United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr A Korn (of Counsel) Instructed by: Employment Law Plus Stepstone House Old Moor Milton Abingdon Oxon OX14 4ED
For the Respondent	Neither present nor represented


 


SUMMARY

Practice and Procedure – 2002 Act and Pre-action Requirements

Employee complaining of discriminatory dismissal – Employer contends Tribunal has no jurisdiction because statutory grievance procedure not invoked – Tribunal holds case falls within reg. 6(5) – Decision upheld – Lawrence v Prison Service (0630/06) followed.


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. The Claimant, the Respondent to this appeal, was employed by ADM Milling Ltd, the Respondents in the proceedings but the Appellants on this appeal (to whom, to avoid confusion, I will refer as "the employers"), until her dismissal on grounds of redundancy with effect from 1 January 2006. On 29 March 2006 she commenced proceedings in the Employment Tribunal raising a number of complaints of which the only one relevant for present purposes is a claim of sex discrimination. I will have to consider in due course the precise nature of that claim.
2. The employers contended that the Tribunal had no jurisdiction in respect of the claim by virtue of section 32(2) of the Employment Act 2002 because the Claimant had not presented a grievance in respect of the matters raised in her sex discrimination complaint. By a judgment sent to the parties on 5 December 2006 a Chairman sitting at Stratford held that the Tribunal had jurisdiction. The employers appeal. They have been represented before me today by Mr Anthony Korn of counsel. The Claimant has not appeared but she has submitted a brief skeleton argument to which I have had regard.
3. Section 32(2) of the 2002 Act reads as follows:

"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."

Paragraphs 6 and 9 of Schedule 2 as there referred to are the operative paragraphs of, respectively, the standard and modified forms of the statutory grievance procedures. It is common ground that a claim of sex discrimination is a complaint under a jurisdiction to which section 32 applies.

4. The employers' contention before the Tribunal was (a) that the subject matter of the complaint "concerned a matter in relation to which [one or other of the statutory grievance procedures] applied" and (b) that no grievance had in fact been submitted. The Chairman held, contrary to the Claimant's submissions, that no grievance had indeed been submitted, and accordingly he accepted limb (b) of the employers' submissions; there is no cross appeal on that point. But he did not accept limb (a). He held that the Claimant's complaint, properly construed, fell within the terms of reg. 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which is in the following terms:

"Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

5. Mr Korn submits that the Chairman erred in law in that conclusion in two respects. First, he submits that on its true construction reg. 6(5) does not apply to cases where, even though the act complained of may as a matter of fact consist of a dismissal, the basis of the complaint is that it constitutes an unlawful detriment under the relevant statutory jurisdictions. He submits that reg. 6(5) is concerned only with claims of unfair dismissal or, as a fallback, with claims where the dismissal is on its face for a discriminatory reason. Secondly, he contends that even if that were wrong the Claimant's complaint when properly analysed is not a complaint of dismissal.
6. As to the first point, since the decision of the Tribunal, and indeed since the lodging of the Notice of Appeal, Elias P has decided the case of Lawrence v H.M. Prison Service UKEAT/0630/06, in which he expressly rejects the very submission which Mr Korn now advances. Mr Korn reminded me that I was not bound by Lawrence and sought to persuade me that it was in fact wrongly decided, focusing on points which he said that the President had either failed to take into account at all or had given insufficient weight to. I would however, in accordance with the usual practice, only decline to follow the decision in Lawrence if I not simply took a different view from the President but were positively convinced that his view was wrong. I am not satisfied that that is the case; indeed I respectfully find his analysis persuasive. In those circumstances I hope I will be forgiven if I do not repeat it here. I reject Mr Korn's case on the construction of regulation 6(5) essentially for the reasons given in Lawrence. I should however refer briefly to the particular points which Mr Korn made.
7. First, Mr Korn referred to the procedure followed in the drafting of the regulations, of incorporating in reg. 2(5), which is the definition of "dismissal", the definition of "dismissed" (albeit in modified form) from the Employment Rights Act 1996, and to the fact that the exclusions in reg. 4 all contemplate potential unfair dismissal claims. However that does not seem to me to indicate that reg. 6(5) is concerned only with unfair dismissal claims.
8. Secondly, he referred to the "overlapping claims" provisions of reg. 7. But, again, I cannot see why the existence of this provision is inconsistent with the construction of reg. 6(5) adopted in Lawrence.
9. Thirdly, he referred to the "uplift" provisions of sec. 31(3) of the 2002 Act and submitted that it would be anomalous if in a case where, say, a discrimination claim were allowed to proceed by virtue only of reg. 6(5), because the act complained of had taken the form of a dismissal, the employer could be penalised for not following a procedure in relation to a grievance that had never been raised. I do not see this. What the employer would be being penalised for in such a case was for not following the dismissal and disciplinary procedure.
10. Finally, Mr Korn sought to refer me, invoking Pepper v Hart [1993] AC 593, to the speech of Lord Sainsbury, moving in the House of Lords the approval of the 2004 Regulations then in draft. There might well have been a serious question whether this was an appropriate case for the invocation of Pepper v Hart, but the short answer to the point is that - as indeed Mr Korn frankly acknowledged - the speech in question does not unequivocally support his case. Indeed it seems to me that, though not decisive, it tends more to support the construction adopted in Lawrence, I refer in particular to the following passage from Lord Sainsbury's speech:

"When the action taken by the employer is dismissible leaving aside constructive dismissal, the owness will be on the employer to initiate workplace dialog under the applicable dismissal and disciplinary procedure. The employee will not in any circumstances have to initiate separate discretion under a statutory grievance procedure before he or she can complain about that dismissal to an ET. Employers should know that it is incumbent upon them to have a fair reason for dismissal untainted by any unlawful discrimination if they contemplate such a serious step. Thus only one statutory procedure will apply where the disputed action is dismissal."

11. For all those reasons, I am not persuaded that Lawrence was wrongly decided; and I reject Mr Korn's first ground.
12. As to the second ground, the essential question here is whether what the Claimant complained of was indeed "that the employer [had dismissed….] her". This requires an analysis of her claim as pleaded.
13. The part of the original grounds of claim setting out the sex discrimination claim reads as follows:

"The Claimant is a woman and was employed as an Office Manager by the Respondent. On 7 December 2005 when the Claimant received notice of termination of employment by reason of redundancy she was on extended maternity leave. In the circumstances the Claimant considers that the Respondent has discriminated against her on the ground of her sex in that

(i) The Claimant has a statutory right to her job back after maternity leave and that her job still existed or there was suitable alternative vacancies that the Respondent refused to consider contrary to the Maternity and Parental Leave Regulations 1999 reg. 10. The Claimant has thereby suffered a detriment through taking her ordinary and extended maternity leave.

(ii) The Respondent applied to her a condition or requirement namely to work full time with non-flexible hours, with which a smaller proportion of women than men can comply because of their child-care responsibilities. The Claimant could not comply with the requirements laid down by the Respondent and this was to the Claimant's detriment in her selection for her redundancy.

By reason of the Respondent's discrimination as described above the Claimant has suffered loss.

In the prayer the Claimant sought "a declaration that the Respondent has discriminated against her on the ground of her sex contrary to section 1(1)(b) of the Sex Discrimination Act 1975".

14. In the course of a case management discussion on 4 October 2006 the Claimant was given permission to amend that pleading to add an item (iii) in the following terms:

"By virtue of the dismissal the Respondent discriminated against the Claimant by dismissing her during her maternity leave and thereby causing her a detriment contrary to section 6 of the Sex Discrimination Act 1975."

That amendment was made in order to make it plain that the Claimant was alleging direct as well as indirect discrimination. The Chairman in his judgment said this about that claim, at para 9.3:

"So far as sex discrimination is concerned it is helpful, in my view, to look at the basis of the claim. That is set out on pages 11 and 12 of the bundle. There were three parts to it, the first and third of which are extremely similar. The first, effectively, claims that Mrs Hodgson was dismissed whilst on maternity leave. The second, effectively, complains that the company applied to her a condition or requirement (which I think properly should be described as a provision, criteria or practice) that she work full time with non flexible hours being something with which a smaller proportion of women than men can comply because of child care responsibilities. Mrs Hodgson effectively says that she could not comply with the requirements laid down by the Respondent in this respect and that this was to her detriment in her selection for redundancy. The third part is that the company discriminated against Mrs Hodgson by dismissing her whilst on maternity leave. I am satisfied that parts 1 and 3 of the claim amount to a complaint that the company has discriminated against Mrs Hodgson by the act of dismissal. I also find that to be the case with regard to limb 2. I am construing limb 2 as saying, in effect, that the application of the provision that Mrs Hodgson work full time led to the decision that she be dismissed on the ground of redundancy."

15. I find the Chairman's analysis entirely convincing and I agree with it. In my judgment what the Claimant was complaining of in her pleadings was the act of dismissal, and that is so as regards each of the three different ways of expressing her claim. Mr Korn sought to convince me that on its true construction "limb (i)" at least was complaining of pre-dismissal detriment and that that was the explanation for the amendment made at the case management discussion. I do not accept that: it seems to me wholly inconsistent with the wording of the pleading.
16. The final point raised by Mr Korn concerned the Chairman's apparent recognition that the Claimant was complaining of both direct and indirect discrimination. He submitted that no claim for indirect discrimination was pleaded and that if it was to be admitted it would be necessary for there to be a formal amendment which had never been sought or granted. I do not agree. It seems to be plain that the case as now pleaded includes claims both for indirect and direct discrimination.
17. I accordingly dismiss this appeal.