United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MACKENZIE (Solicitor Advocate) Instructed by: Bell Teros Ltd Bowditch Farm Membury Axminster EX13 7TY
For the Respondents	MS J SMITH (of Counsel) Instructed by: The Royal Bank of Scotland Mentor Services Ltd 100 West George Street Glasgow G2 1PP


 


SUMMARY

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES

Whether applicable

Whether infringed

The Employment Tribunal did not err in law in deciding (a) that a series of documents did not amount to a grievance and (b) that a grievance has to make a causal link between the treatment meted out to the Claimant and his/her disability. Canary Wharf Management Ltd v Edebi [2006] IRLR 416 applied.

HIS HONOUR JUDGE BIRTLES

Introduction

1. This is the full hearing of an appeal from the Judgment and Reasons of an Employment Tribunal sitting in Exeter on 12 November 2009. The written Reasons were sent to the parties on 29 January 2009.
2. The Employment Tribunal decided two preliminary issues. The first preliminary issue was whether the Claimant had raised a valid grievance prior to submitting his claim to the Tribunal. The Tribunal held that he had not. The second preliminary issue was whether the claim against the Second Claimant should be allowed to proceed. The Tribunal decided that it should. There is no appeal against that decision.
3. The Appellant is represented by Mr John MacKenzie, who is a Solicitor Advocate. The Respondent was represented by Ms Jennie Smith of Counsel. I am grateful to both advocates for their written and oral submissions.

The Material Facts

4. The Claimant brought claims of disability discrimination and unfair dismissal following the termination of his employment on 26 November 2007. The Respondent is a bearing manufacturer, employing 168 people at its factory in Illminster. The Claimant was employed in the bi-metal section. He reported to Mr Phillip Elswood, the Second Respondent.
5. The Tribunal considered the two preliminary issues set out above at the start of the proceeding. On the first issue the Tribunal concluded that the Claimant had not raised a valid grievance and that it therefore had no jurisdiction to consider the disability discrimination claims against the First Respondent, save and insofar as they related to his dismissal. On the second issue the Tribunal concluded that the Claimant's claim against the Second Respondent was out of time, but in the circumstances it was just and equitable to extend time to enable the claim to be considered. The Employment Tribunal went on to hear the claim against the Second Respondent and found for the Claimant. At a subsequent remedies hearing on 7 April 2009 the Tribunal made a declaration and ordered the Second Respondent to pay the Claimant compensation for injury to feelings in the sum of £2,500 together with interest thereon in the sum of £337.50.
6. By their Respondents' Notices (form ET3) both Respondents state that, at the time of the matters complained of, they were not aware that the Claimant had any significant disadvantages other than a difficulty with reading and writing which did not amount to anything other than possible mild dyslexia and, in any event, that this did not amount to a disability. This view was based upon reports by a Dr Hodges who was an occupational health physician used by the First Respondent.
7. The Employment Tribunal had the benefit of a confidential diagnostic assessment report by Mr Michael Biddulph who was a qualified educational psychologist and chartered psychologist. His report is dated 15 February 2008: EAT bundle pages 89-99. His conclusion was that the Claimant had:

"... a severe specific learning difficulty of a dyslexic nature affecting his literacy and study skills. This is making it much more difficult for him to use the written word than would be expected and in my opinion is a disability under the terms of the Disability Discrimination Act."

8. Mr Biddulph's report goes on to set out in considerable detail Mr Stuckey's learning difficulties.
9. As we have already stated, the Claimant was dismissed on 26 November 2007. Neither Respondent had the benefit of seeing Mr Biddulph's report until the Employment Tribunal proceedings were commenced. At the Tribunal hearing both Respondents conceded that the Claimant suffered from a disability as defined by section 1 of the Disability Discrimination Act 1995 as amended.

The Employment Tribunal Judgment on the First Issue

10. This appears at EAT bundle pages 2-6. The Tribunal began by referring to the statutory provisions and certain authorities: paragraph 2. It went on to set out the Claimant's representative's submissions. It dismissed the first submission, namely that the Claimant was not an employee at the time he presented his complaint to the Tribunal. There is no appeal against that decision.
11. The Tribunal record that the Claimant stated that he had raised his complaint in writing and had done so on 30 November 2007. That is the date of the Claimant's letter of appeal against the decision to dismiss him. The Tribunal found that this did not, either expressly or implicitly, make a complaint of disability discrimination. There is no appeal against that decision.
12. The third submission was that the series of documents before the Tribunal amounted to a grievance. The Tribunal examined the documents, having referred to the relevant law, and came to the following conclusion:

"11. From these series of cases and from the principles laid down, it is clear that there is considerable flexibility allowed in the approach of the Tribunals to the question of what constitutes a valid grievance and we have found that it was in this case a difficult issue to determine. We were conscious of the claimant's disability of severe dyslexia and understood that because of his disability he may have had difficulty not only in a practical sense of committing his complaint to writing but also in a conceptual sense of making the link between his disability and his unhappiness about his treatment.

12. We therefore looked very carefully at all of the documents to which the claimant's representatives referred us. There were no documents apart from the appeal letter which were written by the claimant. The documents included letters from the respondent, interview notes and letters from occupational health. It was submitted on behalf of the claimant that all of these combined to identify the complaint being made, since some made reference to his specific difficulties, some to his complaints about his treatment. However we were not satisfied that the cumulation of documents amounted to a valid grievance. There was no one document or even a series of documents that we could identify as a statement of complaint. There was no document on which the respondent had recorded a grievance on behalf of the claimant. There was a document on page 53 of the bundle recording an informal meeting with the claimant on the 21 May 2007 in which a list of complaints made by the claimant are noted down by Ms Green of the respondent, but there is no link made in that note between the events being complained of and the claimant's disability.

13. We accept that in the case of Kennedy, the claimant was given assistance in reducing his complaint to writing but it was clear in that case that the claimant had clearly intended to raise an informal grievance and was being assisted in so doing. That was not the case here. So, notwithstanding the flexibility allowed in the interpretation this provision, we do not consider we are able to rely on the context of the situation amounting to a grievance where there is no core document which we can say does set out the complaint that is being made in the ET 1. In this case, it is not possible to say that the employers could be expected to appreciate that a complaint of disability discrimination was being raised. Although the first respondent was aware of the claimant's dyslexia and was aware of his unhappiness at his colleague's conduct and of his need for sensitive handling, the claimant had not in any document recorded by him or by anybody else made a link between his treatment and his disability.

14. In the circumstances, we have to find the claimant has not raised a valid grievance and it is as a matter of some regret that we do so particularly considering the nature of the disability in this case. But, for the time being, the statutory grievance procedure stands and we do not have the jurisdiction to hear the claimant's complaint of disability discrimination against the first respondent."

The Law

13. The relevant statutory provisions are contained in the Employment Act 2002. Section 32(1) provides as follows:

"32 Complaints about grievances

(1) This section applies to the jurisdictions listed in Schedule 4.

(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."

14. Schedule 4 of the Employment Act 2002 lists the tribunal jurisdictions to which section 32 applies. Claims for disability discrimination and unfair dismissal are included in that list. Paragraph 6 of schedule 2 of the 2002 Act provides as follows:

"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."

15. Regulation 2(1) of the Employment Act (Dispute Resolution) Regulations 2004 says this:

"grievance" means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him;"

16. The effect of the statutory provisions and the subsequent case law has been usefully summarised by HHJ McMullen QC in Ward v The University of Essex (2007) UKEAT/0391/07/LA at paragraph 13, where he said this:

"i. Undue legal technicality and over sophistication should be guarded against. The Standard Grievance Procedure does not require an employee to set out her complaint in technical detail. The statutory requirements are minimal in terms of what is required: see Shergold at paras 27- 30, Canary Wharf at para. 24;

ii. The Standard Procedure simply requires the grievance (as defined by Reg. 2(1) Disputes Resolution Regs) to be set out in writing. Thus it is enough to identify the complaint. Unlike the Modified Procedure which requires "the basis" of the grievance to be set out in the Step 1 letter, the Standard Procedure provides for "the basis" of the grievance to be provided after the Step 1 letter prior to the Step 2 meeting (see Reg. 7(2) Disputes Resolution Regs, above): see Shergold at para. 30; and Canary Wharf at para. 21;

iii. The document containing the grievance may also serve a different purpose or raise additional complaints: see para. 2(2) Disputes Resolution Regs (above), Shergold at para 31 and Canary Wharf at para. 20³;

iv. There is no need to make it plain in the written document that it is a grievance or that the claimant intends to invoke a grievance procedure: see Galaxy Showers at paras 10 & 16, Shergold at para. 33 and Canary Wharf at para. 22;

v. The grievance must relate to the subsequent claim and the claim must relate to the earlier grievance. However, this does not mean that the wording of the grievance and the Claim Form must be anywhere near identical. Provided the general nature of the grievance in writing is substantially the same as the matter which then forms the subject-matter of the claim, different description or a difference by way of precise ingredients or particulars does not affect the statutory compliance: see Shergold at paras 35 - 37;

vi. There is considerable flexibility as to the form of the grievance, for example it can be written by the claimant's solicitors: see Canary Wharf at para. 20

vii. It is immaterial whether the employer is given the opportunity to respond to the grievance. The Employment Tribunal must view the grievance in writing at the date it was sent: see Shergold at para. 38. Similarly whether or not the complaint was then taken further is not in point, nor whether the employer was or was not at fault if there was a subsequent failure to hold a Step 2 meeting: see Kennedy Scott Ltd v Francis [2007] UKEAT 0204/07."

17. As I understand it, Mr MacKenzie and Ms Smith agree with this summary of the law.

The Amended Grounds of Appeal

18. These appear at EAT bundle pages 23-26. We take each ground of appeal in turn.

Ground 1: Paragraphs 10-16: One or a combination of more than one of the documents amount to a grievance

19. Mr MacKenzie submits that one or more of the documents listed in his Notice of Appeal and which he took us through on oral submissions, amount to a written grievance within the meaning of section 32 of the Employment Act 2002. From these documents Mr MacKenzie submits that the First Respondent could have been in no doubt that:

(a) The Appellant considered he was being bullied;

(b) That the reason for the bullying was the Appellant's specific learning difficulty; and

(c) That the specific learning difficulty was linked to his illiteracy and was dyslexia, an expression the Appellant used at his disciplinary hearing on 7 December 2007, when he was dismissed for gross misconduct.

20. Ms Smith submits that none of the documents looked at individually or together in any combination can amount to a written grievance within the statutory definition.

Decision

21. We agree with Ms Smith. We have carefully looked at both before the hearing of the appeal, during and after the appeal at each of the individual documents. We are unable to say that, either individually or in any combination or sequence, the documents can amount to a grievance within the definition in regulation 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. We are also mindful of two other matters. First, we accept the authority of the Judgment of Cox J in Kennedy Scott Ltd v Francis [2007] UKEAT/0204/07/DM which holds that a grievance in writing can be a grievance which is written down by an employer's representative: Judgment paragraph 12, 46-53. Second, that case is distinguishable from the facts of this case. First, the only meeting at which the Claimant's grievance was written down was a meeting between Ms Nicola Green, the First Respondent's Human Resources Manager, and the Claimant on 21 May 2007. Notes of that meeting are at EAT bundle pages 53-55. They are referred to in an inter-office memorandum from Ms Green to the Claimant on 22 May 2007: EAT bundle pages 56-57. The matter which is missing from this case, which was present in the Kennedy Scott case, was any linkage by the Claimant of his treatment with his disability. See Canary Wharf Management Ltd v Edebi [2006] IRLR 416 at paragraph 21 per Elias P:

"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. As we have already indicated on the facts of this case, neither Respondent knew, until after the date of the dismissal of the appeal, that the Claimant had suffered from a disability as defined by section 1 of the Disability Discrimination Act 1995 as amended. The reports of Dr Hodges, the occupational health physician, were addressing the problem of the Claimant's fitness for work, not any complaints made by him.
23. Finally, we are mindful of the fact that an appeal from an Employment Tribunal to the Employment Appeal Tribunal lies only on "a question of law": Employment Tribunals Act 1996 s.21(1). The EAT will have no power to interfere with a tribunal's decision unless it can be shown: (a) that the tribunal misdirected itself in law or misunderstood the law or misapplied the law; or (b) that there was no evidence to support a particular conclusion or finding of fact; or (c) that the decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached, or alternatively, was one which was obviously wrong: British Telecommunications plc v Sheridan [1990] IRLR 27 at 30 per Lord Donaldson MR. In our judgement the Employment Tribunal has not gone wrong in any of these ways in reaching the conclusion that it did.

Ground 2: The link between the Claimant's treatment and his disability of dyslexia

24. This appears as ground 16(a) in the Amended Notice of Appeal. It is inextricably linked with Ground 1. Mr MacKenzie submits that the tribunal was wrong in law in holding that a valid grievance document had to make the link between the Claimant's treatment and his disability of dyslexia. Ms Smith advances the contrary submission.

Decision

25. Again we have looked at the documents. None of the documents make the link between any alleged treatment received by the Claimant and his disability. We again emphasise the language used by Elias P in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 at paragraph 21. In our judgement there has to be a link between the behaviour complained of and the disability in order for there to be a valid grievance under paragraph 6 of schedule 2 of the Employment Act 2002.

Ground 3 - The Equal Treatment Directive 2000/70/EC

26. This appears at paragraph 16(b) of the Amended Notice of Appeal. On reflection Mr MacKenzie did not pursue this ground of appeal.

Conclusion

27. For these reasons the appeal is dismissed.