United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IAN SCOTT (of Counsel) Instructed by: Messrs Simpsons Solicitors 3rd Floor, Thorne House 36 Station Road Cheadle Hulme Cheadle SK8 7AB
For the Respondent	MR RICHARD CASE (of Counsel) Instructed by: Leicester City Council Legal Services New Walk Centre Welford Place Leicester LE1 6ZG


 


SUMMARY

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

A grievance for the purposes of the now repealed section 32 Employment Act 2002 could be constituted by a letter incorporating the particulars of complaint in a previously lodged ET1 in other proceedings. Gibbs t/a Jarlands Financial Services v Harris UKEAT/0023/07 distinguished. The inclusion of other issues did not distract from the status of the letter as raising a grievance.

Canary Wharf v Edebe [2006] IRLR 416 followed.


 


THE HONOURABLE MRS JUSTICE SLADE DBE

Introduction

1. The Appellant Claimant appeals from the judgment of an Employment Judge on a pre-hearing review, judgment entered in the register on 24 March 2010. The Employment Judge held that the Claimant had failed to comply with the statutory grievance procedure as required by the now repealed section 32 of the Employment Act 2002 in respect of four allegations made in an ET1 presented on 5 June 2009. These claims are called the claims in issue and the ET1 presented on 5 June 2009 the second ET1. The Claimant had presented a claim form on 14 March 2009 ('the first ET1'). The parties will be referred to by their titles below.
2. The claims in issue were of direct disability and/or race discrimination and of failure to make reasonable adjustments under the Disability Discrimination Act 1995. The Employment Judge found that the Claimant had failed to comply with section 32 of the Employment Act 2002 in respect of the claims in the first ET1 that the Respondent : (1) decided to instruct a fresh medical expert on its own account for a further medical opinion as to the Claimant's ability to return to work; (2) failed to provide adequate or complete instructions to Dr Mallett in relation to return to work; (3) failed to discuss or actively consider the Claimant's return to work as alleged at paragraph 17; (4) discriminated against the Claimant by declining the invitation of Dr Holden the jointly instructed medical expert in personal injury proceedings brought by the Claimant against the Respondent to comment on the Respondent's expert Dr Mallett's report as alleged at paragraph 21.
3. The Claimant contended that a letter of 20 March 2009, incorporating the statement of grounds of application in the first ET1 constituted a grievance in relation to those claims. The issue to be resolved in this appeal is whether the Employment Judge erred in law in concluding that the 20 March 2009 letter did not fulfil the requirements of a Step 1 grievance in respect of the four claims in issue.
4. The Respondent cross-appeals from what is said to be a decision of the Employment Judge that time in respect of the non-dismissal issues in the claim made in second ET1 ran from 15 December 2008, which was the date of dismissal of the Claimant. It was rightly accepted by Mr Scott on behalf of the Claimant that the issue of whether claims were in time was not to be the subject of the pre-hearing review. Either the start of running of time was not determined at the pre-hearing review or, if it was, it was decided in error in that the Employment Judge did so without notice to the parties and without the opportunity for submissions to be made on the issue. In those circumstances the cross-appeal is either to be allowed or else is academic. I have invited counsel to reach an agreed Order on the cross-appeal.

The Facts

5. The relevant facts may be summarised as follows. The Claimant commenced employment with the Respondent as a Community Learning Manager or Learning Zone Co-ordinator in the Adults and Housing Department. In 2006 he brought personal injury proceedings against the Respondent in which he claimed he had sustained psychiatric illness caused by work-related stress. A joint medical expert was appointed in those proceedings. In February 2008 a settlement was reached between the parties and on 22 February 2008 a phased return to work plan was agreed with a proposed date for return of 6 May 2008.
6. In circumstances in which I will not deal with in the course of this judgment because there will no doubt be considered and determined hereafter if these claims are to proceed, the return to work plan was not implemented. On 27 May 2008, the Claimant sent an email to the Respondent notifying them that he wished to register a formal grievance against whoever was responsible for what he described as the "utter mess of my supposed return to work". The Respondent instructed a medical expert. The medical expert wrote that the Claimant would be at risk if he returned to work. Eventually, on 15 December 2008, after the Claimant attended a meeting, he was informed that the Respondent had decided to dismiss him.
7. On 14 March 2009, the Claimant lodged his first ET1, claiming unfair dismissal, race discrimination and disability discrimination. The particulars of the application settled by solicitors ran to 28 pages. In the ET1, the solicitors indicated that, whilst the Claimant had lodged a grievance on 27 May 2008 regarding two of the matters complained of, further events had occurred which had not been grieved separately. The solicitors stated that:

"In the circumstances it is accepted that the claims for continuing discrimination prior to the dismissal will be subject to the pre-acceptance protocol. The Claimant will lodge a further grievance dealing with the additional acts of disability/racial discrimination within the next 28 days."

8. By a letter of 20 March 2009 the Claimant's solicitors wrote to the Respondent as follows,

"I enclose a copy of the grounds of application which has been lodged at the Leicester Employment Tribunal with regard to Mr Raithatha's dismissal and the allegations of a failure to make reasonable adjustments and race discrimination during the period leading up to his dismissal.

In order to ensure that the statutory grievance and disciplinary procedures have been complied with I would be grateful if you could treat this letter as a Step 1 grievance letter with regard to the allegations of race and disability discrimination leading to the decision to dismiss as set out in the Grounds of Application. I confirm however that Mr Raithatha is content to have this matter dealt with by the modified grievance procedure particularly as I note from the appeal documentation that many of these issues have already been raised in that forum."

9. It does not appear that the matter was dealt with under the modified procedure and argument has concentrated on paragraph 6 standard grievance procedure.
10. The Claimant then presented the second ET1, attaching the very same grounds of application which had been attached to the first ET1. In their ET3 to the second claim, the Respondents stated at paragraph 4 to their grounds of resistance:

"The Claimant's representative, by letter dated 20 March 2009, requested that the Respondent treat their letter as a grievance for the purpose of the Statutory Grievance Procedure. The letter does not contain any detail of the Claimant's grievance and simply refers the Respondent to the Claimant's Grounds of Application in the first claim."

The Judgment of the Employment Judge

11. The Employment Judge records that counsel for the Claimant argued that the letter of 20 March 2009 constituted a valid grievance by incorporation of the allegations in the particulars of the application made in the first ET1. Counsel recognised as a result of the case of Gibbs t/a Jarlands Financial Services v Harris UKEAT/0023/07 that the claim form could not have itself constituted a grievance. However, he sought to distinguish that case on the basis that what was done in the instant case was to incorporate the first ET1 particulars into a letter and contended that the letter incorporating the allegations in the ET1 constituted a grievance for the purpose of the statutory procedure in relation to the claims made in the second ET1.
12. It was contended before the Employment Judge that it would have made no difference if the Claimant's advisors had cut and pasted sections from the ET1 into the letter of 20 March 2009. The Employment Judge observed that the litigation process and grievance process are separate and distinct, and in this regard he referred to the judgment of Wilkie J in the Employment Appeal Tribunal in the Gibbs case and that merely sending a copy of the grounds of application in a proposed claim cannot be the pursuit of a grievance. More importantly, he held that the letter of 20 March 2009 does not satisfy the criteria set out by the Employment Appeal Tribunal, Elias J (President) (as he then was) Canary Wharf Management Ltd v Edebe [2006] IRLR 416. The Employment Judge held at paragraph 18:

"It cannot be said that the letter and enclosures are raising a grievance which is to be the subject matter complained of. It does not, for example, tell the employers which matters are still outstanding and which have been resolved. The claim form sets out allegations as to unfair dismissal which have nothing to do with the grievance procedure.

…

At the end of the day the respondent is left guessing as to which matters constitute a grievance and which do not. That does not in my judgment comply with either the letter or the spirit of the Act or the guidance given in Canary Wharf. Employers are entitled to know what the outstanding grievances are and neither the letter of 20 March nor the claim form fails to make it tolerably clear which grievances as opposed to complaints are being raised.

19. Whilst I accept that the employee may have been able to comply with its obligations by a cut and paste exercise, there are two observations in respect of that. The first is that the claimant did not in fact cut and paste parts of the claim form into the letter and so has failed to undertake that task. [...] Secondly, if the claimant or his advisors had addressed their minds to the issue, some thought may have gone into those areas which were still disputed, or extant, and those which had been resolved."

The Relevant Statutory Provisions

13. The Employment Act 2002, section 32(2):

"(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 [...]

(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4)"

14. Employment Act 2002 (Dispute Resolution) Regulations 2004:

Regulation 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;"

Regulation 2(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)."

15. Employment Act 2002 Schedule 2(6):

"Part 2: Grievance procedures

Chapter 1: Standard procedure

Step 1: statement of grievance

…

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

Contentions of the Parties

16. Mr Scott for the Appellant contended that the letter of 20 March 2009 properly raised a grievance in relation to the four claims in issue in the second ET1. It expressly incorporated the grounds of application set out in the first ET1. It was to be treated as a Step 1 letter in respect of the race and disability allegations leading up to dismissal. It was contended that these were easily identifiable from the body of the ET1 as illustrated by the fact that they were dealt with by the parties by reference to particular paragraphs of the ET1 in the proceedings before the Employment Judge.
17. Further, the first ET1 made it clear that claims of disability and race discrimination would be the subject of the grievance within the next 28 days. Each allegation included after a full recitation of the relevant facts, a reference to the statutory provision under which the particular claim was brought. Mr Scott contended that Gibbs upon which the Employment Judge placed reliance is to be distinguished from the instant case. In Gibbs the Tribunal and then the Employment Appeal Tribunal was considering a narrow and different issue. That was stated by the Employment Appeal Tribunal in Gibbs at paragraph 2:

"The heart of this case is the important question whether, within the statutory framework of Part 3 of the Employment Act 2002, an ET1 can constitute part of the statutory grievance procedure so as to enable an employee to commence proceedings by means of a second ET1, relying on the first as satisfying the prior procedure which has to be gone through before the Tribunal can accept a claim as properly made."

18. Mr Scott also made reference to paragraph 8 of the judgment in Gibbs:

"Ms Dennis, who appears for the Appellant (the Respondent below)... says that what she relies on is a single major proposition, which is that within the statutory scheme an ET1 cannot constitute a written grievance. I have therefore to look at the statutory scheme in order to see whether this is a good argument."

19. Mr Scott contended that the issue in Gibbs was whether the ET1 could, in and of itself, amount to a grievance, whereas in this case the grievances were set out in writing in the letter of 20 March 2009 which incorporates the first ET1. Mr Scott contended that the Employment Judge misunderstood or misapplied the principles set out in Canary Wharf v Edebe in that he erroneously held that the letter of 20 March 2009 was not a grievance within the statutory procedure because it did not inform the employer which matters were still outstanding and which had been resolved. Further it was said by Mr Scott that the Employment Judge wrongly took into account the fact that the first claim contained allegations of unfair dismissal in addition to other non-dismissal issues.
20. Mr Scott referred to paragraph 20 of Canary Wharf to contend that the inclusion of allegations of unfair dismissal could not affect the validity of the Step 1 grievance letter, as is made plain by the 2004 Regulations, regulation 2(2). Further, he submitted that the Employment Judge adopted an over-technical approach. He pointed out that the Employment Judge accepted that if the Claimant's representatives had cut and pasted sections of the ET1 particulars into the letter, that may have been acceptable. He contends that that acceptance by the Employment Judge illustrates the over-technical approach that was adopted to considering whether the letter incorporating the particulars of the first ET1 was a grievance.
21. Mr Case for the Respondent contended that attaching the original particulars in the ET1 to the letter of 20 March 2009 did not satisfy the statutory grievance requirements. He contended that an ET1 is not a grievance even when attached to a letter. In this regard he relied on Gibbs, the authority also referred to and relied upon by the Employment Judge. Secondly, he contended that the letter of 20 March 2009, incorporating as it did the ET1 particulars, had failed to distinguish a claim and a complaint, and in this regard the Employment Judge was right to consider that the letter did not constitute a grievance for the purpose of the statutory regime.
22. Mr Case rightly accepted that the Employment Judge did not base his decision on a proposition that, in this case, litigation of the matters at issue had commenced before a grievance was raised. Therefore the question of whether the grievance was raised after litigation in respect of its subject matter did not arise. Accordingly the principle explored by Wilkie J in Gibbs in this regard did not arise for consideration in this case. Mr Case pointed out that the Claimant knew what was required of him in putting a grievance in writing in order that claims could be made in the Employment Tribunal. He said that this was evidenced by the reference in the first ET1 to the need for another grievance letter.
23. Mr Case referred to the case of Shergold v Fieldway Medical Centre [2006] IRLR 76 paragraph 27, regarding the purpose of the legislation which is to encourage conciliation, agreement and compromise by settlement, rather than to precipitate the issue of proceedings. Further, he contended that the objective of the statutory grievance regime can be met as was explained by Elias J (as he then was) in Canary Wharf, if, on a fair reading of a statement sent by an employee to his employer and having regard to the context, the employer can be expected to appreciate that the relevant complaint is being raised.
24. Mr Case submits that whilst the Employment Judge erroneously considered that the inclusion in a letter, purporting to be a grievance, of matters other than those which are properly to be regarded as the subject of a grievance undermined the status of the letter as a grievance in itself, nonetheless, the Employment Judge's conclusion as to the status of the letter of 20 March 2009 was not reached in error of law and should be upheld.

Discussion and Conclusion

25. The basis of the judgment of the Employment Judge is that, first, as in the Gibbs case, the sending of an ET1 is not a presentation of a grievance to an employer. The Employment Judge held that, "It is instead in the nature of putting the employer on notice as to what the proposed litigation is going to be about. To do so in my view is therefore contrary to the philosophy and purpose of the 2002 Act". The Employment Judge then relied on the fact that the letter of 20 March 2009 with its enclosures raised matters which went beyond the complaints at issue. It failed to tell the employer which matters were still outstanding and which had been resolved, and failed to inform the employers which matters are outstanding grievances and which are not. The letter also included allegations of unfair dismissal which had nothing to do with the grievance procedure.
26. The Employment Judge placed considerable reliance on these two factors: first, the inclusion in the letter and its enclosed document of matters which were not subject to the grievance, and; secondly, that it failed to distinguish between complaints which had been and which had not been resolved. The Employment Judge regarded those factors as undermining the status of the letter and its enclosures as constituting a grievance within the meaning of the statutory regime.
27. In my judgment Gibbs is to be distinguished from the current case. As Mr Scott rightly observes, in Gibbs the issue was whether an ET1 can constitute a statutory grievance. The issue was whether the lodging of the ET1 and its service by the Tribunal Service on the employer constituted a grievance within the meaning of the statutory procedure. That situation is, in my judgment, distinguishable from that in the present, in which there was a letter stating that it was to be treated as a Step 1 grievance as to its content and subject matter. The letter incorporated by reference the detailed material which was attached, the particulars of the allegations made in the first ET1.
28. The practice of making a grievance in this way adopted on behalf of the Claimant could give rise to difficulty as the current proceedings illustrate. That observation may be somewhat redundant in that the legislation regarding the requirement to raise a grievance before lodging an ET1 has now been repealed. That said, in my judgment the Employment Judge erred in relying on Gibbs to conclude that what was done by including the particulars in the first ET1 as an attachment to the letter of 20 March 2009 was not the pursuit of a grievance but merely putting the employer on notice as to what the proposed litigation was going to be about.
29. Further in my judgment it is clear that the inclusion in a grievance letter of matters which are not properly to be regarded as the subject of the grievance does not undermine its status. Therefore, the inclusion, by reference, in the letter of 20 March 2009 of complaints regarding dismissal and complaints or claims which may have been the subject of an earlier grievance does not undermine its status as raising a grievance in relation to the matters at issue. Further, there is no basis in my judgment for the submission of Mr Case that the inclusion in the letter of claims as well as complaints undermines its status as a grievance letter in relation to matters of which complaint is made.
30. There is no reason in my judgment why the inclusion of a claim as well as a complaint in the document should undermine the status of that document as raising a grievance.
31. What is required by statute is that an employee must set out his grievance in writing and send a statement or a copy of it to the employer. The grievance means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him. Other matters may be included in that statement. To do so does not undermine its status as a grievance. Elias P (as he then was) in the Canary Wharf case extracted a series of propositions from previous authorities, including Shergold v Fieldway Medical Centre [2006] IRLR 76 and Galaxy Showers Ltd v Wilson [2006] IRLR 83. The Employment Appeal Tribunal observed:

"19. First, the timing of the grievance. There is no maximum time limit prior to the lodging of the claim to the Tribunal in which the grievance must have been raised. [...] That is not to say, however, that the act of raising a complaint months or years prior to lodging the Tribunal claim will necessarily constitute the appropriate raising of the grievance. The grievance must be extant. If it can no longer properly be said to be an outstanding grievance, perhaps because it was apparently satisfactorily dealt with or because the employee has not pursued it in circumstances where it may properly be inferred that he no longer wishes to have it determined, then it will be necessary for the employee to raise the complaint again in written form.

20. Second, the form of the grievance. There is considerable flexibility about that. It may be raised in a resignation letter (as here). It may even be raised after a dismissal has taken effect (indeed that is one of the conditions for the application of the modified procedures). It may be raised by a solicitor in a communication to the employer's solicitor (as in the Mark Warner case.) It matters not that other issues are raised at the same time as the complaint, whether additional complaints or otherwise. (See regulation 2(2).)"

In paragraph 21 the Employment Appeal Tribunal deal with the content of the complaint and the relationship that it must bear to the claim made in an ET1. That is not an issue in this case. The EAT held:

"22. It is not even necessary that the employee should indicate that he wants or expects the complaint to be dealt with; he does not need to be actively invoking the grievance procedure, statutory or contractual. The paragraph is satisfied simply if the complaint is made. Once that occurs, the onus falls on the employer to arrange a meeting to deal with a grievance although the employee will then have to notify the employer of the basis of that grievance.

…

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

32. Applying those principles to the judgment of the Employment Judge in this case, did the Employment Judge err? In my judgment, the letter of 20 March 2009 incorporates the particulars of the first claim of 14 March 2009 by reference. These facts are distinguishable from those in Gibbs in which the lodging of an ET1 was relied upon as the presentation of a grievance. Further, the fact that the letter of 20 March 2009 and its enclosures includes other complaints, namely of dismissal and of resolved claims, does not detract from its status as a grievance.
33. The passage from Canary Wharf relied upon by the Employment Judge in relation to resolved claims, with respect, in my judgment, is taken out of context and does not support the proposition advanced by him. In Canary Wharf the consideration of whether a claim was extant was in the context of the time at which it was made: was it made so long ago that it may be regarded as no longer a live complaint. That is a different situation from that in this case. There was no suggestion that any of the four matters at issue were resolved. The fact that one part of one of the matters of which complaint were made - the question of whether the Claimant should have received half sick pay or full sick pay - had been resolved, is not to the point, bearing in mind in particular that the Employment Judge considered that there was still a live complaint that the Claimant's pay had been stopped or reduced in 2008. The fact that resolved complaint is referred to in the document together with live complaints in my judgment does not undermine the fact that the document contains a statement of grievance in relation to the live complaints.
34. The real issue in considering whether a document constitutes a grievance is whether, on a fair reading and having regard to its context, the employers could be expected to appreciate that the relevant complaints are being made. Relying on an unspecified letter incorporating an ET1 grounds of application may not be a safe or satisfactory way of conveying to an employer what the subject matter of a grievance is, and it may well be that in many contexts it would not have satisfied the requirements of a statutory grievance.
35. However, in this case the letter of 20 March 2009, has to be read with, the grounds of the first application to the Employment Tribunal which it incorporates. The grounds set out complaints of events including those after the first grievance, namely that in the email of 27 May 2008. It is to be noted that the Respondent did not state that they did not know what the grievance was about. Their challenge to the letter of 20 March 2009 as constituting a written grievance was on technical grounds. In context and having regard to the history of this matter, in my judgment the employers on a fair reading of the letter, which includes the grounds of the first ET1 in the terms of the Canary Wharf judgment (at paragraph 25) could be expected to appreciate that the complaint was being made of various issues, including the four issues, which are the subject of this appeal.
36. Accordingly the appeal is allowed and the four claims at issue in addition to the two which the Employment Judge permitted to proceed are to proceed to a full merits hearing. At that merits hearing it may well be that time points may be raised and will have to be determined.