Appeal No. UKEAT/0238/11/CEA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
19 September 2011
Judgment handed down on 8 December 2011
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
SHEFFIELD CITY COUNCIL APPELLANT
MISS
J DOLBY RESPONDENT
Transcript of Proceedings
JUDGMENT
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about the application of the repealed procedure which
excludes a claimant from the seat of judgment if she has not issued a prior
grievance conforming to the Employment Act 2002. If the grievance
procedure is not completed and fault is found there are serious consequences
for the respondent. I will refer to the parties as the Claimant and the
Respondent.
Introduction
2.
It is an appeal by the Respondent in those proceedings against a
Judgment of Employment Judge Trayler sitting alone at Sheffield over three
days, sent to parties on 11 March 2011. The Claimant was represented by
different counsel from Mr Paul Kirtley who appears today. The Respondent was
represented by Mr Colin Bourne. The PHR conducted by Judge Trayler was to make
decisions in respect of the gateway to an Employment Tribunal which must be
passed in those days prior to the repeal of the statutory regime by the
Claimant registering a grievance. This applied to her claims of per-employment
detriments prior to her resignation, and of constructive dismissal, for making
a protected disclosure in accordance with the insertion into Employment
Rights Act 1996 of provisions from the Public Interest Disclosure Act
1998.
3.
That elliptical summary does not do justice to the countless case
management directions and orders given in this case. In particular, a Judgment
of a three person Employment Tribunal chaired by Employment Judge Shore at a PHR on 18 July 2010 for reasons sent on 28 July 2010 considered these very points.
But for reasons not connected with the construction of the documents in this
case or their context the Employment Tribunal of its own motion conducted a
review and set aside this Judgment in its entirety. Nevertheless, this judgment
was put in front of me and it refers to certain documents which are not in the
bundle before me but which I hold are relevant to the context which I am
determining. As it happens, I agree with the Shore three-person Tribunal and
disagree with Employment Judge Trayler’s decision on the construction point. I
also agree with Employment Judge Shore’s depiction of this case as
labyrinthine.
4.
In the Judgment under appeal, the Judge allowed the Claimant’s
complaints of per-employment detriments to be advanced to a full hearing and
that both aspects of her constructive dismissal should go there too: ordinary
or “vanilla” straightforward unfair dismissal and automatic unfair dismissal
for having made a protected disclosure. A large number of the Claimant’s other
complaints across the employment protection regime were dismissed. The
Employment Tribunal stayed proceedings pending appeal in this case. During the
course of the hearing of this appeal it appeared further submissions would need
to be made on a document which was not available to Judge Trayler and I am
grateful to both counsel for having produced the material and made submissions
upon it – it is in respect of the appeal against the dismissal of the
Claimant’s second relevant grievance which took place on 1 December 2008. We
are thus examining matters more than three years old and in fact going back to
2006 and there has not yet been a trial.
5.
The Respondent appeals against the Judge’s decision to allow the
per-employment detriments case and the constructive unfair dismissal case on
PIDA grounds to go forward to a full hearing. Alternatively, it takes a discreet
approach to certain findings as to detriment if the primary case is not accepted.
Underhill J (P) on the sift sent this appeal to a full hearing noting the proceedings
in the Employment Tribunal on the substantive case had been stayed hitherto.
The law
6.
A person is protected, if she makes a protected disclosure, from
detriments and from dismissal (see Part IVA and section 103A of the Employment
Rights Act 1996). A disclosure qualifies for protection for both detriment
and dismissal if in the reasonable belief of the worker a disclosure of
information tends to show some wrongdoing. A protected disclosure qualifies
under the statute if a worker makes it to her employer. There is no dispute
that the only disclosure relied on in this case qualifies under the statute.
7.
As a matter of procedure the Employment Act 2002 contained the
following relating to grievances setting out procedures which must be followed
in order for a claim to be presented to an Employment Tribunal:
“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.
Step 2: 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 employer has had a reasonable
opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the
meeting.
(4) After the meeting, the employer must inform the employee of
his decision as to his response to the grievance and notify him of the right to
appeal against the decision if he is not satisfied with it.
Step 3: appeal
(1) If the employee does wish to appeal, he must inform the
employer.
(2) If the employee informs the employer of his wish to appeal,
the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the
meeting.
(4) After the appeal meeting, the employer must inform the
employee of his final decision.
Modified procedure
Step 1: statement of grievance
9. The employee must -
(a) set out in writing –
(i) the grievance,
and
(ii) the basis for
it, and
(b) send the statement or a copy of
it to the employer.
Step 2: response
10. The employer must set out his response in writing and send
the statement or a copy of it to the employee.”
8.
Guidance was given as to the application of these procedures in Canary
Wharf Management Ltd v Edebi [2006] IRLR 416. Elias J President said
the following:
“24…[W]e 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%. 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 constructive knowledge. Nor do I think that any of the earlier cases to
which I have made reference are at all inconsistent with my approach.”
The facts
9.
Sheffield City Council is a local authority. The Claimant was employed
by it on 10 December 2001 as an Education Welfare Officer. Her job included
investigation and reporting upon attendance of children at school. On 17 May
2006 she made a referral, known as a section 47 referral, in respect of what
she considered to be a child protection issue within Family R.
10.
The Claimant was absent from work from 10 May 2007 until her resignation
on 30 July 2008.
11.
Eighteen months after her s47 referral, on 12 November 2007, the
Claimant submitted what she described as a complaint under the Respondent’s
Dignity and Respect at Work policy. It was against four named employees.
Broadly speaking, it contained criticisms of their approach to the Claimant and
to issues raised in respect of Family R. She summarised them as being examples
of victimisation, bullying and harassment and all she ever wanted to do was to
be treated the same as other employees were. There is interchangeability of
language – throughout these proceedings, that is described as either a
complaint or a grievance. Apparently under the relevant policy the next stage
is a verification meeting which took place on 5 December 2007. There is
nothing in the draft notes of that verification meeting nor in her suggested
amendments to them which indicates that the Claimant had made a protected
disclosure and had suffered detriment from it. There is a good deal of talk
about the intervention by the Respondent into Family R but the Claimant does
not rely upon her deployment to Family R in 2006 as itself constituting a
qualifying disclosure.
12.
On 3 March 2008 the Claimant appears to have been aware that her first
grievance/complaint had been rejected for on that date she wrote:
“I am writing to formally lodge a grievance in respect to the
outcome of a complaint that I registered last year…. I believe that …. an
insufficient investigation into my grievance has taken place…”
13.
On 12 March 2008, formal notification was given to the Claimant of the
“outcome of Dignity at Work complaint”. The Claimant had threatened legal
proceedings and at the time was represented by a trade union and a solicitor.
14.
It appears that the meeting on 3 March 2008 was part of the process of
the first relevant grievance. There was no appeal.
15.
Turning then to the second grievance registered on 3 March 2008 (see
above), the Claimant was invited to a formal grievance hearing which took place
on 28 April 2008. The substance of the hearing was effectively the attack by
the Claimant on the delay in, and handling of, the Claimant’s first grievance.
In other words, it was separate from the substance of the first grievance. The
outcome was given on 29 April 2008. She appealed against the rejection of her
second grievance on 2 May 2008 and provided grounds for it on 8 May 2008. This
was described as “an appeal against the decision of the formal grievance
hearing”. She raised a number of matters but relevant to today is the following:
“I have been subjected to detriments as a result of the
protected disclosures I made… as regards case R/where the Council actually
forbade me from reporting the matter to the police and/or other proper
authorities.”
16.
This is accepted by the Council on its face to be a qualifying
disclosure. That appeal hearing was set up but, by agreement between the
parties, this did not take place. The Respondent sought further information.
The Claimant decided that she would return to work and gave notice of that on
15 July 2008 but the Respondent contended that that could not take place
without medical clearance. On her presentation at work on 18 July 2208 she was
turned away. The appeal hearing was re-fixed on 29 July 2008 to 15 August 2008
but on 30 July 2008 she resigned.
17.
On 8 August 2008 the first of two letters written by her solicitor was
sent. The Claimant did not attend on 15 August 2008 at the grievance appeal
and the Respondent sought to know whether the Claimant was appealing the
outcome of the first grievance hearing. The second of the solicitor’s letters
was sent on 15 September 2008. The appeal against the grievance hearing took
place on 1 December 2008 when the Respondent’s Senior Officer dismissed the
appeal. The claim form was presented to the Tribunal on 2 January 2009.
Submissions and conclusions
18.
There is no dispute between counsel that the Employment Judge directed
himself correctly on the authorities. Whether a grievance has been lodged is a
matter of construction not only of the documents themselves but also of the
context in which they were sent, and whether in this case the employer could
reasonably understand to be the presentation of a grievance to it.
19.
Mr Bourne complains with some force that the purpose of the statutory regime
is to allow proper ventilation of a grievance or an opportunity for that prior
to presentation of a claim form and essential to that is that the employer
should understand the substance of the grievance. If it gets this wrong, the
consequences should the Claimant succeed are very serious because an uplift in
compensation of up to 50% can be made. Claims for constructive dismissal and
for per-employment detriments fall under the regime. He submits that in a case
where the grievance procedures are being operated, they are not required to
start again when at an appeal a new point is raised which might constitute a
grievance. That applies to this case.
20.
The only written grievance relating to PIDA prior to the Claimant’s
resignation is in her appeal against the outcome of the second grievance
hearing. Since that is accepted to be a reference to a protected and
qualifying disclosure, the only issue is whether it constitutes a grievance
under the statutory regime. In my judgment it does not and in this respect I
agree with the three person Tribunal chaired by Employment Judge Shore. The Claimant was by then well into the statutory procedure should she wish to raise any
matter in subsequent employment tribunal proceedings. She had been given a
step 2 meeting and was seeking to raise a new grievance at a step 3 appeal. She
raised for the first time the PIDA complaint.
21.
If that is to be treated as the starting afresh of a new matter it fails
to meet step 1 as setting out the statement of a grievance and in any event it
fails to meet step 2 because the Claimant has not set out information for the
basis of the statement so as to provide the Respondent with a reasonable
opportunity to consider its response. If this were held to be a proper step 1
statement or a step 2 basis of information, the Respondent would be in
difficulty because it did not hold a meeting to consider that point. What
occurred, at the Claimant’s instance, was an appeal against the second
grievance. Neither the first nor the second grievance contained on its face and
in context any PIDA complaint. As a matter of history the Respondent at the
appeal against the outcome of the second grievance on 1 December 2008, but which
was not necessarily before the Judge in the present case, decided just that:
the PIDA point was a new matter and did not fall within the remit of an appeal
against the grievance which was actually heard.
22.
It is next necessary to consider the two solicitors’ letters. These
both provoked denials from the Respondent and requests for further information
about the nature of the claims being made. The content of these letters was
described as difficult by the Employment Judge who on the whole considered that
an employer might reasonably form the view that these were unclear. The letter
of 8 August 2008 says this:
“Our client remains wholly dissatisfied with your response to
her longstanding grievances and in particular to the issues surrounding her
return to work on 18 July 2008 and it is for these reasons that she tendered her
resignation with effect from 30 July 2008.
Our client has instructed us to pursue a claim for compensation
for constructive dismissal … under the Public Interest Disclosure Act but
before we do so please treat this letter as a formal grievance in relation to
the matters referred to therein.”
23.
This provoked a request for further information specifically to clarify
the PIDA point asking what I regard as entirely proper questions so as to put
it in a position to answer any complaint if this were to be part of the
grievance procedure which the Claimant’s solicitor asserted it was. On 5
September 2008 the Claimant’s solicitors wrote again saying the following:
“However, for the avoidance of doubt we refer you to our
client’s numerous medical certificates, the report from the Occupational Health
Service dated 24 September 2007 and our client’s grievances documented in her
letters to Mr Marshall dated 12 November 2007 and 03 March 2008.
Our own letter dated 08 August 2008 fully documents the issues
constituting our client’s latest grievance and states, in terms, the reasons
why Miss Dolby resigned from the Council’s employment on 30 July 2008 and the
basis upon which any claim for constructive dismissal will be pursued.
In any event, with respect to the questions raised in your
letter dated 20 August 2008 we do not consider it necessary for you to
determine … whether a qualifying disclosure has been made under the provisions
of the Public Interest Disclosure Act for you to deal with these grievances.”
24.
I do not consider these provide sufficient context to make it clear to
the Respondent as to what was being said about PIDA. Given that there was
nothing before the second grievance appeal on 8 May 2008, references to the
Claimant’s earlier letters of 12 November 2007 and 3 March 2008 do not assist.
On their face, the two letters seek to reprise the Claimant’s dissatisfaction
with the treatment of her first grievance. By her second grievance she complains
of the slowness of the process and the scope of it. Her first grievance does
not raise a PIDA complaint and nor does the second. References to both of
these grievances therefore cannot encompass the lodging of a grievance in
respect of a PIDA complaint which was only made on 8 May 2008. By that date,
both grievances had been determined against her. As a matter of construction,
and in context, “her longstanding grievances” means the first grievance,
decided on 3 March 2008. It cannot mean the second, lodged on that date, which
was going through to a step 3 appeal, postponed by mutual agreement. If it does
mean both grievances, neither contains a PIDA point. So the two letters which
draw on the extant grievances cannot create a PIDA grievance. Grievance in the
context of a formal solicitors’ letter means the two lodged by the Claimant
under the Respondent’s policies and not a new point sought to be taken on
appeal. It may be that the two formal grievances are of long standing, being
the substantive complaint and the handling of it, but not the PIDA matter
lodged only on 8 May 2008. The latest grievance in the second letter is the
return to work problem; but if it is the longstanding grievances of the first
letter, they are not based on PIDA.
25.
In those circumstances it is not necessary for me to determine the
secondary position of the Respondent as to certain of the detriments which were
allowed to proceed namely 9, 12, 15, 28, 31, 38. But if necessary for my
decision, I would uphold in full the written submissions of Mr Bourne on each
of these detriments. They as a matter of logic cannot proceed because of the
chronology and of the outcomes of the various issues. Nor can they be rolled
into one.
26.
I then turn to the constructive dismissal point. It will be recalled
that the Claimant is going ahead with her “vanilla” ordinary constructive unfair
dismissal case. The only way the Claimant may bring a PIDA claim is if she has
raised this as part of an unfair dismissal grievance. Given that I have
discounted the interlocking of the detriments up to the date of her resignation,
the specific unfair dismissal claim must be determined by reference to the
letters of the solicitors and their context. As a matter of law I hold that it
is correct to view the ordinary and the automatic unfair dismissal separately
since Parliament has separately constituted these two causes of complaint,
albeit they are types of unfair dismissal. There are different remedies and a
PIDA claim is akin to a discrimination claim. Neither of the solicitors’
letters makes clear that the Claimant is resigning because of her PIDA
complaint. This complaint suffers the same defect as the per-employment detriment
case.
Disposal
27.
I would like to thank both counsel for their original and further
submissions. I see no reason why the stay should not now be lifted and the
Claimant’s constructive unfair dismissal case be heard unless the parties can
with the assistance perhaps of ACAS reach a conciliated solution to what was an
old and very wide case and is now very much reduced. The appeal is allowed.
