(1) MR P WHITMORE (2) MRS S WHITMORE v HM PRISON SERVICE [2003] UKEAT 1185_01_2703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1185_01_2703Case No Appeal No. EAT/1185/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR P WHITMORE (2) MRS S WHITMOREAPPELLANTHM PRISON SERVICERESPONDENT
Before
His Honour Judge J Altman Mr B Beynon Miss S M WilsonDate 27 March 2003
[1]APPEARANCES For the Appellant MR PHILIP MEAD (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors Castle Chambers Castle Street Liverpool L2 9TJ For the Respondents MR MARC BISHOP (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS HIS HONOUR JUDGE J ALTMAN When an employee raises a grievance, is he acting in the course of his employment? This is an appeal by the Applicants from the Decision of the Employment Tribunal held at Nottingham on three days in June and July 2001 when the Applicants' complaints of victimisation were dismissed. The Applicants contend that first, there were four areas of fact which the Employment Tribunal failed either to consider, or in respect of which to make findings, and that they failed to consider whether such areas of fact demonstrated victimisation by the Respondents. Secondly, it is contended that the Tribunal failed to state reasons or were perverse in respect of their finding that the Governors who were managing the prison where the Applicants were employed were acting outside the course of their employment when such Governors submitted grievances. Consequent upon that is the contention that had the Tribunal found that the grievances were submitted in the course of employment, the Tribunal failed to consider whether the Respondents, by investigating such grievances, were aiding and abetting the victimisation implicit therein.[2]At the preliminary hearing of this appeal, an Order was made requesting the Chairman to comment as to whether the matters raised at paragraphs 6.1 and 6.5 of the grounds of appeal were in fact raised before the Employment Tribunal. However, no doubt in order to be as helpful as possible to this Appeal Tribunal, the Chairman spent some considerable time dealing with a number of matters in a fairly wide-ranging way. In the circumstances it was agreed that we should not take into account the comments of the Chairman of 17 May 2002.[3]The Applicants raised matters which included reference to the Governors as their managers. Part of the response of management was to register a grievance about the Applicants and also their trade union. Senior management accordingly had two matters to investigate. One of the issues arises from the fact that both Applicants made claims arising from correspondence initiated by Mr Whitmore, and one of the issues for consideration by the Employment Tribunal was whether he was, as an employee, registering his own grievance or whether he was simply writing, on behalf of his wife, to voice her own grievances. Mr Whitmore wrote to the Area Manager in November 1999 asking questions about why nothing had been done about bullying, why procedures had been ignored, why the Governors had threatened Mrs Whitmore, and he queried whether this was racially motivated and asked what was to be done about it. Mr Payling had been at the appropriate level of management to receive a complaint, apparently, but Mr Whitmore circulated his letter very widely, including to the Director General of the Prison Service, Mr Narey. The letter was passed to Mr Fitzpatrick, the appropriate Area Manager to deal with it. In the meantime, presumably following the writing of the letter to the Director General, Hansa Ladva took up investigation at head office level and wrote to the Governor of Foston Hall, where the Applicants worked. At the end of that month Mr Whitmore wrote again to Mr Narey, presumably concerned about progress and the Tribunal found that he was asking about the progress of his wife's grievance. We note that finding, describing that letter as referring to a grievance on behalf of Mr Whitmore's wife. At the same time the General Secretary, Mr Evans of the Prison Officers Association was also writing to head office with general complaints about the prison. Miss Scriven, the Governor, was therefore in receipt of the initial letters from Mr Whitmore, his follow-up letters and the complaints from the Prison Officers Association. She replied in early December in two letters. The one that dealt with her opinion of Mr and Mrs Whitmore as prison officers was put in the file for Mrs Whitmore's grievance as, in the finding of the Tribunal, the letter concerned that grievance.[4]Meanwhile, whilst there was this communication between head office and the Governor, Mr Fitzpatrick began to handle the grievance of the Applicants. He wrote to them assuring them that the matter was being progressed, telling Mr Whitmore : "the issues you have raised in your letter are now being dealt with under the grievance procedure …. the person raising the grievance will receive a reply ……" and to Mrs Whitmore informing her that he would contact her concerning her grievance. At the end of December, Miss Scriven, the Governor, gave her specific reply to that grievance letter. It appears that she was already of the view, on the finding of the Tribunal, that the Applicants' complaint and the matters raised by the Prison Officers Association were part of a concerted campaign against her and the other Governors at the prison. She was later to complain that the passage of time permitted disaffection to be spread and her career to be prejudiced.[5]There does, indeed, appear to have been delay. A Governor on the highest grade, Mr Alldridge, was assigned to deal with Mrs Whitmore's grievance. He delegated the fact-finding investigation to a lower grade Governor, Governor Hughes. In mid-January 2000, he arranged to meet the Applicants. He showed to them and their representative the letter written by Miss Scriven and sent initially in early December the previous year, referred to above and resting on the grievance file. The meeting got nowhere. Whilst shown the letter, the Applicants were not given a copy and the union representative made many complaints, the Tribunal found, including the inability of Governor Hughes to be impartial because he was junior to Governor Scriven and suggesting that the Governor had no right to take notes at the meeting. The meeting was ended by the walking out of the union representative and the Applicants. The Tribunal found that in the absence of particulars of the complaints, Governor Hughes felt that he could not progress matters.[6]So there had been delays by January, the Tribunal found, partly as a result of the failure of the Applicants to co-operate in Governor Hughes' investigation and to give him particulars. It is submitted on behalf of the Applicants that by objecting to his seniority, that was not a failure to co-operate, but it does seem to have been accompanied by other objections to Governor Hughes and in fact to have led to a failure to co-operate. In January 2000, Miss Scriven and the other junior Governors then instigated their grievance procedures against the Applicants based on their suspicions that I have outlined.[7]There were then sickness absences which prevented continuation of the investigation and in May 2000, Governor Shepherd was then delegated to the task of dealing with both grievances. Then the Governors' union objected to his dealing with both so that Mr Shepherd was restricted to Mrs Whitmore's grievance. He was then ill and Governor Kirby took over. The Tribunal found that interviews were conducted and a report concluded in January 2001 in which no evidence was found to support Mrs Whitmore's complaint.[8]Meanwhile, the Respondents were investigating the grievances of the Governors, including the assertion that the Applicants had made false accusations against them. It is quite clear that the Tribunal found that Governor Winkley, who was the investigator, was not initially very impressed by the substance of the Governors' grievances:
"Governor Winkley first wished to establish whether there were valid grievances for him to investigate."
[9]So far as Mr and Mrs Whitmore were concerned, it appeared that Mr Whitmore's letter of 3 November may be seen as no more than a concerned husband wishing to support his wife as best he could. The Governor issued a form for the Applicants to complete witness statements. It was important to establish that this was not a procedure used if there was any investigation for potential disciplinary proceedings against the Applicants, or for material that could be used in later disciplinary proceedings. That would have required a different procedure. However, Governor Winkley's investigation made little progress. He adjourned a meeting without obtaining a statement because he felt that Mr Whitmore's union representative had raised so many arguments as to protocol and made a number of objections as to procedure, so that to have gone on with the meeting, would have placed Mr Whitmore under too much stress. In due course, he wrote to Mr Whitmore asking for detailed answers and amplification of Mr Whitmore's first letter of 3 November 1999. Whilst Mr Whitmore said that he knew of people who could provide information, it appears he declined in due course to name them and Mrs Whitmore did not reply to an enquiry for an interview. Mr Winkley concluded his investigation as best he could by June 2001.[10]The Employment Tribunal then set out their conclusions. They found that the two letters from Mr and Mrs Whitmore were protected acts within section 2(1)(d) of the Race Relations Act 1976 . The Respondents cross-appealed from that finding in relation to Mr Whitmore's letter on the ground that the letter simply asked the question "Are these tactics racially motivated" and did not make the allegation of racial discrimination. Mr Bishop, on behalf of the Respondents points out that this is supported by the fact that in the memo of 30 November that Mr Whitmore sent to Mr Narey, he made no mention of race as an issue, and indeed when, before the Employment Tribunal, Mr Whitmore was specifically asked in cross-examination what he was complaining about, he again made no allegation of race discrimination. However, the last question that Mr Whitmore put in his letter of 3 November 1999, was "What are you going to do about it and when?" That seems to imply a degree of assertion that there was something that had to be dealt with and that must have referred to all the questions, including the one that mentioned racial motivation. But whilst the letter is in question form it seems to us that it is capable of leading to the finding of fact made by the Tribunal that in effect it constituted an allegation of racial discrimination, the framing of it as a question being presumably simply a matter of style.[11]The Tribunal then looked at the various matters alleged and concluded that there was no victimisation or less favourable treatment of the Applicants. In reaching this conclusion, they considered a number of acts by the Respondents, including Hansa Ladva's letter for information to Miss Scriven of 1 December 1999; the response to Mr Whitmore's letter of 3 November 1999, which the Tribunal found was not the making of a grievance by Mr Whitmore himself, and the requests of Mr and Mrs Whitmore to give witness statements in relation to the Governors' grievances. They also then made findings about the effect of the grievances issued by the Governors themselves and we return to that issue later on.[12]On behalf of the Applicants, Mr Mead points to the authorities of Anya-v-University of Oxford [2001] IRLR 377 , and Tran-v-Greenwich Vietnam Community [2002] IRLR 735 , being some of the many cases which have dealt over the years with the duty of an Employment Tribunal to provide reasons in the body of their Decision for reaching their Decision. Ground one of the Notice of Appeal complains that the Tribunal failed to consider or make any finding as to the reason why Mr Whitmore was not interviewed about his letter of 3 November 1999 by those investigating Mr and Mrs Whitmore's grievance, but was in fact interviewed about it by those investigating the Governor's grievances. Indeed, much of the complaint made by the Applicants relates to the proposition that they received differential treatment in the handling of their grievances to those of Governor Scriven and her colleagues. It is suggested that the reason for the Respondents' failure to investigate the Applicants' grievances was, it is said, that Mr Whitmore made a protected act; he complained about the potentially discriminatory conduct towards Mrs Whitmore. The Tribunal found that Mr Whitmore's letter of 3 November did not amount to a grievance that he himself was making, but was rather a letter in support of his wife's complaints. Factual support for this conclusion can be seen in the Tribunal's findings that Mr Whitmore's letter to Mr Narey of 30 November 1999 concerned the progress of his wife's grievance, not his own, and the text of Mr Fitzpatrick's letters to Mr and Mrs Whitmore on 7 December 1999, to which we have referred, clearly show that Mrs Whitmore was being treated as the person who had raised a grievance. Furthermore, the Tribunal found "contrary to his contention he did receive a response". Reference is then made to Mr Fitzpatrick's reply. The ground of appeal then seems to complain about the absence of an interview. Whilst, in the body of their conclusions, the Tribunal do not refer to the failure to interview Mr Whitmore about his grievances as a possible ground of victimisation, it is plain that the assertion in the grounds of appeal are wrong. The Tribunal found that, on 17 January 2000, Governor Hughes did have a meeting with both Mr and Mrs Whitmore, and the only reason it came to an end was because of their withdrawal from it. Furthermore, the Tribunal found that later on, when Governor Kirby became charged with dealing with Mrs Whitmore's grievance, "interviews were conducted and the report was completed". At the same time there were interviews with Mr and Mrs Whitmore designed to obtain their evidence in relation to the Governors' grievance. On the basis of those factual findings, we find no basis upon which to find that the Employment Tribunal erred in failing to address an assertion now made that there was a holding back from interviewing. It is complained that the Tribunal should have asked itself whether there was victimisation of the Applicants by reason of the failure to carry out any investigation in relation to their earlier complaints. There seems to us no factual basis for the proposition that there was such a failure on the part of the Respondents to try to carry out any investigation and in the absence of such a failure, we can see no basis for criticising the Employment Tribunal for an alleged failure by the Respondents that was not supported by the facts.[13]Ground two of the Notice of Appeal complains that the Tribunal failed to consider or make a finding as to the reason why Mrs Whitmore's grievance was sent to Governor Scriven for her comments in advance of interviewing Governor Scriven, whereas the Governor's grievances were not sent to Mr Whitmore in advance of interviewing him. Again, it is clear that the Tribunal were entitled to find that Mr Whitmore had in fact not made a grievance. The Appellants are seeking to make a juxtaposition of approach by the Respondents, but on the face of it, it seems to us to have been treated by the Tribunal as two separate processes. The Applicants, as well as making a grievance to their manager, had caused a letter to be sent to Mr Narey, the Director General. That seems to us to have obviously been a subsidiary process and it was presumably in order to brief the Director General that a letter was written to Governor Scriven asking for an explanation which was then sent. Furthermore, Mr and Mrs Whitmore were simply being interviewed in relation to Governor Scriven's grievance at that stage as witnesses in a different procedural position. This is made clear in paragraph (e), which is in truth (g) on page 8 of the Tribunal's Decision. Complaint is made of the use of the word "sinister" but in this context it seems clear it is used to mean "untoward". Whilst particular allegations must be dealt with by a Tribunal, it is not a requirement that they should reiterate every aspect of the evidence. Further, the Employment Tribunal made clear findings that the reason for seeking the information from Miss Scriven was not by reason of the Applicants having done a protected act. It is clear from paragraph 4(c) of the Decision that the Tribunal did address the nature of the procedure of Hansa Ladva writing a letter to Miss Scriven as being driven by the need for seeking "some explanation and background …… from the Governor of the prison". That was clearly a slightly different process and we find no ground for criticising the Employment Tribunal for failing to create a link between the two processes to consider whether they should be rejected in the way contended for.[14]Ground three of the Notice of Appeal complains that the Applicants were given neither sight of Governor Scriven's comments on their grievance during the course of the grievance investigation, nor the opportunity to comment on the matters raised in them. In the argument now presented, it is modified by Mr Mead as being the assertion that at the meetings, although the Applicants were shown the letter, they were not permitted to take copies away with them, they were not given them in advance and they were not therefore given a proper opportunity to comment upon them. However, it seems to us that the findings of the Tribunal disclosed that the start of the grievance procedure was intended to be a meeting with the Applicants for them to amplify their grievance. This, no doubt, would then have been communicated to Governor Scriven who could have given such a response, on the subject of the grievance complaint, as she could. But that process never got off the ground, not least because of the Applicants' feeling that they could not continue with the relevant meeting with Governor Hughes. However, because Hansa Ladva, on behalf of the Director General, had sought an explanation from Miss Scriven in the way we have referred to and had received a reply which had already been placed on the grievance file, there was, as it were, this advance document. But this was not a case of the Applicants having to deal with complaints of Miss Scriven within their own grievance proceedings so as to be given an adequate opportunity to consider them. Furthermore, the findings of the Tribunal show that the Applicants were shown the letter from Miss Scriven at the meeting of 17 January 2000, although they were not given a copy of that letter at the meeting. There is no basis, it seems to us, for asserting that they were not given an opportunity to comment on the matters raised in them, against the background of the findings of the Tribunal that that meeting came to an end as a result of a walk-out by the Applicants themselves. The finding of the Tribunal that "until he had full particulars of Mrs Whitmore's complaint, Governor Hughes saw little point in interviewing Miss Scriven" makes it clear that the Respondents had never got, in the grievance process, to the stage where they would want the Applicants to seriously consider a response from Governor Scriven because Governor Scriven had not yet had the detailed complaints to which to respond, and that was due to the withdrawal of the Applicants. It seems to us that there is no factual support for the proposition in this ground that neither Appellant was given sight of the letters, nor given the opportunity to comment upon them. The fact that they did not take such an opportunity appears to be a misfortune of which they themselves were the authors. We note the findings in (e) at page 7 of the Tribunal's Decision.[15]Ground four of the Notice of Appeal contends for another comparative disparity. It is asserted that the Appellants' objection to their grievance being taken by Governor Hughes was "regarded as a failure to co-operate with the investigation and disregarded, whereas the Governor's objections to their grievance being investigated by Governor Shepherd was heeded and acted upon". It seems to us that the basis of that ground is unsupportable on the evidence. It does not, it seems to us, compare like-with-like. The objections to the two Governors were on wholly different grounds and furthermore, it was not the objection to Governor Hughes that was treated as a failure to co-operate. The challenge to Governor Hughes was one of the complaints made by the union, another was his wishing to take notes. But neither of those things constituted a lack of co-operation; that possibility never arose because the Applicants walked out and no doubt that was properly seen as a lack of co-operation. Furthermore, Governor Hughes, as the junior Governor, was only charged with investigating for Governor Alldridge, a senior Governor, who was going to be exercising judgment on the information supplied. As to the fourth ground of appeal, we find no error of law on the part of the Tribunal. It seems to us that the proposition set out in that ground simply did not arise. If the submission was made to the Tribunal in the form which is set out in paragraph 6.1.4 of the Notice of Appeal, as one piece of evidence of alleged victimisation, and the Tribunal did not refer to it specifically, we find nonetheless that this does not contain a supportable argument on the facts as found by the Tribunal, for no such comparison between the two procedures as is suggested in that paragraph, could be supported.[16]It is then contended in the Notice of Appeal that by failing to consider those four matters to which we have referred, the Tribunal failed to consider whether there had been victimisation but in the light of our findings, that allegation too must fail.[17]The remaining three grounds of appeal concern the grievances made by the Governors and it is contended that the Tribunal failed to state any reasons for finding that the Governors were not acting in the course of employment in submitting their grievances, alternatively that conclusion that the Governors were not so acting was perverse, and further that the Tribunal failed to consider whether knowingly aiding victimisation by the Governors in investigating their grievances, was itself unlawful victimisation. In paragraph 4(f) of the Decision, the Tribunal found that the four Governors had issued grievances in reply to the complaints made against them by the Applicants. This included not only the allegations made but the belief by the Governors that they had been targeted as part of a campaign against management by both the Applicants and the union. There were complaints, the Tribunal found, not only against the Applicants but also against the Prison Service. The Tribunal went on:
"In those circumstances, it may well be that the actions of the governors amounted to acts of victimisation against the Applicants and that, if the governors had been made Respondents, we would have considered finding against them. However, the governors are not Respondents. Only the Prison Service is a respondent and, for it to be liable we have to be satisfied that, in making the grievance, the governors were acting in the course of their employment. In this respect, we are not satisfied that they were. The governors certainly stated on their notices of grievance that the grievances were against the Applicants for making false accusations but, more importantly as far as they are concerned, they alleged that the Prison Services was not getting on with the investigation so that their names could be cleared. The governors were not acting in the course of their grievances [sic] and therefore we find the allegation against the Prison Service unfounded."
[18]Mr Mead submits on behalf of the Applicants that by activating the grievance procedure the Governors were acting in the course of their employment. Mr Bishop submits that the Governors were not in fact activating a grievance procedure.

(k) of the Decision where the Tribunal found that:

"Governor Winkley first wished to establish whether there were valid grievances for him to investigate. His initial interview with the governors had left him in some doubt"
[19]Mr Bishop submits that whilst the Governors did that, there had never begun to be a grievance. However, it seems to us that the issuing of a grievance is a matter for determination by the employee, and not the employer and that all the Tribunal were there finding is that there was a question mark as to whether there was any real validity in the complaints that were being made in substance. It does not seem to us that that was a procedural finding that there was in fact, from the procedural point of view, no grievance having been initiated at that point. Furthermore, in paragraph 3(g) of their Decision, the Tribunal found that : "Miss Scriven and a number of other junior governors instigated grievance procedures against the Applicants".[20]Again, in paragraph 3(i) the Tribunal found that Governor Shepherd was delegated the task of dealing with:
"……the grievances made by Governor Scriven and the other three governors "
[21]They refer again in paragraph 3(j) to the grievances submitted by the Governors, and it is against those findings that the Tribunal then identify Governor Winkley's questioning of whether these were valid grievances but not, we reiterate, a valid initiation of a grievance procedure. We have no hesitation in finding that on the factual findings of the Employment Tribunal, that was to be construed as the initiation of a grievance procedure.[22]The next question that arises is, it seems to us, whether on the findings of the Employment Tribunal that in making the grievance the Governors were not acting in the course of their employment, the Tribunal erred in law.[23]As a matter of general contract law, it seems to us that the question must be asked in terms of the contractual relationship between the Governors and the Respondents. The facility for making a grievance complaint in accordance with established procedure is no doubt established in the very contract of employment between the parties. Whilst it is a permissive rather than a compulsive term of the contract of employment which entitles an employee to raise a grievance rather than imposing upon him an obligation to perform part of the contract of employment, it is nonetheless inevitably, it seems to us, part and parcel of that contract of employment. It seems to us, therefore, inescapable that if an employee raises a grievance in accordance with the terms of his contract of employment, that he must be regarded as acting in the course of his employment when so doing. The fact that at the same time, the Governors were raising grievances against the Prison Service itself does not, it seems to us, affect the fact that in raising grievances against the Applicants, they were acting in the course of their employment. Indeed, the complaint against the Prison Service as a contractual matter must be seen, it seems to us, as being in the course of employment.[24]That, it seems to us, is the inescapable general proposition and the Tribunal, we therefore find, erred in law in finding, if that is what they found, that in making the grievance, the Governors were not acting in the course of their employment. We say "if they were so finding" because the position is not totally clear. Simply because a person acts whilst performing a contractual obligation does not mean that everything he does in pursuance of that act is in the scope of that employment. There are cases, for example, where a postman may, in the course of his employment, deliver a letter but at the same time do so in such a grossly and offensive way that the way in which he performs that contractual obligation takes him outside the performance of the contract. In those circumstances, the way in which a person performs their contract may mean that they act outside the course of their employment. It is not altogether clear, to us, from the Decision of the Tribunal, whether they were addressing this second feature and nothing in this judgment is designed to express a view one way or the other about any inferences to be drawn from the way in which the Governors perform their contract of employment by raising a grievance. It seems that the Tribunal left entirely open what their finding would actually have been in relation to victimisation if the Governors had been found to be acting in the course of their employment, or indeed if they had been parties to the proceedings. Although the Decision of the Tribunal says that: "it may well be that the actions of the governors amounted to acts of victimisation …..and that ….we would have considered finding against them" we read that simply as a form of words designed to indicate the possibility of the argument whilst at the same time the Tribunal was clearly remaining neutral about it and not prejudging it.[25]Nonetheless it does seem to us that the Tribunal, on the material they had heard, would have held themselves ready to deal with those issues. In those circumstances we allow the appeal on the ground that the Tribunal erred in holding that to raise a grievance was outside the scope of the employment contract. Had the Tribunal so found, they would no doubt have gone on to consider whether the way in which these grievances of the governors were raised in fact took them outside the scope of their employment in that case. Had they found they were acting within the scope of their employment, the Tribunal would then have no doubt considered whether what they did amounted to victimisation by the Respondents as claimed. Because of the initial finding that the Governors' raising a grievance was outside the scope of their employment they never went on to consider these issues.[26]Accordingly to that limited extent this appeal is allowed. We have decided in those circumstances, to remit this case to the same Employment Tribunal to continue with the hearing in relation to the issues set out in paragraph 1(d) of the Extended Reasons, namely the allegation that the grievances of the Governors which were investigated at the meeting on 3 November 2000 were in retaliation to Mrs Whitmore's grievance and amounted to victimisation. Ground 6.5 of the Grounds of Appeal contends that the Tribunal failed to consider whether the Respondent was knowingly aiding the victimisation in this context. Whilst many of the issues raised by that are no doubt touched upon in the earlier findings of the Tribunal and in respect of matters which have been dismissed in this appeal, it does appear to us that consideration of that issue also must be embraced within the matters yet to be considered by the Employment Tribunal. We give liberty to apply within fourteen days of the date of this judgment being handed down by either party for the Employment Appeal Tribunal to amend the terms upon which this case is remitted to the Employment Tribunal.