United Kingdom Employment Appeal Tribunal

SUMMARY

Practice and Procedure – 2002 Act and Pre-action Requirements

Unfair Dismissal – Constructive Dismissal

On 14 October 2004 the Claimant claimed constructive unfair dismissal arising out of four acts of the Respondent. No grievance pursuant to the 2004 Regulations had been presented. The Employment Tribunal allowed the case to proceed at a pre-hearing review under s95(1)(c) Employment Rights Act 1996 (ERA) in respect of only one of the four acts, i.e. the one which was the subject of a grievance presented before the regulations came into effect.

On appeal it was held that it was not possible to sever the four grounds on which the Claimant alleged he had been constructively dismissed and to proceed on only one. The Claimant's case of constructive dismissal being based on four acts was not the same as the claim made in the grievance based upon only one and thus the appeal was allowed. In any event, proceeding on only one of the grounds made the case very weak and it ought to be struck out. The appeal against the Disability Discrimination Act 1995 was also allowed.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about unfair dismissal and disability discrimination. It is set against the background of what Underhill J memorably described as the "rebarbative dispute resolution regulations". Their application in this case will appear to be harsh. I have a good deal of sympathy with those critics of these regulations, as they have been applied and as they are to be applied in this appeal and whose future is now in peril. I will refer to the parties as the Claimant and the Respondent.

Introduction

2. These are appeals by the Claimant and the Respondent in those proceedings against a reserved judgment of an Employment Tribunal Chairman Mr S Bedeau, sitting alone sitting at Watford over three days, registered with reasons on 29 August 2006. The Claimant and the Respondent have been represented throughout respectively by Mr Oliver Britton, Solicitor, and Mr Dale Martin, of Counsel. The Claimant claimed unfair dismissal, disability discrimination, and unlawful deductions from pay. The Respondent denied the claims on the merits and took jurisdiction points. This appeal has taken an unusual course, for I required further submissions and concluded that I should reconvene the original hearing. The substantial delay between these two dates is no-one's fault. I considered one new authority, which has been handed down in the intervening period.

The issues

3. The essential issues, as defined by the Employment Tribunal and as relevant on appeal, were these:

"1.2 What is the effective date of termination – 30 September 2004 or 14 October 2004?

1.3 If the effective date of termination is after 30 September 2004, do the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply to the Claimant?

1.4 Were the actions about which the Claimant complained occurring or continuing after 1 October 2004?

1.5 If the answer to 1.4 e) is 'no' and the effective date of termination is after 30 September 2004, did the claimant comply with the requirements of Section 32 Employment Act 2002?"

4. The Chairman decided, in brief form, the following:

"The Tribunal has jurisdiction to hear and determine the Claimant's constructive unfair dismissal claim based on his terms and conditions of employment and his disability discrimination claim based on acts complained of prior to and including the 30 September 2004 subject to the issues to be considered at the main Hearing;"

The Chairman also decided a point relating to continuity of service. As a result, both the Claimant and the Respondent appealed against the respective judgments. The effect of the finding which I have described above was that the Claimant's claim lives on but that his claim for disability discrimination is time-limited to events which occurred after 30 April 2003. It is to lift that time bar that is the purpose of the Claimant's appeal. As will become apparent, it is not necessary for me to deal with that second appeal.

5. Directions sending the Respondent's appeal to a full hearing were given in chambers by HHJ Richardson. The history was well-known because he had on 8 November 2005 (when the Respondent was represented by different counsel) determined an appeal by the Claimant against the striking out of his disability discrimination claim by a different Chairman in May 2005. So, it is the reprise of this case, following Judge Richardson's order, which led to the hearing before Mr Bedeau and before me. Mr Bedeau's pre-hearing review (PHR) arose out of two previous case management discussions (CMDs) where the issues were set up, broadly speaking, of whether the regulations applied and whether the claim should be limited in disability to a period in 2003.

The legislation

6. The legislation to be applied in this case is that which I set out in my judgment on behalf of the Employment Appeal Tribunal in Strathclyde Joint Police Board v McNeil (UKEATS/0027/06) at paragraph 5, borrowing as I did from HHJ Burke QC.

"5. The short point is this: did the statutory regime coming into effect on 1 October attach to the Claimant's case by reason of the date on which it was presented? In order to understand the interlocking relationship it is necessary to say a few words about this system, for it is to be found in the combination of the Employment Act 2002 and the Employment Act 2002 Dispute Resolution Regulations 2004. Insofar as concerns the substantive issue between the parties, section 76 of the Sex Discrimination Act 1975 requires a claim to be presented to an Employment Tribunal within three months of it occurring, unless the Tribunal considers it just and equitable to extend time. For the purposes of determining when time runs it is provided by section 76(6) that any act extending over a period should be treated as done at the end of that period. This is known as a continuing act and the jurisprudence shows cases where a Claimant has alleged, notwithstanding that the claim appears to be out of time, that it relates to an ongoing act, a policy, a rule, a practice, or continuing state of affairs applied to him or her, which continued beyond the date so as to make it lawful for the claim to be presented where it might otherwise be out of time.

7. Insofar as the statutory regime is concerned, a Judgment of HHJ Burke QC and members in Commotion Ltd v Ms K Rutty [2006] IRLR 171 helpfully sets out the background to this legislation and I respectfully adopt it, albeit in that case the Tribunal was dealing with a different set of discriminatory complaints. The EAT set out the law in paragraphs 9 to 16 of the Judgment:

"9

The law

It is necessary for us to set out the law in a little detail in this case. Section 32 of the Employment Act 2002 provides as follows:

32. Complaints about grievances

(1) This section applies to the jurisdictions listed in Schedule 4. [We interpose that it is accepted that those jurisdictions include the unfair dismissal jurisdiction and the sex discrimination jurisdiction, but do not include the jurisdiction to consider and decide upon a complaint under the flexible working provisions of the 1996 Act].

(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 para. 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

(3) 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 para. 6 or 9 of Schedule 2 has been complied with, and

(b) less than 28 days have passed since the day on which the requirement was complied with'.

The requirement relevant to this case, as is agreed, is the requirement at para. 6 of Schedule 2 of the 2002 Act which relates to the standard grievance procedure. This was not a case which, under para. 9 of Schedule 2 to the Act, engaged the modified procedure; and, for present purposes, it is only necessary to set out para. 6 of Schedule 2 which provides as follows:

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

There were no other and are no other formal requirements for the presentation of a grievance within s.32 and Schedule 2.

10

Subsection (3) of s.32 which relates to the time which must pass between the compliance with the requirement of para. 6 and the presentation of a complaint does not arise in this case because it is Commotion's case that no presentation of a grievance occurred at all, rather than that there was one which was too early.

11

Section 32(6) provides as follows:

'(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2)-(4), but only if -

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with Regulations under s.7 of the Employment Tribunals Act 1996 (c.17) (Employment Tribunal Procedure Regulations)'.

12

It is necessary very briefly to refer to s.31. That section provides, to put it shortly, that in certain circumstances, if the statutory procedure, including, where required, the grievance procedure is not followed, the tribunal must, unless there are exceptional circumstances, where the failure to comply is that of the employee, reduce any award by 10% and may, if it considers it just and equitable to do so, increase that reduction up to 50%; but if there are exceptional circumstances, no reduction at all or a lesser reduction may be made.

13

These provisions of the 2002 Act are supported by the Employment Act 2002 (Dispute Resolution) Regulations 2004. These Regulations set out various circumstances in which dismissal and disciplinary procedures and grievance procedures do or do not or may not apply. None of the exemptions or exceptions to the requirement in s.32 and in Schedule 2 of the 2002 Act for the presentation of a grievance apply in this case. Many other provisions are contained within those regulations which are not relevant here and which are not considered in this judgment. That is an important point because not only in relation to the regulations, but generally, anybody who reads this judgment should appreciate firstly that this is, as far as we know (and this has been confirmed by counsel who have searched the website) the first appeal to the Employment Appeal Tribunal in which s.32 of the 2002 Act and the Dispute Resolution Regulations have been examined and, secondly, for that reason we wish to make it clear that, while we wish and propose to assist the parties with our views and conclusions on points which have been argued and which are necessary for our decision, we are in this appeal addressing only those points and the arguments that have been presented to us in this case on those points. We say the same about the position in relation to the flexible working provisions which, we are told by counsel, have also not been considered before at an appellate level. So far as the Dispute Resolution Regulations are concerned, it is only necessary for present purposes to refer to para. 2(2) of those Regulations which provide as follows:

'2) In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2).'

14

Schedule 2 there referred to is, of course, Schedule 2 of the 2002 Act and is the location of the requirement which is to be fulfilled pursuant to s.32 of that Act. Accordingly, para. 2(2) of the Dispute Regulations has the effect that a written document which sets out a grievance is capable of fulfilling the requirements of s.32 of the Act and of complying with the Regulations even though it may also fulfil the function of constituting a complaint or application or other communication of a different nature in relation to the same matter or a complaint or application or other communication about a different matter.

15

Finally, on the grievance issue, it is necessary to refer to the Employment Act 2002 (Commencement No.6 and Transitional Provision) Order 2004 which provides by para. 2(2) as follows:

'The following provisions of the Act shall, subject to Article 3, come into force on 1 October 2004'

and those provisions include s.32 and s.31 in so far as they are material for present purposes.

16

Paragraph 3 of that commencement order sets out transitional provisions, namely that ss.31 and 32 and Schedule 2 of the Act shall not apply in relation to a grievance where the employee has presented a complaint to the employment tribunal about that grievance prior to 1 October 2004."

8. In particular, reference has to be made and focus given to, the transitional provisions which was not the subject of Judge Burke's order. Regulation 18 of the 2004 Regulations provides as follows:

"18 Transitional Provisions

These Regulations shall apply—

(a) in relation to dismissal and relevant disciplinary action, where the employer first contemplates dismissing or taking such action against the employee after these Regulations come into force; and

(b) in relation to grievances, where the action about which the employee complains occurs or continues after these Regulations come into force,

but shall not apply in relation to a grievance where the action continues after these Regulations comes into force if the employee has raised a grievance about the action with the employer before they come into force.".

The facts

9. The facts are these:

"8.1 On 23 January 1989 the Claimant commenced employment with Cypriar Tours Ltd based in London as a Computer Operator/Programmer. He was subject to a six months probationary period. There were no express terms regarding the payment of overtime.

8.2 By a memorandum dated 9 August 1989, it was confirmed that he had successfully completed his probationary period.

8.3 Cypriar Tours and the Respondent, up until 1997, worked in adjoining buildings in London. Thereafter they operated from the same premises but on different floors. Cypriar Tours was a tour operating business and a wholly-owned subsidiary of the Respondent. The Respondent is the national aircraft carrier of Cyprus and operates flights to and from Europe, the Middle East and Gulf destinations to Cyprus.

8.4 The Claimant was the information technology employee for both Cypriar Tours and the Respondent. Although he was paid by Cypriar Tours a certain sum of his earnings, in the year 2000, namely £9,000, would be 'recharged at each year end of Mr Lambrou's support requirements to Cyprus Airways.'"

10. In 2004 events began to cause great irritation to the Claimant, for the Tribunal found this:

"8.12 On or around 16 September 2004, Mr Agathou, the Claimant's line manager, agreed to pay the him for working overtime but for three out of the seven days he had claimed for. As regards the unpaid overtime, he was instructed by Mr Agathou to take as time off in lieu.

8.13 In June 2004 all employees of Cypriar Tours were given notice that in three to four months the company would cease trading. The Claimant's wife, Mrs Ghada Lambrou, was an employee of Cypriar Tours. She informed the Claimant about the position of her employer. Her line manager was Mr Marios Hadjigeorgiou. Of concern to the Claimant was his status. He had not received a written contract of employment or terms and conditions of employment from the Respondent. He requested of Mr Agathou, the Respondent's General Manager, and Mr Christodoulos Georgiou, Financial Controller, a written contract of employment with the Respondent. I am satisfied that the matter was put into the hands of the Respondent's human resources department in Cyprus, as was the procedure, but there was no response from that department.

8.14 The Claimant emailed Mr Georgiou on 12 July 2004, stating that Mr Agathou had instructed that he should contact him with regard to being placed on the Respondent's payroll. It was not until 23 September 2004 that Mr Georgiou informed Mr Chrysanthou, Respondent's Accounts Manager, that the Claimant would be, from 1 October 2004, transferred to it's payroll. The email was copied to Mr Agathou but not to the Claimant.

8.15 On 22 September 2004 Mr Georgiou informed the Claimant that he had issued a P45 on the Claimant's behalf for inter-company purposes and was taking the employee copy and handing it to Mr Chrysanthou, the Respondent's Accountant, to facilitate his transfer. The Claimant immediately discussed the matter with Mr Marios Hadjigeorgiou, Cypriar Tours General Manager. Following this discussion he unsuccessfully made a request to Mr Georgiou that he be given his copy of Cypriar Tours P45. Instead the Claimant was verbally informed by Mr Georgiou that his contract was transferred with continuing rights and privileges and, if necessary, he, that is Mr Georgiou, would say that in court.

8.16 After taking legal advice, Cypriar Tours' copy of his P45 to be given to any future employer, was handed to the Claimant directly on 24 September 2005. It was from Cypriar Tours and gave his up to date earnings and tax, with his leaving date being 30 September 2004.

8.17 On Monday 27 September 2004, the Claimant sent an email to Mr Agathou, General Manager, copied to Mr Georgiou. This is an important document relied on by the Claimant as a statutory grievance. It stated the following:

'Mr Agathou

Further to our telecon this morning please note I have communicated several times with Mr Christodoulos Georgiou as you asked me to deal with him directly. I have also raised this issue with yourself.

The issue still pending is the official clarification of my transfer to Cyprus Airways, and this is now urgent in respect to the issue of my P45. Mr Georgiou has advised only you can provide this information.

In particular I require and I believe it is only fair, I be provided with an official written letter from Cyprus Airways confirming the following:

(a) My existing service with Cypriar will not be lost and is continued under the Cyprus Airways employment - this will ensure that in any event I am made redundant my existing 15 years of Cypriar Tours' service, as well as any service acquired by Cyprus Airways, will be taken into account.

(b) The conditions and agreements of my existing contract and employment will hold and continue to be valid, and I will retain all my rights and privileges thus acquired.

(c) The same letter to confirm the transfer took place on 1 May 2003.

The following should be stated for the record.

Mr Georgiou gave me a P45 (Part IA) from Cypriar Tours on Wednesday 22 September 2004 with no prior notice, explanation of agreement from myself. He also gave Part 2 of this P45 to Chris Chrysanthou, directly without my consent. I have requested this back and I am holding this pending an official clarification of my transfer.

I should further add for the record that I was not offered redundancy, and neither given any notice of redundancy.

I trust you understand my concerns, and I would appreciate a speedy response to this request, as my P45 indicates my employment and rights under my existing Cypriar Tours contract ceases on 30 September 2004.

I will also send this information via letter to the company's official records.'

8.18 Later in the evening of 27 September 2004, at 6:30 pm, the Claimant met with Mr Agathou who was due to leave for France the following day for one week. I accept that Mr Agathou was not rude but he reiterated to the Claimant the Respondent's position regarding his transfer. There was a certain amount of frustration exhibited on the part of Mr Agathou that the issue was again being raised by the Claimant. The Claimant was informed by Mr Agathou that the matter would be handled by Mr Georgiou in his absence. As far as Mr Agathou was concerned the Claimant's employment would continue after the 30 September 2004 with the Respondent. Indeed he had been working for the Respondent since 1 May 2003.

8.19 On 30 September 2004, the Claimant found out that 12 senior managers at the Cyprus head office were to be made redundant. He became concerned about his position, namely the lack of any document confirming his continuity of employment with the Respondent and the fact that he had been handed his P45. He contacted Mr Hadjigeorgiou who in turn contacted the Respondent's human resources department in Cyprus to find out, without success, what the situation was concerning the Claimant's employment. No other manager of the Respondent approached the Claimant during the day to discuss his employment position. The Claimant then emailed Mr Agathou, General Manager, and Mr Georgiou, Financial Controller, at 2:06 pm stating the following:

'Mr Agathou,

Further to my email dated 27 September 2004, our meeting with Mr C Georgiou the same evening, and my meeting with Mr C Georgiou on 28 September, where I requested official clarification in which my employment has been terminated, I must point out that you have not replied.

I will further emphasise here that I have been issued my P45 from Cypriar Tours by Mr C Georgiou on 22 September 2004, without any official explanation or notice, and without observing my legal rights to redundancy, and without any notice for redundancy.

Under these circumstances I have no- choice and I am seeking legal advice. You should expect to hear from my solicitor shortly.

In the meanwhile, in these circumstances, all rights in respect of your attempt to' terminate 'my employment are expressly reserved.

A signed copy of this document will be given to Mr C Georgiou by hand today.'

8.20 Later in the evening, the Claimant, who was with his wife, was met by Mr Georgiou. He, the Claimant, had decided by then to leave the company because of his treatment in relation to his difficulty in getting written confirmation that his employment had transferred to the Respondent and alleged previous incidents of bullying. He did not, however, inform Mr Georgiou that he had decided to resign. He completed his final tasks for the day, cleared his desk and left. He had his keys to the premises and possibly the company's swipe card for the car park. He did not call into work the following day, that being Friday 1 October. His wife, however, contacted her former line manager, Mr Hadjigeorgiou, to say goodbye to him as he was not around on the previous day when her employment was effectively terminated."

11. The Claimant left and did not come back. As Mr Martin put it, he "went AWOL" from 30 September. The Tribunal Chairman found that some of the questions could be given a negative answer and some a positive. Broadly speaking, his conclusion was that the Claimant should be permitted to go forward with his constructive unfair dismissal claim in respect of only part of the original complaints which had formed in his mind when he decided to leave on 30 September. The Chairman acknowledged that some aspects of the case lived on after the watershed date of 1 October 2004 when the new regulations took effect. It will be recalled that jurisdiction is denied to an Employment Tribunal to hear a case where a grievance was required to be submitted in respect of a complaint and it was not.
12. In addition to the two emails it is necessary to consider the nature of the Claimant's case, for his statement of case made on legal advice (not Mr Britton's) alleged constructive dismissal and asserted his employment ceased on 30 September 2004. He said this:

"I started employment at Cypria Tours on 23^rd January 1989. I worked there until 30th September 2004.

I am claiming constructive dismissal from this company because I have been mistreated and because my employment contract was terminated when I was handed my P45.

My problems with the company have extended over recent months. The situation has escalated until finally on the 30th September I decided that I could not work for the company any more and I left believing myself to be constructively dismissed.

A recent problem was being unable obtain clarification on my precise terms and conditions, following the company offering redundancies and TUPE transfer.

Also, I was asked to work overtime and at one time I was paid overtime but then recently my overtime payments were refused or paid only partially.

…

The last straw occurred on the 27th September 2004 when I was waiting for personnel to issue me with my terms and conditions. While I was waiting the general manager Mr Agathou aggressively shouted to me 'I cannot understand it, everyone in tours has lost their job. We have saved your job. You appreciate we saved your job, you are paranoid'. I then asked him to confirm what my new terms and conditions would be. He then replied shouting at me in an aggressive manner, 'you know what George, you do what you want, contact personnel if you want or don't contact them.'

I felt humiliated because I was shouted at by the general manager in front of the financial controller and secretary and all I was doing was asking for my basic rights. I was being refused my new terms and conditions and I had been denied overtime which I had worked for previously.

I believe that I have been subject to bullying and harassment which culminated in the aggression which I described on 27th September.

Also, I am subject to a disability. I have a physical abnormality with regards my hands and feet. I am not registered disabled because of my pride.

I believe that I have been treated less favourably as a result of my disability. I believe that I was subjected to bullying and harassment and aggressive outbursts by the general manager and Mr Georgiou because I am disabled. I believe that my superiors at the company believed that they could get away with being aggressive towards me and bullying me because I am disabled and they though it would be more difficult for me to obtain alternative employment. I believe they did not pay me the overtime which I was due because they did not believe I would pursue my rights because of my disability."

That was presented on 18 October 2004, his then solicitors having previously written to the Respondent asserting that the Respondent was continuing to harass and bully the Claimant as at 13 October 2004.

13. As to the continuity of employment point, the Chairman found that he could not claim credit for the period of time prior to his formal engagement by the Respondent.

The Respondent's case

14. On behalf of the Respondent it is contended that the constructive dismissal, if that is what it was, was "motivated" by the factors which we will call (a) – (d) as set out in the CMD and continued into the PHR. There is no juridical basis for allowing a case to be considered on only part of what is described as a constructive dismissal. Insofar as one of the complaints relating to the failure to provide the Claimant with terms and conditions was the subject of a grievance as found by the Chairman, the Chairman erred in his construction of those emails. If that is right then there was no grievance filed when the regulations required that they should have been, the claims made continuing over the watershed of 30 September, whatever the Claimant may have thought was the legal position.
15. It was determined without appeal that the effective date of termination was 14 October. The Chairman made a serious error in allowing a constructive dismissal claim to proceed. Since the Claimant's case was that these four matters (a) – (d) on a proper analysis caused him to leave, and only one of them is justiciable as a matter of law on the present findings because a grievance was presented in respect of that alone, the Claimant cannot succeed. There is no authority indicating such a severed or partial approach. In respect of the linkage as there is between the unfair dismissal and the discrimination case, matters there continued beyond the watershed and there is admittedly no grievance in respect of that matter.

The Claimant's case

16. On behalf of the Claimant, it is contended that it is indeed possible to sever a constructive dismissal claim. The events were finite, for the Claimant had in his claim limited his complaints to what he thought was his last day, 30 September 2004 and was entitled to so limit his case. Mr Britton contended that it was open to the Tribunal to allow what had become a one-legged horse to enter the race, that is, depending solely upon his putting in a grievance. As a matter of law the failure to make adjustments constituted a one-off event all concluded by 30 September.

Discussion and conclusions

17. The legal principles to be applied in this case appear from the following authorities. In Canary Wharf Management Ltd v Edebi [2006] IRLR 416, Elias P set out the way in which these new regulations should be approached:

"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 , Burton J said this at paragraph 28:

'…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. …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."

18. Where a claim is made over the threshold, as was the situation in Strathclyde (above) when it was presented on 1 October 2004, it is possible for a Claimant to elect to run his or her claim by reference to chronology: see paragraph 16:

"16. The correct resolution of the apparently disparate transitional positions set out above is to adopt Mr Brittenden's construction. In my judgment this is a matter of substance. The Claimant in our case was entitled to take proceedings against the Respondent, broadly speaking, on two bases. She could be, as I put it in Coutts v Cure, complaining of a rule or policy by reference to which decisions are made from time to time (a category two case); or she could have complained about a series of discriminatory acts, whether or not set against the background of a discriminatory policy. The fact that she has now squarely said that she relies upon the individual acts themselves, and not of an ongoing policy extending after the last of the rejections, or possibly the date from 4 July 2004 when the policy was finally implemented in her case and she would begin a probation period. In either of these scenarios the Claimant is entitled to put her case as she wishes. It is implicit in a category two case that there will be detriment in living under a regime which, on this hypothesis, continues to discriminate against women, and also when, from time to time, there are individual examples of its application which are also the subject of separate proceedings, but they may not be. The Claimant having now decided how she puts her case, it seems to me that she falls within regulation 18(b). In other words she is making no complaint about an action which occurs after the Regulations came into force or which continues after her complaint is focused on what occurred up to, at the latest, July 2004. In those circumstances the Employment Tribunal Chairman made the correct judgment, albeit for slightly different reasons."

19. By analogy, with discrimination continuing over a period, the judgment of the Court of Appeal in Ahuja v Inghams Accountants [2002] ICR 1485 is of assistance, for per Mummery LJ said this:

"25. I will summarise the position so far, that is that the tribunal considered three incidents over the relevant period, one of which only was mentioned in the originating application, but was not the subject of evidence in Mrs Ahuja's witness statement or in her oral evidence to the tribunal. The other two incidents, which were the subject of evidence, were not the subject of the complaint which she had taken out against Inghams. The tribunal went on to consider a large number of other factual matters, as well as the submissions which were made to the tribunal. The tribunal said that it had been submitted by Mrs Grewal that the first issue was whether Miss Middleton had told Mrs Ahuja that she could not go out to lunch, had then come upstairs and had brushed against her and had not said "thank you". The tribunal said in paragraph 24:

'As already indicated at the start of this decision, although those matters were alluded to in the originating application, Mrs Ahuja did not give evidence of those matters and accordingly the tribunal cannot make a finding in respect of those particular matters at all. They have not been made out by Mrs Ahuja.'"

20. I prefer the arguments of the Respondent on all but one of the central issues on its appeal. I will deal first with that. It is contended that the Chairman was wrong to categorise the email as not raising a grievance in relation to terms and conditions. I appreciate that the Chairman was engaged in a question of construction, since he was looking at a document but he was doing so against the background of the uncertainty which shrouded the Claimant's employment during the previous two or three weeks. In my judgment, looking at these documents in their context the Claimant was indeed raising a grievance. It is of course not necessary for him to say precisely that this is a grievance or to call for a meeting, but this employer could not doubt that the Claimant was expressing his dissatisfaction with what was going on. I cannot fault the Chairman's approach, that this was the registering of a concern by an employee at first sight fitting within the definition of a grievance set out by Burton J in Shergold (above). But it was not a grievance about the issue presented to the Employment Tribunal which was constructive unfair dismissal based on four separate, or 24 linked, grounds. It is not necessary to present a grievance before making a reference to an Employment Tribunal under Employment Rights Act 1996 s 11, complaining about the lack of a statement of terms as here the Claimant arguably was: Scott-Davies v Redgate Medical Services [2006] ICR 348 at paras 5-7. If that were the claim to be adjudicated by this Employment Tribunal, he would not have been affected by the new regime. His claim was constructive unfair dismissal and he was so affected.
21. However, while parting company with the Chairman as I do on that, it follows that only one of the four matters within the mind of the Claimant prompting his resignation is justiciable because he has failed to provide a grievance in respect of the others. Nor is there a clear answer from the Chairman to these points, but it seems to me that unless the Claimant is able to show that there was a grievance presented in respect of his constructive dismissal, he will not have complied with the regulations.
22. There plainly was an event after the commencement of the regulations: it was dismissal on the effective date of termination, 14 October 2004. That the central complaint before the Employment Tribunal. No complaint was made which was foreshadowed in the earlier email. The purpose of the regulations is to ensure that disputes are resolved at workplace level as quickly as possible without resort to an Employment Tribunal. The purpose of registering a grievance is so the employer can put right what is wrong in the Claimant's mind, or can at least vindicate the Claimant's position by having a meeting and discussing it. When there is no indication that what is going wrong is likely to lead to a dismissal, and where there is no mention of other matters on the Claimant's mind, that process is stultified. There is no opportunity for the employer to put right - let us take this case – the complaint of disability discrimination by making adjustments or by stopping bullying and harassment. Thus, in order for these to be promoted at an Employment Tribunal under the new regime, there must have been a reference to them, in informal terms, so that action can be taken pursuant to the statutory procedures.
23. The Claimant was claiming a continuing state of affairs after 1 October. That is made plain by his solicitor's letter in relation to bullying and harassment until the effective date of termination. It is also true in respect of the failure to pay overtime. The disability discrimination claim also invokes failure to make reasonable adjustments. I accept that a claim can be limited so that a claim for reasonable adjustments could be finite, so that it did not extend to criticism of an employer for failure to carry out its duty before or beyond a given date. That would occur if reasonable adjustments were made, or if the Claimant's disability somehow or other did not put him at a disadvantage requiring such adjustments to be made; but, in this case, an examination of the claim shows assertion of dissatisfaction at acts continuing after 30 September 2004.
24. The principal problem with the submission made by Mr Britton is that I have not seen any authority whereby an Employment Tribunal or a court can consider a constructive unfair (or wrongful) dismissal in terms only of part of the subject matter about which complaint is made. I do not accept that it was wrong at the PHR for this matter to be determined; that it what it was set up to do by agreement of the parties. The fact that the Claimant is able to cleave to the regulations because he submitted a grievance, as I have held, in respect of his terms and conditions, does not mean that he can present an constructive unfair dismissal claim – a claim under s95(1)(c) Employment Rights Act 1996 – that he terminated the contract in circumstances in which he was entitled to terminate it without notice by reason of the employer's conduct. Whether he gives notice or not does not matter.
25. I do not accept that all the Claimant has to show is a severed part of his original motivation. The judgment of an Employment Tribunal would be bound to include consideration of what it was that motivated the Claimant to terminate his employment, on 30 September as he thought. What the Tribunal would do on the basis of the present material is to find that all four of these matters were in the Claimant's mind and then to examine whether they, in aggregate, constituted a breach by the Respondent of the fundamental term which evinced an intention no longer to be bound by the contract and which the Claimant accepted promptly.. It is not only unrealistic, but it seems to me to have no foundation in law either, for a Tribunal to focus solely on the issue which has now been vouchsafed to it, which is to consider only whether or not it was a constructive unfair dismissal for the Respondent to fail to clarify the precise terms and conditions of employment.
26. This matter can be resolved by consideration of the judgment of Elias P in Martin v Class Security Installations Ltd (UKEAT/0189/06) where he was dealing with whether or not letters by a Claimant had raised a relevant issue of discrimination, subsequently sought to be tried. The opening approach of the President was to rehearse what he had said at para 25 of Canary Wharf (above) and then to came to this conclusion:

"21. In my judgment these letters do raise a complaint in a way which does constitute a grievance within the meaning of the statue. In relation to the letter of 8 April the employee has made plain that he is leaving because of the employer's conduct towards him. He identifies a particular incident on Easter Saturday as being the final straw and he explains why he left without giving notice. As I have said, it is not necessary for the basis of the complaint of constructive dismissal to be identified in that letter; all that is necessary is that the relevant complaint is made. Mr Cornwell may be right that the case before the Tribunal will rely upon other matters in addition to the bullying which is identified specifically in the letter of 8 April. But in my judgment that does not prevent this letter from being treated as raising the relevant complaint."

27. This was followed in time by the judgment of Keith J in Odoemelam v Whittington Hospital NHS Trust on 6 February 2007 (UKEAT/0016/06) upon which Mr Martin has placed considerable reliance. Keith J said this:

"11. The Chairman of the Tribunal proceeded on the assumption that because Ms Odoemelam's claim was a claim of racial discrimination, the grievance which she had to have raised if her claim could be considered by the Tribunal was one of racial discrimination. Mr Camp contended that it was here that the Chairman fell into error. Her grievance was that the patient had been readmitted to the ward, that the patient had remained on the ward despite her complaint that the patient's presence on the ward intimidated her, and that the Trust had treated her inconsistently with the way it had treated at least one other employee whose concerns about a patient had been met. That was what she had spelt out in the Elliot letter. Para. 6 of Schedule 2 to the Act merely required her to "set out the grievance in writing". Reg. 2(1) of the regulations defined "grievance" as meaning "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him". This definition focuses on the action complained of, rather than the reason for it, even though the reason for the action complained of may have been an essential feature of the grievance for the purpose of the claim lodged with the Tribunal. Since Ms Odoemelam had referred to the action complained of in the Elliot letter, it was contented that the Chairman should have found that the Elliot letter constituted a complaint by her of the action which the Trust had taken in relation to her, and that the Tribunal was not prevented by section 32(6) of the Act from considering her complaint.

12. I cannot accept this argument. It takes no account of the critical link required by reg. 6(1) of the Regulations between the grievance and the claim lodged with the Tribunal. Although the grievance has to be about "action by the employer", it has to be about action "that could form the basis of a complaint by an employee to an Employment Tribunal under a jurisdiction listed in Schedule 3 or 4" to the Act. That was why Burton P in Shergold v Fieldway Medical Centre [2006] IRLR 76 stated at [35] that "the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with", and why Elias P said in Canary Wharf Management Ltd v Edebi (UKEAT/0708/05, 3 March 2006) at [16] that the statement of the grievance must be "the same complaint as the employee is seeking to have determined by the Tribunal". Accordingly, if the claim is to be considered by the Tribunal, the grievance is required to include that part of the action by the employer which made the complaint one which could be considered by a Tribunal. Since all employers act through their employees, the action of the Trust complained of were the acts of Ms Adams and Mr Harrison, and the feature of their conduct which formed the basis of the claim to the Tribunal was that Ms Odoemelam had been treated less favourably than other employees would have been treated because she was black. That was what had to be spelt out in the Elliot letter, and it had not been."

28. Applying those two authorities, the only basis on which the Claimant gets through the gateway to a hearing of his constructive unfair dismissal claim is by reliance upon the email. The emails do not mention anything about a breach of contract, let alone a fundamental breach. They do not assert that the Claimant is likely to leave or to leave in response to it. The claim ultimately made at the Employment Tribunal is under s111 Employment Rights Act 1996 of unfair dismissal contrary to s94, in the form of constructive dismissal under s95(1)(c). Dismissal claims are not subject to the requirement that they go through a grievance unless they are constructive dismissal. That is the effect of Schedule 4 to the Employment Act 2002 and of regulation 6(5) made under it.
29. In this case, the claim of constructive unfair dismissal is based upon the four actions taken by the employer. The fourth ground, ground (d) disability discrimination, is itself a portmanteau for the weighing of about 20 separate incidents, said to be disability discrimination, and therefore there is an overlap into the unfair dismissal claim. The actions which the Claimant complained about as being the cause for bringing the unfair dismissal claim are therefore at least four generically identified and, if one dissects the fourth, a substantial number of others. Where the claim is one of simple dismissal only, it is easy to diagnose what the action was. But where it is constructive dismissal, the Claimant must say what it was, what brought about his frame of mind so as cause him to regard this, in lawyers' terms, as a repudiation of the contract of employment or, in layman's terms, he had had enough. It may be easier to do where only one event is relied upon, but here there are four, including one which is the last straw. It is very important, where the issue is of constructive unfair dismissal, for the employer to understand what it is said to have done which has caused the intention to leave the employment. It will have a different view of the relationship, of events during the relationship, and of whether any criticised action could be said to be a repudiation.
30. The key to this case is the emails which the Claimant sent and the Respondent's understanding of them. Applying Elias J's judgment in Class to these facts, it is clear that the Claimant did not make plain that he was leaving; he did not make plain that it was because of his employer's conduct towards him, he did not say what that conduct was and he did not identify the final straw which in fact caused him to leave. (The references to the termination of the contract elsewhere in these emails is to the different circumstances of the change of employer on 20 September 2004 and has been determined without further appeal here.)
31. It is also helpful to apply Keith J's analysis of the facts of the case to our own, for the Claimant in our case did not, in my judgment, fall within the contours of regulations 2(1) and 6, and Schedule 2 to the Act, for the reasons which Keith J has given. There was no reference to elements which would constitute a complaint to an Employment Tribunal of discrimination, nor is there a trace of a complaint of constructive unfair dismissal in the email submitted by the Claimant in our case. I accept Mr Martin's submission that what must be presented as a grievance is, as Elias P said in Canary Wharf, the same complaint as he seeks to have determined at the Tribunal.
32. There is no doubt that the complaint sought to be determined at the Tribunal is that the Respondent repudiated the Claimant's contract by taking the action set out in the four ways prescribed in the CMD. That does not end his case, because he would have to show that he acted in response to those four matters and decided to leave promptly. What trace is there of that substantive complaint in the earlier emails? It is true that there is mention of what I have described as the dispute about the precise terms and conditions of employment but there is no indication that that is regarded by the Claimant as a repudiation or that he will take steps to leave. At the most, it might be unhappiness about terms and conditions being written out for him. It follows therefore that this was not the same complaint as was presented to the Employment Tribunal and thus the Tribunal Chairman was wrong to allow this part of the case to go forward.
33. Mr Martin invited Mr Britton to show where in his challenge to legal orthodoxy a case had been allowed to go forward as a cause of action in any jurisdiction where only part of it was to be tried. No authority was cited. It seems to me that is what will occur in this case if the Chairman's decision is allowed to stand. For that reason, too, I hold that he erred in law.
34. I will turn to the linked disability discrimination claim. Again, as a matter of construction, the claim focuses upon constructive dismissal which, as the Claimant elaborated it, includes a dismissal because he was disabled. It has not been determined in this case but he is taken to have a disability.
35. If he was dismissed for the reasons which he contends in his claim, it would be because they relate to his disability, and thus would be a constructive dismissal contrary to the Disability Discrimination Act 1995 (DDA), irrespective of whether it was contrary to Employment Rights Act 1996. There is an explicit linkage between the two and since the bullying and harassment, just to take one of the examples, was asserted to continue after 30 September for the purposes of the unfair dismissal claim, so it is expressly in respect of the DDA claim.
36. Thus, both claims suffer from the same defect. It is easier to analyse in respect of the disability claim because it is accepted no grievance was put in. I accept the submissions that the allegation of failure to make reasonable adjustments continued over the watershed and that the Claimant is alleging constructive dismissal, which, on the findings, took place on 14 October 2004. Thus there is no jurisdiction in the Employment Tribunal absent a prior grievance which fits the terms of the regulations.
37. In those circumstances, the very limited basis upon which the claim was allowed to go forward by the Employment Tribunal Chairman seems to me to be incorrect. I was asked to consider substituting my judgment for that of the Employment Tribunal Chairman. I heard submissions from both sides about this but it seems to me the order should be that I will allow the appeal and set aside the reserved judgment.
38. As to the Claimant's appeal, Mr Martin firmly asserted that it was unnecessary for my judgment for me to determine that appeal. Mr Britton said it was in my hands. I have decided that I will stay this appeal. It is not necessary for me to determine it but I will give the parties a preliminary view based upon simply the written arguments and without the advantage I would gain from listening to the advocates.
39. The starting point, as I have shared with them, is HHJ Richardson's sift of this case in which he noted that he was very doubtful if there was anything in the appeal, but for practical reasons he decided to bolt it to the Respondent's appeal which was going ahead anyway. That was my provisional view too but in fairness and out of a practical approach I will simply stay it, if circumstances develop when the issue should be revived, then I will look at it again.
40. If I am wrong about the unfair dismissal jurisdiction, I give my view about the prospect of such a case succeeding. It arose because of acceptance by Mr Britton that, shorn of the other three parts of his complaint of unfair dismissal, it was weak. I had indicated to the parties that it might be appropriate for me to hear submissions on whether or not the case should be struck out at the EAT. Because of the reasons I have given, it is not necessary for me to decide this, since I have upheld the Respondent's appeal, but I will say what I indicated to the parties in writing, which is that this case would seem to have very little prospect of success.
41. I am told that waiting in the wings is an application to the Employment Tribunal for the case to be struck out, whereas at the moment it is pending a full hearing before a three-person Tribunal. If this matter were before me, it seems to me very likely that grounds would have been made out for it to be struck out.. If the judgment was that the Chairman had made errors in paragraph 1 of his judgment, as I have held he did, it would be open to a judge on appeal to decide the matter afresh. But those matters do not arise. I am grateful to both Mr Martin and to Mr Britton for coming back to argue those points and to make submissions on the new authority and I will now formally allow the appeal and stay the Claimant's appeal for 21 days. Permission to appeal refused [reasons not transcribed].