MS C CARCIANIGA v THE BRITISH LEPROSY RELIEF ASSOCIATION (LEPRA) [2007] UKEAT 0071_07_1805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0071_07_1805Case No Appeal No. UKEAT/0071/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS C CARCIANIGAAPPELLANTTHE BRITISH LEPROSY RELIEF ASSOCIATION (LEPRA)RESPONDENT
Before
His Honour Judge BirtlesDate 18 May 2007
[1]APPEARANCES For the Appellant Mr S Marsh (of Counsel) Instructed by: Messrs Jackaman Smith & Mulley Solicitors Oak House 7 Northgate Street Ipswich Suffolk IP1 3BX For the Respondent Mr M Lane (of Counsel) Instructed by: Nigel French Consultancy Ltd Second Floor 43 Buttermarket Ipswich IP1 1BJ SUMMARY Practice and Procedure – 2002 Act and pre-action requirements Appeal from a PHR by a Chairman that there had been no statutory grievance following Canary Wharf Management Ltd v Edebi [2006] IRLR 416 . The EAT held the test was a permissible option open to the Chairman on the facts of the case. Furthermore the Chairman was correct to hold that as there was no statutory grievance raised the ET had no power to extend time under s.111 ERA or s.76(5) SDA following London Borough of Hounslow v Mr A Millen (UKEAT/0645/06). HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the decision of an Employment Tribunal Chairman (Mr J. D Hobson) sitting alone at Bury St Edmunds on 11 September 2006. The written reasons were sent to the parties and entered in the Register on 27 October 2006.[2]The judgment of the Employment Tribunal was:(1) The claims of the Claimant of constructive dismissal and sex discrimination were out of time and were dismissed.(2) There were no grounds for the granting of an extension of time to the Claimant in respect of her claim of constructive dismissal on the grounds that it was not reasonably practicable for her to comply with the 3 month time limit.(3) There were no grounds for extending the time for the Claimant in respect of her time for sex discrimination on the ground that it would be just and equitable to allow the claim to proceed out of time.(4) The Claimant had failed to comply with the statutory grievance procedures and had not raised a proper grievance pursuant to the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 .[3]Against that judgment the Claimant has appealed. The Appellant was represented by Mr Stephen Marsh of Counsel (who did not appear below) and the Respondent was represented by Mr Michael Lane of Counsel (who did appear below). I am grateful to both of them for their skeleton arguments and oral submissions. Preliminary points[4]At the hearing I dealt with an application by Mr Marsh to adduce a number of documents which were not before the Employment Tribunal. For the reasons given in a separate judgment I refuse that application to permit the Appellant to rely on those documents.[5]I also dealt with a second application by Mr Marsh to resile from a concession made on behalf of the Appellant by her solicitor at the Employment Tribunal. I allowed that application. I will deal with this point and give my reasons for it later in this judgment. Employment Tribunal judgment (1): the issues[6]The pre-hearing review before the Employment Tribunal was to consider the preliminary issue as to whether the claims of the Claimant should be struck out, having regard to the relevant time limits for presenting such claims. There was a second issue, namely whether the Claimant had complied with the statutory grievance procedure.[7]The Claimant alleged that she was constructively dismissed. She further alleged sex discrimination arising from the refusal by the Respondents to grant her application for flexible working so as to enable her to work part-time following the birth of her child. Employment Tribunal judgment (2): the material facts[8]These are set out in paragraphs 2.1-2.7 of the Employment Tribunal judgment where it said this:
"2.1 The Claimant, who is Italian and who was born on 3 December 1964, commenced employment with the Respondents as a Programmes Officer on 18 March 2002. 2.2 In August 2005, the Claimant requested the Respondents for flexible working upon her return from maternity leave. The Respondents heard her application for flexible working on 19 September 2005 and on 28 September 2005 the Claimant was notified that her application for flexible working had been refused. The Claimant appealed against this decision on 10 October 2005. On 24 October 2005, the Respondents notified the Claimant that her flexible working appeal had been dismissed. 2.3 On 28 October 2005, the Claimant tendered her resignation. Her resignation letter, addressed to the Human Resources Manager of the Respondents, reads as follows: "
Dear Yvonne, Thank you for your letter dated 24 th October, in which I was informed that my formal application for flexible working has once again and finally been dismissed. Although I appreciate the effort that you have made in going through this formal process, it is just not a realistic option for me to return to work on a full time basis immediately at the end of my maternity leave. As we have discussed on several instances the reasons of my request for flexible work, and since negotiation has not lead to a suitable compromise, all that remains to be said from my side is that you accept this letter as my formal request for resignation from my post of programmes officer. I will treasure precious memories of my work with LEPRA and, most of all, l will truly miss people that have so positively marked my professional and personal life. Thank you also for being such an important part of this whole experience. With all best wishes to your and to LEPRA, Chiara Carcianiga." 2.4 The last day of the Claimant's employment with the Respondent was 11 November 2005. 2.5 The last date upon which the Claimant would be in time to issue a claim in the Employment Tribunal was 10 February 2006. If a valid grievance had been raised by the Claimant, the extended three-month period under the statutory grievance procedure would therefore expire on 10 May 2006 under Regulation 15. 2.6 When the Claimant first submitted her claim to the Employment Tribunal (out of time), it was rejected and returned to her because she had not indicated on the Claim Form that the grievance procedure had been complied with. The Claimant then waited, and did not re-submit her claim until 11 May 2006. In the amended claim, the Claimant asserted that her resignation letter of 28 October 2005 amounted to a grievance. On the basis, of this assertion, the claim was entered. It was conceded on behalf of the Claimant by her solicitor that whether in February or May 2006, her claims were out of time. 2.7 In evidence the Claimant asserted that in addition to the resignation letter of 28 October 2005, there were notes and e-mails subsequently which may also constitute a grievance. The Claimant added that she raised her concerns with a member of the Executive Board of the Respondents, up to and including the end of February 2006, but when no action was taken she proceeded with her claim, wrongly believing that the deadline was 11 May 2006."[9]In paragraph 2.8 the Employment Tribunal say this:
"2.8 The finding of the Tribunal is that neither the resignation letter of 28 October 2005 nor any subsequent exchanges with the Executive Board amounted to a grievance."
That is not a finding of fact but a conclusion from the facts and should have been in section 6 of the Employment Tribunal's judgment under the sub heading "Decision". Employment Tribunal judgment (3): the law[10]The Employment Tribunal set out the relevant law at paragraphs 3.1-3.7 of its judgment and referred to Shergold v Fieldway Medical Centre [2006] IRLR 76 and Canary Wharf Management Ltd v Edebi [2006] IRLR 416 .[11]It is clear from those paragraphs that the Employment Tribunal had in mind all 3 issues which had been flagged up for its decision. They were(1) the statutory grievance point,(2) whether it was just and equitable to make an extension of time under section 76(5) of the Sex Discrimination Act 1975 ,and(3) whether it was not reasonably practicable for the Appellant to bring her claim for unfair dismissal in time under section 111(2) of the Employment Rights Act 1996 . Employment Tribunal decision[12]These are set out in paragraph 6.1-6.10 of the judgment and states as follows:
"6.1 Referring to the Claimant's resignation letter, the Tribunal considered this and read it many times. The judgment of the Tribunal is that the resignation letter simply does not amount to a grievance. There is nothing in that letter which would indicate to the Respondents that the issues between the Claimant and the Respondents were ongoing. Indeed, the opposite appears to be the case. In her letter, the Claimant refers to her formal application for flexible working which she says had "once again and finally" been dismissed. There is a note of resignation in that phrase and indeed that note is reflected by the fact that this was a letter of resignation. Furthermore, there is not even a tiny hint in the resignation letter of any complaint of sex discrimination. It is a further requirement of the formalities for a grievance that there must be some indication as to the nature of the complaint raised by the grievance which is consistent with the claim before the Employment Tribunal. There is no such indication whatsoever. 6.2 The Claimant made no reference on her amended Claim Form of 11 May 2006 to any other document other than her letter of resignation which might have been suggested or put forward as being a formal grievance. The Claimant however gave evidence and included a document in the bundle at pages 28 and 29 which related, according to her evidence, to a meeting which took place between her and a Member of the Executive Board of the Respondent, Dr John Porter, on 2 February 2006. Again, having carefully read this document, the judgment of the Tribunal is that this does not amount to a grievance which would in anyway comply with section 32 Employment Act 2002. 6.3 In her witness statement, the Claimant states: "
As the note raised a written complaint, I now consider it to be a grievance, although I had not realised this at the time." 6.4 To consider the note briefly, in it the Claimant refers events in 2003 and to the date of 21 September 2003 and says:
"I contacted the HR Manager Yvonne Jefford to present an official grievance against Terry Vasey. Yvonne told me it was not appropriate to do it at that time because the legislation applying to the issue was being modified." 6.5 This sentence clearly suggests not only that the Claimant was very aware of the implications of raising an official grievance, but also that she was aware of the existence of legislation which applies to this topic. In paragraph 3 of the document, the Claimant says: "
I still think it could be 'useful' that I lodge a case with the Employment Tribunal not so much for myself but mostly for LEPRA's future… Therefore I am hoping LEPRA's Executive Committee does carry out a confidential for the current employees' investigation with former and current LEPRA employees." 6.6 Again, this document does not suggest that the Claimant, in writing what she stated in her note to Dr Porter, was raising a grievance on her own behalf. In the judgment, of the Tribunal, this is, as has been stated, raising at best an issue on behalf of other current and LEPRA employees. Accordingly, the judgment of the Tribunal is that that letter does not assist the Claimant as constituting a formal grievance. 6.7 The judgment of the Tribunal is that the Claimant's claims must fail, not only because of the time limits and her failure to issue her claim within the first three months following her resignation and the effective date of termination of her employment, but also because in the cases of both constructive unfair dismissal and the complaint of sex discrimination, failure by the Claimant to have submitted a statutory grievance in accordance with the provisions of section 32 of the Employment Act 2002 is a complete bar to the claim, for which there is no judicial discretion which can be exercised in her favour. 6.8 it is also worthy of comment that the Claimant, in addition to her prior knowledge or awareness of legislation concerning grievances, had conducted her request for flexible working and her appeal against the refusal of flexible working. She is therefore certainly not a person who was entirely ignorant of employment law and of her employment rights and she was also a person who did have access to legal advice. 6.9 The Tribunal has in particular followed the guidance of the judgment of the Employment Appeal Tribunal in Canary Wharf Management Limited v Edebi 2006 IRLR 416 which sets out the most pertinent and relevant guidance to the facts of this claim. 6.10 The Claimant's claims are out of time, she had failed to comply with the statutory grievance procedures and her claims are inadmissible and are dismissed." The Notice of Appeal[13]This is set out in the Employment Appeal Tribunal bundle at pages 1-7. In my judgment it clearly raises three distinct issues. They are:(1) An extension of time under section 111(2) of the Employment Rights Act 1996 : see Notice of Appeal paragraphs 1;4-6 and 8;(2) An extension of time under section 76(5) of the Sex Discrimination Act 1996 : see Notice of Appeal paragraphs 2;4-8;(3) An extension of time because the Appellant had lodged a valid statutory grievance: see Notice of Appeal paragraphs 3;9-39.[14]Both Mr Marsh and Mr Lane had come prepared to argue the statutory grievance point only. I pointed out to them my view that the Notice of Appeal contained two other matters and also that the Chairman appeared to have made an error of law in paragraph 6.7 of his judgment where he said this: "6.7 The judgment of the Tribunal is that the Claimant's claims must fail, not only because of the time limits and her failure to issue her claim within the first three months following her resignation and the effective date of termination of her employment, but also because in the cases of both constructive unfair dismissal and the complaint of sex discrimination, failure by the Claimant to have submitted a statutory grievance in accordance with the provisions of section 32 of the Employment Act 2002 is a complete bar to the claim, for which there is no judicial discretion which can be exercised in her favour.[15]In those circumstances I gave both counsel the opportunity to make written submissions within a further period of 21 days. I later referred them to the decision of HHJ Peter Clark in BUPA Care Homes (BNH) Ltd v Cann and Others [2006] IRLR 248 .[16]Before turning to the three grounds of appeal I consider Mr Marsh's application to resile from the concession made by the Appellant's solicitor at the Employment Tribunal hearing but whether or not the claim was effective in February or May 2006 the Appellant's claims were out of time: judgment paragraphs 2.4-2.6. Mr Marsh referred me to an earlier decision of the Employment Appeal Tribunal in Mr J Singh T/A Rainbow International v Mr S Taylor (unreported 27 June 2006 UKEAT/0183/06) where I held that the statutory extension of time under Regulation 15(1) of the Employment Act Dispute (Resolution) Regulations 2004 means 3 months and not 3 months less a day. On that basis Mr Marsh submitted that the Chairman was wrong to say in paragraph 2.5 of his judgment that if a valid grievance had been raised by the Claimant the extended 3 month period under the statutory grievance procedure would therefore expire on 10 May 2006 under Regulation 15. The correct date was 11 May 2006.[17]Mr Lane did not contest the correctness of my judgment in Mr J Singh T/A Rainbow International v Mr S Taylor , SUPRA, but submitted that in accordance with the authorities I should not permit the Appellant to resile from the concession made by her solicitor at the Employment Tribunal. He referred me to Kumchyk v Derby City Council [1978] ICR 1116 ; Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 (a case involving a concession by a representative by the Employment Tribunal) and Glennie v Independent Magazines (UK) Ltd [1990] IRLR 719.[18]In my judgment this particular case on its facts falls within the narrow exception to the normal rule that a party cannot rely in the Employment Appeal Tribunal on a point which was either decided or conceded below: Kumchyk v Derby City Council [1978] ICR 1116 . It does so for the precise reason given by Laws LJ in Glennie v Independent Magazines (UK) Ltd [1990] IRLR 521 at paragraph 18 where he said this:
"The Employment Appeal Tribunal possesses a discretion, which must be exercised in accordance with established principles, to allow a new point to be raised before it for the first time. It is a general principle of the law that it is a party's duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 is, with great deference, consonant with this. A new point ought only to be permitted in exceptional circumstances, as Robert Walker LJ held at p.44B. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below that may be an exceptional circumstance but only, in my judgment if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual enquiries. There is a public interest, beyond the interest of individual parties, the statutory Tribunal exercised the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as approved or admitted before them."
[19]In my judgment this point is a discrete one of pure or hard edged law requiring no or no further factual enquiry. The concession was quite clearly made (and accepted by the Employment Tribunal) in ignorance of the decision of this Tribunal in Mr J Singh T/A Rainbow International v Mr S Taylor , supra . Notice of Appeal ground 1: failure to consider an extension of time under section 111(2) of the Employment Rights Act 1996[20]Having set out the relevant statutory provision at paragraph 3.3 of its judgment the Employment Tribunal went on to decide that having found there was no statutory grievance in accordance with the provisions of section 32 of the Employment Act 2002 that that was a complete bar to the Claimant's claims "for which there is no judicial discretion which can be exercised in her favour". That then leads to paragraph 2 of the judgment which I have set out above.[21]There is no reasoning as to why the Employment Tribunal reached this decision. I have considered the written submissions by Mr Lane and Mr Marsh. In my judgment BUPA Care Homes (BNH) Ltd v Cann and Others [2006] IRLR 248 is distinguishable on the facts. In the present case both the Employment Tribunal Chairman and myself have found that there was no grievance raised by the Appellant as defined by Schedule 2 paragraph 6 of the Employment Act 2002 . In the Cann case HHJ Peter Clark found that a grievance was raised: [2006] IRLR 248 at paragraph 41. In the absence of a statutory grievance the power to extend time contained in section 112(2) of the Employment Rights Act 1996 does not arise. The only course of action for the Appellant is to raise a fresh grievance and make a fresh application to the Employment Tribunal: London Borough of Hounslow v Mr A Miller (UKEAT/0645/06/DA: Elias J judgment 28 March 2007). Notice of Appeal ground 2: failure to consider an extension of time under section 76(5) of the Sex Discrimination Act 1975[22]The Employment Tribunal correctly referred to the law: judgment paragraph 3.3 but reached the same conclusion as it had for unfair dismissal: judgment paragraph 3.7. For the reasons already given in paragraph 21 of this judgment the Employment Tribunal Chairman was correct and there was no error of law. Notice of appeal ground 3: statutory grievance procedure[23]I begin with the law: Section 32(2) of the Employment Act 2002 provides that:
"An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if- (a) it concerns a matter in relation to which the requirement in para.6 or 9 of Schedule 2 applies, and (b) the requirement has not been complied with."
Schedule 2 sets out the statutory dispute resolution procedures including a standard grievance procedure and a modified grievance procedure. Paragraph 6 requires that, as the first step in a case where the standard grievance procedure applies "The employee must set out the grievance in writing and send the statement or a copy of it to the employer." Paragraph 7 then provides that, as step 2, the employer must invite the employee to attend a meeting to discuss the grievance but before that meeting takes place, the employee must inform the employer of the basis for the grievance and the employer must be given a reasonable opportunity to consider his response to that information. Step 3 concerns the right of appeal. A "grievance" is defined in reg.2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 as "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him. The resignation matter[24]The contents of the letter are set out at paragraph 2.3 of the judgment: EAT bundle page 10. A copy of the letter appears at EAT bundle page 59.[25]Both counsel accept that a resignation letter can constitute a grievance as defined by regulation 2(1) of the 2004 regulations. That is clearly correct in law: see Shergold v Fieldway Medical Centre [2006] IRLR 76 and Commotion Ltd v Ms K Rutty [2006] ICR 290 .[26]Mr Marsh submits that the Employment Tribunal can and should look at the background leading up to the resignation letter itself: Shergold v Fieldway Medical Centre [2006] IRLR 76 : and Canary Wharf Management Ltd v Edebi [2006] IRLR 416 ; and Mr Martin Lipscome v Forestry Commission (unreported 28 September 2006 UKEAT/0191/06 HHJ McMullen QC). Mr Marsh submits that in this case the Employment Tribunal only deals with the resignation letter in paragraph 6.1 of its decision and is in error in that it confines itself to a textual analysis of the letter rather than reading it in context. He refers me to the factual situation in Mr Martin Lipscome v Forestry Commission (unreported 28 September 2006 UKEAT/0191/06) at paragraph 10 and particularly to the form of the resignation letter in that case.[27]Mr Lane submits that the construction of the grievance letter is a matter of fact and not law and in this particular case the background material is limited: judgment paragraph 2.6 so there is a real paucity of factual material upon which the Chairman could find that this was a grievance. He says the Chairman is right to construe the letter in the way that he did. Mr Lane also submits that this case cannot begin to pass the perversity test in Yeboah v Crofton [2002] IRLR 634 .[28]In my judgment the appropriate law is found most clearly in the judgment of the President in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 and especially with the analysis of paragraphs 19-23 and 25. The Chairman was referred to that decision and cited from it: judgment paragraphs 3.6-3.7. In my judgment on the facts of the case recited in paragraphs 2.2-2.3 the Chairman was entitled to find that the resignation letter was not a grievance as defined by regulation 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 as "a complaint by an employee about action which his employer has taken or is contemplating in taking in relation to him".[29]I do not find that the factual situation in Commotion Ltd v Ms K Rutty [2006] ICR 290 comparable not least because of the form of the resignation letter in that case: [2006] ICR 290 at 293 D-E. Neither do I find the factual situation in Mr Martin Lipscome v Forestry Commission (unreported 28 September 2006 UKEAT/0191/06) analagous either. The resignation letter in that case is set out at paragraph 10 of the judgment which not only refers to "my grievance" but makes it clear that the Appellant intended to pursue the matter. Each case depends on its own facts and I am mindful that my power to allow an appeal is on a point of law only. There is no error of law in the approach of the Chairman to the resignation letter of 28 October 2005. The note to Dr Porter[30]It is necessary for me to refer to a little of the background here. Dr John Porter was a member of the Executive Board of the Respondent. At a date in February 2006 the Appellant had a meeting with him and gave him a note: EAT bundle pages 61-62. There is no dispute that this note was in front of the Employment Tribunal. The Employment Tribunal's findings of fact are at paragraph 2.7 of its judgment and at 6.2-6.6 of its decision. The decision makes two things clear. First, at the time of writing that note to Dr Porter the Appellant did not intend the note to be a statutory grievance and second, the Employment Tribunal on a close analysis of the note said it raised "at best an issue on behalf of other current and LEPRA employees." It was therefore not "a complaint by an employee about action of which his employer has taken or is contemplating taking in relation to him ." (My emphasis). Obviously one must read the word "him" as meaning "her" in the context of this case. However in my judgment the analysis carried out by the Employment Tribunal in paragraph 6.2-6.6 of its decision is an analysis which was a perfectly legitimate one applying the authorities and the conclusion in paragraph 6.6 "that the letter does not assist the Claimant as constituting a formal grievance" is a conclusion to which the Chairman was properly entitled to come. Conclusion[31]For those reasons the appeal is dismissed.