United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DESHPAL PANESAR (of Counsel) Instructed by: Messrs Cater Leydon Millard Solicitors 68 Milton Park Abingdon Oxon OX14 4RX
For the Respondent	MISS J WATSON (The Respondent in Person)


 


SUMMARY

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

The Employment Tribunal was in error when it held that matters advanced at a hearing had been the subject matter of a grievance. Parties could not be added as Respondents to a discrimination claim unless they were identified in the grievance.

It was not possible to add by amendment claims in respect of matters arising after the date of a grievance when no further grievance had been issued.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal from a decision of the Employment Tribunal at the East London hearing centre, Employment Judge Lamb sitting alone, sent to the parties on 24 February 2010. The matter came before His Honour Judge McMullen QC under rule 3(7) of the Employment Appeal Rules of Procedure on 8 April 2010 and he made an order under rule 3(7) that the matter was then referred by the Respondent to the President (Underhill J); and on 2 July 2010 Underhill J referred the matter to the full hearing which is taking place today.
2. The Employment Tribunal decision was taken at a case management discussion. The Employment Judge struck out part of the claim which had been originally on two grounds, on discrimination on the grounds of race and discrimination on the grounds of religion and belief. He struck out the claim relating to discrimination on the grounds of religion and belief on the basis of non-compliance with the grievance procedure requirements set out in Schedule 2 Part II of the Employment Act 2002. The Claimant had withdrawn claims that had been subject to previous proceedings but her other claims were permitted to be heard on the merits by the Employment Judge.
3. Let me start by saying something about the background to this matter. The Respondent is a company that provides custody services and assistance in the courts and the functions of keeping prisoners in custody attending court and acting as dock officers and what have you. The Claimant has worked for the Respondent for a number of years. It is right to say, and I do not think it necessary at this stage for me to go into any details, that the Claimant, for a considerable period of time, has had occasion to complain of harassment and bullying by her managers. She has complained long and loud and there is no doubt that she feels strongly about this matter, sufficiently strongly to have commenced two sets of proceedings which were compromised on 17 October 2007 by an agreement which is set out in a form COT1. One of the claims that she sought to bring she has recognised: this is a claim that a fellow worker had given details of her car to a prisoner who was an armed robber, was a matter that was comprised in the settlement agreement and it is therefore not being pursued.
4. The two earlier proceedings, so far as I can tell, were both issued in September 2007 and, as I have said, they were dealt with by the COT1 on 17 October. The Claimant had been dismissed but her appeal against dismissal was successful and she was reinstated on about 11 October, as I have said.
5. She has made a number of complaints. I will come to them shortly but although it has now been repealed at the relevant time the grievance procedures set out in Schedule 2 Part II of the Employment Act 2002 applied. They required an employee to set out a grievance in writing and send the statement or copy of it to the employer. This was to be followed by step two, which was a meeting:

"7(1) The employer must invite the employee to attend a meeting to discuss the grievance.

(2) The meeting must not take place unless –

(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and

(b) the employers has had a reasonable opportunity to consider his response to that information."

6. In this particular case a grievance was issued by the Claimant on 26 August 2008. I shall read out the statement of grievance which is addressed to Mr Gerry Anderson who I understand to have been in charge of HR at the appropriate depot of the Respondent company. It says:

"Dear Gerry Anderson, I write to inform you regarding your managers Rob Horton and Mike Fryer and their behaviour towards me as an employee, at Serco, regarding bullying and harassment, etc, these two have done so much wrong towards me as you and the company know, you sacked me, and put me through the court, for something I never did, you have used the court where you placed me, from Snaresbrook Crown Court, to issue a summons and the co-workers, in this Mike Fryer has been get away with doing this to me from 2004 until 2008, and this has got to stop. Him and Rob Horton, this is racial, and you are picking on.

I never did anything to Claire Springford you have put me and my family through this two time and I'm fed up with being bullied by these two managers, who have tried to get me to move, from my place of work."

7. A number of matters which the Claimant has subsequently identified as being acts of harassment or discrimination took place in January 2008 involving a Debbie Vale, who is said to have informed police of an alleged assault. The Claimant was prosecuted but acquitted. This is item 1 as identified at a case management discussion. Some time in June 2008, and this is item 8, it happened that at some unknown date between July and November 2008 the Claimant complained she was sent home early so she could not earn overtime. In July 2008 (this is item 5) she was told to start at 7.30 am to get the court ready but other staff were unhappy that she was given extra hours and three members of staff, Mr Watcher, Miss Vale and Mr Farhan had complained to the court manager. Also in July 2008 (this is item 6) staff told the Claimant that she had no authority to open the key safe. In August 2008 Louise and Stacey were told to go to another court or the Claimant go home to stop them talking together.
8. On 26 August she issued her grievance. On 1 September 2008 (this is item 9) and thereafter when the Claimant raised matters with Debbie Vale in relation to when she would work, she was told that Debbie Vale would prefer to work nights with Messrs Watcher and Farhan than with the Claimant and someone called Richard. On 9 October 2008 the ET1 was issued. Some time in 2009, I believe in January, Messrs Watcher, Farhan and others came to see what was in her locker. On February 2009 (this is item 7), when the Claimant complained when she went out to lunch and prayed in her own time and returned with a bag to put in her locker the staff wanted to know what she had in her bag. On 10 February (this is item 10) all other staff had their appraisals a week before the Claimant. On 13 February Mr Watcher and Miss Vale alleged that the Claimant was taking their food and the company's food. I should have mentioned that on 1 September 2008 the Claimant was invited to a grievance meeting on 10 September. At that grievance meeting, to which I will turn, the Claimant went into some detail. The meeting was held with Sheena Thomas, the area manager. It was attended also by Zeke Thomas, who was the court's manager, and Natalie Fearfan, the Clapham Administrator, neither of whom seemed to have played much part, certainly not as much part as Sheena Thomas.
9. It is right to say that the meeting, which went on for some time, enabled the Claimant to raise a number of complaints although it has to be said it is difficult, if not impossible, to identify those complaints with her grievance or with her ET1. But nonetheless the meeting went on for some time. She complained in general terms about bullying by Mike Fryer and Rob Horton and the meeting ended in this way. I am now looking at p93 of my bundle. The Claimant said:

"I needed to speak to someone who is not in that area to get it off my chest. I told [it is not altogether clear but it looks like someone whose name began with a C] what happened with the suspension. I have moved on but the company won't let me get on, I'm labelled a troublemaker.

…..

Miss Watson said: I just came here to air off.

[Miss Thomas]: Can we say the Grievance is closed?

[Miss Watson]: Yes I came here to air off and I feel much better."

She was then asked:

"How do you propose to move forward?"

She was asked by Zeke Thomas and she said:

"I'll just speak to you when I have a problem and continue to work by procedure and Directors Rules.

[Miss Thomas]: These issues are outset of procedures these are events and causes."

The Claimant said:

"If it's to do with work I will speak to Zeke, outside of work I have people I speak to."

Miss Thomas said:

"Directors Rules are not set in stone they are there as guidelines Zeke doesn't need to be involved in everyday running of the court."

Miss Watson said:

"In my personal life I am a church goer and it is only this that clashes.

Miss Thomas said: "Prove yourself, if any one thinks differently then disprove it.

Miss Watson: I don't care.

Miss Thomas: You should care; to some people you would seem intimidating. I will speak to HR about the money and it was nice to meet you maybe one day we'll cross paths under better circumstances.

Miss Watson: Thank you nice to meet you too."

10. It will be noted that Miss Watson is recorded as agreeing that the grievance was closed.
11. A letter was then written to her, after the meeting, by Miss Thomas, thanking her for attending the meeting. The letter continues:

"We discussed your grievance at length and agreed that the only way forward was to draw a line under all aspects of past grievances, your termination and reinstatement and subsequent court appearances.

I will set out my conclusions regarding the current grievance and our subsequent agreement in an abridged version. You will receive a copy of the notes taken at the meeting under separate cover.

Allegations of bullying, harassment and racialism by Rob Horton and Mick Fryer are unsubstantiated. This is due to no specific evidence being offered other than your complaint about the circumstances of your suspension and how it was conducted. I will take this up with the appropriate level with a view to ensuring that any meetings such as these are dealt with with empathy.

You agreed that you were happy with the outcome of the meeting and that the grievance was now closed. You stated that the meeting was necessary in order that you could get all the past issues off your chest to a manager unconnected with you.

You also said that you were content and happy in your work at Redbridge Magistrates' and would look to the future."

There was then a discussion about a care package and grievance procedures. Miss Thomas concludes by saying:

"I believe that the meeting was extremely beneficial and that the outcome was an agreeable one."

There were two further letters, one from the Claimant dated 26 September, in which she raises certain issues but does not dispute that a line had been drawn under the grievance and that a line had been drawn under all aspects of past grievances.

12. Miss Thomas responded that the notes were a true reflection of the interview but she took on board the points made and that the Claimant wished to have amended. Then there was a further letter of 25 October written to Mr Anderson. This concerned another grievance which in fact there seems to be some confusion over because the Claimant had not made such grievance. She complains that she was still being bullied into dealing with the matter and she had spoken to her solicitor but she insists that she had not put in the grievance about this other person, I think his name, I cannot remember for the moment, but the significant point is again there is no suggestion in this letter that Miss Thomas was wrong in what she had written in her letter to the effect that the grievance was regarded as having been dealt with and a line being drawn under that and past grievances.
13. Of the ten grounds that went forward the following matters need to be noted, and I am referring to the same numbers as these particular matters, these allegations of harassment or discriminatory conduct are set out in not only a case management decision but they are also set out in paragraph 2 of the decision of the Employment Tribunal. I will go through them by number. So far as No 1 is concerned, this is not referred to in the grievance, it is not referred to in the ET1 and there is mostly no reference to Debbie Vale. There is no reference to her in the grievance or in the ET1.
14. So far as item 2 is concerned, this is a matter that arose after the grievance. There is no reference to Messrs Watcher or Farhan in the grievance or in the ET1. No 3 is again post grievance, so there is obviously no reference to it to the grievance, nor is it referred to in the ET1.
15. So far as item 4 is concerned it is not referred to in the grievance. It is possible that it is referred to in the ET1 at page 24 of the bundle at paragraph 6.2. But it is by no means clear if this is it. So far as item 6 is concerned, it is not in the grievance nor in ET1. Item 6, the same. Item 7 is post grievance and again is not in the claim form, nor is it in the grievance. Item 8 is not in the grievance because it post-dates the grievance and it is not in the claim form. Item 9 is exactly the same, post grievance, not referred to in the grievance and not in the claim form. Item 10 is precisely the same.
16. Now the Employment Tribunal directed itself as to the law in relation to grievances and there was an extensive citation from the case of Canary Wharf Management Ltd v Edebi and the Employment Tribunal also referred to the case of Suffolk Mental Health Partnership v Hurst. It was satisfied that the grievance in relation to race discrimination had adequately been made out but not that for religion and discrimination on the grounds of belief and religion which was then struck out. It considered that all the allegations were made in time except the first one, and it was just and equitable to extend time because the Claimant only found out about this matter it was said in August 2008. The Employment Tribunal took the view that acts arising after the claim form had been issued could be raised by way of amendment and referred to a decision of mine in a case called Prakash v Wolverhampton Council UKEAT/0140/06.

The Claimant's case

17. It was agreed at the case management discussion, so far as I can tell from the decision of the Employment Tribunal that no prejudice was caused to the Respondent and this was agreed by the introduction of new matters. The Employment Tribunal refused to dismiss the individuals from the case as it was unable to say there was no case against them.
18. The first ground of appeal relied upon by Mr Panesar is that the Employment Tribunal had failed properly to construe section 32(2) of the Employment Act. Section 32(2) of the Employment Act provided that an employer could not present a complaint to an Employment Tribunal in respect of a jurisdiction such as those in relation to discrimination on the grounds of race if the requirement of lodging a grievance had not been complied with. I have already drawn attention to the statutory provision relating to the lodging of a grievance.
19. Dealing with that point, I think it is necessary to look at the decision in Canary Wharf, paragraphs 21 to 25:

"21. Third, the content. The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore) that the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance. The only requirement, as section 32(2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal. As Burton J succinctly put it in the Shergold case:

'the grievance must relate to the subsequent claim, and the claim must relate to the earlier grievance.'

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.

23. How then does one determine whether the relevant complaint has been made? In Shergold, Mr Burton J said this at paragraph 28 down to 'so far as Unfair Dismissal'

'... the statutory wording…very simple, and we believe that it was intended to be simple. Of course an employee, before this statutory procedure is invoked, must set out something in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly, so far as the standard procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here. It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the 2002 Act and the 2004 Regulations; otherwise they might find themselves down the slippery slope leading to an automatically unfair dismissal...'

24. Mr Solomon for the Appellants has made a number of criticisms of this decision, and we will return to deal with those shortly. Suffice it to say that we agree with Burton J that in identifying whether or not the complaint is identical to that which has been lodged before the Tribunals, one must not approach the issue in a technical way. The law in this area is directed at employees who in many cases - perhaps most - will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner. At the same time, it must not be forgotten that an employer who receives a grievance and is at fault in failing to take matters further is at risk of paying additional compensation if the claim ultimately succeeds. Indeed, if it succeeds he will have to pay additional compensation to the extent of at least 10 percent. But he cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged.

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. I do not think this formulation is essentially different to that urged upon me by Mr Solomon for the Appellant, namely "how a reasonable employer, with the actual or constructive knowledge of the employer at the time he received the grievance, would have understood it", although I would prefer to avoid concepts of actual or constricted knowledge. Nor do I think that any of the earlier cases to which I have made reference are at all inconsistent with my approach."

20. Mr Panesar submitted that it was not sufficient, as was done in this case, simply to allege that there had been bullying or harassment on racial grounds. Where you have different complaints in the grievance, in the ET1 and at the case management decision, there has to be some identification about what the Claimant was complaining about who she claimed. Mr Panesar drew support from the judgment of Pill LJ in the case of Suffolk Mental Health Partnership NHS Trust v Hurst [2009] IRLR 452 at paragraph 61 and 62:

"61. I have formed a clear view in an equal pay context but am reluctant to give carte blanche to prospective claimants in all potential cases merely to give, and only to give, a heading such as unfair dismissal, harassment, victimisation, sex or race discrimination or a combination of these. A statement of facts will often be appropriate, the cause or causes of action plainly emerging and incantation of the statute not essential. There will be causes of action and cases in which particulars can readily be given by a potential claimant. For example, there are likely to be cases in which reliance is to be placed on a single event such as selection of a man rather than a woman for a particular job on a particular occasion. There could be cases in which a potential claimant intends to rely on only one of several potential events. In either case, failure to identify the event relied on could lead to a substantial amount of unnecessary work for the employer and amount to an abuse of process.

62. What purports to be a grievance statement could so mislead or distract that it is an abuse of the procedure contemplated by Parliament. It would be open to the Tribunal to hold such a statement was not a statement complying with paragraph 6 or 9 of schedule 2. I would expect such cases to be rare. It is in the interest of potential claimants to initiate the procedure in a constructive way which is conducive to successful negotiation."

21. It is clear from what Pill LJ has said that simply to make a claim where there are a number of acts and a number of people concerned, that I have been subjected to harassment, or I have been subjected to discrimination on the grounds of race, is not a compliance with the statutory provision.
22. In this particular case, Mr Panesar submits that simply asserting that the matters at which complaint is made in the grievance were racial was not sufficient compliance with the statute, in the absence of any detail as to what these matters were and who was responsible for perpetrating them.
23. I think I can deal with this point now. It seems to me that Mr Panesar's submissions are correct. I have read very carefully the grievance. I have already pointed out that the allegations in the grievance are not reflected in either the list of matters, save possibly one set out in the case management discussion and then carried into the decision of the Employment Tribunal, nor are they referred to in the claim form. It seems to me that this grievance is simply inadequate to bear the matters which the Employment Tribunal considered should go to trial. Secondly, it seems to me that if individuals are going to be named in a claim form, it is essential that they should be in a position to know what is the case they have to meet and that they should also be named in the grievance, or something should be in the grievance that would enable them to be identified. I do not consider that amplifying the matter at the grievance hearing is sufficient if the grievance itself is inadequate and, in any event, it is almost impossible, if not completely impossible to identify the 10 matters that the Employment Tribunal allowed to go to a hearing from the 10 items that were identified which I have referred. It seems to me therefore the appeal must be allowed on that ground alone.
24. Other grounds were in fact raised by Mr Panesar. Secondly, he submits that the grievance was not extant at the time the proceedings were commenced. He drew my attention to what Elias J had said at paragraph 19 of the Canary Wharf case:

"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. There is the minimum period of 28 days which must be allowed for the employer to deal with it and go through the relevant procedures, but no maximum period. 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."

25. In this particular case, Mr Panesar has drawn my attention to the minutes to which I have already referred of the meeting between the Claimant and Miss Thomas on 10 September and the letter from Miss Thomas to the Claimant of the same date. The Employment Tribunal dealt with the matter in this way. It had those documents before it but what the Employment Tribunal had to say was that having regard to the two letters from the Claimant to the Respondent, the Employment Tribunal was not satisfied that the Respondent had in fact accepted that a line had been drawn under her grievances.
26. I have carefully read those two letters and albeit the Claimant was expressing certain concerns, she never, at any time, sought to challenge what Miss Thomas had said, particularly what she had said in her letter. In those circumstances, it seems to me that the Employment Tribunal has misconstrued the position and it should have found, on the evidence, and indeed it was only open to it to find on the correspondence that I have seen, that the grievance was no longer extant. For that reason, I also would allow the appeal on that basis.
27. The next matter to which I need to refer is the question as to whether the matters set out in the 10 matters set out were matters that could properly be subject of a claim, as they had arisen after the date of the grievance. The Employment Tribunal relying on a decision of mine in Prakash v Wolverhampton Council, as I have said, concluded that they could.
28. It seems to me there are a number of objections to the matter in which this was dealt with by the Employment Tribunal. In Prakash I held that a claim that had accrued albeit after the date when the claim form was issued could be added by amendment. But that is quite a different case from saying that claims which are required by statute to be the subject of a grievance, which occurred after the date of the grievance, could be added by way of amendment or by way of statements clarifying what a Claimant's case is at a case management decision.
29. Were this a case in which the 10 items had all been foreshadowed in the grievance, it may well be that applying the Selkent principles, it would have been proper to allow them to be raised. But I do not consider it can be proper to allow matters to be raised which should be the subject of a grievance and which have occurred subsequent to the only grievance that has been issued. It seems to me that for that reason those claims that arose subsequent to the grievance should not have been allowed to go forward in any event.
30. So far as the addition of the individual named Respondents is concerned, I agree with the submission made by Mr Panesar that in deciding whether persons should be added whose names are not referred to, the Selkent principles should apply to adding persons whose names do not appear in either the grievance or in the original claim form. I agree with Mr Panesar that the Employment Tribunal should ask itself whether allegations have in fact been made in properly constituted proceedings, against named Respondents and whether, if not, it is proper applying the Selkent principles that they should be joined in. The only person against whom an allegation was made, I believe, was Debbie Vale. She was not referred to in either the grievance or in the original claim form.
31. For those reasons it seems to me that this appeal must be allowed and I therefore allow the appeal, quash the decision of the Employment Tribunal and hold that the Claimant's claim must stand struck out or dismissed.
32. Before I conclude this case I would like to express my thanks to Miss Watson, who obviously has some difficulty in attempting to argue this case as a litigant in person. She has done so, if I may say so, with considerable charm and skill and I am extremely grateful to her, even though I regret to say I have not been able to find in her favour. Mr Panesar can I thank you very much for your assistance and helpful skeleton argument.