United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S PEACOCK (Solicitor) Messrs Weightmans Solicitors India Buildings Water Street Liverpool L2 0GA
For the Respondent	MR D McWILLIAMS (Representative) CWU Tribunal Representative 1 Clapham Suare Leamington Spa Warwichshire CV31 1JH


 


SUMMARY

Practice and Procedure

Whether Claimant complied with requirements of Section 32 of the Employment Act 2002 and paragraph 6, Schedule 2 of the Employment Act (Dispute Regulations) 2004.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal from the decision of Mr O'Hara sitting at the Manchester Employment Tribunal in which he determined that the Claimant had complied with the requirements of Section 32 of the Employment Act 2002. As Mr Mcwilliams, the Claimant's representative, has pointed out in his first skeleton argument the object of this legislation was to improve on the situation in which applications were being made to a Tribunal in which in 37% of claims no attempt had been made to resolve the issue in the workplace and in 62% the parties did not meet to discuss the matter.
2. When this case came before me on 14 September it was hoped that I could deal with a number of issues. In view of the issues raised it was agreed that I should deal with just one issue namely the scope of Paragraph 6; Schedule 2 of the Employment Act (Dispute Resolution) Regulations 2004. In order to satisfy me that there was no matter that had been overlooked the parties were invited to make written representations which they did on September 28. Neither side has requested an oral hearing.
3. I do not intend to reiterate at length the factual background which is set out in the decision. In brief the Claimant was of Asian origin and a practising Muslim. He was employed as a packet stamping postman and had been employed in that capacity since 1998. One of the matters about which the appellant complains is that although this was a case of a pre hearing review a number of findings of fact seemed to be made in the hearing without the Tribunal having heard evidence from either of the two employees, Mr Leyland and Mr Barrington who were the Respondents to this action. Although this is a legitimate criticism it is not material to the narrow issue which I have to determine save in one respect. The Claimant was unrepresented and the Respondents was represented by a solicitor. Any fair minded Chairman is properly aware of the need to assist unrepresented claimants to present his or her case when the employer is professionally represented. I say as a tribute, and not a criticism, that the abiding impression the decision leaves on me is that the Chairman was so sensitive to the justice of the Claimant's position as he saw it that this unconsciously coloured his perception when considering the more prosaic requirements of the statutory regulations.
4. Section 6(1) stipulates that:-

"The grievance procedures apply 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 so if the action took place."

5. In brief the Claimant considered that he was the victim of bullying and harassment in being unfairly allocated a greater workload than his colleagues and being subjected to verbal abuse, taunts and ridicule. By a letter dated 19 July the Claimant invoked the bullying and harassment procedure and he set out in a letter of 4 pages a detailed account of the incidents about which complaint was made and about the unsatisfactory response from the manager to whom he had made complaint. The Chairman noted in Paragraph 7 that the letter did not use words like harassment on the ground of race and religion.
6. In paragraph 10 the Chairman noted that the grievance set out in the Claimant's letter was in factual terms the same as set out in the Claimant's application to the Tribunal and the only changes was the ground of complaint or the label attached to it. The Chairman concluded that complaint in the letter can be read in an unsophisticated way as raising the grievance which is the subject matter of the Tribunal complaint.
7. In Paragraph 11 of the decision the Chairman considered whether if the Respondents had appreciated that the Claimant was alleging harassment on the grounds of race and religion they would have reacted differently and can therefore be said to have been deprived of an opportunity. The Tribunal concluded that as Mr Clark's decision was that there was no evidence to substantiate the complaints because he felt that the Claimant was lying about the incidents the answer to the theoretical question was that the employers had not been deprived of an opportunity. Although Mr Clark's evidence was that he could have asked other questions if he felt that equal opportunity issues were being raised the Chairman concluded that that would have been an appropriate way to proceed given the difficulties experienced by the victims of harassment in articulating their problems.
8. In Paragraph 12 of the decision the Chairman summed up the position in this way:

"Therefore the fact that the Claimant did not specify in the letter of 19 July that the ground of his complaint about treatment which he had received from work colleagues was his race and/or religion did not prevent Mr Clarke from making enquiries with the Claimant along those lines or considering how he should proceed thereafter with the investigation especially when the Claimant gave him the names of two witnesses and reports that they had endured similar treatment from Graham Leyland. The fact that Mr Clark chose not to pursue those enquiries should not prevent the Clamant from bringing a complaint in the Employment Tribunal."

9. The Appellant claims that the Chairman's decision is flawed. In essence the central thrust of the appeal is that having made the finding that the Claimant did not set out that the ground of his complaint did relate to his race or religion the Chairman then went on to apply a sort of balance of prejudice test; or just and equitable test which is not part of the statutory framework.
10. Mr Peacock has taken me through the various authorities such as Canary Wharf Management v Edebi (UKEAT/0708/05); Odelman v The Whittington Hospital NHS Trust (UKEAT/0016/06) and the case of Shergold v Fieldway Medical Centre [2006] IRLR 76. Since the initial hearing Mr Peacock has carried out further research and he suggests that nothing has been unearthed since suggests that any shadow has been cast over these authorities. The Appellant's contention is that the relevant authorities which deal with the statutory framework whilst - accepting that the complaint may be made in unsophisticated form - must spell out a complaint which is made under the statutory jurisdiction; namely in the context of this case discrimination on grounds of race or religion. I have to confess that I accept Mr Peacock's contention that it must now be regarded as settled authority that in however crude and unsophisticated a manner there must be something which identifies the complaint as one which raises an issue of unlawful discrimination.
11. Mr McWilliams, the Claimant's representative, argues that the terms of the President's judgment is too restrictive in the Canary Wharf case. His submission is an audacious one. He claims that a Tribunal should have regard to the difficulties faced by the victim of discriminatory behaviour and his central contention is that if the narrative of the complaint is such that it could raise the issue of discrimination, even though that label is not ascribed to it, then that satisfies the statutory test. He suggests that the President's dictum in Canary Wharf at Paragraph 16 that the statement of the grievance must be a statement of the same complaint as the employee is as the employee is seeking to have determined by the Tribunal is too restrictive.
12. Mr McWilliams has cast his net far and wide to find authority for his proposition and has cited a number of cases for his central contention that it is sufficient if the factual basis of the grievance and the application are the same there is compliance. He relies on the dictum of the President in Martin v Class Security Installations Ltd (UKEAT/0188/06/DM) that there is compliance "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."
13. That of course was a case in which the President was quoting from his own judgment in Canary Wharf but the President was at that stage dealing with a case of constructive unfair dismissal and it was accepted that an issue of disability discrimination could not be pursued at the Tribunal since it had not been raised as a grievance.
14. Mr McWilliams has raised a number of issues which relate to his general proposition that a statement should be compliant if the employer is broadly put on notice of the factual concerns of the employee.
15. It is not an empty formality for me to say that I am grateful for the full arguments which I have received on this issue. But I consider that it is necessary to go back to principles rather more fundamental than a myopic scrutiny of the regulations. The mischief which these regulations were designed to cure was the premature launching of legal proceedings without at least giving the employer the opportunity of investigating and, if appropriate, remedying the source of the grievance. The contract of employment is founded on relationships which often involve a complex nexus of conflicting emotions. There are obvious similarities between the feelings engendered in the breakdown of relationships in the workplace as in the home.
16. There are cases in which both employers and employees can act badly, or at least, unwisely. In some cases employees are subject to bullying or other offensive behaviour, not from members of management, but from other employees. It is beyond the scope of this decision to review the authorities which deal with the employer's liability for the actions of employees. The purpose of tribunals is to give employees the opportunity to bring an action which is expeditious and economic and in which the members of the Tribunal have a knowledge of working life. Sadly these lofty aspirations to eschew technicality have often been frustrated by the complexity of legislation.
17. Hostile and insensitive treatment of an individual employee may be the manifestation of prejudice against a group defined by disability, ethnic origin, gender, sexual orientation or religious belief. The jurisprudence concerning drawing inferences of discrimination from hostile and insensitive behaviour can obscure the reality that in the workplace, as in other areas of life, it is part of the human condition that unfairness and antagonism can be exhibited to an individual irrespective of whether that individual is a member of any such group. If justification is needed for this trite generalisation it is provided by the experience of tribunals frying cases of unfair dismissal. The reality is that the findings of tribunals that lead it to determine that an employee has been unfairly dismissed in many cases would also provide a factual matrix from which an inference of discrimination could be drawn.
18. With due deference to the arguments so ably formulated on behalf of the Claimant to say that if the factual matrix of a grievance could give rise to the inference of discrimination on the grown that suffices to satisfy the requirements of the regulation 6 is a proposition that impresses by its audacity rather than by than the arguments deployed to justify it. I accept that an employee may not know at the time he initiates a grievance all the facts that could lead him to raise an allegation of discriminatory behaviour but the statutory provisions require him to indicate the nature of the claim. I am bound by those authorities which require the letter of grievance to spell out, though not in formal terms, whether the employee considers he or she has been discriminated against unlawfully and it does not suffice to set out factual complaints which could theoretically found such an application.
19. This appeal is therefore allowed on this issue and I substitute the finding that the requirements of the section were not met in the case of the employer. The parties will no doubt inform this Tribunal as to whether there are any further directions which need to be made in the case against the fellow employees.