(b) send the statement, or a copy of it, to the employer."

8. In each case there are further procedural steps which will need to be followed. In the case of the Standard Procedure step 2 requires the employer to invite the employee to attend a meeting so as to discuss the grievance. But the meeting should not take place until and unless the employee has informed the employer what is the basis for the grievance, and the employer has had a reasonable opportunity to consider his response to that information. Step 3 concerns the right of appeal.
9. Under the modified procedure there is simply a second step at which the employer sets out his response in writing to the grievance raised by the employee.
10. Under section 32(7) the Secretary of State is empowered to make regulations about the application of these procedures, and more specifically about what constitutes compliance with paragraph 6 or paragraph 9 of the Schedule 2. This he has done by the Employment Act 2002 (Dispute Resolution) Regulations 2004.
11. Under Regulation 2, Grievance is defined in the following way:

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

12. Regulation 6 then deals with the circumstances in which these grievance procedures are to be followed. Reg 6(1) states this:

"The grievance procedures apply, in accordance with the paragraphs (2) to (7) of this regulation, in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so if the action took place."

13. It is then provided that the standard grievance procedure will apply save in certain exceptional cases. It is not necessary for the purposes of this decision to analyse these exceptions. Suffice it to say that one of the exceptions is when the modified procedure applies. That, however, will be rare because a number of conditions have to be met before it is applicable, including that the employee has ceased to be employed by the employer and that the parties must have agreed in writing to the modified procedure being applicable. Two of the other exceptions are, putting it broadly, where the disciplinary or dismissal procedures are considered more appropriate. It is to be noted that dismissal for this purpose does not include constructive dismissal (see Regulation 2(1)). Hence the reason why conduct which causes the employee to resign falls under the grievance procedure provisions. That should really be why complaints relating to conduct which causes it, etc.
14. The Regulation 15 deals with the extension of time limits whilst the provision which modifies the compensation is, as I have said, found in the body of the Act itself (at section 31).
15. These are complex and not happily structured regulations. But it is at least plain that a Tribunal having to consider whether or not it has jurisdiction to deal with the particular complaint, will have first to consider whether either grievance procedure applies at all, and if so which, (although in almost all cases it is likely to be the standard grievance procedure). Where the question of jurisdiction is in issue, it will then have to determine whether there has been compliance with the first step in the procedure.
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.
17. I note, in passing, that in one of the decisions to which we were referred, namely Galaxy Showers Limited v Wilson [2006] IRLR 83, the Employment Appeal Tribunal (Mr Justice Langstaff presiding) observed that the complaint about an act can also include a failure to act. I agree. For example, in the context of a disability claim the complaint may be that an employer has failed to make reasonable adjustments. In my view, that would constitute a matter in respect of which there should be a grievance raised under the statute before the Tribunal can exercise jurisdiction.
18. There are certain points to note about the obligation imposed by paragraph 6. In making the following observations I draw upon comments made in the judgments of this Tribunal in four separate cases: Shergold v Fieldway Medical Centre [2006] IRLR 76, Galaxy Showers (to which I have already made reference), Mark Warner Ltd v Aspland [2006] IRLR 87 and Thorpe, Soleil Investments Ltd v Poat and Lake EAT 05/03/05/SM. I agree with the analysis made in those cases about the requirements of paragraph 6.
19. First, the timing of the grievance. There is no maximum time limit prior to the lodging of the claim to the Tribunal in which the grievance must have been raised. There is the minimum period of 28 days which must be allowed for the employer to deal with it and go through the relevant procedures, but no maximum period. That is not to say, however, that the act of raising a complaint months or years prior to lodging the Tribunal claim will necessarily constitute the appropriate raising of the grievance. The grievance must be extant. 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.
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.
23. How then does one determine whether the relevant complaint has been made? In Shergold , Mr Burton J said this at paragraph 28 down to "so far as Unfair Dismissal"

"…the statutory wording…very simple, and we believe that it was intended to be simple. Of course an employee, before this statutory procedure is invoked, must set out something in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly, so far as the standard procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here. It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the 2002 Act and the 2004 Regulations; otherwise they might find themselves down the slippery slope leading to an automatically unfair dismissal…"

24. Mr Solomon for the Appellants has made a number of criticisms of this decision, and we will return to deal with those shortly. Suffice it to say that we agree with Burton J that in identifying whether or not the complaint is identical to that which has been lodged before the Tribunals, one must not approach the issue in a technical way. The law in this area is directed at employees who in many cases - perhaps most – will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner. At the same time, it must not be forgotten that an employer who receives a grievance and is at fault in failing to take matters further is at risk of paying additional compensation if the claim ultimately succeeds. Indeed, if it succeeds he will have to pay additional compensation to the extent of at least 10 percent. But he cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged.
25. 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. I do not think this formulation is essentially different to that urged upon me by Mr Solomon for the Appellant, namely "how a reasonable employer, with the actual or constructive knowledge of the employer at the time he received the grievance, would have understood it", although I would prefer to avoid concepts of actual or constricted knowledge. Nor do I think that any of the earlier cases to which I have made reference are at all inconsistent with my approach.

Criticisms of Shergold

26. I turn to consider the submissions by the Appellant that the approach of this Tribunal in the Shergold case was wrong in law and should not be followed. I do not, however, understand Mr Solomon to be criticising the fundamental approach to paragraph 6 itself, but rather to some wider observations of this Tribunal which may suggest, he submits, that there is a wider discretion afforded to Employment Tribunals to allow claims to be pursued than the law allows. There are three areas in particular in where Mr Solomon said that the EAT had erred in law.
27. First, he submits that the EAT erred in stating, in paragraph 28, that employers may be liable for automatic unfair dismissal where they fail to comply with their procedural obligations in respect of grievances. He submits that this was a material error that coloured the approach to the Regulations thereafter. We accept that the EAT does appear to have temporarily confused the sanction which applies to the failure to comply with disciplinary and dismissal procedures on the one hand, where automatic unfair dismissals may arise, with grievance procedures on the other. However, in our judgment that observation by the Tribunal had no bearing at all on its analysis of the statutory provision.
28. Second, he submits that the Tribunal erred in suggesting that the purpose of the procedures was "to encourage conciliation, agreement, compromise and settlement rather than the precipitate issue of proceedings". It was initially submitted that the purpose was simply to prevent cases going to Tribunals. But these are not in fact incompatible aims. As Ms Aly pointed out from DTI guidance and materials relating to consultation on the Regulations, the aim according to the Government was to build constructive employment relations and to seek to avoid litigation through a greater use of in-house procedures. No doubt the Government does wish to discourage litigation but that objective can be achieved by having more disputes resolved internally before matters ever get to a Tribunal. It would be unduly cynical to suggest that the Government were simply intending to impose a hurdle on employees with no purpose whatsoever other than to hope that they would fail to jump it and thereby reduce the burden on Tribunals (even if that unfortunately does appear to be its effect in many cases). Mr Solomon suggested that in any event it was not encouraging conciliation but effectively because of the sanction if that did not take place, was compelling it. But even if that is right, it does not have any bearing, so it seems to me, on the Tribunal's analysis of the paragraph.
29. Finally, he criticises the following observations of the Tribunal at paragraph 28 (which for convenience I reproduce again) when the EAT said this.

"It is not in our judgment the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those are sanctions which should be very rarely used; the purpose of the legislation is quite other as we have described."

30. Mr Solomon submits that by stating that sanctions will rarely be used, the Tribunal is suggesting that Employment Tribunals should adopt an unduly lenient approach towards the question whether paragraph 6 has been complied with, whereas Parliament requires a more draconian approach. In particular, he submits that insofar as there is any implication that there can be recourse to some concept such as the interests of justice to make good defective complaints, that is erroneous.
31. We do not read those words as carrying any such implication in fact. However, we do accept entirely that how regularly the sanction will have to be used will depend simply upon whether the employees comply with the obligations or not. If the statement cannot in context fairly 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.

Applying the law to the facts

32. In this case the employee had in fact raised certain grievances with the employer in June 2004. He advised the company that he was suffering from asthma and he said that the current bout resulted from exposure to traffic fumes. The second letter he wrote in July stated that the company had refused reasonable adjustments to his job and he advised the company that they should take action under the Disability Discrimination Act. The company apparently took the view that the asthma was improving with the use of an inhaler.
33. His letter of 25 March raised, as we have said, various complaints. It is a lengthy letter and there are various headings each of which identifies in very summary terms a specific complaint. The headings are prior information, working conditions, heaters, chairs, canteen facilities, rosters, breaks and remuneration. Mr Edebi had complaints about all those matters and suggestions for improvement in relation to them.
34. The specific passages where he deals with health issues are as follows First he said this:

"My position here has now become untenable and the disciplinary hearing is just the culmination of nearly a year of mistreatment. Going back to June 2004 I have raised issues of my health and the way we are forced to work in Canary Wharf and nothing has been done. I was off sick for a month with back pain caused by the incredible amount of hours that I have to spend standing and my wages were docked. Causing me extreme financial hardship, and the mechanisms to try and recoup some of my salary has proved to be cumbersome. I am judged to be insubordinate on 2/3/05 because I refused to go outside in the freezing cold, and a week later I was facing a disciplinary investigation, and the following week a disciplinary hearing."

And then under "Prior Information" he said this:

"I was NEVER told that the job I was potentially going to be employed for was an outdoor all weather job. It surely would not have taken a lot of time to inform potential employees of this very fundamental nature of the job. I can only surmise that this submission is wilful on the part of CWML as most people seeking employment would never submit themselves willingly to the dire conditions of the infrastructure package if they knew beforehand what the job entailed."

And then the longest passage is under the heading "Working Conditions" where he says this:

"When winter of that year arrived (that is I suppose 2003) I found working on infrastructure quite unbearable and the impact on my health was costly. Not only did I suffer from aches and pains (particularly my back, legs, and soles of my feet). I would regularly contract colds and they would be quite be persistent and sometimes take me as long as two months to recover from. This is due to the continuous standing for very long periods of time, without adequate breaks, that is demanded of those working on infrastructure and particularly at the barriers where traffic enters and exits Canary Wharf. The standing is one aspect the other demanding aspect is the extreme1y cold weather that we as Security Officers have to endure when it is winter. Again for extremely long periods of time. The way the security staff are treated here is nothing less than inhuman and shows a definite callous disregard for the wellbeing of said staff."

And then a little later he says:

"I do not expect to be coddled but I can truthfully say that Canary Wharf is the worst place I have ever worked in."

In relation to breaks he says that this was the source of his greatest frustration. And then in conclusion he says this:

"In conclusion I would just like to say that if Canary Wharf continues its policy of abuse, callous neglect, intimidation, and bullying. The level of security it can provide will inevitably decline. The work conditions and the very real stress that my former colleagues are suffering from needs to be addressed. And. addressing these concerns needn't be at be cost of delivering a good service, as seems to be the implication of management whenever I have brought these issues up. The "sick bill" or absenteeism that seems to be the justification for management keeping things as they are wouldn't be so high if steps were taken to redesign the job so that the impact on health wasn't so great." .

35. In analysing this statement the Chairman referred in her decision to the case of Richardson v U Mole [2005] IRLR 668, which concerned the way in which Tribunals should approach the procedural rules concerning the presentation of claims. In particular the Chairman referred to a short passage of the judgment of Burton J in that case when he said this

"The new rules …(provide)… a gateway to ensure that applications or responses kick off on a sensible and complete basis from the beginning so that there is no need for subsequent clarification…If however the result of the imposition of the gateway is not simply to point out gaps which ought to be corrected but to drive away a claimant… then injustice is inevitably going to be done."

And then a little later at paragraph 11, the Chairman said this:

"However in applying those rules the Tribunal does need to consider whether the overall interests of justice is served if a claimant is denied the opportunity to bring a claim at this stage because in seeking to grieve she did not set out the complaints in enough detail omitting legal terminology whilst mentioning the subject matter of his subsequent complaint to the Tribunal."

Then in dealing with the specific issue of disability discrimination she set out her conclusions at paragraphs 19 to 21 of the Decision.

"19 Although there are quite a few general comments in respect of the health and safety of the Respondent's security officers, there are some specific comments and allegations made in respect of the personal hearth of the Claimant and the fact that this has been going on for a considerable period of time, Reference is made to a year of mistreatment, issues of his health and his refusing to go outside in the freezing cold; all of which raise concerns of unfair treatment on the grounds of his health or his ill-health. Under the heading 'Working conditions" the Claimant states when the winter of 2003 arrived he found working on the infrastructure quite unbearable and the impact on his health costly, He then goes on to detail the aches and pains on different parts of his body.

20 The Claimant does not use the Words disability discrimination, less favourable treatment, reasonable adjustments or asthma in his fetter. Although the Rules state that the grievance has to raise the 'subject matter' of the claim, it does not state that legal terms have to be used. He raises the issue of his health, his repeated sickness and the adverse effects his work environment has had on his health throughout his employment.

21 In the submissions to the Tribunal today, the Claimant seeks to link this letter back to his written complaint of June 2004 which does mention those terms. However, those documents are 9 months apart and cannot be construed together to amount to a grievance. Section 32(2) of the Employment Act prohibits a Claimant from presenting a relevant Claim unless he has previously raised a grievance on the matters which are the subject of the Claim. The Claimant complains in the letter of March 2005 that his job has had such an adverse effect: on his health and has become so unbearable that he can no longer continue in employment. His comments in this letter do indicate that the Claimant is attempting to raise a claim of less favourable treatment on health grounds. He is grieving on the effects of his job on his health as well as on the health of his colleagues -all the security staff. That can be construed as a claim for disability discrimination under the Disability Discrimination Act."

5

36. There is no challenge to the conclusion of the Chairman that in the circumstances of this case it was not justified to link the letter of 25 March 2005 with the earlier letters in the previous summer. In fact the Chairman mentions only the June 2004 letter but I have little doubt that she would have had both in mind. I would agree that it would be unreasonable to anticipate that the employer would have the detail of the earlier letters in mind, although the fact of an earlier complaint may properly be considered to be part of the wider context in which the statement must be understood. That is not to say that earlier communications are always to be ignored; they will sometime be part of the context in which a later statement has been written. Indeed that was the position in Shergold itself. In certain circumstance one can only fairly understand the content of the later letter by reference to earlier correspondence particularly, for example, where shorthand terms, perfectly understandable to the parties, may have been used. But here the timescale was extensive and the later letter made no specific reference to the detail of the earlier ones, save that Mr Edebi pointed out that he had raised issues of his health going back to June 2004, and I think the Tribunal was justified in focusing solely on this March letter.
37. Mr Solomon submits that the Tribunal erred in its general approach. He criticises the Chairman for drawing the analogy with the procedural rules and relying upon the decision of this Tribunal in the Richardson case. He also said that it was wrong to have regard to the overall interest of justice. We accept that a direct analogy with the procedural rules and the construction of claim forms in particular is not appropriate here. And, as we have said, there is no overall concept of the interests of justice which can save and otherwise defective complaint. But we think that all the Tribunal Chairman was seeking to indicate was that one would not in circumstances like this adopt an unduly technical or formal approach to the analysis of the statement, that the detail is not needed, and that it is enough to mention the subject matter of the subsequent complaint. We can see nothing wrong, in other words, in the broad approach which the Tribunal in fact adopted.
38. Mr Solomon submits that, in any event, it is plain that in this case the issue of disability discrimination was simply never raised. It was not just a matter of the technical concept not being used, nor indeed necessarily the failure to refer specifically to such phrases as "less favourable treatment" or "a failure to make necessary adjustments", or anything of that kind. He simply says that, read fairly, the complaint of disability discrimination was not raised in any way whatsoever. There was in fact no reference at all even to the fact that the employee had asthma which was the nature of the original grievance which was made the previous summer. He submits that the mere fact that an employee complains that the working conditions have adversely affected the health and security of officers generally and even his own health in particular (whilst giving examples of that) does not begin to demonstrate any complaint under the Disability Discrimination Act. It is plainly material to the question of constructive dismissal. He says that looking at this letter it criticises vehemently and unequivocally the conduct of the employers and the fact that their insensitivity to the interests of the employees is causing hardship to health but it does not identify any way in which Mr Edebi has been subject to less favourable treatment than non-disabled persons, nor indeed does it complain about any specific failure to make an adjustment in his case which would not be necessary in the case of other security officers placed in the same position. He also suggested that when Mr Edebi chose to complain about his treatment under the Disability Discrimination Act, the previous summer, he was sufficiently aware of that legislation to refer to it specifically in terms. He said that that ought to be taken into consideration when assessing whether or not this complaint had raised the issue of disability discrimination.
39. If the Chairman is to focus solely on the letter of 25 March, as she held as appropriate to do, then we do not think it would be justified to focus on the letter the previous summer for the purposes of holding it against the employee that he did not expressly refer to the Disability Discrimination Act.
40. Miss Aly, for her part, has submitted that when one looks at the letter there are extensive references to health issues. She submits that they are sufficient to raise the issue of the disability discrimination complaint. She says that the case is akin to Shergold; both parties will be aware of the background and will appreciate the gist of what is being alleged. Mr Edebi had not simply complained about the general difficulties faced by security staff as a whole, but he had also identified in a number of passages the deterioration caused to his own health as a consequence of the conditions imposed by these employers.
41. I accept the argument of the Appellants. There is no doubt that the Claimant was contending that working conditions had had an adverse effect on his health and that was plainly an important element in his general claim for constructive dismissal. But I do not think that it would be just to these employers, on a fair reading of the letter, to say that his references to his health problems fairly raised, even in a non-technical and unsophisticated way, an issue which the employer could reasonably understand had arisen under the Disability Discrimination Act. He has not identified any failures specifically to make adjustments in this case, nor has he alleged that he was treated less favourably than other security officers in the same situation. On the contrary, his complaint is that all have been subject to unacceptable conditions although he does indeed identify the specific health problems that have been caused to him as a consequence of that. I should say that I have great sympathy with the employee. These regulations can operate in a harsh way and it gives me no pleasure to say that I find that the Tribunal lacked jurisdiction to deal with this matter in this case. But as I have said, we must bear in mind that the employers also suffer an adverse consequence if one does not read the letter fairly and assess whether in all the circumstances it can properly and reasonably be said to have raised the complaint which has subsequently been put before the Employment Tribunal. 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.
42. Accordingly, I find that the Chairman did err in concluding that this particular complaint had been raised in the letters of resignation. It follows that the appeal succeeds and the Tribunal had no jurisdiction to hear this complaint.