MRS O T OTAIKU v ROTHERHAM PRIMARY CARE NHS TRUST [2007] UKEAT 0253_07_0307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0253_07_0307Case No Appeal No. UKEAT/0253/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS O T OTAIKUAPPELLANTROTHERHAM PRIMARY CARE NHS TRUSTRESPONDENT
Before
Mr Justice EliasDate 3 July 2007
[1]APPEARANCES For the Appellant IN PERSON For the Respondent MS SALLY GOWER (of Counsel) Instructed by: Beachcroft LLP Solicitors 7 Park Square East LEEDS LS1 2LW SUMMARY TIME LIMITS Just and equitable extension The employee alleged that she had been discriminated against on racial grounds with respect to the two acts occurring in the course of disciplinary procedures, and her dismissal. The Tribunal found that the statutory grievance procedures had not been complied with in relation to these matters. They allowed the claim relating to the dismissal to go to a full hearing on the grounds that there was no requirement to lodge a grievance with respect to that matter by virtue of reg. 6(5) of the Employment Act 2002 (Dispute Resolution) Procedures 2004 . However, they held that the failure to comply with the procedures with respect to the other two matters precluded them from exercising jurisdiction. The EAT upheld the appeal and held that reg.6(5) should be broadly construed and therefore the statutory grievance procedures were inapplicable to those complaints. The EAT followed the cases of Department for Constitutional Affairs v Jones UKEAT/0333/06 and Lawrence v HM Prison Service UKEAT/0630/06. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) Mrs Otaiku, whom I will call the claimant, was employed by the Rotherham Primary Care NHS Trust. She brought a number of claims of race and sex discrimination.[2]As a preliminary issue, the Tribunal had to determine whether the complaints were in time and whether she had satisfied the obligations imposed by s32 of the Employment Act 2002 to lodge a grievance with respect to the claims.[3]The complaints related to various alleged discriminatory acts whilst she was employed, and also her dismissal.[4]The Tribunal noted that there had never been any challenge to its jurisdiction to hear the complaint of unfair dismissal. They found that as far as the allegations of sex discrimination were concerned, they had been presented in time and that s32 had been complied with.[5]However, with respect to the allegations of race discrimination, they found that the complaints had not been made in time, save with respect to those allegations of discrimination which were connected with the disciplinary process culminating in dismissal. It was held that these constituted an act extending over a period within the meaning given by the Court of Appeal in the case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 .[6]There appear to be three complaints relating to the disciplinary investigation leading to the dismissal. I confess that it is not entirely easy to identify precisely what they are. It seems that the first relates to the notification of a disciplinary investigation in November 2005 and the second relates to her appeal against dismissal in July 2006. The Tribunal found that she had not complied with the statutory procedures in relation to these matters (although a grievance had been raised she had not waited 28 days before presenting her claim to the Tribunal). Therefore, they held that she could not pursue them.[7]However, they concluded that in relation to the third complaint, namely the fact that the dismissal itself was on racial grounds, no grievance was required by virtue of regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Procedures 2004 . The claimant now appeals against the exclusion of the two other race complaints relating to the disciplinary process. She submits that they are also caught by regulation 6(5) and that therefore it was not necessary to lodge a grievance with respect to them.[8]Regulation 6(5) is as follows:
"Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee. "
[9]The appeal in this case raises the question of how broad is that provision. There have been two decisions of this Tribunal which have considered that matter. Neither of them was before the Employment Tribunal. They have taken a broad view as to the scope of regulation 6(5).[10]The first decision is Department for Constitutional Affairs v Jones UKEAT/0333/06. In that case the appellant, Mr Jones, had been dismissed by his employers. He wished to contend that they had failed to have regard to his disability and had not adjusted the disciplinary procedures accordingly, so his complaint was about the manner in which the procedures were carried out. It was, in that case, in his interests to establish that the grievance procedure applied. This was because he had not lodged his claim in time but could extend time pursuant to regulation 15 if he had lodged a relevant grievance within the appropriate time limits. The Tribunal held that the effect of regulation 6(5) was that there was no statutory grievance that needed to be lodged. The Chairman held that the grievance was that the employer was contemplating dismissing him and therefore regulation 6(5) applied and there was no applicable grievance procedure. So time was not extended.[11]The employee contended on appeal that this was an error. He submitted that there was a logical distinction between a complaint about the dismissal or contemplated dismissal, and a separate complaint about the manner in which the proceedings were being conducted. The Employment Appeal Tribunal (His Honour Judge Richardson) rejected this analysis. He held that construing the statutory provisions in accordance with the purpose of the legislation, regulation 6(5) should be interpreted broadly, otherwise there would be an unnecessary and potentially complicated duplication between the dismissal procedures on the one hand and the grievance procedures on the other. The EAT concluded (para 44):
"For the purposes of regulation 6(5) a grievance that an employer has dismissed an employee includes a grievance about the manner in which he has dealt with the appeal against dismissal;"
[12]That decision was followed in another EAT case in which I presided, Lawrence v HM Prison Service UKEAT/0630/06. In that case the prison officer was dismissed because of absences from work. He contended that the dismissal was unfair either in general principles, or because it involved discrimination contrary to the Disability Discrimination Act . He did not raise a grievance prior to lodging the claim with respect to the disability discrimination allegation. The employers accepted that there was no requirement to raise a grievance in relation to the dismissal or proposed dismissal itself, but submitted that there was an obligation to raise the distinct issue of whether it was an act of disability discrimination. The Employment Tribunal Chairman accepted that argument, but I overturned it on appeal. I followed the decision in Jones and rejected arguments to the contrary: see in particular paras 21-28 of the decision. In the course of that judgment, I did recognise that perhaps the strongest argument against a wide construction of regulation 6(5) is that there would be circumstances where a complaint could be pursued before a tribunal which had never been raised directly with the employer. That is what has happened in this case with regard to these two complaints. However, I concluded that although this was a potential disadvantage stemming from the wide construction, nonetheless it was justified because of the need to avoid the duplication of procedure and the difficulties that would often be faced in determining whether a particular complaint properly rested in one procedure or the other.[13]Ms Cowen, counsel for the employer, in an attractive argument has suggested that these decisions were wrong. She submits that their effect is to put the law back where it was before the statutory grievance procedures were introduced. An employer may be faced with an allegation which he has never had the opportunity to address or resolve without it becoming the subject of a tribunal complaint. Furthermore, she suggests that the potential complications arising from the duplication of procedures has been exaggerated. She points out that this employer, like many others, will permit a grievance to be raised about the identity of the particular manager appointed to hear a disciplinary matter. (Logically, as she accepts, her argument would apply equally to the allegation that the dismissal was on grounds of race, because that also had never been raised in advance with the employer. The Tribunal found that it could go forward and there is no cross appeal against that decision.)[14]Alternatively, she says that this was a case as envisaged in Lawrence where the issue had not been raised in the dismissal procedures and therefore the claimant ought not to be allowed to pursue the claims now.[15]As to the alternative argument, regulation 6(5) cannot have a different meaning depending upon whether the claim is or is not raised in the course of the dismissal procedures.[16]As to the primary argument, I entirely accept that there are arguments both ways as to the proper construction of regulation 6(5). It is not altogether an easy provision to construe, and the points made by Ms Cowen are well made. In particular, there is the risk that an issue will not in fact be raised in the course of the dismissal procedures, even although it provides the opportunity to raise them. I did recognise the force of these points in the Lawrence case but nonetheless construed the provision broadly. I see no reason to depart from the construction which has now been adopted in the two earlier EAT decisions and unless I felt that they were clearly wrong, it would be inappropriate for me to do so. Therefore this appeal must succeed. I do, however, make the obvious observation that where a claim for discrimination is raised for the first time in the tribunal proceedings, the tribunal will no doubt want to examine with some care the reason why it was not raised earlier and whether that fact casts doubt on the allegation.[17]I should also add this. Ms Cowen submits that properly analysed, the complaints made to the Tribunal have never included a claim that the disciplinary processes themselves have been carried out in a racially discriminatory manner. She may be right about that. It is a matter which can be pursued before the Tribunal and nothing in this decision is intended to bear on that issue. All I am deciding is that in so far as the claims have been properly made, the claimant is not precluded from pursuing them because of a failure to lodge a grievance.