MR H SHARPE v BALFOUR KILPATRICK [2006] UKEAT 0377_06_3110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0377_06_3110Case No Appeal No. UKEAT/0377/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR H SHARPEAPPELLANTBALFOUR KILPATRICKRESPONDENT
Before
His Honour Judge RichardsonDate 31 October 2006
[1]APPEARANCES For the Appellant MS J BROWN (Of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Practice and Procedure – Application/Claim Claim Form sufficiently raised a cause of action under s.137 TULR(C)A 1992 and should have been accepted. HIS HONOUR JUDGE RICHARDSON This is an appeal by Mr Howard Sharpe against two decisions of the London (North) Employment Tribunal. On 9 May 2006 the Tribunal Chairman decided, apparently applying rule 3 of the Employment Tribunal Rules of Procedure 2004 , that the Employment Tribunal did not have power to consider Mr Sharpe's claim. On 23 May 2005, Mr Sharpe having written to the Tribunal, the Tribunal Chairman decided, applying rule 35 of the Employment Tribunal Rules of Procedure 2004 that there were no grounds for a review of that decision and that Mr Sharpe's claim stood no reasonable prospects of success.[2]On behalf of Mr Sharpe it is argued that he had a good legal claim. The Employment Tribunal had jurisdiction. The claim was presented in time, in the appropriate form, and in circumstances where no statutory grievance procedure has to be followed first. The Tribunal was therefore wrong to reject the claim on the grounds that it did not have power to consider it. The facts[3]Mr Sharpe presented a claim to the Tribunal on 4 May 2006. The complaint made by Mr Sharpe was stated as follows:
"Trevor Watcham, Labour Manager of Balfour Kilpatrick, phoned to offer me a job to start at Terminal 5 on 14 February 2006. He said he was asking for references. He phoned me a few days before I was due to start the job and said, basically, there was no job for me, that he had no replies to the references. I challenged three of the referees and they said that they received no requests for references. When I challenged Trevor Watcham about this, he said he did not send them out personally. I feel that I have been victimised due to my age and due to my trade union activities."
[4]Mr Sharpe's claim, being dated 4 May 2006, was presented within three months of 14 February 2006, and thereby was within the time limit for presenting a claim of refusal of employment on grounds relating to union membership: see section 137-140 Trade Union and Labour Relations (Consolidation) Act 1992 .[5]On 9 May 2006 the Tribunal rejected Mr Sharpe's complaint, saying:
"Your claim form has been referred to a Chairman, Ms I Manley, who has decided that your claim cannot be accepted for the following reason(s). The Tribunal does not have power to consider your claim."
[6]Mr Sharpe applied for a review of this decision by letter dated 21 May 2006. He said that:
"The Leader of Her Majesty's Government has said that there will be no black-listing in this country."
That review application was rejected on 23 May 2005, the reason given was simply:
"There are no grounds for a review and the claim stands no reasonable prospects of success."
The law[7]By section 137(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 it is unlawful to refuse a person employment because he is a member of a trade union. Section 137(5) sets out some circumstances in which a person is taken to be refused employment. Section 139 of the 1992 Act provides that such a complaint must be presented before the end of a period of three months, beginning with the date of the conduct to which the complaint relates.[8]It is now notorious that some complaints cannot be brought to an Employment Tribunal until a statutory grievance procedure has been followed: see Schedule 2 of the Employment Act 2002 for the procedure and section 32 of that Act for the embargo on presenting a claim. However, the procedures do not apply in all circumstances. In particular, they apply only where there is an employer and an employee. It is therefore not surprising that section 137 of the 1992 Act is not listed in Schedule 4 of the Employment Act 2002 . Therefore no statutory grievance procedure applies to it. The appeal[9]This appeal has been sifted straight through to a full hearing by HHJ Peter Clark. As we have seen, the reasons given by the Tribunal were succinct; in particular the reason for refusing a review has no particularity. When refusing a review pursuant to rule 35, reasons should be given: see rule 35(4) of the Employment Tribunal Rules of Procedure 2004 . A sentence identifying the essential reasoning of the Tribunal Chairman would have been of assistance in this case. However, the case is, in my judgment, a clear one. HHJ Clark correctly listed it immediately for a full hearing and it is not necessary in the circumstances to have fuller reasons from the Tribunal Chairman.[10]I should add that the potential Respondent to the Tribunal proceedings, Balfour Kilpatrick, has been notified of the appeal and has, by letter, indicated that it does not wish to appear or to present legal argument in connection with the appeal.[11]Mr Sharpe's contention, put by Miss Brown on his behalf, is that his complaint of unlawful refusal of employment, under section 137 of the 1992 Act, is clearly and adequately pleaded in paragraph 6.2 of his claim, which claim was presented using a prescribed form in accordance with the 2004 rules of procedure. She refers me to Grimmer v KLM City Hopper UK [2005] IRLR 596 as to the amount of detail required as a minimum if such a claim is to be accepted.[12]Broadly I agree with the submission that is made. Mr Sharpe's complaint was about the refusal of employment. He asserted that it was on the ground of trade union activities. It might perhaps be said that he did not expressly assert that any of the conditions set out in section 137(5) applied, nor did he expressly assert that it was because of trade union membership, but these are matters for clarification and the giving of particulars or witness statements later in a case. The essential point is that his complaint was sufficient to invoke section 137 of the 1992 Act . Claims should not readily be ruled out on the grounds of lack of detail: see Grimmer v KLM City Hopper for the principles which should have been applied.[13]It follows, in my judgment, that Mr Sharpe had a claim in law: the Tribunal had jurisdiction; the claim was presented in time on an appropriate form and not subject to any prior requirement to follow a statutory grievance procedure; there was no sufficient reason for refusing to accept the claim. Accordingly the appeal will be allowed and there will be a direction to the Employment Tribunal that the complaint should be accepted as a complaint under section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 . The matter is remitted to the Employment Tribunal for appropriate directions to be given for the hearing of it.