United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MR T PITT-PAYNE (of Counsel) Instructed by: Messrs DMH Stallard Solicitors Gainsborough House Pegler Way Crawley West Sussex RH11 7FZ


 


SUMMARY

JURISDICTIONAL POINTS: 2002 Act and pre-action requirements

Claim for detriment under section 48 of the Employment Rights Act 1996 does require a grievance letter to launch proceedings. Schedule 2, paragraph 15, Employment Act 2002 only applies to the protected disclosures provision in Part 4A of the Employment Rights Act 1996

HIS HONOUR JUDGE ANSELL

1. This has been the hearing of an appeal from the Brighton Employment Tribunal chaired by Employment Judge Scott. The hearing took place on 27 and 28 June 2007. The decision was sent out on 10 October. It struck out claims for unlawful disability discrimination and public interest detriment on the basis of jurisdiction, in particular the failure to comply with the grievance procedures set out in section 32 of the Employment Act 2002.
2. The Tribunal decided, in particular, that a grievance letter was needed to launch a claim under section 48 of the Employment Rights Act 1996 in relation to a detriment suffered as a result of having made a protected disclosure. They also determined that four letters relied upon by the Claimant as amounting to a grievance did not comply with the minimum terms that are needed, in the light of the guidance set out in the Canary Wharf Management Ltd v Edebi [2006] IRLR 416 case, and in particular came to the view that they could not reasonably be understood as referring to one or other of the alleged complaints.
3. The Tribunal also determined in relation to the first of those letters that the Claimant had made an admission to a manager of the employers that that letter was not intended to refer to a disability claim.
4. There was an application made for a review of the Tribunal's decision and that application was refused. In relation to the Notice of Appeal, which was originally filed at this court on 16 November 2007 and was initially rejected on the sift by Keith J by order dated 30 November, there was a Rule 3(10) hearing heard by Underhill J on 2 April 2008. That hearing was adjourned and leave was given to file an amended Notice of Appeal. That document was filed on 14 April.
5. There was then an adjourned Rule 3(10) hearing before Bean J on 25 June and he gave permission for a full hearing to take place and gave leave to file what he described as an amended Notice of Appeal. More properly it should have been described as a re-amended Notice of Appeal. That was filed on 26 June.
6. This case came before us on 11 September. At that stage Mr Waite was present. He claimed that he had late notice of the hearing, that he had not had time to prepare his submissions, although even at that time there was evidence that he had had, even on his case, two or three weeks' notification of the hearing date. In view of the fact that the claim did involve stress and disability, we erred on the side of caution and decided to grant him the indulgence of an adjournment, directing that the issue of any costs thrown away as a result of the adjournment should be determined by us at the conclusion of the full hearing.
7. Mr Waite filed a skeleton argument on 2 October, but in that document and in the form that he returned to this court he indicated that he would not be attending because of his state of health. He attached a medical report dated 2005 but we have no more information than that.
8. We have proceeded to hear this matter and treat it as a full hearing, obviously without the benefit of his oral submissions, but have taken into account the matters that he has set out in his written submissions. In particular we have had the benefit of very helpful guidance from Mr Pitt-Payne, on behalf of the employers, who has also taken the trouble to carefully analyse what he believes were the submissions being advanced by Mr Waite, and which Mr Waite would have advanced had he been here, and to counter them.
9. The background facts are that the disability alleged was work-related stress. He was an ambulance driver and his main claim involved his failure to achieve promotion or transfer because of what he said were his absences due to this disability. That affected something known as the Bradford score, which was a method that the employers used to test absenteeism or otherwise at work. His claim was that by relying on that score in terms of promotion, which is what the employers did, would put him at a disadvantage. In particular, it is alleged that the employers should have carried out an adjustment, namely the disregarding of any disability absence when carrying out their scoring under the Bradford system.
10. His claim also was that he had made health and safety disclosures about his work and in particular about ambulance driving and, as a result, he had suffered a detriment, namely the self-same failure to be promoted or transferred.
11. The two substantial issue raised in the appeal is firstly whether a grievance letter was required as a precondition of a claim for public interest detriment under section 48. In particular Mr Waite's argument relates to a conflict between various statutory provisions, particularly contained in the schedules to the 2002 Act. That alleged conflict was very carefully analysed by the Tribunal, who came to the conclusion that a grievance letter was required. The second ground was on the basis that letters were required, did the four letters which the Claimant identified to the Tribunal constitute a grievance? Originally some 16 documents had been identified at an earlier stage in the proceedings as potentially giving rise to a grievance, but it seems by the time of the closing submissions that were filed on behalf of Mr Waite below by counsel who then represented him, the alleged grievance was said to have been obvious from the four letters that were put before the Tribunal. The Tribunal very carefully analysed those four letters and came to the view that they did not amount to a grievance.
12. The third area is the particular finding in relation to the first letter: the admission made to a member of staff that it was not meant to refer to a disability. That is challenged. The reference is in paragraph 22 of the Tribunal's decision where the Tribunal says,

"The Tribunal accepts the evidence of Mrs Feeley that when she discussed the letter with the Claimant he specifically stated that he could not say that his complaint was one of disability discrimination."

13. One of the grounds the appeal seeks to challenge is that finding. We can deal with that immediately. This was a finding which, in our view, the Tribunal were entitled to make and there is no ground for suggesting that that finding was perverse. Therefore, we reject that ground.
14. Turning, therefore, back to the two grounds of appeal, particularly first of all the statutory ground. The Employment Rights Act 1996, Part IVA, is headed "Protected Disclosures". In particular in section 43A protected disclosures are defined. Part V of the Act is headed "Protection from suffering detriment in employment". Section 47B headed "Protective disclosures" sets out the following,

"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

15. Section 48 provides that,

"(1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47."

16. The statutory dispute resolution regime was introduced by the Employment Act 2002. Section 32 of that Act provides as follows,

"(1) This section applies to the jurisdictions listed in Schedule 4.

(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 of paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with."

17. Breaking that down further, the jurisdictions are set out in Schedule 4. Turning to that schedule it includes section 48 of the 1996 Act (Detriment in Employment). The grievance procedure is set out in Schedule 2 of the Act. The references to paragraph 6 or 9 refer to either the standard or modified procedure, the standard procedure clearly being the relevant one if it is to apply at all in this case. Paragraph 6 requires,

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

18. Does it concern a matter in relation to which there is a requirement to send out a step 1 grievance? For that one has to turn to the regulations made pursuant to this Act. They can be found in the Employment Act 2002 (Dispute Resolution) Regulations 2004. Section 2 defines grievance as,

"A complaint by an employee about action which his employer has taken or is contemplating taking in relation to him."

19. Section 6(1) provides,

"The grievance procedures apply, in accordance with the paragraphs (2) to (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."

20. We have already identified that Schedule 4 includes claims under section 48.
21. The upshot of this analysis thus far is that, on the face of it, a grievance letter in accordance with paragraph 6 is needed before a claim can be initiated in an Employment Tribunal under a section 48 detriment.
22. The appeal in this case and the issue raised before the Tribunal arises because of another paragraph in Schedule 2 of the 2002 Act, namely paragraph 15. It is a section of Schedule 2 headed up "Part 4, Supplementary". The subheading is "Scope of grievance procedures" and it reads as follows,

"15(1) The procedures set out in Part 2 are only applicable to matters raised by an employee with his employer as a grievance.

(2) Accordingly, those procedures are only applicable to the kind of disclosure dealt with in Part 4A of the Employment Rights Act 1996 (protected disclosures of information) if information is disclosed by an employee to his employer in circumstances where—

(a) the information relates to a matter which the employee could raise as a grievance with his employer, and

(b) it is the intention of the employee that the disclosure should constitute the raising of the matter with his employer as a grievance."

23. The overall effect of that is clear that when making a protected disclosure the employee appears to have an option as to whether or not he wants to treat the making of that disclosure as a grievance. Mr Waite's argument is that if an employee elects not to treat it as a grievance, then that election can, as it were, be read over into section 48 and therefore there is not a requirement to have a grievance letter before a section 48 claim is instituted.
24. The Tribunal rejected that claim. They came to the conclusion that there were really two separate issues at stake in terms of these two parts of the Act. The provisions to which we have just referred, set out in paragraph 15, are, as is clear, referable only to part 4A of the Employment Rights Act 1996. That is clearly set out in subparagraph 2 of paragraph 15. We agree with Mr Pitt-Payne's analysis that the reason for that is obvious. Firstly that some protected disclosures may not in any event amount to grievances. For instance, a disclosure made about inappropriate behaviour of a manager not directed to the employee himself but in relation to, for instance, a matter of honesty within the organisation. Secondly, as an incentive to whistleblowers to make their disclosures. Parliament has clearly decreed that it is not necessary for them, if they so choose, to put themselves through a grievance procedure. The nature of those continuing inquiries is said to be counter-productive to the concept of making necessary disclosures.
25. However, we see nothing in those provisions that says that they are therefore to be read in and supersede the other provisions to which we have already referred. In particular, if that were right, the reference to section 48 as one of the jurisdictions to which section 32 applies would be completely unnecessary. There would not need to be that reference because the choice of whether or not a grievance letter would be necessary would, if Mr Waite is correct, lie entirely as to whether or not the employee chooses to treat it as such. It is stating the obvious to indicate that this would lead to enormous uncertainty in any section 48 claim as to whether or not a grievance letter was needed in then seeking to analyse what was the employee's intention when he made the original protected disclosure. This is an area of law which is already fraught with difficulty, but we cannot imagine that that additional problem is one which Parliament wanted to bring into this area.
26. So we are quite satisfied that the Tribunal's analysis in this area was the correct one. We ourselves have been through the provisions, helpfully analysed with great clarity by Mr Pitt-Payne. The Tribunal's conclusions in paragraph 16 and 17 were that paragraph 15 applies only to a situation when an employee is making a protected disclosure. They conclude in paragraph 16 that the requirement to raise a written grievance therefore applies to section 48 of the Act. We cannot fault their analysis.
27. Passing on to the four letters, Mr Waite's submissions before us seem to suggest that the Tribunal, when they analysed the four letters and came to the conclusion it did not amount to a grievance, failed to take into account the context in which the letters were written and, in particular, the state of mind of the employers in reading those letters against a background where the employers had received, it is said, various medical reports and other documents relating to Mr Waite.
28. This submission troubled us because it did not appear to be the submission that was put to the Tribunal below, who, it appears, were simply asked to analyse the four letters as they did. Mr Pitt-Payne has taken us to the closing submissions from counsel for Mr Waite below and that reinforces the view and the suspicion that we have that this is not the way the case was put below. It is, of course, a well-known procedural point in this court that we will not allow points to be argued before us generally that were not argued below.
29. It seems to us, therefore, that Mr Waite is restricted to arguing that the Tribunal's analysis of the four letters was incorrect. In carrying out their analysis, the Tribunal reminded themselves of the guidance given by Elias J in the case of Canary Wharf. When dealing the substance of any grievance letter at paragraph 25 he said this,

"It seems to me the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard for the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised."

30. Against that background, the Tribunal analysed the four letters. We do not propose to repeat that analysis. We are satisfied that the Tribunal approached the matter correctly. One of the letters, it is right to say, troubled us initially. The first of the four letters in time is dated as having been received certainly on 22 June by the employers, and at the bottom of the third page there is a paragraph which is headed "Appendix B, section 1.2". It says as follows,

"I had attempted to return to work earlier than I did but was informed that unless a doctor had confirmed my fitness to return I would not be allowed back, therefore my enforced absence has increased my score on the Bradford scale."

31. It is clear from an overall reading of the letter, however, that that paragraph is a complaint that he was not allowed to return to work without a doctor's letter, despite his indicating that he wanted to do so, the employers following a particular section in their return-to-work policy. One view, we suppose, of this letter is that the employers perhaps were taking a more serious view of his illness than the employee was making out.
32. In any event, as regards that first letter, there are two additional problems that Mr Waite would have to deal with. Firstly, the oral evidence to which we have already referred, the conversation with the manager in which he indicated that the letter was not referring to disability; second, the fact that the letter was sent in June 2004 and the Tribunal record that the first act of discrimination must be later than March 2005. So it seems to us that even if a different view could possibly have been taken of that first letter, there are those two additional problems in treating this letter as a grievance. There is, in any event, the third problem that was not raised by the Tribunal below, but certainly in the Canary Wharf case Elias J referred to the passage of time that followed on from some reported grievance letters which render the grievance effectively out of date and of no effect.
33. Overall we are quite satisfied the Tribunal's analysis of those four letters was correct; they had the correct legal principles in mind. Accordingly, we cannot find any fault with that conclusion. For those reasons we therefore dismiss this appeal.
34. In our main judgment we indicated this matter was listed for hearing on 11 September and did not proceed. On that occasion Mr Waite attended and maintained that he had had insufficient notice of the hearing. He claimed that he was seeking help from the CAB and had not been able to achieve a positive appointment with them. Even though he was warned by us as to possible costs consequences, he still maintained that he was not able to represent himself and to proceed with that hearing. It was really on that basis and that basis alone that we felt constrained to adjourn the matter, although warning him that we still had costs in mind.
35. It is, in our view, interesting to note what has happened since that time. He has filed submissions but they are brief and go no further than the matters that were outlined in the three Notices of Appeal that have been filed thus far, other than seeking to introduce a gloss on to the ground in relation to the four letters, namely the suggestion that other documents should have been considered by the Tribunal. More importantly, he is not here and he is not represented.
36. At the end of the day, we do feel that the reasons for which we had adjourned the case so that he could prepare and, if necessary, obtain some form of professional help, have really not materialised in either way other than the very brief submissions that we have referred to. They are submissions which, in our view, could well have been prepared in the four weeks prior to 11 September when he had had notice of the hearing.
37. We are, of course, mindful of his alleged disability and problems relating to stress, but at the end of the day we are now of the view that he should have been able to proceed with the hearing on 11 September. To that extent, it seems to us that there is an argument that he has behaved unreasonably. He has caused the adjournment of those earlier proceedings.
38. We are required under Rule 34B of the EAT Rules 1993 to have regard to his ability to pay when considering an amount for a costs order. Mr Pitt-Payne has helpfully referred us to a passage in his statement that was filed before the Tribunal, which makes reference to "my bankruptcy". Mr Pitt-Payne tells us that he is still on the books of the NHS Trust, although he believes he is not receiving any salary. Presumably he is in receipt, still, of some form of Statutory Sick Pay. Clearly, therefore, he is of limited means and we have to try and take that into account as far as possible.
39. Therefore, taking all these matters into consideration, we are of the view that we should mark this behaviour. There was an unnecessary adjournment caused, it seems to us in the light of all we now know about the matter and for that reason we order that he should pay £300 towards the Respondent's costs. We will leave it up to the Respondent to decide whether they will enforce it.