1) MRS H THORPE 2) SOLEIL INVESTMENTS LTD v (1) MR M W POAT (2) MRS M R LAKE [2005] UKEAT 0503_05_1810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0503_05_1810

Case No Appeal No. UKEAT/0503/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

1) MRS H THORPE 2) SOLEIL INVESTMENTS LTDAPPELLANTS

(1) MR M W POAT (2) MRS M R LAKERESPONDENT

Before

His Honour Judge Peter Clark

Date 18 October 2005

[1]APPEARANCES For the Appellants MRS R CAMERON-MOWAT (Of Counsel) Instructed by: Messrs Jeffrey Green Russell Solicitors Apollo House 56 New Bond Street London W1S 1RG For the First Respondent MR M W POAT (The Respondent in Person) For the Second Respondent MRS M R LAKE (The Respondent in Person) SUMMARY Time Limits and Practice and Procedure (2 and 8A) Whether Claimants had set out grievance in writing and sent it to employer (EA 2002. Schedule 2. paragraph 6). Consideration of regulation 6, Dispute Resolution Regulations 2004, not arising for determination in this case. HIS HONOUR JUDGE PETER CLARK This appeal raises a limitation point and involves consideration of the relatively new, so far as this Appeal Tribunal is concerned, provisions relating to the use of the statutory grievance procedures to be found in the Employment Act 2002 (the 2002 Act) and the Employment Act 2003 (Dispute Resolution) Regulations 2004 (the 2004 Regulations) made under the 2002 Act and coming into force on 1 October 2004.

[2]The appeal is brought by the Respondent employers before the Bristol Employment Tribunal against the Reserved Judgment of a Chairman, Mr P N Moore, sitting alone on 6 June 2005, holding that the Claimant's claim of breach of contract was presented within time. That Judgment, with Reasons, was promulgated on 13 July 2005. Background

[3]The Claimants were engaged as House Manager and Estate Manager to look after Edgeworth Manor, Gloucestershire, the country home of Mr and Mrs Thorpe. There appeared to be some issue as to whether the true employer is Mrs Thorpe, the First Respondent, or a company, Soleil Investments. It matters not for present purposes although my impression is that both parties accept that the employer is Soleil Investments. The Claimants took up their employment on 14 November 2004.

[4]It was not a happy engagement as far as they were concerned. On 3 December they faxed Soleil Investments although not Mrs Thorpe, it is common ground before me, as the Chairman found at paragraph 16 of his Reasons, a 7-page letter chronicling a litany of complaints about their lot at Edgeworth Manor. In particular they complained of regular deposits by the Thorpe's puppies and other matters which they contended represented a breach of the employer's duty to provide an hygienic environment for the employees. They alleged that the employer was in breach of the contract of employment, so recently entered into between these parties. In that same letter they indicated that they were quitting the employment forthwith and did so.

[5]That letter was followed by a formal letter of claim from solicitors instructed on behalf of the Claimants and dated 22 December. The claim was one of breach of contract; three months wages and alternative accommodation costs were sought by way of compensation/damages.

[6]A substantive reply was received from Mr Peter Scull, a director of Soleil Investments, a Jersey based company, dated 2 February 2005, taking issue with the Claimants' complaints. I note, for example, that in relation to the complaint of puppy mess Mr Scull opined, "This cannot constitute a genuine ground of grievance."

[7]Further correspondence followed. Nothing was resolved and on 15 March 2005 the Claimants lodged their claim with the Employment Tribunal. The claim was for breach of contract and failure to provide a safe working environment. The total money claim amounted to £15,081.63.

[8]The claim was resisted. Mr Pope points out answers given by the Respondents at Box 2. At paragraph 2.5 the question is asked, "Has the substance of this claim been raised by the Claimant in writing under a grievance procedure?" Answer, "Yes." Paragraph 2.6, "If yes, please explain below what step you have reached in the dismissal and disciplinary procedure or grievance procedure, whichever is applicable. If no, and the Claimant have raised a grievance with you in writing [ which these Claimants did in their claim form ], please say whether you received it, and explain why you did not accept this as a grievance?" Answer:

"The Claimants raised a grievance in writing in their letter of 3 December 2004 and their solicitor's letter of 22 December 2004. This was dealt with and responded to in full by Soleil Investments Ltd's letter dated 2 February 2005. "

Further, by their response, the Respondents sought a pre-hearing review to determine a preliminary issue, namely whether the claim was made out of time. That was the sole issue which came before the Chairman on 6 June 2005. The Tribunal Decision

[9]The Chairman noted that the ordinary time limit for claims of breach of contract was three months from the effective date of termination ("EDT") of the employment, in this case 3 December 2004, by Article 7(a) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 ("the 1994 Order"). However, Article 7(ba) of the 1994 Order adds this provision, that where the period within which a complaint must be presented in accordance with paragraph (a)…is extended by regulation 15 of the 2004 Regulations, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a).

[10]Regulation 15 of the 2004 Regulations provides, among other things:

"(1) where a complaint is presented to an Employment Tribunal under a jurisdiction listed in Schedule 3 or 4 [ to the 2002 Act ] and - (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired."

[11]By Regulation 15(3)(b) those circumstances are that the employee presents a complaint to the Tribunal after the expiry of the normal time limit for presenting the complaint having complied with paragraph 6 or 9 of Schedule 2 [to the 2002 Act] in relation to his grievance within that normal time limit.

[12]Moving now to the issue in this appeal, it is common ground that a claim brought under the 1994 Order is one of the claims listed in Schedule 3 to the 2002 Act; the question posed by the Chairman was whether the Claimants complied with paragraph 6 of Schedule 2 to the 2002 Act within the three month time limit contained in paragraph 7(a) of the 1994 Order. Put shortly, did the Claimants' faxed letter dated 3 December, resigning from the employment raise a relevant grievance?

[13]The Chairman found that it did, consequently time for presenting the complaint was extended to 2 June 2005. The claim, presented on 15 March, that is after the expiry of the three month period provided for in Article 7(a) of the 1994 Order, was in time. The Statutory Framework

[14]The power granted to the Secretary of State to make regulations extending the time for beginning proceedings in relation to a jurisdiction listed in Schedule 3(or 4), which includes a breach of contract claim under the 1994 Order, is contained in section 33 of the 2002 Act. Those regulations are now the 2004 Regulations.

[15]My starting point when looking at the 2004 Regulations is the definition section in Regulation 2, to which the Chairman's attention does not appear to have been drawn. Regulation 2 provides, so far as is material:

"'Grievance' means a complaint by an employee about action which his employer has taken…in relation to him. 'grievance procedures' means the statutory procedures set out in Part 2 of Schedule 2 [ to the 2002 Act ] 'modified grievance procedure means the procedure set out in Chapter 2 of Part 2 of Schedule 2."

[16]Regulation 6(1) to which the Chairman referred in part in his Reasons, provides that:

"(1) The grievance procedures apply in accordance with paragraphs (2) to (7) of this regulation in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an Employment Tribunal under a jurisdiction listed in Schedule 3 or 4 or could do so if the action took place."

[17]The Chairman was not referred to the provisions of subparagraphs (2) to (7) of Regulation 6. I should set them out in this judgement:

"(2) Subject to paragraphs (3) to (7), the standard grievance procedure applies in relation to any such grievance. (3) Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance where – (a) the employee has ceased to be employed by the employer (b) the employer – (i) was unaware of the grievance before the employment ceased, or (ii) was so aware that the standard grievance procedure was not commenced or was not completed before the last day of the employee's employment, and (c) the parties have agreed in writing in relation to the grievance, whether before, on or after that day, but after the employer became aware of the grievance, that the modified procedure should apply. (4) Neither of the grievance procedures applies where (a) the employee has ceased to be employed by the employer; (b) neither procedure has been commenced and, (c) since the employee ceased to be employed it has ceased to be reasonably practicable for him to comply with paragraphs 6 or 9 of Schedule 2. (5) Neither of the grievance procedures applies where the grievance is that the employer has been dismissed or is contemplating dismissing the employee; (6) Neither of the grievance procedures applies where the grievance is that the employer has taken, or is contemplating relevant disciplinary action against the employee unless one of the reasons for the grievance is a reason mentioned in regulation 7(1); (7) Neither of the grievance procedures applies where regulation 11(1) applies."

[18]Before going any further into these dense regulations I have to say this. Neither the Chairman nor the parties below address the question posed by regulation 6, does either the standard or modified grievance procedure apply on the facts of this case? In his reasons the Chairman omitted the words "in accordance with paragraphs (2) to (7) of this regulation," and those sub-paragraphs when considering regulation 6. He thought that it was sufficient that the Claimants raised a grievance about action by the employer that could form the basis of a complaint by an employee to an Employment Tribunal under the 1994 Order. It is plainly not as simple as that. First, the Tribunal must be satisfied that one or other of the statutory grievance procedures applies. In particular, are they excluded by Regulation 6(4), (5) or (7)? The Chairman appears to have proceeded on the basis (see Reasons paragraph 14) that the standard grievance procedure applied.

[19]I make no criticism of him for doing so. That is the basis on which the case was put before him by the parties. The point was not taken by the Respondent in their Notice of Appeal. I raised the matter with Mrs Cameron-Mowat, who appeared below and she very fairly accepted that no issue was taken below as to whether or not neither standard nor the modified grievance procedure under regulation 6 applied. The two questions raised in the Notice of Appeal are first whether the Chairman was wrong in law in failing to consider and construe the provisions of Part 4, paragraph 15 of Schedule 2 to the 2002 Act.

[20]Under the heading 'Scope of Grievance Procedures' paragraph 15 of Schedule 2 provides:

"(1) The procedures set out in Part 2 are only applicable to matters raised by an employee with his employer as a grievance; (2) Accordingly those procedures are only applicable to the kind of disclosure dealt with in Part 4(A) of the Employment Rights Act 1996 (Protected Disclosures of Information) if information is disclosed by an employee to his employer in circumstances where: (a) the information relates to a matter which the employee could raise as a grievance with his employer and; (b) it is the intention of the employee that the disclosure should constitute the raising of the matter with his employer as a grievance."

[21]Mrs Cameron-Mowat submits that paragraph 15(2)(b) of Schedule 2, in referring to the intention of the employee that the disclosure should constitute the raising of the matter with his employer as a grievance, applies generally in every case where it is material to decide whether the employee has taken step one, statement of grievance, under either the standard grievance procedure (Schedule 2, Part 2, Chapter 1, paragraph 6) or the modified procedure (Schedule 2, Part 2, Chapter 2, paragraph 9), that is: Under paragraph 6 "The employee must set out the grievance in writing and send the statement or a copy of it to the employer" And under paragraph 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."

[22]I reject that submission. It seems to me that Schedule 2, paragraph 15(2) is concerned only with claims under Part 4A ERA, that is what are colloquially known as 'whistle blowing' claims brought under section 47(A) and 103(A) ERA. It does not apply to this claim brought under the 1994 order. Consequently, in my judgment the question of intention in paragraph 15(2) is not material in the present case.

[23]The second point concerns the question as to whether or not the Claimant's letter of 3 December complies with the requirements of paragraph 6 of Schedule 2, that is to say, have the Claimants set out a grievance in writing and sent a copy of it to the employer? Plainly, the letter is in writing and a copy was sent to the corporate employer. I have been referred to the contractual grievance procedure and the requirement that in the first instance a grievance should be addressed to Mrs Thorpe.

[24]Leaving aside the issue raised by Mr Poat, as to whether or not the written terms of contract in fact reflected the contractual terms in the absence of signature, it seems to me that any contractual grievance procedure is again not to the point. The question is whether under the statutory grievance procedure step one has been made out. In my judgment the Chairman was perfectly entitled to find that the contents of the letter of 3 December amounted to a grievance. That is a complaint by the employees about action which the employer had taken in relation to them within the meaning of regulation 2(1) of the 2004 Regulations.

[25]Returning to the question which I have posed under Regulation 6, did either the standard or modified grievance procedures or neither apply in this case? The point was not taken below. I am not asked to give permission for it to be taken exceptionally for the first time on appeal. That seems to me a proper stance for the Respondents to take, particularly where factual questions may arise as to whether or not this is a case in which neither statutory procedure applies, following the rubric of regulation 6 of the 2004 Regulations. The principles in Glennie v Independent Magazines (UK) Ltd

[1999] IRLR 719

plainly apply here.

[26]In these circumstances, based on the arguments presented below and in this appeal I shall dismiss the appeal, whilst, I hope, alerting parties, their advisers and Tribunals in future to the potentially complex issues raised by regulation 6 of the 2004 Regulations.