United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS KERRY SMITH (of Counsel) Instructed by: Messrs Thompsons Solicitors 23 Princess Street Manchester M2 4ER
For the Respondent	MR JOHN MEHRZAD (of Counsel) Instructed by: Gillian Howard 34 Lyndale Avenue London NW2 2QA


 


SUMMARY

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

Constructive dismissal – Tribunal wrong to have held that the complaints relied on by the Claimant had not been the subject of a prior grievance – Cyprus Airways Ltd v Lambrou UKEAT/0526/06 considered.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. The Claimant was employed as a caretaker for a block of flats in Teddington in Middlesex until his resignation with effect from 28 September 2007. The flats are owned by a partnership which trades under the name of Burworth Estates. On 12 December 2007 the Claimant presented a complaint in the Employment Tribunal alleging unfair (constructive) dismissal. He initially named as Respondents the firm of managing agents, Esskay Management Services, who acted for the owners; but it was subsequently agreed that he was employed by Burworth Estates and not by Esskay and they were substituted as Respondents accordingly. There has in the run-up to this appeal been an issue raised in correspondence as to whether the individual partners in Burworth Estates rather than the firm should have been named, but it is now accepted that the use of the firm name in the proceedings is perfectly proper.
2. At a stage when Esskay were still the named Respondents, a point was taken as to whether the Claimant had properly raised a grievance in relation to the matters on which he wished to rely in support of his claim for unfair dismissal and thus as to whether, by virtue of the provisions of s. 32 (2) of the Employment Act 2002, the Tribunal had jurisdiction. That point was resolved in the Claimant's favour; but following the service of Further and Better Particulars of his claim the current Respondents sought to raise it again. At a Hearing in the London South Employment Tribunal chaired by Employment Judge Barron on 21 August 2008 it was ruled that the Respondents were entitled to take the point; and the Tribunal held that it did indeed have no jurisdiction. The Judgment and written Reasons were sent to the parties on 15 September 2008 (although by an error the decision was recorded as having been made by Employment Judge Barron sitting alone at a pre-hearing review).
3. The Claimant appeals against that decision. He is represented by Ms Kerry Smith of counsel and the Respondents by Mr John Mehrzad of counsel, both of whom also appeared below.
4. The relevant statutory provisions are now well-known and we need not set them out here. It is also well established that their effect in a claim of constructive unfair dismissal is that the employee must have complied with the requirements of the statutory grievance procedure in respect of the matters on which he relies as entitling him to terminate the contract.

THE FACTS

5. On 23 October 2006 the Claimant submitted a written grievance under ten numbered headings. It was addressed to Mr Gareh of Esskay, but the Tribunal proceeded on the basis that Esskay were to be treated as having authority on behalf of the Respondents to receive grievances from the Claimant, and Mr Mehrzad has not submitted otherwise before us. His complaints can be summarised as follows:

(1) The Claimant complains that he gets "no support or back-up from you, only blame" he gives two instances. The first relates to an incident when the lift was out of order. The second relates to complaints against him made by the Chairman of the Residents Committee, a Mr Amtoft. The particular complaints referred to the fans on the roof making too much noise; but it is clear that the Claimant objects to Mr Amtoft's attitude generally, since he describes him as a "man who is out to make my job and life as difficult as he possibly can".

(2) He complains about being required to do work in circumstances prejudicial to his health and safety.

(3) Under the heading "breach of contract" he complains of two separate matters – first the failure to "review" his salary in January 2006, as required by the contract; and secondly a historic complaint about Mr Gareh's handling of an earlier, presumably abortive, attempt by the Claimant to resign in 2003.

(4) Under the heading "your attitude towards me" the Claimant raises two particular incidents, the details of which are immaterial for present purposes.

(5) Under the heading "obstructive management by you" the Claimant complains of a sequence of events relating to the issue of who, within Esskay, he was supposed to be reporting to.

(6) This is somewhat opaquely worded but appears to ask Mr Gareh for a general review of the terms of his contract of employment.

(7) This too is not very clearly worded, but it appears to refer to the fact that Mr Gareh has told him that he has received many complaints from the residents about the Claimant's performance but that he is never given any details.

(8) This is headed "expected to do work beyond my station". Although various particular examples are given, the heading sufficiently identifies the nature of the complaint.

(9) The Claimant complains that he is expected to use his own computer at his own expense for various aspects of his work.

(10) This reads "not qualified to discuss work with professional tradesmen". It is unclear whether the complaint is that he is expected to discuss such work when he is not qualified to do so or whether he ought to be, but is not, regarded as so qualified.

The letter concludes:

"What concerns me is that I believe that I can do my job and that I can enjoy doing my job, ask 93% of the residents, but that I am being Bullied and Harassed by a chosen few, some of whom it is a known fact would like to get me sacked and another who if this were to happen, or I resigned, would like to take my job."

He asked for a meeting.

6. A meeting duly took place on 16 November 2006. The grievance was not resolved. A further meeting was fixed for 8 February 2007. In anticipation of that meeting the Claimant sent Mr Gareh a letter dated 5 February 2007 which, among other things, set out the subjects for discussion under ten headings as follows:

1. Meetings with Professional Tradesmen

2. Use of My computer at Work

3. My Contract of Employment

4. Bullying by Management & Committee

5. Complaints from Residents

6. Job Description

7. Obstructive Management

8. Health & Safety at Work

9. Breaches of Contract

10. Salary Review

Particulars of those complaints are then given. Broadly speaking, the complaints are the same as those raised by the letter of 23 October, though there are some differences of detail and the ten points identified are not in the same order as the ten points made in the earlier letter.

7. The further meeting duly took place on 8 February 2007. On 11 April 2007 the Claimant was sent a written response to his grievance. On the same day he was also sent a notice of intention to retire the Claimant in accordance with para. 2 of schedule 6 to the Employment Equality (Age) Regulations 2006. It is clear that the relationship between the Claimant and Esskay did not improve over the following months. In particular, the Claimant alleged that they were failing to give him any support or back up in relation to a problem which had arisen about mattresses and other inappropriate items being dumped in the rubbish shed. He wrote letters complaining about this on 10 and 17 July 2007. On 25 July he submitted his notice of resignation. We have not seen the letter, but it was apparently before the Tribunal, which described it as "a straightforward resignation letter without any specific reason or reasons being given". (It seems in fact that there was a second letter of 27 July, which likewise did not specify any reasons for the Claimant's resignation; but nothing turns on this.) It is to be assumed, given that it is common ground that the effective date of termination was as we have stated, that the Claimant gave two months notice.

PROCEDURAL HISTORY

8. The present proceedings were presented on 12 February 2007. As noted above, issues arose as to the identity of the Respondents and as to the application of s. 32, and it was not until 29 April 2008 that the present Respondents lodged their response.
9. On 29 May 2008 the Respondents made a request for Further and Better Particulars of the Claim Form. Request (1) related to a paragraph in which the Claimant had said:

"The final two years of my employment at Riverside Court I have had to put up with lies, denials and deceit regarding letters, e-mails, fax and phone messages… shouting, arguing, provocation, intimidation, humiliating and nitpicking along with bullying and harassment from Joe Gareh and the Chairman of the Residents Committee Mr Folmer Amtoft."

The request was that he should specify "the actions which you intend to rely upon to support this allegation, to include when these actions occurred and who was responsible". On 10 June the Claimant replied to the request. As regards the first request he pleaded that he would "rely on the following incidents".

"I. On 31/07/04 Folmer Amtoft, Chairman of the Resident's Committee at Riverside Court questioned the Claimant whether his three children were "all by different women."

II. Joe Gareh's visit to Riverside Court on 25/07/06 and his aggressive behaviour towards the Claimant. In addition to Mr Gareh's disregard for the Claimant's wellbeing at that visit after the Chairman became ill.

III. Failure of Joe Gareh to support the Claimant and/or take action following the Claimant's complaints to Mr Gareh regarding the behaviour of Mr Amtoft.

IV. Failure of Joe Gareh to reply or take action in relation to the Claimant's complaints in relation to Mr Amtoft made via his e mail of 4/10/06, 9/10/06, and 24/08/06.

V. Failure of Joe Gareh to reply to take action in relation to the Claimant's e mail of complaint dated 11/09/06.

VI. Failure of Joe Gareh to support the Claimant regarding the "fans" issue which arose with Folmer Amtoft in June 2006.

VII. Matters 1 – 10 as set out in the Claimant's letter of grievance dated 23/10/06.

VIII. Matters 1 – 10 inclusive as set out in the Claimant's letter to the Respondent dated 5/2/07.

IX. Matters set out in the Claimant's letter to the Respondent dated 7^th May 2007.

X. Failure of the Respondent to provide the Claimant with support or any supportive action in relation to dumping of mattresses, the circumstances of which are described in the Claimant's letter of 10/07/07.

XI. Failure of the Respondent to consider the Claimant's contractual entitlement to a salary review at the appropriate time or in a timely manner.

XII. Failure of the Respondent to deal properly with the Claimant's grievance or at all.

XIII. Failure of the Respondent to deal properly and address fully the issues raised by the Claimant at his grievance appeal.

XIV. The action of the Respondent to serve the Claimant with statutory retirement notice whilst the grievance procedure was ongoing."

It will be seen that at VII and VIII the Claimant incorporated wholesale the complaints made in his letters of 23 October 2006 and 5 February 2007. But it would be wrong to assume that the other twelve points were all distinct: on the contrary, many of them were the same as, or in any event overlapped with, the matters raised in those two letters.

10. The case was, as we have said, listed for hearing on 21 August 2008. About a week beforehand the Respondents gave notice that they intended to raise an issue under s. 32 (2) of the 2002 Act. At the Hearing as we have said, Ms Smith contended not only that the Respondents were estopped by the previous ruling given when Esskay were still the Respondents but also that the point had been raised too late. Both objections were dismissed by the Tribunal, and there is no appeal in that respect. The Tribunal went on to consider and determine the issue.

THE TRIBUNAL'S REASONS

11. Paras. 1-7 of the Reasons deal with various preliminary matters, including the Claimant's objections to the s. 32 point being taken. Consideration of that point begins at para. 8 of the Reasons. After setting out some introductory matters, the Tribunal says this:

"11 The submissions Mr Mehrzad made on behalf of the Respondent were based principally upon the relatively recent authority of Cyprus Airways Limited v Lambru in the Employment Appeal Tribunal. That was a case relating to constructive unfair dismissal. Mr Mehrzad pointed out that in the further particulars of the Claimant's claim dated 10 June 2008 which commenced at page 61 of the trial bundle the Claimant had set out 14 specific matters upon which he relied as singly or collectively amounting to a repudiation of the contract of employment so as to entitle him to resign without notice. Mr Mehrzad provided helpful written submissions in which he listed six of those 14 matters in respect of which he said that a written step 1 grievance had not been provided to the Respondent. He therefore submitted that the claim could not proceed because on the basis of the Cyprus Airways authority it was necessary for an employee in such circumstances to set out all the matters upon which he relied as justifying his decision to resign.

12 Ms Smith submitted that Cyprus Airways was distinguishable from the earlier authorities. Ms Smith relied upon two letters written by the Claimant of 10 and 17 July 2007 as being step 1 complaints. Those are at pages 213 and 216 of the trial bundle."

12. The letters of 10 and 17 July 2007 referred to by the Tribunal at para. 12 are, of course, only the last two letters in a long history as summarised above, all of which – at least so far as it was in documentary form – was before the Tribunal in the bundle. Ms Smith, to anticipate, tells us that she never intended to, nor does she believe that she did, limit her reliance, for the purpose of s. 32 (2), to those two letters. However the Tribunal proceeded on the basis that those were the only written grievance statements which it had to consider. Not surprisingly, it found that only one of the fourteen incidents particularised in the Claimant's Further and Better Particulars – namely item X, relating to the dumping of mattresses – had been the subject of a prior complaint. It held that it was not possible to "sever" that single incident from the thirteen others in respect of which – as it found – no grievance had been lodged, and accordingly that it had no jurisdiction to entertain the claim. For the purpose of the latter proposition the Tribunal relied on the decision referred, at para. 11 of the Reasons, Cyprus Airways Ltd. v Lambrou UKEAT/0526/06 (HH Judge McMullen QC).

ISSUES AND DECISION

13. Ms Smith's starting-point was, as we have said, that the Tribunal proceeded on a fundamentally wrong basis in treating her as having relied only on the letters of 10 and 17 July. Mr Mehrzad had prepared written opening submissions on the s. 32 point, as noted at para. 11 of the Reasons. Those submissions had identified six out of the fourteen incidents pleaded in the Further and Better Particulars which it was said had not been the subject of a previous grievance complaint: these were nos. I, IX, X, and XII–XIV. By necessary implication, Mr Mehrzad accepted that the remaining eight incidents had been the subject of such a complaint. The submissions refer in terms to the letters of 23 October 2006 and 5 February 2007 and tacitly, if not indeed expressly, accept that the remaining eight complaints were raised in those letters. In those circumstances Ms Smith understandably focused on the six omissions. One of these was the complaints relating to the dumped mattresses (no. X), and in that connection Ms Smith did indeed refer to the later letters of 10 and 17 July 2007. But she did not intend – and, she submits, she could not reasonably have been understood to intend – to submit that those were the only relevant documents for the purpose of the complaints which Mr Mehrzad accepted had been the subject of her prior grievance. The Tribunal, she submits, wholly misunderstood the position.
14. In some circumstances it might be necessary, faced with a challenge of this kind, to seek the comments of the Tribunal. But we do not believe that that is necessary here. It is in the highest degree unlikely that Ms Smith would have adopted the stance which the Tribunal attributes to her. There was plainly a misunderstanding, and we think it highly unlikely that, even if Ms Smith contributed to that misunderstanding by some lack of clarity in her submissions, she said anything so unequivocal that it would be just to hold her, or her client, bound to a position which plainly does not reflect the real facts. Mr Mehrzad, fairly but also realistically, while making no concessions made it clear that he did not wish "to push too hard" on this point. The Tribunal's approach cannot be upheld.
15. It would be open to us in these circumstances to remit the case to the Tribunal to reconsider the s. 32 (2) issue on the correct basis. But neither party wished us to take that course – understandably, in a case which has already encountered procedural difficulties and is becoming undesirably stale - and we are satisfied that we are in a position to decide the issue on the material before us.
16. The right starting-point is Mr Mehrzad's list of the six incidents pleaded in the Further and Better Particulars in respect of which he claims that no grievance complaint had been made. The list contained in his submissions to the Tribunal is reproduced in his skeleton argument before us but in somewhat different language which paraphrases, rather than reproducing exactly, the language of the pleading. We prefer therefore to use the earlier version, which reads as follows (save that we have added, for ease of cross-reference, the numbers of the incidents as pleaded in the Further and Better Particulars):

"[I] On 31/07/04 Folmer Amtoft, Chairman of the Resident's Committee at Riverside Court, questioned the Claimant whether his three children were "all by different women;

[IX] A failure to deal with the matters set out in the Claimant's letter to the Respondent dated 7 May 2007;

[X] Failure of the Respondent to provide the Claimant with support or any supportive action in relation to dumping of mattresses, the circumstances of which are described in the Claimant's letter of 10/07/07;

[XII] Failure of the Respondent to deal properly with the Claimant's grievance or at all;

[XIII] Failure of the Respondent to deal properly and address fully the issues raised by the Claimant at his grievance appeal; and,

[XIV] The action of the Respondent to serve the Claimant with statutory retirement notice whilst the grievance procedure was ongoing."

17. Before us, Mr Mehrzad abandoned his reliance on points IX and X. It was, in truth, self-evident that grievance complaints in relation to these matters had been raised, since the pleading expressly refers to the letters which did so. We are therefore concerned with four items, which we will consider in turn.
18. As to item I, it is correct that none of the Claimant's grievance statements refers to the particular question said to have been asked by Mr Amtoft. It is not, however, the law that every individual incident relied on by a claimant in support of a claim of constructive dismissal must have been the subject of a previous grievance complaint. This is clearly illustrated in the leading case of Shergold v Fieldway Medical Centre [2006] IRLR 76. In that case the claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager called Jacqui Smith. She did not, however, refer to a particular incident relied on in her pleading as one of the two "last straw" incidents that led to her resignation. The respondent contended that by reason of that omission the claimant had not complied with the statutory grievance procedure in the relevant respects. Burton P in his judgment said this (at para. 37):

… We are entirely satisfied that, even were it the fact that neither incident was mentioned in the letter, the letter was a grievance in writing setting out the complaint, namely "I can't live with Jacqui in the light of the way she treats me and others" which led on to a claim, which based a claim of constructive dismissal on the same case. It may well be that such constructive dismissal claim could not have any chance of success, if it has any chance at all, as to which we say nothing, if there had not been "last straws" and therefore that, legally, the "last straws" are important, but that is only a question of legal interpretation. What is necessary, as indeed Mrs Purcell herself accepts, is that the employer should understand the general nature of the complaint being made; and nothing could have been clearer, in our judgment, than was the letter of 31 October 2004. It is, in our judgment, quite inappropriate for there to be the kind of sophisticated analysis of what is intended to be a simple provision for a grievance in writing - without even its "basis" at this stage needing to be included - such as was carried out by this tribunal. It is bound to lead to injustice. In our judgment provided that the general nature of the grievance in writing was substantially the same as the matter which then forms the subject matter of the claim, its different description or a difference by way of precise ingredients or particulars does not affect the statutory compliance. It will be difficult to lay down guidelines as to precisely when there will be a material or substantial difference but, rather like an elephant, it will be apparent to a tribunal. In this case, in our judgment, it is quite clear that the grievance and the claim related to the same matters.

Similar observations have been made in subsequent cases: see in particular Thornton Print Ltd. v Morton UKEAT/0090/08 (HH Judge Serota QC) and Step in Time Ltd. v Fox UKEATS/0031/08 (Elias P). (We should note that although the question of what degree of detail was required in a grievance statement has been recently reviewed by the Court of Appeal in Suffolk Mental Health Partnership NHS Trust v Hurst [2009] EWCA Civ 309, the decision was limited – as Pill LJ emphasised at para. 61 – to the requirements in equal pay cases. We have accordingly regarded it as neutral on the present issue.) Applying the approach in Shergold, it is immaterial that the Claimant had not previously complained about this specific incident. What matters is that he had previously complained about Mr Amtoft's conduct and – which is the real gravamen of the complaint against the Respondents – of the lack of support which he had been given in dealing with Mr Amtoft: see para. 5 (1) above.

19. Points XII and XIII both raise the same issue. It is correct that the Claimant did not present any separate grievance complaining of the outcome of the grievance hearing itself or the subsequent appeal. We do not, however, believe that it was necessary that he should have done so in order to be able to rely on them for the purpose of his constructive dismissal claim. It is not uncommon, and certainly not unnatural, for an employee who has a substantive complaint about his employer's conduct, and who subsequently resigns, to bring a complaint of constructive dismissal on the basis not only of the original complaint but also of the failure of the employer properly to respond to it. It would add a further layer of technicality to the 2002 Act regime, of a kind which is wholly contrary to the spirit and object of the legislation, if it were necessary for him to raise separate grievances in that regard. Indeed such a requirement would logically give rise to an infinite series of receding-mirror complaints, as the failure of each grievance gave rise to an obligation to raise a fresh one. We see no difficulty in regarding the employer's failure to respond satisfactorily to the substantive grievance as a part of that grievance and thus a part of the "matter" about which he has complained.
20. The position as regards point XIV is more borderline. The Respondents' decision to serve the statutory notice of retirement is an act of a rather different character from the other acts on which the Claimant seeks to rely, and we can certainly see the argument that it is sufficiently different to require to be made the subject of a separate grievance complaint. But it is necessary to understand the point in context. Ms Smith submits, and the context of the other complaints seems to confirm, that the Claimant was relying not so much on the service of the notice as such (which, after all, was a legal entitlement of the Respondents) but rather on the fact that it was served on the same day as they served the response to the Claimant's grievance and at a time when he still enjoyed a right of appeal: it is thus relied on essentially as a further instance of the unreasonable manner in which the Claimant says that he was treated by the Respondents. On that basis, it seems to us to fall in the same category as point I, as considered at para. 18 above. In this connection we should note that, when reaching an essentially similar conclusion in Step in Time (above), Elias P left open the question, which had not been raised before him, "whether any matters which may have arisen after the relevant statement of grievance can be considered to be covered by that statement or whether they required a fresh statement to be raised" (see para. 37). But Mr Mehrzad conceded, in our view correctly, that the fact that a particular incident relied on for the purpose of a constructive dismissal claim may have occurred after the date of the grievance statement would not prevent it from being relied on provided that it fell within the terms of the general complaint about the employer's behaviour made in, or necessarily to be implied from, the prior complaint.
21. Our conclusion that each of the four individual points relied on by Mr Mehrzad is to be treated as falling within the terms of the grievances lodged makes it unnecessary for us to reach a view on his submission that it was, either generally or in any event in the present case, impossible to "sever", for the purpose of determining compliance with the requirements of s. 32 (2) in a constructive dismissal case, the complaints in respect of which the claimant has lodged a grievance from those in respect of which he has not. We will however briefly state our view on the point.
22. Mr Mehrzad's submission was initially advanced by him in relation to the six incidents which he claimed had not been the subject of a grievance complaint, though it was adopted and deployed by the Tribunal on the basis that only one out of the fourteen had been the subject of a grievance. He relied on the decision in the Cyprus Airways case (above). The effect of Judge McMullen's decision in that case is conveniently summarised by Elias P in his judgment in Step in Time, at paras. 33–34:

"33. … In that case the claimant presented a claim for constructive unfair dismissal and relied upon four quite distinct matters. These were that he had been unable to obtain clarification of the terms and conditions of employment following the company offering redundancies after a TUPE transfer; he was not paid overtime as he ought to have been; that he had been subjected to humiliating and aggressive behaviour from the general manager, who shouted at him in public; and finally he alleged less favourable treatment because of disability.

34. The only issue that had been foreshadowed in any written communication was the clarification of terms and conditions. In these circumstances the EAT held that the Tribunal was not entitled to find that the grounds for his constructive dismissal had been the subject of a separate grievance. The grievance had raised only one small part of his constructive dismissal claim; he was relying on all four aspects to sustain his case. This did not suffice to satisfy the statutory requirements."

Elias P did not suggest that the decision in Cyprus Airways was wrong. Rather, he distinguished it. He said, at para. 35:

"I do not accept that the Cyprus Airways case is determinative of these appeals. In Cyprus the claimant was relying upon a number of matters which it was said amounted to constructive dismissal. They were, however, quite distinct. More specifically, the only complaint identified in writing in advance was that relating to the failure to clarify terms and conditions. It would have been quite impossible to have brought the other heads of complaint within that general category. To use the language of the statute, they were in no sense the basis of the grievance that was made in writing."

23. In our view, Cyprus Airways does not enunciate any general principle about "severance". In a case where the claimant relies for the purpose of his constructive dismissal claim on a series of quite discrete breaches, but has failed to lodge a grievance in respect of some of them, we can see no reason in principle why he should not pursue his claim insofar as it is based on the remainder. There will be a difficulty if he is unable to establish that the breaches on which he is entitled to rely for the purpose of his tribunal proceedings were those in response to which he resigned. As we read the judgment in Cyprus Airways, the claim was dismissed because there was no evidence whatever that the claimant had resigned in response to the one breach on which he was permitted to rely (see in particular para. 32). But if, for example, we had found in the present case that the Claimant was entitled to rely on all of the incidents pleaded save item I, we very much doubt whether the inhibition on his relying on the missing one would have made any difference to the outcome of the case.
24. We accordingly allow the appeal and remit the case to the Employment Tribunal for a substantive hearing on the basis of the entirety of the Claimant's case as pleaded. Since the Tribunal did not consider the substantive issues there is no particular advantage in the matter coming before the same Tribunal, but if by chance some or all of the same members sit there could, for the same reason, be no objection to that.