1) THE GOVERNORS OF ALFORD HOUSE 2) MR T SAUNDERS 3) MR N BAKER v MR J MCDONALD [2007] UKEAT 0224_07_1110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0224_07_1110Case No Appeal No. UKEAT/0224/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) THE GOVERNORS OF ALFORD HOUSE 2) MR T SAUNDERS 3) MR N BAKERAPPELLANTSMR J MCDONALDRESPONDENT
Before
His Honour Judge RichardsonDate 11 October 2007
[1]APPEARANCES For the Appellants MR C NEWMAN (of Counsel) Instructed by: Messrs SA LAW LLP Solicitors Keystone 60 London Road St Albans Herts AL1 1NG For the Respondent MR T COGHLIN (of Counsel) Instructed by: Messrs Simons Muirhead & Burton Solicitors Phipps House 50 Broadwick Street London W1F 7AG SUMMARY Practice and Procedure: 2002 Act and Pre-action Requirements Various questions relating to s.32 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. Chairman's reasoning wrong in the light of the subsequent decision of the EAT in London Borough of Hounslow v Miller . However, for other reasons in most respects the claim was not barred by section 32. HIS HONOUR JUDGE RICHARDSON This is an appeal and cross-appeal against a judgment of the Employment Tribunal dated 7 March 2007 sitting at London South by Chairman alone, Ms C E Taylor. The Appeal[2]Mr Julian McDonald was employed by the Governors of Alford House as a project worker. He resigned on 22 March 2006. He presented a claim to the Tribunal on 21 June 2006 alleging constructive dismissal and race discrimination. The Respondents to the claim were the Governors and also two individuals, Mr Saunders, a senior worker, and Mr Baker, a Governor. On the standard tribunal form, usually known as an ET1, there is a question asking whether he had put his claims in writing and if so when. He replied that he had done so on 20 June 2006, the previous day. The Employment Act 2002 made provision for statutory dispute resolution procedures including grievance procedures. By virtue of s32(3) an employee is prohibited from making a complaint to the Tribunal if the complaint is one to which the statutory procedure applies and less than twenty-eight days have passed since he complied with it. In this case, the Chairman held that Section 32(3) did not altogether prevent the Tribunal from having jurisdiction over the complaints. She held that she could stay the claim until the 28 day period had elapsed. Since she reached her decision, the Appeal Tribunal has decided the opposite: see London Borough of Hounslow v Miller (20 March 2007) UKEAT/0645/06. It is therefore common ground that the Chairman's reasoning cannot stand. Cross-appeal and disposal[3]It does not, however, follow that Mr McDonald's claim is necessarily prohibited by section 32. A number of other matters were argued before the Tribunal. Some of them resulted in decisions or findings adverse to Mr McDonald; those are the subject of cross-appeals. To these other matters I shall now turn. The discrimination claim against Mr Saunders and Mr Baker[4]The claims against Mr Saunders and Mr Baker are race discrimination claims. It has now been held by the Appeal Tribunal that a claimant is not required to raise a grievance against individuals other than an employer in order to bring a discrimination claim against them (see Ms C Odoemelam vWhittingham Hospital NHS Trust UKEAT/0016/06/DM). This follows from consideration of the 2002 Act itself and more particularly the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the "DRR"). So the Tribunal was correct to find that it had jurisdiction to entertain the claims against Mr Saunders and Mr Baker: it had. Constructive Dismissal and earlier complaints[5]There is then one argument which applies to the constructive dismissal complaint alone, which it is convenient to take next although in doing so I am assuming for the moment that the statutory grievance procedure under the 2002 Act was applicable.[6]It is argued on behalf of Mr McDonald that the Tribunal had jurisdiction to entertain a constructive dismissal claim because there were earlier letters and an email setting out his complaints covering all the issues on which Mr McDonald relies in support of his constructive dismissal claim. This argument applies only to the constructive dismissal claim because the various documents do not complain of race discrimination.[7]On behalf of the Governors, Mr Newman in his skeleton argument submitted that since the Tribunal gave no consideration to this aspect of the case, it ought to be remitted to the Tribunal for decision. Although that argument has not formally been abandoned today I think it is right to say that both Counsel addressed me on the basis that I should today resolve any issues which I felt able to resolve within the confines of the Appeal Tribunal's jurisdiction. It is not suggested that this argument on behalf of Mr McDonald was not raised below or that it requires any amendment of Mr McDonald's ET1 to raise it.[8]On behalf of Mr McDonald, Mr Coghlin submits that it would be in the interests of justice for the Appeal Tribunal to deal with this argument. The Appeal Tribunal is in as good a position as the Tribunal to do so. He submits that to reargue the points would be a waste of the resources of the Tribunal system.[9]In my view the position is as follows. If, after considering the arguments of the parties, the Appeal Tribunal considers the answer to the issue to be plain and obvious, applying the law and taking the facts at their highest in favour of the party against whom the issue is to be resolved, then the Appeal Tribunal may determine it. Otherwise, the matter must be remitted for the Appeal Tribunal is charged by Parliament with the resolution of questions of law.[10]In order to see whether this is a plain and obvious case, it is necessary to identify the basis of Mr McDonald's constructive dismissal claim and then consider whether the earlier documents sufficiently comply with the standard grievance procedure in relation to that claim. The law relating to this issue is to be found in Shergold v Fieldway Medical Centre [2006] IRLR 76 at paragraphs 28-36 and Canary Wharf Management Ltd v Edebi [2006] IRLR 416 at paragraphs 21-31. These authorities are now very well known and it is sufficient to summarise the position and quote very briefly from them. The employee must set out the complaint but need not set out the basis for the complaint. The complaint may be expressed simply and need not contain the detail of the subsequent claim so long as they are essentially the same. No technical detail is required. The statutory context is that the employee will subsequently have to inform the employer of the basis of the complaint when doubts about its precise scope may be determined. The complaint need not invoke a grievance procedure. In Canary Wharf v Edebi Elias JP, however, said:
"If the statement cannot in context fairly be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim."
[11]There is no difficulty in stating the basis of Mr McDonald's constructive dismissal claim. Both Counsel have adopted six headings set out in paragraph 32 of the ET1 as encompassing what the constructive dismissal claim was about. They are as follows: 1. Failure to adequately consider the Claimant's grievances between 2003 and March 2006. 2. Failure to remunerate the Claimant for additional tasks between 2003 and March 2006. 3. Making the Claimant's position redundant without consultation in February/March 2006. 4. Threatening the Claimant with dismissal if he did not accept a less favourable new contract. 5. Covertly surveilling the Claimant in March 2006. 6. Accusing the Claimant of working at another employer whilst off-sick without first making proper investigations on 21 March 2006.[12]As regards these complaints, there are various letters which Mr McDonald submits are sufficient compliance with the obligation to set out the grievance in writing. These include in particular Mr McDonald's letter dated 16 January 2006, his letter dated 3 March 2006, and his email dated 22 March 2006.[13]The letter dated 16 January 2006 sets out at length a complaint by Mr McDonald that he has been doing duties which do not relate to his job. Mr Newman submits that the letter is not a complaint sufficient to meet heading 2 because it is not in terms a complaint about a failure to remunerate Mr McDonald for those additional tasks. I need not set out at length the proceeding correspondence; suffice it to say that, in my judgment, read in the context of the previous correspondence it plainly is such a complaint; and if there were any doubt about the matter Mr McDonald's earlier letter dated 7 October 2004 would be specific and sufficient in its own right as such a complaint.[14]The letter dated 3 March 2006 reads as follows:
"I am writing to say that I am unhappy at the outcome of the meeting and the fact that I have been unable to appeal any decision. I have now received correspondence from Tim Saunders relating to a new contract and the need to agree within a given time or face redundancy. I am terribly disappointed at the response by yourself and the management team in relation to the issues I have raised. As l stated in my previous correspondence to you and formally at our meeting, I believed that we would have been able to find some middle ground and the basis for a way forward. I also advocated for the input of a mediator in order to achieve this. Unfortunately, despite my best efforts, the responses I have received indicate that you and the management team as my employers are unwilling to address these."
[15]It is common ground that this letter is a sufficient complaint to meet headings 3 and 4 of the constructive dismissal claim. It, in my judgment, also is sufficient to meet heading 1. Mr Newman, I think, in submissions, was eventually constrained to accept this. He was, in my judgment, plainly right to do so and it is in any event my own conclusion. I would add that in the context of the preceding meetings and correspondence I would myself have had no difficulty in saying that this was a sufficient complaint under heading 2 as well. It does not express in terms what the "outcome of the meeting" was but read in context it would suffice.[16]I then turn to the end of March. Mr McDonald's complaints relating to this period are that that he was subject to covert surveillance and that he was accused of working at another employer whilst off sick without proper investigations first having been made. In his letter dated 22 March 2006 Mr McDonald said "Further to receipt of your recent email and attached witness statements I write to say that I am not able to work in an environment where my integrity and character are brought into disrepute. I did explain that I was considering my future and the actions of your employee as detailed in your attached witness statements leave me with no other alternative than to resign my position with immediate effect."[17]The email had called Mr McDonald to a disciplinary hearing to put an allegation that he was claiming to be off-sick on the full rate of pay but nevertheless working for another employer.[18]It is submitted on behalf of the Respondents by Mr Newman that the letter dated 22 March 2006 is insufficient to meet heads 5 and 6. I disagree. It is true that the letter does not spell out that there are allegations of covert surveillance or accusing him of working at another employer without first making proper investigations. But Mr McDonald identifies that he is complaining about the actions of the employer in question as detailed in attached witness statements. That he would subsequently label the actions in the way he has goes in my view to the basis of the complaint rather than the complaint itself. The letter makes it entirely plain that he is complaining of the actions of the employee and that he is complaining that his integrity and character have been brought into dispute. It is implicit that he is complaining that he has been the subject of wrongful accusations. I might add that there is a further email on 29 March on which reliance was also placed which does expressly make complaint about being placed under surveillance. Mr Newman submitted that that did not necessarily mean covert surveillance but the distinction is to my mind too fine to be allowed in the context of the 2002 Act and the DRR.[19]For these reasons I consider it plain and obvious that the Tribunal was entitled to hear the constructive dismissal claim even assuming that the statutory grievance procedure was applicable. It is, however, argued that the statutory grievance procedure was not applicable and I will have to consider those arguments in the context of the discrimination claim against the Governors. The Discrimination claim[20]The first argument on Mr McDonald's behalf relating to the discrimination claim is that no grievance procedure applies to it by reason of Reg 6(5) of the DRR. Effectively, it is now common ground that Reg 6(5) applies to headings (3) and (4) which are also headings of the race discrimination claim but not otherwise. I should explain briefly why that is. Reg 6(5) of the DRR provides:
"Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee"
Dismissal is defined in the DRR in such a way as to exclude constructive dismissal (see Reg 2(1) of the DRR). Reg 6(5) has been construed to apply to a complaint about the manner in which a dismissal takes place including a complaint that it was discriminatory (see Department of Constitutional Affairs v Jones EAT/0333/06/DM and Lawrence v HM Prison Service EAT/0630/06). The Tribunal Chairman thought that Reg 6(5) did not apply to the present case because dismissal did not include constructive dismissal (see paragraph 56 of the reasons) but this was to misunderstand the argument before her. Mr McDonald was complaining that his employers were contemplating actual dismissal of him. In principle, there is no reason why the argument cannot be put that way (see South Kent College v Hall EAT/0087/07 at paragraph 33). So the Tribunal Chairman's reason for rejecting the application of Reg 6(5) cannot stand.[21]The question that would then have arisen for me if it had not been common ground was whether it was plain and obvious that Mr McDonald's claims were that the Governors were contemplating dismissing him. It is conceded by the Governors that Reg 6(5) applies to headings 3 and 4. It is equally plain and conceded that Reg 6(5) does not apply to headings 1 and 2. It is also conceded today by Mr Coghlin that it does not apply to headings 5 and 6. This concession is made because Reg 6(5) applies to dismissal rather than action short of dismissal and in late March there was no explicit threat of dismissal to Mr McDonald only of a disciplinary hearing (see in this context Brook v Minerva Dental Ltd UKEAT/0356/06 at paragraph 51).[22]There was a second argument relied on by Mr Coghlin for submitting that the standard grievance procedure did not apply. That argument rested on Reg 18 of the DRR. But that argument would only have applied to constructive dismissal not to race discrimination as Mr Coghlin accepts, and since I have already ruled that the constructive dismissal claim will be able to proceed I need say no more about that argument. The resubmitted claim[23]In case the first claim was premature in some respect, the second claim was submitted on 29 January 2007. This claim would, on the face of it, be out of time but there are well-known provisions by virtue of which a Tribunal can extend time. In the case of a discrimination claim those provisions require an evaluation by the Tribunal on broad criteria of what is just and equitable. In his skeleton argument Mr Coghlin sought to deploy what appears to be a powerful case for saying it would be just and equitable to extend time. But the second claim was not adjudicated on by the Tribunal and is not before me on appeal; so that is a matter which is not within the jurisdiction of the Appeal Tribunal and must be considered by the Tribunal below. Summary[24]As I have explained I am concerned with the June 2006 Tribunal proceedings. In those proceedings for the reasons I have given: 1. The Tribunal is not prohibited from hearing the constructive dismissal claim against the Governors by the provisions of section 32 of the 2002 Act. 2. The Tribunal is not prohibited from hearing the race discrimination claim against Mr Saunders and Mr Baker by those provisions. 3. The Tribunal is not prohibited from hearing heads 3 and 4 of the race discrimination claim against the Governors by those provisions. 4. The Tribunal is prohibited from hearing heads 1, 2, 5 and 6 of the race discrimination claim against the Governors by those provisions; and to that extent the appeal is allowed. 5. In the second set of Tribunal proceedings it will be a matter for the Tribunal whether it is just and equitable to extend time in respect of the remaining heads of the race discrimination claim against the Governors; that is not a matter for this Appeal Tribunal.