United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS HEATHER WILLIAMS (of Counsel) Instructed by: Messrs Shakespeares LLP Solicitors Somerset House Temple Street Birmingham B2 5DJ
For the Respondent	MR AKHLAQ CHOUDHURY (of Counsel) Instructed by: Messrs Mills & Reeve LLP Solicitors Francis House 112 Hills Road Cambridge CB2 1PH


 


SUMMARY

Jurisdictional Points – 2002 Act and pre-action requirements

Statutory Discipline and Grievance Procedures – Whether infringed

Practice and Procedure - Compromise

The Employment Judge wrongly held that two letters written by the Claimant did not constitute a grievance corresponding to the claim made to the ET. The judgment was set aside as there was clear linkage and the Employment Judge had wrongly considered, as context, material after the letter – an invalid compromise – as being fatal to the Claimant's continuing intention to pursue a grievance. The focus is on what was written and the material available before and at that time so as to put the employer on notice that a grievance was presented. An offer to settle in a Step 1 grievance does not invalidate it. ACAS conciliation directed.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the memorably rebarbative regulations for the submission of grievances prior to complaining to an Employment Tribunal, in the language of Underhill J in HMPS v Barua UKEAT/0387/06. They are short lived but they will be with us as far as we can tell for the next 18 months. I will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against a Judgment of Employment Judge, Mr B G Mitchell, sitting alone at Bury St Edmunds registered with reasons on 23 May 2007. The Claimant was represented by junior Counsel and today by Ms Heather Williams QC, the Respondent by Mr Akhlaq Choudhury of Counsel. The Claimant claimed constructive unfair dismissal and harassment. The Respondent took substantive issues and also issues relating to jurisdiction.
3. The essential issue to be heard on appeal is whether the Claimant submitted a grievance which was the subject of the claim to be adjudicated. Other points relating to jurisdiction have fallen away, including a compromise agreement which was not enforceable.
4. It was hinted that the Claimant may be out of time for raising an issue, but that relates to the provision of Regulation 15 and allows the Claimant an extension of time to put in her claim from what is, by rule of thumb, three months less a day to six months less a day: see Joshi v Manchester City Council UKEAT/0235/07, which she duly did. Thus the sole issue relates to the relationship between the material relied on as a grievance and the claim subsequently weighed against the Respondent in the claim.
5. The Employment Judge decided that there was no such relationship and dismissed the Claimant's claim. She appeals. Directions sending this appeal to a full hearing were given in Chambers by Burton J, immediate past President.

The legislation

6. The legislation is not in dispute. It emerges from Section 32 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. In simple terms, the imperative embodied in this regime is for parties to resolve their disputes without recourse to a Tribunal. So the gate to the Tribunal is barred to a Claimant who does not raise her claim with the Respondent and there are serious consequences in terms of additional or reduced compensation for employers and employees who do not follow the relevant procedures. For example, a Respondent employer who dismisses an employee without going through the disciplinary procedure is at risk of having the dismissal declared automatically unfair and of uplifts in the compensation.

The facts

7. It will be necessary for me to express a good deal of the Employment Judge's reasons in order for my Judgment to be understood. He found the following:

"3 The … Claimant worked for the Respondent as a reader in law from 1 May 2000 until the effective date of termination of employment on 30 September 2006.

4 As a result of concerns which Dr Watt had as to the Claimant's administration of applications for PhD study and complaints raised with him by students, he wrote on 13 July 2006 saying:-

"I am writing to you formerly to request a meeting at your earliest convenience to discuss some serious matters which have come to my attention … These are serious matters which may affect your continued employment by the University and for that reason I strongly advise you to seek representation from your trade union"

5 The matters were described in the letter as "complaints about your teaching on the Undergraduate European Union law course over the last academic year and your lack of performance in managing the PhD programme." The letter concluded "It must be made clear to you that a possible outcome of this unhappy matter is the termination of your employment"

6 The Claimant was sent written evidence purporting to support the various complaints. The investigatory meeting was fixed for 10 August 2006. The Claimant did not attend. By that time the Claimant had instructed solicitors and the meeting was rearranged for 5 September.

7 On 4 September solicitors acting for the Claimant wrote to express the view that the meeting would not be a formal disciplinary meeting. They said that they were attaching a letter prepared by the Claimant "Which sets out her answers to the concerns raised by you and which are the subject of the meeting tomorrow" Later, "Our client's letter responds to the concerns clearly. We hope that the meeting will be an opportunity for you to obtain further information from her if necessary" and concluding the letter "We are of the view that the issues raised by the Department do not warrant any form of formal investigation. Our client's answers are primarily in the evidence and we anticipate that you will see this tomorrow."

8 The attached letter of 4 September from the Claimant in its first paragraph explains "It may help if I were to respond in writing to your concerns ahead of our 5 September meeting." There are then headings dealing with the concerns in relation to the 2006 EU examination paper. The second numbered paragraph deals with PhD students and at the third paragraph under the heading "Research" she stated "I am aware that this does not form part of the specific problems you have raised but I feel it would help if I addressed this issue as well." A fourth paragraph was headed "Miscellaneous Matters" and after saying "I will address some other issues which may be concerning you" she dealt with cancellation of lectures, late marking of scripts and referred to her forthcoming book. The letter concludes with a fifth paragraph under the heading "Conclusions" It complains that the Respondents have "Chosen to use a big stick approach in resolving these problems," expressing the hope that the meeting would be recorded as an informal discussion, "There being no basis for a reasonable suspicion that I have been involved in grave misconduct meriting dismissal" and concluding with the paragraph:

"In the spirit of dealing with open hands which has always characterized my employment relationship with the university, I am willing to put on the table a negotiated package for my amicable withdrawal from the University as I have other opportunities that I wish to pursue."

9 The meeting took place on 5 September. The Claimant's solicitors were present and it was agreed that the substance of the meeting would be adjourned to discuss a possible agreement.

10 As a result of discussions it was proposed on the following day that there would be a severance agreement with a payment to the Claimant of £30,000 tax free.

11 Solicitors for the Claimant made amendments to the draft compromise agreement. The solicitors confirmed that once the amendment was agreed "We will be happy to sign• the same on behalf of our client and of course sign the relevant declaration. We provided our client with the advice in relation to the effects of the compromise agreement."

12 On 26 September the solicitors wrote to the Respondent saying "Prior to signing the documents my client would like an answer to one question: was there any reason other than those reasons already discussed with my client as to why Dr Waft decided to proceed with disciplinary action against my client?" The response of 27 September from Mr Chamock was "The reasons for commencing with the disciplinary procedures against Angela Ward are those already discussed and outlined to her."

13 The compromise agreement was signed by the Claimant and Mr Charnock on behalf of the Respondent and the Claimant's solicitor signed to confirm that he was a solicitor authorised by Section 203 of the Employment Rights Act and had advised the employee of the terms and effect of the agreement and "In particular its effect on her ability to pursue claims before an Employment Tribunal.""

…

"15 On 13 October the Claimant wrote to the Vice Chancellor of the Respondent University. The initial paragraph reads "I am writing to you today to inform you of my concerns about infirmities in the examination process within the Law Department of your University and to clarify the terms of a compromise agreement that I recently signed with the University." In relation to hr concerns about the examination process she went on to explain that she was concerned a s the extent to which her colleagues were "divulging the content of examination papers and which placed me in an impossible position." She pointed out that she would have raised this issue if she had stayed at the university and suggested that it needed the attention of an external examiner. There followed four paragraphs in bold lettering. Each paragraph commences with the words "Thus I will view it as libellous and defamatory if …" and the four matters of concern were that anyone should suggest that she was "lacking in the professional qualities required to exam students" or "the quality of my teaching" or "that I am of uncooperative disposition, difficult to get along with or unable to complete professional tasks to a high level of proficiency" or "Any action is taken that impedes the progress of my career in any way". In the text she outlines that "if you are unable to agree to the terms I have set in bold in this letter then it is my wish that these matters are fully ventilated before either the Employment Appeal Tribunal or the High Court."

16 Reply was sent on behalf of the Vice Chancellor confirming that the confidentiality clause in the compromise agreement would be fully complied with and that the reference would not be deviated from and rejecting the request that the Vice Chancellor should "see fit to send me a cheque for £6,800 to cover my legal costs"."

There was no formal meeting to resolve those issues.

8. On the basis of those facts, the Employment Judge addressed the law in the following terms:

"21 Turning next to the question of Section 32 of the Employment Act 2002. It is quite clear that a complaint of constructive unfair dismissal is a claim to which the grievance procedure applies and that by virtue of Section 32(6) the Tribunal cannot consider a complaint of constructive unfair dismissal unless there has firstly been the raising of a grievance and secondly a period of 28 days has elapsed before presentation of the Claim.

22 The cases to which I have been referred make clear that a grievance does not have to be in any particular form and does not need to refer to particular sections of Acts or even describe the cause of action contemplated. It simply means a complaint by an employer about action which his employer has taken or is contemplating taking in relation to him and the grievance procedures apply in relation to any grievance of that action by the employer that could form the basis of a complaint by an employee to an employment Tribunal. The communication form the employee needs to be a written statement couched in such terms that "the employers on a fair reading of the statement and having regard to the context in which it is being made can be expected to appreciate that the relevant complaint is being raised". (Canary Wharf Management Ltd v Edebi). In that same case the President of the EAT giving judgment pointed out that:-

"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 procedure, but no maximum period. That is not to say, however, that the raising of 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 outstanding, that is because it was satisfactorily dealt with or because the employee has not pursued it in circumstances that it might properly be inferred that he longer wishes to have it determined, then it will be necessary for the employee to raise the complaint again in written form""

9. On those self directions, accepted as correct by both Counsel before me, the Employment Judge then came to the following conclusions:

"23 In this case the Claimant's counsel refers to the letters of 4 September and of 13 October. In my judgment the letter of 4 September cannot fulfil the requirements set out in the Canary Wharf case as it was a letter clearly outlining a response by the Claimant to the matters of concern raised by the Respondent. Not only was it clearly a response to those concerns but it was expressed to be such by solicitors who forwarded the letter to the Respondents. If it were a grievance it would certainly have lost its efficacy prior to the termination of the employment by the Claimant's agreement to accept a sum in full and final settlement and to the terms of the reference confirming that she resigned in order to pursue other activities. Indeed the letter itself of 4 September refers in its last paragraph to the Claimant seeking a negotiated package to enable her to do so. There is nothing there which in my judgment would lead an employer on a fair reading of that statement to consider that the Claimant was seeking to maintain that the Respondents were acting in such a way without reasonable cause to destroy or seriously damage the trust and confidence which should exist between employer and employee which subsequently formed the basis of her complaint of constructive unfair dismissal.

24 Again in relation to the letter of 13 October 2006 it is impossible to conclude on a fair reading that the letter amounted to anything other than threats that there would be grave consequences if the exact terms and spirit of the compromise agreement were not adhered to. It threatened defamation actions and made a suggestion that the conduct of other teachers in relation to the communication of the contents of examination papers should be looked into by an external adviser. The Claimant's counsel has picked out from these letters individual sentences illustrating the Claimant was upset about various incidents. The sentences to which he refers in his skeleton argument exist and it is understood that the requirements of Section 32 should not be looked at legalistically. On the other hand it is right to say that there are serious consequences for an employer that does not take action in relation to a grievance which is recognised as such on a fair reading. As was identified in the Shergold case the statutory requirements were minimal and is simply that the grievance must be in writing, it must relate to the subsequent claim and can be contained in a letter of resignation. It need not invoke the relevant grievance procedure but the context of the document is important. Employers should be able on a clear reading to appreciate that the relevant complaint is being raised. In my judgment neither of the letters in the context in which they are written could fairly be read "Even in a non technical and unsophisticated way as raising the grievance which is the subject matter of the complaint to the Tribunal."

25 It is noted that the response to the letter of 13 October demonstrated that it was not regarded by the employer as a grievance and when the Respondent sought particulars of any issues which the Claimant wished to raise and discuss there was no response to that invitation.

26 Another part of the appropriate context is that the Claimant is a qualified barrister, writes books on law, was the first to initiate discussion as to a settlement, instructed solicitors who advised as to the contents of the agreement, both accepted a clear statement that she was resigning to take up other opportunities and yet entirely failed prior to the presentation of the Employment Tribunal claim to suggest that she had been forced into her resignation as a result of repudiatory breaches of contract by the Respondents."

And thus he dismissed the Claimant's claim for want of jurisdiction pursuant to Section 32(6) of the 2002 Act.

The Claimant's case

10. A good deal of the legal argument in this case is common ground and I will summarise it when I deal with the legal principles. It is contended that the Claimant had a straightforward linkage between her claim form and either one or both of the letters which she wrote to the Respondent. The Claimant was forced out as a result of the conduct of the Respondent and its officers and she was forced into signing a compromise agreement. The central issue is whether at the time the letter, whichever one is relevant, was sent, there was an expression by the Claimant, reasonably understandable by the Respondent, of a complaint about the Respondent's conduct. Inclusion of an invitation to discuss and settle the matter amicably does not dilute the potency of the otherwise valid grievance. Although reliance is placed in sequence upon the letters of 4 September and 13 October 2006 it is contended that if the latter satisfies the terms then the grievance was correctly presented. The immediate trigger for the Claimant's change of heart after the compromise agreement was that it appeared people were bad mouthing her in the groves of Academe and stultifying her chances of moving on.
11. It is also submitted only events and knowledge at the time are relevant in discussing the contents of a grievance. If the terms of the letter meet the regime, the Claimant's intentions - whether she intended for example to reach a settlement, to go through the form of a grievance hearing or to do so as a matter of substance in order to resolve it - are all irrelevant, as is the inclusion in anotherwise valid grievance of an invitation to negotiate.

The Respondent's case

12. On behalf of the Respondent, I have been urged to step back and look at the reality, always a seductive submission, and that is what I will do in this judgment. It is accepted by Mr Choudhury that a letter can have a dual purpose. Here it is to lodge a grievance and to seek a compromise. There is no substance for the contention that the Claimant was forced into signing the compromise agreement for the suggestion emanated from her and she was at all times, as she asserted in her letters, advised by experienced Counsel. It is accepted that the first letter is capable of being a grievance but the second is not because what is seeks to do is to maintain the stance that the compromise agreement is in place. In any event there is no linkage to the claim form.

The legal principles

13. The EAT has on a number of occasions considered what constitutes a grievance: Galaxy Showers Ltd v Wilson [2006] IRLR 83 (Langstaff J), Shergold v Fieldway Medical Centre [2006] IRLR 76 Burton J), Canary Wharf Management Ltd v Edebi [2006] IRLR 416 (Elias P). There is a good deal of common ground in the approach of Counsel to the legal principles which I summarise with the assistance of Ms Williams' argument. (The last is disputed but on the basis of the submissions and the authorities cited it is correct.).

i. Undue legal technicality and over sophistication should be guarded against. The Standard Grievance Procedure does not require an employee to set out her complaint in technical detail. The statutory requirements are minimal in terms of what is required: see Shergold at paras 27- 30, Canary Wharf at para. 24;

ii. The Standard Procedure simply requires the grievance (as defined by Reg. 2(1) Disputes Resolution Regs) to be set out in writing. Thus it is enough to identify the complaint. Unlike the Modified Procedure which requires "the basis" of the grievance to be set out in the Step 1 letter, the Standard Procedure provides for "the basis" of the grievance to be provided after the Step 1 letter prior to the Step 2 meeting (see Reg. 7(2) Disputes Resolution Regs, above): see Shergold at para. 30; and Canary Wharf at para. 21;

iii. The document containing the grievance may also serve a different purpose or raise additional complaints: see para. 2(2) Disputes Resolution Regs (above), Shergold at para 31 and Canary Wharf at para. 20³;

iv. There is no need to make it plain in the written document that it is a grievance or that the claimant intends to invoke a grievance procedure: see Galaxy Showers at paras 10 & 16, Shergold at para. 33 and Canary Wharf at para. 22;

v. The grievance must relate to the subsequent claim and the claim must related to the earlier grievance. However, this does not mean that the wording of the grievance and the Claim Form must be anywhere near identical. Provided the general nature of the grievance in writing is substantially the same as the matter which then forms the subject-matter of the claim, different description or a difference by way of precise ingredients or particulars does not affect the statutory compliance: see Shergold at paras 35 - 37;

vi. There is considerable flexibility as to the form of the grievance, for example it can be written by the claimant's solicitors: see Canary Wharf at para. 20

vii. It is immaterial whether the employer is given the opportunity to respond to the grievance. The Employment Tribunal must view the grievance in writing at the date it was sent: see Shergold at para. 38. Similarly whether or not the complaint was then taken further is not in point, nor whether the employer was or was not at fault if there was a subsequent failure to hold a Step 2 meeting: see Kennedy Scott Ltd v Francis [2007] UKEAT 0204/07.

14. The definition of a grievance in Regulation 2(1) is "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him". A grievance must be submitted if the complaint is of constructive dismissal: ibid. It is accepted in this case that the standard grievance procedure applied and so the Claimant had to meet the regime set out in Regulation 6. The central proposition advanced by Elias J in Canary Wharf is this: 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 made, that constitutes a grievance. In assessing whether the document said to constitute the written grievance meets the term of the regime, attention can be given to events and knowledge of the parties, particularly of the Respondent, prior to and at the time of sending the grievance. The grievance must be extant when it is lodged and so events at the time can be taken into account.
15. With those principles in mind I will give my conclusions as I address them.

Discussion and conclusions

16. Fortified by Mr Choudhury's invitation for me to look at the reality of what is going on in this case I uphold the submissions of the Claimant preferring those over those of the Respondent. It seems to me that Ms Williams is correct in her detailed deconstruction of the Employment Judge's reasons.
17. The Respondent's first contention is the letter of 4 September cannot fill the requirements because it was a response to concerns raised by the Respondent. The reason why that is wrong is because, even in its own terms, it reflects concerns of the Respondent which the Claimant rejected. Her grievance was that these were raised as insubstantial matters to which she had a full answer and they should not have been raised. The particular form in which the grievance is raised cannot defeat the substance.
18. Secondly, the Employment Judge decided that if it was a grievance it would have lost its potency prior to the termination of the relationship because of the Claimant's agreement under the compromise. In my judgment that too is wrong. The offer in a dual purpose letter of a compromise of an otherwise protracted grievance can certainly be made and does not diminish the potency of the alternative resignation. If the negotiations for a compromise came to nought then there would still have been an intact Step 1 grievance.
19. Thirdly, the statement by the Claimant in her first letter has to be seen in context - the history which the Claimant was there outlining going back a few months and relationships between herself and other actors in this drama including her head of department, Dr Watt. A fair reading of her complaint is exactly that. She does maintain that they were acting without reasonable cause.
20. Fourthly, the consideration by the Employment Judge of the letter of 13 October 2006 also contains a number of errors. There are of course grave consequences if the exact terms and spirit of the compromise agreement were not to be adhered to. The letter itself raises in an egregious way the Claimant's dissatisfaction with what she perceived to have happened post-compromise. It contends that there has been bad mouthing of her in university and professional circles and threatens libel claims. But what it does at least do is to express a grievance, as in part recognised by Mr Choudhury. The Employment Judge also erred in his approach to the context, in that this letter relates to what happened after the compromise agreement was reached.
21. Ms Williams is correct when she submits that whether the employer sought particulars of any issue is not relevant. Nor does the criticism, as it appears to me, of the Claimant that being a barrister, she knows the law, herself initiated discussion of a settlement and was resigning to take up other opportunities. I do not accept that, because the Claimant does not in her letter to do with the compromise say that she has been forced into resignation, she should not be allowed to run a claim of constructive unfair dismissal.
22. All those submissions by Ms Williams are made good by looking at the 13 October 2006 letter which is sufficient to dispose of this case for the Claimant makes five complaints. First, she deals with what is described as the complaint by the students who were taking the European Union Law exam. This relates to what occurred from the middle of 2006. Dr Watt was threatening disciplinary proceedings over these and the Claimant drew the attention of the University to her concerns about the way in which these matters were being handled. At that time she had the services of Counsel. Counsel's advice is set out in the letter. It is that the University's complaint is groundless and certainly does not constitute gross misconduct which was said to be the reason for the disciplinary proceedings and could result in her dismissal. The Claimant indicates that she was going to raise an issue as to the examination paper being divulged to students. Letting them know in advance more about the questions than she thought they ought is an issue which she wished to complain about - not just that it was raised but the way in which it was raised as a disciplinary matter. She then raises the threat which the Employment Judge has accurately reported.
23. The second issue is the teaching. These are a ventilation of concerns on behalf of Dr Watt about her teaching and they reflect upon the reference which came as part of the compromise agreement. This too is a complaint about the conduct of the Respondent and its senior officers per-employment.
24. The third issue is what I describe as squeezing out: see Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347 EAT. This is in clear terms an expression of her perception that the officers of the University were seeking to get rid of her under a cloud.
25. Fourthly, she complains about matters which were being leaked and causing her difficulty within the academic and the practitioner community. She therefore sought the assurance that the terms of the compromise would be maintained. She has given as a reason for her leaving the University that these were the pressures upon her.
26. Fifthly she sought a payment of £6,800 for her costs. With respect to this distinguished lawyer on advice of her lawyer, that is surprising. Her solicitors did point out that they were charging for their fees at an earlier stage but no claim was made, no proper schedule was advanced. That does not appear to have been put before the Employment Judge. It seems to me to have been misguided but it does not destroy the point of the letter.
27. It is necessary to look at the elements of the claim form. These complaints demonstrate sufficient linkage to the claim. The Claimant relied upon the letter of 13 October 2006. (Although she gave the wrong date, it is accepted before me that the reference in the claim form to having put the complaint in writing to the Respondent is to this letter). That is why I indicated that the proper sequence is to look first at this letter which is relied upon in the claim. That of course has the advantage that applying the legal principles in this case, all of the material preceding it is relevant, including the letter of 4 September 2006 and the talks leading to the void compromise agreement. The Claimant was alert to the problem that she had to put the complaint in writing and that she was also out of time, although she did not realise that there is an automatic extension of time for three months for a claim when she reasonably believes there is a procedure ongoing: see Reg 15.
28. Under the heading of unfair or constructive dismissal the Claimant was asked this: "if you resigned because of something your employer did or failed to do which made you feel you could no longer continue to work for them, constructive dismissal, you should explain what happened" to which she replied "I was accused of misconduct in the examination of undergraduate students and threatened with gross misconduct proceedings if I did not accept a large sum of money that was offered to me by the university unilaterally". She goes on to make a number of other complaints. I accept Ms Williams' point that this indicates a complaint about harassment, a complaint about matters which led to her leaving, firmly grounded upon what the Claimant perceived on legal advice to be wholly misconceived gross misconduct proceedings, initiated by Dr Watt and to take place at a meeting on 5 September. She also indicates in the other complaints section of this claim form that the relationship was going bad and she was no longer comfortable with working there as a result of what had happened to her. She contends that the compromise agreement was void, given that it was signed under duress and harassment.
29. On its own the letter of 13 October 2006 provides sufficient linkage to qualify as a grievance notifying the employer of the matters which were to be raised in an upcoming claim. The apparent reliance on the compromise does not weaken this. There is force in the submission made by Ms Williams based upon a Judgment which I gave in Palihakkara v British Telecommunications Plc (UKEAT/0185/06) that once a compromise agreement is void, the underlying grievance becomes live.
30. Further, the other material available to the Respondent includes the 4 September letter where references to six matters are reflected in the claim form. These are the delay, the failure of the Respondent to carry out proper procedures, the groundless nature of the complaints, the groundless nature of the complaints made by the student, what is described by Ms Williams as the rubbishing of the Claimant's research and the overall conclusion that there is repudiatory conduct. Thus, with the exception of the offer of settlement in the final paragraph in the letter of 4 September there is a grievance and it is sufficiently linked to the claim form to admit of it being heard by the Employment Tribunal. The question is: does the offer by the Claimant to settle her grievance destroy an otherwise valid grievance? In my judgment this is simply unreal.
31. For five pages the Claimant advances her defence to the criticisms made and to be made of her. At face value this letter both represents a complete defence and indicates a way of resolving what was obviously a major problem between the Claimant and the University. The final paragraph indicates a pragmatic way forward. I know that it is the purpose of the 2004 regime to ensure that disputes do not reach an Employment Tribunal unless there has been an opportunity for the parties to resolve the dispute between them. I see nothing inconsistent with that purpose for a dual approach to be adopted – statutory grievance and statutory compromise. I can also see why, when this matter became the subject of discussion the day after the letter was written, the parties would turn their minds more carefully to resolving the dispute, not by going through a formal investigation or grievance procedure but by seeking a compromise. The parties are to be congratulated for what on its face was a valid compromise agreement. If the agreement had gone sour either because one side or the other rejected all forms of blandishment, or because details of the agreement could not be put into place, it would not destroy the essential underlying grievance which was there.
32. As a matter of reality a Claimant does not lose her right to have her claim vindicated by a hearing in front of an Employment Tribunal if she makes what is otherwise a valid grievance and at the same time offers to compromise it and go quietly. It will be recalled that the essential characteristic of the grievance letter is that the employer should be put on notice of what the Claimant is complaining about. The Respondent here could be in no doubt as to the dispute. The fact that there was an opportunity to seek a conciliated or negotiated settlement does not destroy that nor entitle the Respondent to mount a jurisdiction bar at the Employment Tribunal when the deal fails. To give examples: in the light of what is a properly constituted grievance understood by the employer it can ignore it, dispute it in substance, investigate it, set up a Step 2 grievance hearing, throw money at it or seek a realistic solution in money terms. All of those are predicated upon the first principle of this regime which is that the employer knows what it is the person is complaining about. It then has the options about what to do about it.
33. I reject the contention that the state of mind of the Claimant is relevant. Putting the Respondent on notice that she may not intend to go through with it or that she may intend to settle for money does not affect the essential meaning of the grievance if it is otherwise clear; see Kennedy Scott Ltd v Francis [2007] (UKEAT/0204) Cox J at paragraph 51.
34. For those reasons, with respect to the Employment Judge I consider that he erred in his approach to both of the letters.
35. Ms Williams contends that it is implicit that he had no sympathy for the Claimant and let that come through. I expressly reject that submission. There is no such implication. He was looking at this both as a matter of black letter construction and as a matter of context and there is no hint of criticism of the Claimant when he indicates that she was knowledgeable in the law and well advised. Such a person is entitled to the same fair treatment as any other and she got it.

Disposal

36. This case cries out for conciliation because it is going back to the Employment Tribunal and both parties have very helpfully indicated to me that they would be willing to consider it. They did after all reach a compromise. They will report to the Employment Tribunal within 28 days on steps they have taken to conciliate but not the substance, and they will bear in mind that already on the table is a year's pay and the Claimant has mitigated, for I am happy to hear that she is in practice at the Bar here and in Ireland. I do not undervalue a finding of unfair dismissal. But of course many of the issues which the Claimant was anxious should be kept secret by the compromise agreement will be ventilated in open court and all the parties now with careful advice will wish to think what is the proper way forward for this unhappy dispute to be resolved between them.
37. I thank both Counsel. The appeal is allowed and the Employment Tribunal will give directions for the claim to be heard.