United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Bruce Henry (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors 17-21 Price Street BIRKENHEAD CH41 6JN
For the Respondent	Ms Nichola Mary Warrender (of Counsel) Instructed by: The Treasury Solicitor – Employment Team One Kemble Street LONDON WC2B 4TS

SUMMARY

Employee dismissed and claimed unfair dismissal, both on normal grounds and on the basis that he had been subject to disability discrimination. Employment Tribunal held that he could not pursue the latter because he had not lodged a grievance. EAT upheld the appeal and held that it was not necessary to do so. Reg 6(5) of the Employment Act (Dispute Resolution) Regs 2004 applied and his concerns should be dealt with through the employer's dismissal procedures.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

Practice and Procedure - 2002 Act and Pre-action Requirements

1. This appeal raises yet again a problem arising under the Dispute Resolution Procedures.
2. The appellant worked as an Officer Support Grade at Her Majesty's Prison in Norwich. He suffered from eczema which caused intermittent absences from work. He was dismissed because of these absences (the dismissal taking the form of the termination without renewal of a fixed term contract)
3. He submitted an ET1 claiming that his dismissal was wrongful and that it was unfair, either on general principles or because it involved discrimination contrary to the Disability Discrimination Act. (There is a dispute as to whether he is a disabled person within the meaning of the Disability Discrimination Act 1995.)
4. It is common ground that he raised no grievance prior to lodging this claim and that if a he was under an obligation to lodge a grievance, the Tribunal was not entitled to hear his disability discrimination claim until he had done so: see s.32(2) read with s.32(6) of the Employment Act 2002. The issue in this case is whether he ought to have done so. That, it is agreed, turns on the proper construction of regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.
5. The material parts of the Regulations are as follows:

"2. – (1) In these Regulations –

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

Application of dismissal and disciplinary procedures

3. – (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

(2) Subject to regulation 4, the modified dismissal procedure applies in relation to a dismissal where- [certain conditions are met.]

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

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

6. The employer accepted that there was no requirement to raise a grievance in relation to the dismissal or proposed dismissal itself. In those circumstances, he accepts that regulation 6(5) relieves the employee of that obligation, the reason being no doubt that an attempt to resolve the dispute between the parties may be achieved in the course of the dismissal procedures which the employer is obliged to adopt.
7. However, the employer contended before the Chairman that with regard to the particular complaint about disability discrimination (which is listed in schedule 3), Mr Lawrence was required to raise a grievance and the failure to do so had the effect of requiring the Tribunal to refuse to entertain this part of the claim.
8. The appellant submitted that this case fell firmly within the scope of regulation 6(5). The complaint was about the dismissal and that should be dealt with through the dismissal procedures irrespective of the particular grounds on which it is alleged that the dismissal was unfair. There was no purpose or merit in the employee lodging a separate grievance.
9. The Chairman took the view that the employer's contention was correct. He summarised

his reasons as follows (paras 16-18):

"16 It seems to me that the regulation 6(5) exemption disapplying the grievance procedure where the grievance is that the employer has dismissed (or is contemplating dismissing) the employee is intended to grant dispensation only where the employee is aggrieved about the dismissal itself as the actionable wrong. In this case the complaint is the statutory tort of disability discrimination. This is the complaint which DDA section 17A empowers the Claimant to present to an Employment Tribunal, in terms and in substance founded in the act of unlawful discrimination under sections 3A and 4. It is the complaint which his claim form presents.

17 Apart from the matters rehearsed in counsel's submissions, this interpretation also seems to me to best serve the purpose of EA Part 3 (and the regulations under section 32(7)), which is to require employers and employees to attempt to resolve their disputes by internal procedure before resorting to Employment Tribunal proceedings. That necessitates that the parties know that there is a dispute and have some inkling what it is about. That in turn requires the complainant in some shape or form to communicate his complaint.

18 The burden of this dispute is that the Claimant was discriminated against on the grounds of his disability, not that he was dismissed. When contemplating a dismissal, the employer of course is obliged to follow the statutory dismissal and disciplinary procedure and if a dismissal follows the employee may issue tribunal proceedings to put the employer to the test as to whether the dismissal is fair and lawful – for example for a reason relating to the Claimant's capability, as the Respondent contends in this instance. It informs the dispute resolution process nothing for the employee to raise a grievance "I have been dismissed", and Regulation 6(5) relieves him of the obligation to do so. But no dispute about a separate complaint of disability discrimination is intimated unless the employee raises it. Were the employee not required to initiate the grievance procedure in that instance (because Regulation 6(5) does not exempt him from doing so), the happenstance of the employee being dismissed would disapply the statutory grievance procedure in cases where the substantive grievance is a hidden consequence of the dismissal rather than patent from the fact of dismissal – for example when an employee complaints that he should have received a redundancy payment on dismissal. The purpose of the statutory procedure would be defeated."

10. The appellant submits today that this analysis is wrong and inconsistent with the authorities. Mr Henry, counsel for the appellant, contends that regulation 6(5) is plain and applies to any dismissals, whatever the reason for them. The grievance is a complaint about the action of the employer; it is not about the reasons for the action. Here the complaint was about the action of dismissal or proposed dismissal and a natural meaning of reg.6(5) compels the conclusion that no grievance is then required.
11. Mr Henry relies on two authorities in support of this construction, Jones v Department for Constitutional Affairs UK/EAT/0333/06 and Anderson v George S Hall Limited UK/EAT/0631/05. The Jones case was not reported until after the Tribunal decision. The Anderson case had been reported, but was not referred to the Chairman, who therefore had to reach his decision without the benefit of any authority at all.
12. Both those authorities were concerned with the question of whether time could be extended pursuant to regulation 15 of the 2004 Regulations. In Anderson the claimant was dismissed by reason of redundancy and was advised that the dismissal gave rise to potential claims for race and sex discrimination, as well as what might be termed a standard unfair dismissal complaint. She submitted a grievance. Her solicitor believed that under regulation 15 this extended the time limit in which to submit her application. Regulation 15(1) specifically provides that time is extended by three months where the employee has raised a grievance within the normal time for lodging a tribunal claim.
13. His Honour Judge Peter Clark, giving the decision of the Employment Appeal Tribunal, noted that the appellant had been mistakenly advised to lodge a grievance. The statutory grievance procedure was in his view not applicable because of regulation 6(5). It is implicit in the judgment of the EAT that even although the complaint was in part about dismissal in breach of the sex and race discrimination legislation, nonetheless there was no obligation to raise a separate grievance under the statutory rules with respect to that part of the claim. However, as Ms Warrender, counsel for the Respondent, correctly points out, the issue in that case does not appear to have been argued, and therefore the decision is of limited significance.
14. The issue was, however, fully considered in the later EAT decision of Department of Constitutional Affairs v Jones before His Honour Judge Richardson. The facts are a little complicated, but the essential feature for the purposes of this appeal is this. The employee was dismissed by his employers. He raised a complaint, lodged in time, alleging unfair dismissal. Subsequently he raised a further complaint in a separate Tribunal claim that the employers had discriminated against him on grounds of disability in the way in which they carried out the investigation, the consideration of his grievance, the disciplinary hearing, and the appeals' hearing. He contended that since he had raised a grievance in relation to those matters within three months of each of the alleged failings, the claim was in time because as a result of regulation 15, time was extended by an additional three months.
15. It was accepted that if there was an obligation to lodge a statutory grievance then regulation 15 would indeed bite in that way. If there was not, however, then it was common ground that the claim was out of time subject to any extension of time on just and equitable grounds.
16. The Chairman concluded that regulation 6(5) applied to the disability discrimination claim and that therefore this was not a case where the statutory grievance procedure mechanism applied at all. Accordingly time could not be extended under reg.15. He did, however, allow an extension on the just and equitable principle.
17. Mr Jones cross-appealed the decision with respect to regulation 6(5) but His Honour Judge Richardson dismissed that cross-appeal. The judge considered the contention that Mr Jones' grievance was not about the dismissal itself, but about the manner in which the proceedings were conducted. It was alleged that the employers had failed to make reasonable adjustments to the disciplinary proceedings to take account of Mr Jones' disability, and a similar point was made with respect to the appeal. The employee submitted that these were not complaints about the dismissal itself so as to bring reg. 6(5) into play.
18. Judge Richardson rejected that argument. He noted that although in that particular case a limited construction of regulation 6(5) would be to the employee's advantage, in many other circumstances it would not. If the complaint about the handling of the dismissal procedures fell under the grievance rather than the dismissal procedures then an employee who sought to make that claim without first raising a grievance would be subject to the statutory bar in s.32(2).
19. Bearing that in mind, the judge concluded as follows (paras. 43 -44):

"43. In this case, if the meaning for which Mr McMahon contends were correct, the Regulations would or might require employees to state a grievance before they could begin proceedings whenever their claim for discrimination, or another schedule 4 claim, involved a criticism of the manner in which an investigation, dismissal or appeal process operated. It would (since employers would then be obliged to respond) be likely to result in much duplication of procedure. There is no indication that duplication of procedure was the objective of the statute, and no reason why it should have been. It would be a surprising outcome, a trap for the unwary, likely to produce injustice. There are many cases in which a complaint is likely to be about both manner and outcome of dismissal. Often such complaints are inextricably intertwined.

44. In my judgment regulation 6(5) was intended to avoid duplication between dismissal procedures on the one hand and grievance procedures on the other. It should be construed broadly, since this will achieve the result desired by Parliament and avoid undue restrictions on the right of employees to begin proceedings. I consider that for the purposes of regulation 6(5) a grievance that the employer has dismissed or is contemplating dismissal includes a complaint about the manner in which the employer is contemplating dismissal. For the purposes of regulation 6(5) a grievance that an employer has dismissed an employee includes a grievance about the manner in which he has dealt with an appeal against dismissal."

20. Mr Henry submits that both the natural construction of reg. 6(5) and the effect of these two authorities compel the conclusion that the Chairman erred in his approach.
21. The respondent, in an attractive argument advanced by Ms Warrender, submits that the Chairman was correct. Her submission can, I think, fairly be reduced to three central propositions.
22. First, the starting point is that a grievance should always be lodged save where an exception arises under rule 6(5). Since it is an exception, that rule should be narrowly interpreted.
23. Second, the definition of "grievance" in rule 2 puts the primary focus on the complaint and the grounds for it rather than on the particular act in respect of which complaint is made. Ms Warrender submits that a number of different complaints may arise out of the same action or proposed action. Here the action is the dismissal but the complaint in respect of which a grievance should have been lodged is of discrimination on grounds of disability. The dismissal is simply the particular way in which that particular form of discrimination was manifest in the circumstances of this case. The heart of the complaint is not about the fact of dismissal, but the act of discrimination on disability grounds. The Chairman was right to say that the fact that the unlawful act was dismissal is happenstance and should not affect the obligation to raise a grievance.
24. Third, she contends that the justification for treating straight forward dismissal cases differently is that in the standard cases a complaint is about the fact of dismissal rather than the reason for it, and an employer can expect to have to consider the issues that typically arise out of a dismissal within the context of the dismissal proceedings which he is obliged to follow whenever he chooses to dismiss. Moreover, there is no obligation for an employee to raise any discrimination issues in the course of any disciplinary or dismissal procedures. No doubt he or she will often do so, but it the purpose of the regulations is to promote settlements prior to a claim going forward to a tribunal, and that objective would be defeated by a wide construction of reg. 6(5).
25. As to the Jones case, Ms Warrender submits that HH Judge Richardson had made no mention of the definition of grievance in reg. 2; that he was wrong to conclude that the purpose of reg. 6(5) was to eliminate any duplication of procedure; and the Judge had failed to recognise that certain complaints may never be the subject of proper consideration prior to the Tribunal hearing at all if his approach were correct. She submits that I should not follow that decision.

Conclusion

26. Whilst recognising the force of these submissions, I reject them. First, the definition of "grievance" is that it is a complaint about action or proposed action; it is not defined by reference to the reason for that action. Nor does the regulation say "actionable wrong", which is the meaning given to the term "action" by Ms Warrender. In my judgment, rule 6(5) on its natural construction simply provides that the grievance procedure will not apply where the complaint is about one particular kind of action, namely dismissal or a proposed dismissal. I do not accept that it is an exception to the usual principle that the grievance procedure should be followed, and should therefore be narrowly construed. Rather, it is simply a rule mapping out the boundary between the use of grievance and disciplinary procedures.
27. This, I think, is reinforced by a consideration of regulation 3 which focuses on the action of the employer and provides that the disciplinary and dismissal procedures come into play where the employer dismisses or contemplates dismissing an employee. The construction I have given to reg. 6(5) is entirely consistent with that. It is also to be noted that reg. 4 identifies certain forms of dismissal to which the disciplinary and dismissal procedures do not apply, but they do not include discrimination claims of this kind.
28. Finally, I do not find the distinction drawn by Ms Warrender between the standard or usual or normal unfair dismissal cases and discrimination cases to be warranted by the statutory language at all. In my view, the essential point is that where the complaint is about the dismissal or matters pertaining to that dismissal, including the reason why it is said to be unfair or unlawful, these issues can be aired and considered through the dismissal process. Ms Warrender's strongest point, in my view, is that it is possible on the construction I have adopted that a complaint could be pursued before the Tribunal which had never been raised directly with the employer. But in most cases it is in fact likely to be raised by the employee in the course of the disciplinary and dismissal procedures, and I do not think that the possibility that it might not justifies what I consider to be a strained construction of the definition of "grievance" in reg. 2 and of reg. 6(5).
29. I agree with the analysis adopted by Judge Richardson in the Jones case. I do not think it could have been intended to have an overlap of procedures arising out of the same action. It would create considerable difficulties if the dismissal procedure had to be complied with for the purpose of dealing with the act of dismissal itself whilst issues relating to the manner or reason for the dismissal, such as whether it was in breach of any discrimination provisions, had to be the subject of a separate grievance and be resolved according to a different set of procedural rules. I see no merit at all in having the complaint about dismissal being carved up in this way, with different procedures having to be utilised for different elements of the employee's complaint.

Disposal

30. In my judgment, the grievance in this case was that the employer had dismissed the employee. The contention that such a dismissal was in breach of the Disability Discrimination Act was one of the issues which would one would expect normally to arise and have to be explored in the context of the dismissal procedures. In my view there was no obligation on the employee to raise a separate grievance in relation to the particular grounds on which he was alleging that his dismissal was unlawful. Section 32(2) therefore did not come into play, and the Tribunal had jurisdiction to hear his disability discrimination case.
31. Accordingly, this appeal succeeds and the matter will be remitted to the Tribunal to hear the substance of the complaint.