United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PATRICK GREEN (of Counsel) Instructed by: Messrs Wace Morgan Solicitors 2 Belmont Shrewsbury SY1 1TD MR KIER HIRST (Solicitor) Messrs Wace Morgan Solicitors 2 Belmont Shrewsbury SY1 1TD
For the Respondents	MR OLIVER SEGAL (of Counsel) Instructed by: Messrs Thompsons Solicitors City Gate (East) Tollhouse Hill Nottingham NG1 5FS


 


SUMMARY

JURISDICTIONAL POINTS

2002 Act and pre-action requirements

The Employment Judge misdirected himself on the construction of the Claimants' grievance letters. In context, they vouched a complaint about what had happened to them after they had made an original grievance about bullying, which itself was a protected disclosure. Alternatively (if necessary) it was not a requirement of Employment Act 2002 s32 for the Claimants to lodge a second grievance covering post-grievance detriment: Evershed citing Shergold applied.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about Employment Tribunal procedure under the Employment Act 2002 (Dispute Resolution) Regulations 2004 and application of the correlation principle: that is that a claim must relate to a prior written grievance. I will refer to the parties as the Claimants and the Respondent.

Introduction

2. It is an appeal by the Claimants in those proceedings against a judgment of Employment Judge Prichard sitting alone at a PHR at Shrewsbury registered with Reasons on 29 October 2009. Miss Craig was represented by Mr Patrick Green of Counsel and Mrs Goodman and Mrs Aramayo by Mr Hirst, Solicitor, the Respondent by Mr Oliver Segal of Counsel.
3. The Claimants claim that their employer, the Unison branch for employees of Shropshire County Council, had caused them detriment by reason of their making a public interest disclosure. The Respondent contended the above allegation was not preceded by a written grievance. In form, the PHR was about amendment of the claim but in substance it is about whether a whistle-blowing grievance was made in writing. The Employment Judge decided it was not; the Claimants appealed. I gave directions for a Full Hearing.
4. The relevant provisions of the legislation are not in dispute. Section 32(2) of the Employment Act 2002 provides as follows:

"32. (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 paragraph 6 or 9 of Schedule 2 applies, and

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

5. Regulation 2(2) of the 2004 Regulations provides 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)."

6. These Regulations indicate the steps to be taken. We are concerned here with the standard procedure. A Step 1 grievance must be uttered in writing by a Claimant who seeks to raise a claim in subsequent Employment Tribunal proceedings.

The facts

7. The less I say about the facts the better, since this case lives on. The Respondent is a branch of Unison. It employs three people, the Claimants. On 14 April 2008 they raised a grievance. It included a complaint of bullying and harassment by officers of the branch, Mr Lou Gladden and Patricia Wilson, which caused two of the Claimants going off with workplace stress. Additional complaints were made about overzealous scrutiny of their work and the introduction of new workplace practices without consultation. All of this had a detrimental effect on the health of the three Claimants and undervalued their positions.
8. Mrs Goodman, is a Shop Steward of a competitor union, ACTS, and represents the three of them in certain of the challenges they make. In the grievance itself this passage occurs.

"Details of Grievance:

We wish to invoke a joint formal grievance for the following reasons:

+ That we, Julie and Kay, have been subjected to bullying and harassment by Lou Gladden and Patricia Wilson which has resulted in an intolerable situation in the branch office and ultimately in both of us going off sick with workplace stress.

+ That all our work has been subjected to unacceptable scrutiny and unfounded criticism.

+ New systems and workplace practises have been introduced, without consultation, making our job difficult to perform to the best of our abilities (in some cases this has prevented us from carrying out some duties completely) and resulting in an appearance of incompetence.

+ Again, without consultation aspects of our work have been needlessly undertaken by a branch officer.

All of the above issues have had a detrimental effect on our health and have seriously undermined and undervalued our positions.

Details of attempts to resolve grievance informally:

In our personal employee role and Kay in her role as ACTS BES Steward there have been numerous informal discussions, an informal meeting with the ACTS West Midlands Senior Steward and various interventions from other branch officers. None of these has resulted in an improvement in the situation and in many ways it would appear to have aggravated it."

9. As a result, the regional office of the union set up an independent grievance panel to investigate. On 1 July 2008 at a long meeting of the panel with the Claimants the allegations were put. So far as is relevant to the appeal there is this.

"Julie said that Kay was aware of the general situation and Anne (colleague & former Office Manager now retired) had been aware that Julie was having problems with Lou. Julie said that Anne had spoken to Lou although Julie had initially asked her not to because Julie thought it would make matters worse. Julie said this was all in Anne Baker's written statement.

Julie said that she could no longer work with him. She said that her colleagues were, and still are being detrimentally affected by Lou and Patricia. She said that Lou and Patricia had become malicious and they had tried to make all of their lives at work impossible. Julie said she felt it was difficult for her to defend her colleagues when she was being attacked herself."

10. The sick pay regime within the branch corresponded to that within the local authority so that a worker was entitled to full pay for six months and then to half pay for six months. Attempts were made by the branch to introduce half pay for the Claimants. Mrs Goodman, as accredited shop steward for the three, raised the new claim on 15 September 2008 that while the Claimants were off work on work-related stress, it was inappropriate for one of the persons complained against, Patricia Wilson, to access the payroll and thus, as she put it, "To allow you to carry on harassing us".

The claims

11. On 30 September 2008 Mrs Goodman sent an email which raises what I will call the unfairness issue. In substance it is this: the region appointed a panel to investigate the Claimants' grievance reported at the end of August. By the end of September the matter had been taken up by Mr Andrew McLaughlin, one of the persons against whom a complaint was made. It was unfair that what initially was an impartial Tribunal may have lacked fairness as a result of the intervention by Mr McLaughlin. It has to be said that even now the report of the investigation is not known to the Claimants.
12. On 8 October 2008 a letter on behalf of the Claimants said this.

"All three persons named in the grievance are more than fully aware of my request that full pay should have continued whilst this grievance was investigated as this forms part of the BES staff's terms & conditions. Not only have they not acted on this but they have campaigned actively to block and prevent this natural justice and agreed procedure from taking place. It would appear that decisions now taken in the name of the region are effectively designed to ensure that the agreed procedures are being circumvented by the region to prevent my member's rights to the appropriate mechanisms in place for dealing with this outstanding grievance. You would appreciate that this new regional action is only compounding the severe financial difficulties and detriment to all 3 aggrieved members who you will be aware remain absent from work due to workplace stress."

13. All three submitted further grievances. Close attention has been given to the second of these lodged with the Regional Secretary, Ms Broom, by a representative of the three Claimants, this time Mr Brown, in which he said the following,

"It is regarding what I see as an intolerable situation, actually now made worse by the official action by Regional Office, during the grievance procedure pursued by Branch employees Kay Goodman, Sarah Aramayo and Julie Craig against Shropshire County UNISON.

For months now I have supported my members and acted as assistant to Rachel Boynton in her role as Senior ACTS Steward in this case against the bullying allegations by Branch Officials. Every step of the way, it has appeared to me that forces are at work attempting to frustrate the grievance process and any level of natural justice that my members seek. This has now become so bad and you have even placed Rachel Boynton in an impossible situation which has left me with no alternative but to act in this manner on behalf of my members.

In fact, so much so, that it is with deep regret that the following must be said and a satisfactory resolution achieved with a matter of utmost urgency, otherwise there can be little option but to pursue a legal case against the actions of their Branch employer with citations against Regional Officer(s) for their involvement.

It must be assumed that the investigation had concluded that there was some basis for lodging the grievance and that there would be a proper hearing, otherwise it would hardly have been necessary to have collected it. Andrew Johnson, presumably with your knowledge and authority, has subsequently prevented any dialogue between us and the Staffing Committee of the Branch employer on the grounds, it would appear, that due to information received by you from one or more of the people against whom the grievance has been raised, you assumed that this committee had not been correctly elected. I understand that you have subsequently received notification that this committee was indeed properly convened, yet you have failed to revise or adequately clarify your position, only making matters worse with your implementation of the authorisation from the Chair of the UNISON NEC D&O Committee. On the face of this, it therefore appears that you have acted inappropriately, outside of your powers and without the full facts of the case at hand.

As a result of these actions, by Region, two BES employees (Kay Goodman & Julie Craig) have now gone on to half pay and also suffered further financial detriment beyond that, with SSP and SSP1 forms not being correctly administered; and have had contractual rights, (within their UNISON terms and conditions of service) to request to stay on full pay beyond their contractual right to do so, removed."

14. There are further references in this document to "detriment" and to "further harassment". There is a threat of legal action if these matters are not resolved. A similar grievance was lodged on 10 October 2008 on behalf of the three Claimants in which the essential points are that the grievance has been outstanding for more than seven months and it ought to be resolved as soon as possible and that the time for solving a grievance of seven months was wholly unacceptable. In addition, the unfairness point is squarely raised. There is a further reference to the change in the pay structures for two of the Claimants who would go on to half pay.

The findings

15. Those two latter documents are the principal vehicle for the contention on behalf of the Claimants that a grievance had been lodged in respect of whistle blowing. I have read the other documents because all representatives before me contend that context should be looked at. It is also instructive to note that Mrs Aramayo said that she had been subjected to a campaign of sustained bullying and that her grievance was more of a whistle-blowing exercise, indicating current actions after the initial April grievance were detrimental to her.
16. The judge considered the two primary documents. It is important to note that complaints made by the Claimants included by reference to the April grievance the following:

"Since that time their situation has not improved. They complain that the grievances were dealt with by the very people whose bullying they were complaining of. They assert they made protected disclosures; the Respondents rightly concede that the grievances could amount to a protected disclosure. The Claimants say that their treatment since 14 April 2008 can be categorised as a detriment."

17. To that (the unfairness point) can be added the pay point. In simple terms it is that if the grievance had been concluded in their favour within six months, the issue of half pay would not have arisen. To use Mr Segal's term, the branch is categorised as "dithering". That too is a complaint made by the Claimants: it has taken too long, as a result of which they have suffered the detriment, not only of the dithering, but of the financial detriment in the pay of two of them.
18. The judge reviewed the relevant authorities but crucially, in my judgment, not the judgment of Underhill P in Evershed v New Star Asset Management [2009] UKEAT/0249/09, BAILII: [2009] UKEAT 0249_09_3107. That is not a criticism for it came before this.
19. The judge decided that there was no relationship between the claim sought to be put and the grievances to which I have referred. The grounds of the claim are set out in a draft amendment which squarely places this as a whistle-blowing claim under section 43B of the Employment Rights Act 1996. Detriment has been suffered as a result of having made what is acknowledged to be a protected disclosure for the purposes of the Employment Rights Act 1996. The ways in which it is said to be a detriment are set out in eight numbered paragraphs. The Claimants identify matters which are of detriment to each of them following the submission of the April grievance.

The submissions

20. In simple terms, Mr Green, whom Mr Hirst followed, is this. On their face the grievances in October do allude to a proper claim of whistle blowing. If not, the claim which is now made can be adduced from an examination of the context of these two grievances. Thirdly, if it is possible to hold as a matter of law that a grievance need not be issued after a grievance already made (see Shergold v Fieldway Medical Centre [2006] ICR 304) the April grievance itself is sufficient.
21. On behalf of the Respondent Mr Segal accepts substantially the analysis of the law advanced by Mr Green but contends that this case is simply one of perversity, as to which there is no formal ground. This appeal is an objection to the facts found by the judge whose task was to analyse the documents and the context and come to a conclusion. Mr Segal acknowledges that the detriment of the women is that the April grievance was taking too long and that there was an actual reduction in pay. He accepted when I put it to him that the Regulations and the statute do not require the Claimant to invoke the statute itself upon which the claim is to be made provided you could identify from the grievance what the claim was. Mr Segal accepts if the employee says, "I put in a grievance; now look what has happened" that it would be perverse to say that there was no implicit complaint of whistle blowing.

Discussion and conclusions

22. Mr Green is right. The primary source is the two grievances in October 2008. The position presented to the Claimants is not uncommon and is explicitly dealt with in Evershed above. That is, an employee puts in a complaint or a grievance and then suffers detriment. In Evershed the Claimant made a complaint of bullying against two of the Chief Officers and that day was suspended in a humiliating way and resigned five days later. No specific grievance was raised as a result of the suspension and the humiliation.
23. The point is that this legislation is designed to protect those who make a protected disclosure from, in its non-technical sense, victimisation. Harm comes to an employee who has made a protected disclosure as a result of that disclosure and all the elements of liability with detriment are included. In this case the factual basis is easy to assert. The April grievance is a qualifying and a protected disclosure. If action is taken against an employee for having made that disclosure it is unlawful if it results in detriment.
24. As I have shown from the background documents, what happened to the Claimants is attributable to their raising grievances. To claim that an officer of the Respondent interfered with the Claimants' access to the pay structure to challenge a reduction in pay and to claim that the people against whom a grievance was taken out were launching a campaign against them are both, in my judgment, capable of being actions taken by an employer on the grounds that the Claimant made protected disclosures.
25. These three women made a protected disclosure in April 2008 and things became materially worse for them. Their grievance was not held quickly, it is (at least on their claims, and I put it no higher) interfered with by those against whom the complaints were made and as a result of this matter taking so long they have lost pay.
26. The grievances themselves, against the background of the continuing allegations made in the formal investigation on 1 July and the subsequent correspondence which I have cited above, would show that action complained of by this employer was taken as a result of making the initial grievance. In terms, the letters of grievance in October mentioned detriment; they mention the actions which are complained about, including the antipathy of the Respondent. In the context in which these grievances arise by reference to the history from April to October, these grievances, in my judgment, include a claim of whistle blowing.
27. I accept the proposition of Mr Green that Regulation 2(2) is of assistance. It is possible that the Claimants raise claims based on other forms of statutory victimisation. If, for example, the April grievances were treated as an allegation of sex discrimination, these are three women complaining of actions in part by a man; or if they were allegations under section 100 of breach of health and safety, or if they were allegations that as trade unionists they had raised complaints, it does not destroy the assertion that they are also made of whistle blowing. It seems to me that the grievances themselves read in context would disclose that. I do not accept Mr Segal's imagery that this is a thinly-disguised perversity appeal. It is not; it is a misdirection. I accept the submissions of Mr Green that the judge erred in paragraph 8 when he said the following:

"The confusion which has arisen is between the fact of a written grievance and the purpose of the grievance. I reject Mr Green's submission that the mere fact of a further grievance being sent (following the earlier complaint of bullying) must imply a complaint of victimisation and statutory detriment into the bullying grievance."

28. Although Mr Green is there reported as being rejected by the judge, that is a misdirection. As Lord Steyn, the latest in a long line of jurists, has indicated, "In law, context is everything". The judge also erred and misdirected himself in paragraph 9 in that the gateways which are open to the Claimant under this section are not excluded because other claims may get through the same gateway.
29. If I am wrong about the construction in context of the letters, I would also apply Underhill P's approach to what is described as the "no grievance" part of his judgment in Evershed. This is based upon an analysis of what Burton P said in Shergold and it is this.

"26. What matters is the tacit acceptance that there was originally a valid grievance. It is true that the grievance lodged on the morning of 18 September did not cover the suspension which occurred later that day; but that is not necessarily fatal. In Shergold v Fieldway Medical Centre [2006] ICR 304 this Tribunal, Burton J presiding, held that a claimant who has lodged a grievance about unreasonable conduct on the part of his employer is not necessarily obliged to lodge further grievances about each subsequent instance of such behaviour, even if that is relied on as the "last straw". See at para 37 (p.316). But even if it is debateable whether that approach applied in the present case, s32(2) only bites if the ET1 reveals that no grievance has been lodged (which it does not do in the present case) or if the employer takes the point (which he has not): see s32(6).

27. … no grievance has been lodged labelling the suspension as a response to a protected disclosure; but if there was no obligation for the grievance to complain about the suspension in the first place, that can hardly undermine its validity."

30. That recognises the realistic position that the law is here to protect people who raise a grievance which is accepted to be a protected disclosure and then suffer further action. It seems to me, therefore, that if the President were making a determination that it was not necessary to raise a subsequent grievance when the substance of the grievance had already been articulated, it would apply in this case too. There is a continuation of the bullying and harassment; it now takes different forms. The forces at work are those of the persons complained against and action has been taken which causes a detriment. I would be prepared, if necessary, and if wrong about the first point, to apply that to this case.
31. I have considered carefully the adoption by the Court of Appeal in Suffolk Mental Health Partnership NHS Trust v Hurst [2009] EWCA Civ 309 of what Elias P said in the EAT in that case. Pill LJ said:

"62. I have reached the conclusion that the submissions of the Claimants are correct and that only the minimum requirement is necessary when raising a statement of grievance. In my judgment, it is enough for the Claimant to indicate that he or she is pursuing an equal pay claim. That is compatible with the definition of a "grievance". The employee has made it plain that she objects to action taken by the employer, namely the failure to pay the sum due to her, and by identifying the claim as an equal pay claim she is also revealing the reason why she is saying that. She is not, for example, contending that there has been a failure to pay as a result of some mistake or because overtime hours have not been counted, or because her rate is below the minimum wage, or anything of that nature. The employer knows that the allegation is that a comparable man doing equal work (whether that is work rated as equivalent, equal value, or like work) is receiving more than she is and he ought not to be. That much is inherent in the action being identified as an Equal Pay Act claim.

64. This construction is supported, in my view, by considerations of policy. The effect of construing the concept of "the grievance" too widely is that Claimants - who will often in this jurisprudence be litigants in person - are denied the opportunity to bring their claims altogether if they have not raised a relevant grievance in time. That is a draconian step to take for what might be a purely technical failure to comply with the Regulations. In my judgment it is particularly important to recognise that the logic of the argument advanced by the employers is that even if the employee in fact provides orally all relevant details of the claim so that the employer has every opportunity to deal fully with the grievance (and indeed perhaps he even does so, albeit not to the employee's satisfaction), the failure to comply with paragraph 6 by formally identifying the comparators (by name or job) will still prevent the Tribunal from hearing the claims. That would in my view be a deeply unattractive position for the law to adopt and would be wholly inconsistent with the objective of the statute.

70. If my construction of what constitutes a grievance is correct, it follows that the correlation principle will in practice be very easy to satisfy. If the grievance states that the complaint is an equal pay complaint, a claim form which reflects that fact will suffice whether the details of the claim are provided or not. Again, this does not make the exercise a pointless one. If the claim raises claims of a quite different jurisdiction, for example a dismissal claim or redundancy, there will obviously be no correlation."

32. For those reasons the appeal is allowed.
33. After canvassing with all advocates the likely disposal of this matter, I decided that this should be sent back to the Employment Judge. The issue was fully argued before him on the basis of what is known as Selkent principles. The judge was wrong in paragraph 10 in basing his refusal to allow the amendment simply on the jurisdiction point. The judge's mind was obviously turned to the jurisdiction point first and to amendment later. Now that the jurisdiction issue has been resolved, this matter should go back to be determined at first instance. There will be fierce argument as to whether or not this is simply a relabelling or the introduction of a whole new claim and the application of Selkent principles. This will go back to Employment Judge Prichard. This meets the overriding objective and is not "ping pong" as described by Jacob LJ in Buckland [2010] EWCA Civ 121. This matter might conveniently be dealt with on the Selkent principles on either written submissions or with Counsel in attendance.
34. The appeal is allowed and the point remitted. Permission to appeal is refused [for reasons not transcribed].