MARK WARNER LTD v MRS C ASPLAND [2005] UKEAT 0531_05_0812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0531_05_0812Case No Appeal No. UKEAT/0531/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MARK WARNER LTDAPPELLANTMRS C ASPLANDRESPONDENT
Before
His Honour Judge Peter ClarkDate 8 December 2005
[1]APPEARANCES For the Appellant MR MOHINDERPAL SETHI (Of Counsel) Instructed by: M B Law Studio 3 The Quays Concordia Street Leeds LS1 4ES For the Respondent MR JOHN HORAN (Of Counsel) Instructed by: Kensington Citizens Advice Bureau 140 Ladbroke Grove London W10 5ND SUMMARY Practice and Procedure Statutory Grievance Procedure. Whether express intention to lodge grievance required. Covering all claims. Without prejudice letters. Whether solicitor may act as party's agent. Provision of required information in ETI. HIS HONOUR JUDGE CLARK This case has been proceeding before the London Central Employment Tribunal. The parties are Mrs Aspland (Claimant) and Mark Warner Ltd (Respondent). I shall so describe them.[2]The appeal is brought by the Respondent against the judgment of a Chairman, Mr B C Buckley sitting alone on 3 June 2005 at a Pre-Hearing Review (PHR) insofar as he held that the Claimant's claims of constructive unfair dismissal and victimisation contrary to the Sex Discrimination Act 1975 had been properly accepted by the Employment Tribunal; the Statutory Grievance Procedure under the Employment Act 2002 had been complied with by the Claimant and she had provided the information required under the Employment Tribunal Rules of Procedure 2004 (the Tribunal Rules) in her claim form. There is no appeal against the Chairman's further ruling that the claim form sufficiently set out her claims both of constructive unfair dismissal and victimisation. That judgment with Reasons was promulgated on 12 July 2005. Background[3]The Claimant commenced employment with the Respondent on 18 August 1999. She rose to the position of National Sales Manager. On 8 January 2004 she notified her line manager, Jo Powell, that she was pregnant. Later that year she commenced proceedings in the Tribunal, (the first claim: case number 2202524/2004) raising three complaints of direct sex discrimination: that she had been demoted; that full pay had been stopped and sick pay substituted therefor and thirdly; that Miss Powell had bullied her, these matters being connected with her pregnancy.[4]A Tribunal heard the first claim over three days in November 2004 followed by a day in chambers. By their reserved judgment that Tribunal rejected the first two complaints but upheld the third, that of bullying by Miss Powell. The Claimant was awarded £7,000 damages for injury to her feelings.[5]Following promulgation of the Tribunal's judgment on 7 December 2004 it seems that the Respondent's managing director, David Hopkins, gave interviews to trade newspapers. As a result of reports in two of the newspapers, the Claimant's solicitor Mr Wilson of the Kensington Citizens Advice Bureau, who had represented her before the Tribunal, wrote to the Respondent's solicitor, who had also acted in those proceedings, on 20 December 2004. He registered concern that Mr Hopkins was reported as saying that Jo Powell had the full backing of the board and her team. It was suggested that the Respondent rejected the findings of the Tribunal and that such views were incompatible with the Respondent's legal obligations to the Claimant, who remained their employee.[6]The Respondent was asked to constitute disciplinary proceedings against Miss Powell in respect of the bullying found by the Tribunal and was asked to take all necessary steps to protect the Claimant from further acts of discrimination and/or victimisation on her return to work. On 23 December those solicitors replied substantively, stating that the Respondent had paid the compensation of £7,000 ordered by the Tribunal and wished to put the matter behind them. The Claimant's solicitor was asked to confirm that she would be returning to her old job on 4 January 2005 following her maternity leave.[7]On 24 December Mr Wilson wrote again stating that the Claimant "remains seriously aggrieved" by the Respondent's public statement that the company did not accept the Tribunal's findings that she was bullied and discriminated against. He further complained of the lack of disciplinary action against Jo Powell and demanded a public statement accepting the Tribunal's findings and indicating that disciplinary action would be taken against Miss Powell. The letter concludes with a demand that unless those steps were taken within seven days the Claimant would treat the Respondent as being in fundamental breach of contract, forcing her to resign and commence fresh proceedings for constructive unfair dismissal.[8]In the absence of a substantive response Mr Wilson wrote again on 5 January 2005, repeating the proposed action by the Claimant. No undertaking to discipline Miss Powell was given by the Respondent's solicitors in their letter of 5 January. On 6 January Mr Wilson again complained of the lack of disciplinary action against Miss Powell and on 7 January the Claimant, through her solicitor, resigned without notice.[9]On 23 February she presented her second claim (case no 2200483/05) to the Tribunal using the old-style form ET1. In Particulars headed "Details of Claim" she recounted the history of the first proceedings. At paragraph 6 she referred to Mr Wilson's letters dated 24 December 2004 and 6 January 2005 and concluded by contending that she had been constructively unfairly dismissed (paragraph 8) and victimised (paragraph 9). That claim was accepted by the Tribunal Secretariat.[10]The Respondent lodged a new-style response form dated 18 March. In answer to the question posed at s.2.5 of that form 'Has the substance of this claim been raised by the Claimant in writing under a grievance procedure?' the answer was, 'No.'[11]A case management discussion was held before a Chairman, Mr T P Ryan on 14 April 2005. Following that hearing the Chairman formulated two issues to be determined at a PHR. They were:(1) Whether having regard to the provisions of s.32 and Schedules 3 and 4 of the Employment Act 2002 the claims of constructive unfair dismissal, direct sex discrimination and discrimination by way of victimisation ought to have been or ought to be accepted by the Tribunal;(2) whether by reason of the Claimant's alleged failure to comply with Rule 1(4) of the Tribunal Rules and (sic) Procedure 2004 the claim ought to have been accepted by the Tribunal. Those were the issues material to this appeal which came before Mr Buckley at the PHR. The Tribunal Determination[12]As to those two issues Mr Buckley found:(1) that the correspondence from the Claimant's solicitor dated 20 December, 24 December and 26 January to the Respondent's solicitor amounted to a written grievance within the meaning of s.32 EA 2002, read with paragraph 6 of Schedule 2 to the Act and the definition of grievance contained in Regulation 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the 2004 Regulations);(2) the Claimant had complied with the requirements of Rule 1(4)(h) of the Tribunal Rules, namely that she had provided information in her claim form as to whether or not she had raised the subject matter of her claim with the Respondent in writing at least 28 days prior to presenting her claim to the Tribunal (see EA 2002 s.32(3)). Accordingly, the claim was properly registered. The Appeal[13]The following issues have been raised by the Respondent in this appeal:(1) Did the Claimant comply with the Statutory Grievance Procedures (SGP) under the 2002 Act read, with the 2004 Regulations in particular: (a) did the solicitor's letters amount to a grievance in writing and; (b) does it matter that those letters were written by her solicitor to the Respondent's solicitor and; (c) are those letters merely letters before action?(2) Were the letters part of 'without prejudice' correspondence and if so, can she reply upon those letters as fulfilling the SGP requirements?(3) Did she comply with Rule 1(4)(h) of the Tribunal Rules? Did the Claimant raise a Grievance under the SGP?[14]The question as to what constitutes a grievance has now been the subject of consideration by this Appeal Tribunal in three cases: Thorpe v Poat and Lake UKEAT 0503/05/SM 18 October 2005, a case in which I sat alone; Galaxy Showers v Wilson ... EAT 0525/05/CK 10 November 2005) a preliminary hearing presided by Langstaff J and Shergold v Fieldway Medical Centre (EAT/0487/05/ZT 5 December 2005) a full hearing presided over by Burton P. In the latter case the President considered and approved the approach taken in the earlier cases (see paragraph 25).[15]With that general approach in mind I now turn to consider Mr Sethi's submissions in support of the proposition that the Chairman, Mr Buckley, was wrong in law to find that this Claimant had raised a statutory grievance in relation to both her claims of constructive unfair dismissal and victimisation and so inform the Tribunal in her claim form: (1) It is contended that the evidence relied on does not evince an intention on the part of the Claimant to raise a grievance. Reliance is placed on Regulation 2(2) of the 2004 Regulations which provides:
"In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2)."
Mr Sethi argues that the President in Shergold , paragraph 33, in making it clear that it is not necessary to make it plain in the writing that it is a grievance or an implication of a grievance procedure, did not have his attention drawn to Regulation 2(2). That appears to be correct, but that provision has been brought to my attention and I wish to make it clear that, in my judgment, it does not alter the President's statement of principle. The purpose of Regulation 2(2) is to state that a written communication (for present purposes) may relate to matters other than a grievance. In these circumstances it matters not whether the grievance is raised, for example, in a letter before action. The use of the word 'intended' in the words in parentheses in Regulation 2(2) does not, in my view, record a requirement that in such communications there must be an expressed intention to raise a grievance. As the earlier cases make clear, the question is whether the definition of grievance in Regulation 2(1) is met. Is there a complaint in writing made by the employee about action which his employer has taken or is contemplating taking in relation to him? In my judgment, in the present case, the correspondence relied on fulfils these requirements. The action complained of is the Respondent's alleged breach of the implied term of mutual trust and confidence and victimisation arising out of the Claimant's earlier protected act, that is, her previous Tribunal complaint. (2) The complaint must relate to the eventual claims (see Shergold paragraph 35). Here, Mr Sethi submits that although the complaint of constructive unfair dismissal is raised, that of victimisation is not. I disagree. The earlier letter of 20 December specifically refers to victimisation; the letter of 24 December speaks of the Claimant as a victim of discrimination and bullying. In my view the sequence of correspondence beginning on 20 December must be read as a whole. It plainly raises a complaint in relation to both claims as required by s.32(2) EA 2002. (3) Does it matter that the letters relied on were written by the Claimant's solicitor? My short answer is no. I see no warrant for reading the words 'employee' and 'employer' in paragraph 6 of Schedule 2(2) EA 2002 as excluding action taken by their agents, here the parties' solicitors. Mr Sethi refers to Regulation 9 of the 2004 Regulations which treats the parties as having complied with the applicable statutory procedures if the written grievances are submitted by an 'appropriate representative', defined as a Trade Union official or employee-elected representative. I regard that provision as dealing with collective grievances; it does not exclude an individual employee's agent such as a solicitor from lodging a grievance on behalf of his client. (4) Was the correspondence relied on 'without prejudice' correspondence? On a fair reading of the letters from the Claimant's solicitor she was complaining of the Respondent's initial failure to accept the bullying findings of the previous Tribunal and the failure or refusal on the part of the Respondent to discipline Miss Powell. She demanded that both these matters be remedied, failing which she would treat herself as constructively dismissed and commenced fresh proceedings against the Respondent. The Respondent did not accede to those demands and proceedings followed. I accept that the absence of the words 'without prejudice' on the letters does not preclude them from being so characterised. However, it must be clear from the surrounding circumstances that the parties were seeking to compromise the potential fresh claims Rush & Tompkins Ltd v Greater London Council [1989] AC1280. In my view there is no indication that that was the aim. The Claimant asserted what steps were necessary on the part of the Respondent to maintain the necessary trust and confidence in the employment relationship and to prevent victimisation. The Respondent disagreed. No element of compromise ever raised its head before these proceedings were commenced. In these circumstances I am satisfied that the letters relied on met the SGP requirements of the legislation. Did the Claimant provide the required information?[16]Since 10 October 2005 all claims presented to Employment Tribunals must be on the prescribed form. It follows that this Claimant was permitted to use the old form ET1, provided that it contained the information provided by Rule 1(4) of the Tribunal Rules, in particular (h) "whether or not the Claimant has raised the subject matter of the claim with the Respondent in writing at least 28 days prior to presenting the claim to an Employment Tribunal office."[17]In my judgment reference to the letters of 24 December and 6 January at paragraph 6 of the Details of Claim, viewed in the overall context of those Details, satisfied the requirement of Rule 1(4)(h). The Chairman was entitled so to find. Conclusion Having considered the various ways in which Mr Sethi challenges the Chairman's findings on the two issues before him, I am wholly unpersuaded that any error of law is made out, construing the legislation in a way compatible with the Human Rights Act 1998 and, in particular, to the right to a fair trial as Mr Horan urges me to do. Accordingly this appeal fails and is dismissed.