MR V GILL v WHITBREADS LTD [1999] UKEAT 183_98_2106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 183_98_2106Case No Appeal No. EAT/183/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V GILLAPPELLANTWHITBREADS LTDRESPONDENT
Before
His Honour Judge John Altman Mrs R A VickersLord Gladwin of CleeDate 21 June 1999
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION ON BEHALF OF THE APPELLANT For the Respondents MR SIMON GORTON (of Counsel) Instructed By: Mr J M Edge Weightmans Solicitors 79-83 Colmore Row Birmingham B3 2AP JUDGE JOHN ALTMAN : This is an appeal from the decision of the Employment Tribunal sitting at Sheffield on 1 December 1997, in which the complaint of the Appellant, Mr Gill, that the Respondents, his employers, had been in breach of contract was dismissed. The Appellant appeals on a large number of grounds contained in a skeleton argument. He has not appeared here today. He says that he has had the chance of work and because of that, would ask the Tribunal to determine the issues of law raised on his application in his absence. This was a similar situation as confronted the Employment Tribunal.[2]Unfortunately it is now a long time ago since this case was before the Employment Tribunal, but the main burden of the decision rested upon the findings of the Employment Tribunal that the purported grievance procedure relied upon by the Appellant did not form part of his contract with the Respondents and, furthermore, that his letter dated 19 December received by his employer on 10 January 1997 did not contain a matter of grievance, in any event, so as to constitute a formal complaint within the purported grievance procedure. The learned Chairman also found that the Applicant was not harassed or intimidated, and that any ill feeling or aggravation was caused by him, and not other members of staff. He dismissed the claim of breach of contract.[3]Bearing in mind that this was an Applicant in person, it is important to consider, it seems to us, the way in which he put his case. In the Originating Application he alleged a breach of contract and in the details of it, he referred to returning a silver badge and the reason being the disregard of regulations by the manager. He alleged that he had lodged a grievance and that that was followed by harassment and intimidation. He was then due, after an absence from work, to return to work, he said, in February 1997, when he went to a meeting believing his grievance was to be dealt with. He says he was upset to find that that was not the reason for the meeting, which was a form of disciplinary interview.[4]He therefore took the matter to an Industrial Tribunal, which declined to entertain his complaint because they regarded it as being outside their jurisdiction as his employment was continuing. He heard nothing more from his employers, he said and determined to state things in writing. He complained about the way in which his employers then handled the conduct of his employment, and particularly that they ignored his grievance procedure. He concluded by saying that he claimed that Whitbreads had been in breach of contract from December 1996 to September 1997 inclusive and that his loss of earnings was from 23 February; "the date I was willing and able to return to work until 3 September 1997." He also wrote letters to the Tribunal that were before the Tribunal at the time of the hearing and asked them to deal with the matter on the documents. On 20 November 1997, he referred to his application and said that because there was a breach of contract and a disregard of grievance policy, his position was made impossible, and nothing was addressed.[5]Also before the Tribunal was a document headed "Whitbread Plc Contract of Employment Managed House Staff" produced by the Appellant setting out purported terms of someone's employment with a sub heading "Grievance Procedure" "Should you have a grievance relating to your Employment you must first refer the matter to your House Manager. If the matter cannot be settled then you have the right to seek redress of that grievance by written or personal application to your Area Manager. Full details of the Grievance Procedure are available for reference on the House notice board." And indeed the procedure was also produced under the heading of "Company Policies and Procedures" which provided:
"Do use the following procedure. This will help ensure that your problem is dealt with by the best person, promptly and fairly."
[6]Stage one of the grievance procedure provided that a person wishing to raise a grievance with which he was directly concerned, must first discuss it with the House Manager and then go on to stage two. So it purports on the face of it to provide a mandatory procedure. The matter then came before the Employment Tribunal, and the Tribunal was faced with the very difficult task of having to deal with an application, which had been prepared in documentary form by an Applicant in person, in the absence of any Applicant or representative to argue the matter. The Chairman was sitting alone.[7]In the extended reasons the learned Chairman summarises the complaint as being that the Respondents were in breach of the contract of employment, in that the Appellant was harassed and intimidated by his manager, and that the Respondents failed to deal with his grievances. He says that that was denied and sets out the issues about the grievance procedure to which I have referred. And he quotes the further letter to which I have just referred of 20 November and also the fact that he had received documents. The Chairman also referred to two witnesses that gave evidence. They did not give evidence orally except to make a couple of corrections to their written statements, but Mr Gorton, Counsel for the Respondents, has very kindly provided us with copies of their statements. That was evidence which the learned Chairman said he was impressed by, that the Appellant was a very hard working and keen employee as a part-time cleaner and he described one or two altercations that took place between him and Mr James, the manager.[8]It then appears that a letter from the Appellant was received by the Respondents Area Manager, Mr Rogers, to which I have referred, which purports to be dated 19 December 1996, about the silver badge, in which clearly breaches of rules were referred to with complaints of bad management. In particular there was referred to: bad standard of the fire exits blocked; bar hygiene and that a grave concern, people being allowed to remain after hours, some members of staff in the public bar at 8.00am on a Sunday morning in a drunken state; the float not in the till at opening time; at opening time, members of staff being drunk and saying that the reputation of the premises was under threat.[9]It seems to this Tribunal that a number of matters were clearly being raised by this Appellant before the Tribunal, and we deal with each in turn. But before doing so, we would observe that the submissions made to the Tribunal by the Respondents was that there was no evidence that the grievance procedure was incorporated as part of the Appellant's contract of employment, and that the letter to which I have just referred did not amount to a formal complaint under that grievance procedure. Mr Gorton has reiterated that submission before us. It is a matter, he says, for a party to prove that a term of a contract is part of that contract, and in any event, he says, it is just an issue of fact as to whether it was or not and the Tribunal decided that it was not; even if the Chairman made a strange decision upon the facts it was a matter entirely for him.[10]It is a mixed matter of fact and law to identify the terms of a particular contract on primary findings of fact. Here was an Applicant who was also a witness. His evidence was in written form. Had it not been, of course, the Tribunal would not have been able to entertain his application at all. They clearly treated the documents as evidence before them. He had said that he took steps in accordance with a grievance procedure, about which nothing was done. He produced documents in support of the allegation of a grievance procedure – documents, which on their very face disclosed that they are on a works notice board.[11]We find that it is inevitable, it seems to us, that upon those facts a Tribunal would come to a conclusion that those terms were part of the terms of this employee's contract. There was no evidence before the Tribunal that they did not form part of the contract apart from the rather curious written statement of Mr Rogers, where in paragraph 13, it is asserted that the grievance procedure is not contractual, "it is simply a mechanism for resolving disputes". That flies in the face of course of the documents to which I have just referred, and coming from the evidence of an Area Manager of an organisation such as the Respondent's, is quite an amazing proposition for this Tribunal.[12]The point was also made, that the Appellant had not raised a formal grievance with his manager, and it was pointed out that at any stage the Personnel and Training Manager, or Retail Personnel Manager, may be involved, but that the Appellant did not attempt to involve those people and indeed did not say in his letter that he was invoking the grievance procedure. We have already referred to that letter and to us it is true and has been pointed out to us that a grievance is only relevant when it is something which affects the employee himself. It is difficult to read that letter, it seems to us, as anything other than the raising of a grievance. He did not expect, he said, in the course of his work to have to "tolerate such irresponsible management", and it is quite clear, it seems to us, that he was purporting to complain that his position was affected.[13]In returning his silver badge, it was at least open to interpretation that he was holding out that his position was being affected, as a matter of fact, of course. The question arises as to whether or not he really was affected by it, but the Tribunal never got to that stage because the finding of the Tribunal was that the letter of 19 December did not amount to a formal complaint under that grievance procedure. It is not apparent on the face of that decision as to why the Tribunal came to that conclusion. The evidence is that the Appellant felt that he had a complaint; he stated on the face of the document indirectly that he was affected by it, and his letters to the Tribunal, it seems to us, to which I have referred, made clear that one interpretation of them was that his absence from work was due to what he regarded as "intolerable situation", resulting from the fact that his complaint and grievance was not being addressed. It is common ground that it was not dealt with in that way, and that approaches, according to Mr Rogers, were ignored.[14]We are driven to the conclusion that on the facts as found by the Employment Tribunal the mere proposition that an employee does not raise a grievance in quite the right way should not be found to debar him from complaining that his grievance was not being addressed. There is an opposing argument which is that an employer receiving a badly formed or misdirected grievance from an employee would surely return it or send back a memorandum advising the employee as to what to do. It is not apparent on the face of the decision that in reaching the decision that there was no formal grievance that the Chairman has addressed the issues that were clear from the documents presented to the Tribunal.[15]Accordingly, it seems to us that it is right that we should find as a matter of construction of the contract, that the contract of employment of the Appellant did include the grievance procedure referred to. Secondly, we find that in reaching a conclusion that the Appellant did not pursue a formal complaint under the grievance procedure in his letter of 19 December, the learned Chairman did not, on the face of his decision, take into account the relevant factors, particularly those contained in the documents and the Originating Application, to which I have referred in the way I have described.[16]Our attention has been drawn therefore, to the skeleton arguments. As to(1) yes, the grievance procedure was part of the contract of employment. As to(2) did health and safety form part of the contract of employment? This has caused us some concern. Section 44 of the Employment Rights Act 1996 provides under subsection (1) "An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that …. Being an employee at a place where there was no health and safety representative or safety committee … he brought to his employers attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety."[17]A remedy is given under that right to bring a complaint to a Tribunal, to have a declaration made, and for there to be to award compensation. Whilst that specific statute was not referred to in the Originating Complaint, matters of health and safety have been adverted to in the appeal before us. Further, matters of health and safety, in substance, were being raised in that letter of 19 December, albeit they were not given that technical term. The context of the letter pointed out that reputations are at risk and that it is unfair on staff trying to carry out company policy. It does seem to us, that in fairness to Applicant on his own, with modest means and experience at his disposal, that consistently with what he is saying, that he was raising a cause of action under that provision, which was not addressed as such by the Employment Tribunal.[18]So far as (3) of the Skeleton Argument is concerned, this was the complaint made in writing on 19 December of grievance complaint under the grievance procedure. We have found that the Chairman did not address those facts, which he needed to, in order to reach a conclusion on that issue. As to (4) did the Area Manager take up his grievance - there is no issue but that he did not. But then there are some subsidiary matters. As to (5) an issue is raised as to when employment was terminated, suggesting that an error in the P45 which originally stated 2 February 1997, should have led to an earlier Tribunal hearing having resulted in jurisdiction. That is of no substance because there is no appeal from that decision as has been pointed out by Mr Gorton, and we find that there is no substance in that ground of appeal.[19]It is alleged in paragraph 6 of the Skeleton Argument, that the contract of employment was never updated to take account of variations in hours and rates of pay, but we accept Mr Gorton's submission on behalf of the Respondents that that was never canvassed in the Employment Tribunal and there has been no complaint in relation to that. In paragraph 7 there is a complaint that the Chairman wrongly inferred from the fact that the Applicant was obtaining benefit and possibly other employment, that he had already in effect, given up interest in working for the Respondents (to use my own words), but it seems to me that that is not relevant to what Mr Gorton says, and has no substance.[20]In his conclusions, the Appellant seeks to argue that due to the impossible situation he had been put in, by not having his grievance sorted out, he was not able to carry out his duties without, as he says, being subject to harassment and intimidation. Mr Gorton has suggested that the Chairman has made a finding about that, but he has not. He has made a finding about the absence of harassment and intimidation, but he did not make any finding about the substance of the complaint on the grievance procedure because the Chairman found that that situation never arose.[21]Complaint is made that the Appellant should have received written statements in advance. That is a procedural matter of no substance. The Appellant refers to some errors of copying in the preparation of copies of letters and again this is of no substance whatsoever. But finally, it is said, by Mr Gorton, that even if there was a successful breach of contract claim, there is no remedy in damages. We have a lot of sympathy with the proposition that it would be desirable to reach a conclusion once and for all in this matter. But it is the Appellant's case that his remaining away from work was affected, if not caused, by the failure to take up his grievance. Because the learned Chairman dismissed the complaint on the ground that there was no contractual entitlement to raise a grievance, the substantive matters were not considered by the Chairman.[22]In those circumstances it seems to us that it is not possible for us to come to a conclusion that come what may, the Appellant, even if he succeeds on the contractual matters will fail to disclose any loss. Damage is not an ingredient of a breach of contract, which is actionable on its own, and therefore it seems to us, that we cannot form a judgment on the evidence before us and in any event must leave that for further determination.[23]With considerable hesitation and recognising the enormous difficulty which the learned Chairman had, in trying to see his way through the material before him, we have come to the conclusion that we must make the following findings. First, we find that as a matter of mixed fact and law, that the grievance procedure formed part of the contract of employment. It seems to us right for us to come to the view. Secondly, that there are sufficient findings of facts before us for us to substitute our view that the Applicant did raise a grievance in his letter of 19 December which was not dealt with, as such, by the Respondent and in that respect, the Respondents were in breach of contract.[24]We remit this matter to a differently constituted Industrial Tribunal to consider whether there was any loss suffered by Mr Gill as a result, and if so, to determine how much that loss was. In addition, we also, whilst that is being dealt with, remit this matter to the Industrial Tribunal, to consider whether the Appellant suffered detriment in accordance with the provisions in section 44 of the Employment Rights Act 1996.[25]Mr Gorton submitted that he had not understood that in discussion with him, I had drawn his attention to the possible application of health and safety proceedings under section 44 of the Employment Rights Act 1996 and so we heard further submissions from him.[26]First of all, he said, quite rightly, that there are a number of matters to raise as to whether a valid claim under this head can be brought, such as time limits and particulars, and whether the Appellant would have the status in the absence of an appointed representative and so on, which we agree with entirely. He said that the Originating Application claimed the type of complaint as being confined to breach of contract and suggested that this was not an issue that had ever been canvassed as a free standing point. And he said that had the Appellant regarded this as the substance of his complaint, then he should have canvassed it before the Tribunal.[27]Whilst we have considerable sympathy with Respondents being confronted with a new issue at a late stage, the whole of this matter is to a large extent coloured by the need to understand the way in which this Applicant has expressed himself in writing without actually appearing before the Tribunal. Whilst it is true that the label placed on his complaint was that of breach of contract, it is well established that Tribunals will look at the substance of a complaint, as well as the label attached, by an unqualified litigant in person in order to see what is really at the heart of it. In his Originating Application, he said this:
"Up to and including the date of my dismissal Whitbreads Plc have ignored policy in respect of grievance procedure and although Tribunals are unable to judge on public safety, it should be recorded that these concerns have been made."
He incorporated in his Notice of Appearance the letter setting out his grievances which has already been rehearsed in the extended reasons of the Tribunal, and in this judgment, and in which on the face of it, matters which are commonly connected with health and safety are referred to. He raised matters relating to fire exits and bar hygiene, clearly related to health and safety.[28]It is perfectly true that a separate cause of action was not stated, as I have already made clear in the body of my judgment. However, it seems to us, looking at the context of this complaint, the way it was addressed, the other side of the coin on the question of remedy, that it is the desire on the face of it perhaps not so much for money as for a declaration and public statement by the Appellant, that it is only right in looking at what is in the content of his application to come to the conclusion that the Appellant was raising matters of health and safety. It does form part of his Skeleton Argument for this appeal with which, if we may say so, the Respondents have been provided before coming to this Tribunal.[29]Accordingly, we find that the application did raise matters purporting to be under section 44: that they were not addressed as such by the Employment Tribunal; that they erred in not so doing; and that the new Tribunal should consider it and of course in preparing for that, it is right that the Respondents should have an opportunity if they so wish to file a further statement of their case in relation to that. All the serious matters which have to be raised, and which may of course completely defeat the claim, can be properly canvassed.[30]Mr Gorton sought leave to appeal this decision. It does not seem to us that the matters urged for appeal raise matters of law with a prospect of success and accordingly we refuse leave to appeal.