United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR OLIVER HYAMS (of Counsel)
For the Respondent	MR DAVID MONK (of Counsel) Instructed by: Messrs Howes Percival LLP Solicitors No. 1 Bede Island Road Bede Island Business park Leicester LE2 7EA


 


SUMMARY

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

Whether the statutory grievance procedure applies to a claim of post-termination victimisation. It does.


 


HIS HONOUR JUDGE PETER CLARK

1. The parties in this matter proceeding before the Leicester Employment Tribunal were Dr Parmar, Claimant, and East Leicester Medical Practice (ELMP), Respondent. The Claimant was employed by the Respondent for a short period between 1 October and 12 November 2007.
2. On 24 June 2008 he presented a Form ET1 to the Tribunal complaining of unfair dismissal and direct racial discrimination. On 16 December 2008 he refined and altered the nature of his claims by way of amendment, abandoning the unfair dismissal complaint and raising two specific complaints; first, race discrimination and victimisation during the period of his employment and secondly, a victimisation claim under the Race Relations Act 1976 (RRA) in respect of a reference provided for him by Dr Richard Moriarty of the Respondent dated 8 March 2008. The Claimant obtained a copy of that written reference on 22 May 2008.
3. We are not now concerned with the first of those complaints on appeal but the second (the reference complaint). All claims were resisted by the Respondent and came on for a pre-hearing review (PHR) before Employment Judge Threlfell on 6 October 2009. At that hearing the critical issue for our purposes arose out of a submission made by Mr Hyams, on behalf of the Claimant, that it was unnecessary for the Claimant to raise a written grievance in respect of the reference complaint so as to comply with the provisions of section 32 of the Employment Act 2002 (the 2002 Act). Specifically, in relation to the jurisdictions listed in Schedule 4 to the 2002 Act (which include the reference complaint brought under section 54 RRA), failure to lodge a valid grievance, where one is required, will bar the claim under section 32(2) and where a valid grievance has been lodged, 28 days must be allowed to elapse before a Form ET1 is lodged (section 32(3)). Those requirements are jurisdictional.
4. The Employment Judge considered that submission and held that insofar as the Claimant lodged a valid grievance on 7 June 2008 (and he doubted whether the Claimant's email of that date did constitute a valid grievance; see Observations at paragraphs 4, 14 and 16 of his reasons), there was a requirement that a grievance be submitted to the Respondent and, since the Form ET1 was lodged less than 28 days after the grievance email relied on by the Claimant, the claim was barred by section 32(3) (see paragraph 14 of the reasons).
5. Against that ruling the Claimant appealed. The appeal was considered at a preliminary hearing held before HHJ McMullen QC and members on 29 March 2010. The single question as to whether a statutory grievance was required in relation to a complaint of post-termination victimisation under the RRA was permitted to proceed to this full hearing.
6. Having considered the helpful submissions of counsel, we can express our view on that question quite shortly. It seems to us that the reference complaint is not brought under section 27A RRA, as Mr Hyams originally submitted, which is limited to claims of post-termination direct discrimination on grounds of race or ethnic or national origins only. That limitation is mirrored in the reverse burden of proof provisions in section 54A; both sections 27A and 54A having been inserted by SI 2003/1626 with effect from 19 July 2003 in order to implement EC Directive 2000/43. In Oyarce v Cheshire County Council [2008] IRLR 653 the Court of Appeal held that section 54A did not apply to claims of victimisation. It must follow we think that the same must apply to the identical wording in section 27A. However, we are satisfied that a claim of post-termination victimisation is justiciable under sections 2 and 4(2) RRA under the House of Lords ruling in Rhys-Harper v Relaxion [2003] ICR 867.
7. Turning to the statutory dispute procedure provisions in the 2002 Act and the Dispute Resolution Regulations 2004, a claim brought under section 54 RRA is included under Schedule 4 to the 2002 Act. Does the standard or modified procedure under Schedule 2 to that Act apply to this post-termination victimisation claim? We are satisfied that it does as a matter of statutory construction. Regulation 6 of the 2004 Regulations provides by regulation 6(1) that the grievance procedures apply in non-dismissal complaints excluding constructive dismissal complaints as defined in section 95(1)(c) ERA 1996 (see Regulation 6(5)) to complaints listed in Schedule 3 or 4 to the 2002 Act and by regulation 6(3) the modified procedure (see Schedule 2 paragraph 9 and following) applies (a) where the employee has ceased to be employed by the employer and (b)(i) where the employer was unaware of the grievance before the employment ceased.
8. Here the matter complained of, the reference, post-dated the termination of the Claimant's employment. It follows that the Respondent was unaware of the grievance before termination. Mr Hyams submits that the wording of regulation 6(3)(b)(i) sits uncomfortably with the concept of a post-termination complaint. That may or may not be but it is plainly caught by the wording in our judgment. He also submits, by reference to claims for breach of contract brought within the ET's jurisdiction by the Extension of Jurisdiction Order 1994, having first been trailed in the Industrial Relations Act 1971, that since no requirement exists to raise a grievance under section 32 of the 2002 Act for breach of contract, Parliament did not intend post-termination claims to be subjected to the section 32 regime.
9. We regard such claims as exceptional in the scheme of the Employment Tribunal's jurisdiction. It is, according to the researches of counsel and our own experience, the only non-statutory, that is common law claim, justiciable in the Employment Tribunal. Since such claims are also justiciable in the civil court, no purpose is served by barring out claims in the Employment Tribunal for want of a statutory grievance. Conversely, we note that the 1994 order is included in Schedule 3 to the 2002 Act and, thus, where a complaint is brought in the Employment Tribunal, non-compliance with a statutory grievance procedure by either the employer or the employee, will lead to an uplift or reduction in compensation in accordance with section 31 of the 2002 Act. In those circumstances, the dispute would simply move to a different jurisdiction and no reduction in court involvement would be achieved by including that particular head of complaint amongst the schedule for complaints. For these reasons, we reject Mr Hyams' submissions on the sole issue before us, preferring those of Mr Monk, and dismiss the appeal.
10. By way of postscript, in his preliminary hearing judgment at paragraph 13 Judge McMullen said this:

"The Claimant was shut out of raising a separate claim under the Race Relations Act based upon a discriminatory reference. While he had submitted a grievance he did not wait 28 days before issuing his claim form, and that is fatal, although he could apply to the Employment Tribunal for the exercise of discretion to extend time in a second claim form."

11. Encouraged by that observation, which it is common ground is unnecessary to the issues before the EAT division preliminary hearing, that is, what if any grounds of appeal should proceed to a full hearing? The Claimant has brought a fresh claim before the Employment Tribunal. A review application, with a view to excising that obiter remark from the preliminary hearing judgment Mr Monk tells us, was made by the Respondent. It was refused by Judge McMullen by his order dated 25 May 2010 but in his reasons for that refusal he indicated that the matter could be dealt with at this full hearing.
12. The specific issue raised in the review application was whether the Employment Judge had decided that the Claimant's email of 7 June raised a valid grievance. Mr Monk contends it did not and that the Employment Judge so found. Mr Hyams says that the point was not argued below. Having heard counsel on the matter, we are wholly satisfied that it would be unhelpful for this EAT division to make any further observations not necessary for determination of the issue in the appeal. We anticipate that at a PHR in the Employment Tribunal in the new claim, issues may arise as to (a) limitation, (b) issue estoppel and (c) the validity of the grievance. Determination of those issues, if the new claim is pursued, will be for the Employment Tribunal.