STEP IN TIME LTD v 1) MRS M FOX 2) MRS E HUNTER [2008] UKEAT 0031_08_0311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0031_08_0311Case No Appeal No. UKEATS/0031/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HS.
Between
STEP IN TIME LTDAPPELLANT1) MRS M FOX 2) MRS E HUNTERRESPONDENT
Before
Mr Justice EliasDate 3 November 2008
[1]APPEARANCES For the Appellant MR TOM MUIRHEAD (Consultant) Peninsula Business Services Limited Riverside New Bailey Street MANCHESTER M3 5PB For the Respondents No appearance or representation by or on behalf of the Respondents SUMMARY STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES Whether infringed The employment judge held that the two claimants had complied with the statutory grievance procedures and that the Tribunal had jurisdiction to hear their claims for constructive unfair dismissal. He did so, however, in part by treating an ET1 as constituting a grievance. That was contrary to the EAT decision in Gibbs t/a Jarlands Financial Services v Harris UKEAT/0023/07. The EAT held that notwithstanding this error, there was other material which justified the conclusion that Mrs Hunter had raised the relevant grievance and that her subsequent claim essentially raised the same complaint. However, the position was not clear with respect to Mrs Fox. The case was remitted to the same employment judge to determine whether the Tribunal had jurisdiction or not. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is yet another appeal concerning the operation of the statutory grievance procedures set down in section 32 of the Employment Act 2002 . The issue before the Tribunal was whether the claimants (as they were below, and as we shall continue to call them) had raised a relevant grievance in respect of the issues which formed the subject of the claim as required by section 32. The employment judge held that they had. The employment judge heard no evidence on the matter and determined the issue purely on the basis of the productions which had been lodged by the parties.[2]The employers appeal that finding. They were represented by Mr Muirhead, an employment consultant. The claimants did not appear for this appeal, choosing to have the matter dealt with in their absence. The relevant law .[3]Section 32 of the Employment Act 2002 provides in essence that a Tribunal will not generally have jurisdiction to hear certain claims (which include the unfair dismissal claims lodged in this case) unless there has been a written statement of grievance raised with the employer with respect to that claim and at least twenty eight days have elapsed to provide an opportunity for the grievance to be resolved. The claim subsequently lodged with the Tribunal must in essence be the same as the complaint raised in the grievance. The purpose of these provisions is to provide an opportunity for employers to resolve a grievance internally before it becomes embroiled in the Tribunal procedures.[4]The definition of "grievance" is: "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him " . (Surprisingly, this is found not in the Act but in regulations passed pursuant to the Act entitled the Employment Act 2002(Disputes Procedures) Regulations 2004 .)[5]The material provisions of section 32 are as follows:
"(2) 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 paragraph 6 or 9 of Schedule 2 applies; and (b) the requirement has not been complied with. …. (3) An employer 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 paragraph 6 or 9 of Schedule 2 has been complied with, and (b) less than 28 days have passed since the day on which the requirement was complied with."
[6]Subsection 6 then provides, inter alia, that the issue may be raised by the employer, as occurred in this case.[7]The reference to the "requirements in paragraphs 6 and 9" are references to the first stage in the relevant grievance procedures. A distinction is drawn in the legislation between what is termed the "standard" grievance procedure and the "modified" procedure. In this case it is common ground that the former applies. Paragraph 6 sets out the first step in the standard procedure whereas paragraph 9 is concerned with the modified procedure. Paragraph 6 is in the following terms: "Step 1: Statement of grievance 6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer".[8]Paragraphs 7 and 8 then set out the subsequent steps involved in the procedure. Step 7 requires the employer to invite the employee to a meeting to discuss the grievance, but that must not take place until the employee has informed the employer what the basis of the grievance was when he raised it. The employer must then have a reasonable opportunity of considering this information, and the employee must take all reasonable steps to attend the meeting. Paragraph 8 provides that the employee should have a right to appeal and stipulates in general terms the procedure which should apply.[9]It has been emphasised that in order to constitute a written grievance it is not necessary for the claimant in terms to state that it is a grievance. The only issue is whether it would be apparent to a reasonable employer that it was. In Canary Wharf Management Ltd v Edebi [2006] IRLR 416 (para 25) Elias P put it as follows: "It seems to me that the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised".[10]Furthermore, as the EAT said in that case, the manner or form in which the grievance is raised is not regulated by the Act:
"There is considerable flexibility about that. It may be raised in a resignation letter … It may even be raised after a dismissal has taken effect … It may be raised by a solicitor in a communication to the employer's solicitor … It matters not that other issues are raised at the same time as the complaint, whether additional complaints or otherwise."
[11]In addition to these rules which affect the jurisdiction of the Tribunal to hear a claim at all, there are also important provisions which oblige a Tribunal to vary the amount of compensation that would otherwise be provided if the statutory procedure was not completed through the fault of either the employer or employee. Save in exceptional circumstances, the Tribunal must either increase or decrease the compensation by between 10% and 50%, depending on who is at fault and the nature and gravity of the breach: sections 31(2) and (3) of the 2002 Act. Accordingly, even if an employee does satisfy the obligation to raise a written statutory grievance, he may nonetheless be subject to the sanction of a reduction in compensation if he fails to co-operate in the grievance process thereafter.[12]There is therefore a crucial distinction which must be drawn between, on the one hand, an employee failing to raise the written statement of the grievance itself which, once the issue is before the Tribunal, will result in the case not being heard; and on the other, the employee failing to comply with later stages in the grievance process, which will not affect the tribunal's ability to hear the case but which may- and in most surmisable circumstances will- lead to a reduction in compensation. The background .[13]I turn to consider the relevant background to these two appeals, dealing with each claimant separately. Mrs Hunter .[14]The first claimant, Mrs Hunter, a long serving employee, was upset by what appeared to be a deterioration in relations at the workplace. She wrote a letter to the managing director of the respondent company, Ms Palmer, in the following terms:
"I have now worked for this company for some thirteen years and have been told on numerous occasions including my last 1 to 1 session with yourself that my standard of work left no cause for concern. It is therefore somewhat of a shock to hear from you that there has in fact been concern raised on numerous occasions and that customers have written in complaining about my work. Therefore if that is the basis of the grievance procedure I think I should be allowed to see these written complaints so I can comment on them more fully. I do not wish to cause you any problems as my initial enquiry was regarding the overtime only and this now seems to be escalating out of hand with other workers hours being cut, my garments being criticised and torn apart etc. etc. I wish to return to the normal situation where I felt we all got on and worked as a team so hope that your husband will follow through with his grievance procedures quickly and we can then get on with what we are here to do."
[15]At the grievance hearing on 28 February, which was stated to be in respect of working hours, the claimant also raised issues about criticisms over the quality of her work.[16]On 30 March a claim was presented to the Tribunal alleging that there had been an unlawful deduction from wages. The basis of the claim was that the claimant's hours had been reduced when orders had run down, but when the work increased the claimant did not have her contractual entitlement reinstated, but rather overtime was given to other employees. The claimant also objected to the fact that the respondents had found fault with her in front of her colleagues and she alleged that she had been victimised. I was told that this unlawful deductions claim was in fact determined in the claimant's favour in a Tribunal judgment delivered on 23 July.[17]Meanwhile on 27 March Ms Palmer had responded to the grievance but not in a manner satisfactory to Mrs Hunter. So Mrs Hunter lodged an appeal on 10 April in which she alleged that she felt that she was being victimised and suffered stress as a consequence. She commented:
"I believe I am being victimised as a result of initiating my employment rights – the first time I have had to do so in almost 40 years of service."
This appeal was never in fact heard, apparently because the employee was off sick on the day it was due to take place.[18]On 29 May Mrs Hunter wrote to Ms Palmer claiming she was due to receive statutory sick pay. She had by then been off work sick for some time. She later sought advice from the Citizens' Advice Bureau who sent a letter on her behalf on the 18 June reiterating that she was entitled to statutory sick pay.[19]On 27 July 2007 she presented a second claim to the Employment Tribunal alleging unfair constructive dismissal. She said she had been harassed, bullied and victimised. She also complained that her wages had been paid late, that she was not paid statutory sick pay, that her working conditions had deteriorated, that she had been ignored at work, and that she had been allocated inferior work. This claim was lodged the day after she resigned from her employment by letter dated 26 July. In that letter she also alleged that she had been harassed and victimised as a result of raising the grievance on working hours; and that the failure to pay statutory sick pay was the last straw. The second claimant.[20]Mrs Fox wrote a letter to Ms Palmer on 7 March headed "Formal Grievance regarding Working Hours". In this respect her complaint was similar to that raised by Mrs Hunter. She complained about her hours being cut from 5 days a week to 2 days a week. She also said this:
"I am now left to feel that I am being victimised for being a friend and supporter of my colleague Ethel Hunter to the extent that you also implied on Monday that Ethel, I or another colleague had deliberately damaged a garment in the workplace."
[21]Her grievance meeting was held on 22 March and the grievance was upheld. Her hours were reinstated. As to the allegation of damaging a garment, the Tribunal noted that she was told that no such accusation was being made; Mrs Fox was simply being asked if she knew how the garment had been marked.[22]Subsequently Mrs Fox presented a claim to the Employment Tribunal on 23 April 2007 alleging that there had been an unlawful deduction from her wages. She also alleged, in the context of making that claim that since attending the grievance hearing for Mrs Hunter she had also been victimised, harassed and bullied and her hours of work had twice been cut. She had been accused of sabotage, breach of management instruction, rudeness, and objectionable behaviour. As with Mrs Hunter, I am told that her claim for unlawful deduction of wages was successful.[23]She later resigned from her employment on 23 July 2007 and lodged a second claim for unfair constructive dismissal on the 27 July. This second claim essentially reproduced the allegations relating to victimisation made in the first ET1. The Tribunal determination.[24]The issue for the Tribunal was whether or not the claims presented to the Tribunal reflected the matters raised in an earlier written grievance. The employment judge accepted that he was not able to have regard to any grievances raised in the resignation letters themselves since the claimants did not leave 28 days between raising those grievances and presenting their claims.[25]However, he was satisfied that both claimants had complied with the procedures for the following reasons:(1) With regard to Mrs Hunter, she had raised the issue of victimisation both in the letter appealing the grievance decision and again in her first claim form raising the issue of unlawful deduction. The statutory sick pay issue had also clearly been raised on two occasions. The grievance was that she had been victimised. The examples given of how that victimisation had occurred, identified in the claim form, were simply describing why she believed she was being victimised. That was the kind of information that should be given prior to the stage 2 meeting. In other words, it was part of the basis of the grievance rather than an independent grievance itself.(2) With regard to Mrs Fox, she had raised the issues raised in her first claim form, which in turn had to be read together with her letter of 7 March. The grounds of appeal .[26]There are four distinct grounds of appeal. First, it is submitted that the Tribunal erred, with respect to each of these claimants, in relying upon the first claim forms as constituting a written statement of grievance. Mr Muirhead recognized that there is indeed significant flexibility as to how a grievance may be raised but he submitted that an ET1 could never constitute a written statement of grievance within the meaning of section 32. Precisely that very same point had arisen for determination by the EAT (Wilkie J presiding) in Gibbs t/a Jarlands Financial Services v Harris UKEAT/0023/07 when the employee had relied upon an earlier ET1 as constituting the statement of grievance with respect to a later ET1. The court rejected the submission in the following terms (para 15):
"In my judgment, the Employment Tribunal was wrong in this case to conclude that an ET1 could constitute a written statement of grievance for the purposes of satisfying the pre-conditions set out by s. 32 before an employee can present a complaint which the Tribunal is obliged to accept. I accept the submissions made by Ms Dennis that the statutory structure is such that it envisages that a grievance procedure is invoked before litigation is commenced. Furthermore, once the grievance procedure has been invoked by the sending of a written grievance, the employee cannot immediately thereafter fire off the opening shot in formal litigation before the employer has had the 28 days within which to consider the matter and comply with the requirements of the standard and modified procedure by responding either by holding a meeting or responding in writing. It would run wholly counter to the statutory scheme if, in effect, the employee could litigate on the one hand and on the other hand oblige the employer to engage in the grievance procedure and then, the employer not having satisfied the employee in respect of the grievance thus raised, allow the employee to re-start litigation afresh. The two processes – the litigation process and the pursuit of a grievance – are separate and distinct and call for a separate and distinct approach."
[27]I respectfully agree with that analysis. Accordingly, this ground of appeal succeeds. Insofar as the employment judge relied upon earlier ET1s as the relevant statement of grievance, he erred in law. It does not, however, follow that these appeals necessarily succeed. The question is whether other productions, independently of the first Tribunal claim form, will suffice to constitute a statutory statement.[28]The second ground of appeal is this. Mr Muirhead submits that neither claimant had stated in terms before sending their letters of resignation that they were proposing to leave in response to any complaint raised in the grievance. The employers had been given no notice in advance of that at all. The result was that it could not be said that the claim actually lodged - namely constructive unfair dismissal - had been properly foreshadowed in the earlier grievance. Reliance is placed upon the judgment of His Honour Judge McMullen QC giving the judgment of the EAT in Cyprus Airways v Lambrou UKEAT/0527/06. There is an observation of the judge to the effect that one of the defects of the written grievance there relied upon (which was communicated by way of emails) was that:
"The emails do not mention anything about breach of contract, let alone a fundamental breach. They do not assert that the claimant is likely to leave or to leave in response to it."
[29]Similarly here; the employer could not have known that either of these claimants was leaving or proposing to leave her employment, in response to the alleged repudiatory breaches, because neither had given the remotest indication that they might do so.[30]I note that these remarks of HH Judge McMullen were obiter . As I indicate below, they do not relate to the principal basis on which the EAT determined the case, and I would respectfully disagree with that particular observation. The employee's resignation is not part of his grievance, although it may demonstrate how significant he considers the grievance to be. His grievance relates to the conduct of the employer which caused him to resign. The employer must be given a chance to resolve that grievance and thereby have the opportunity to forestall any potential resignation, but the actual resignation itself is not part of the grievance; it is the employee's response to the conduct which gives rise to the grievance. (Nor in my view is it necessary for the employee to use legal language such as identifying that the alleged wrongdoing is a breach of contract and amounts to a fundamental breach. The only question is whether an appropriate complaint has been raised.)[31]I am fortified in this conclusion by the fact that in Galaxy Showers Ltd v Wilson UKEAT/0525/05 (para 18) Mr Justice Langstaff, giving judgment for the EAT, also made a similar observation. He thought that if an employee had raised a grievance about alleged misbehaviour by the employer, it would usually at least be quite unnecessary to raise a further grievance at the point of resignation. It follows that in my judgment this aspect of the appeal fails.[32]The third ground of appeal concerns the fact that there are certain matters identified in the claim which were not referred to in the statement of grievance at all. In the case of Mrs Hunter this included the particular matters which she said constituted victimisation, such as being ignored and given inferior work. Similarly, in the case of Mrs Fox, there were a whole series of particular complaints which were never identified in the letter of 7 March.[33]Again reliance is placed upon the judgment of His Honour Judge McMullen QC in the Cyprus Airways case. In that case the claimant presented a claim for constructive unfair dismissal and relied upon four quite distinct matters. These were that he had been unable to obtain clarification of the terms and conditions of employment following the company offering redundancies after a TUPE transfer; he was not paid overtime as he ought to have been; that he had been subjected to humiliating and aggressive behaviour from the general manager, who shouted at him in public; and finally he alleged less favourable treatment because of disability.[34]The only issue that had been foreshadowed in any written communication was the clarification of terms and conditions. In these circumstances the EAT held that the Tribunal was not entitled to find that the grounds for his constructive dismissal had been the subject of a separate grievance. The grievance had raised only one small part of his constructive dismissal claim; he was relying on all four aspects to sustain his case. This did not suffice to satisfy the statutory requirements.[35]I do not accept that the Cyprus Airways case is determinative of these appeals. In Cyprus the claimant was relying upon a number of matters which it was said amounted to constructive dismissal. They were, however, quite distinct. More specifically, the only complaint identified in writing in advance was that relating to the failure to clarify terms and conditions. It would have been quite impossible to have brought the other heads of complaint within that general category. To use the language of the statute, they were in no sense the basis of the grievance that was made in writing.[36]That is plainly not the position here. The employment judge considered, as in my view he was plainly entitled to do, that the essential complaint was victimisation and the particular matters identified in the claim form simply provided the details of the alleged victimisation. In the normal way that would be information that an employee would be would be expected to give at stage two of the grievance procedure. It would not be a matter that would be required at stage one. (This conclusion is supported by the analysis which I have given as to the proper construction of paragraph 6 in another judgment handed down today, namely Suffolk Mental Health Partnership NHS Trust v Hurst and others UKEAT/0332/08, and related appeals.)[37]Accordingly, the mere fact that these detailed matters were raised for the first time in the claim form would not mean that the Tribunal did not have jurisdiction to hear the basic claim for unfair dismissal, nor indeed any claim for victimisation discrimination as a result of raising the grievance. (There may be an issue in these cases whether any matters which may have arisen after the relevant statement of grievance can be considered to be covered by that statement or whether they required a fresh statement to be raised. That was not an argument advanced either below or before me, however.)[38]The weakness of the employers' argument on this aspect of the appeal is, in my judgment, that it draws no distinction between the nature of the grievance which has to be identified at stage 1, and the basis for it which is found at stage 2. If and insofar as the Tribunal may subsequently find that the employee did not comply with the requirement to provide the basis of grievance, that of course may result in the reduction of compensation in accordance with section 31 of the Act. However, it does not go to the question of whether the Tribunal has jurisdiction to hear the claim at all.[39]The final argument advanced by the employers is that the grievances with respect to each of these claimants had in any event been resolved by the time the claims were made so that the claims ultimately presented could not properly be referable to the same underlying complaint as had constituted the grievance.[40]I wholly reject that submission in so far as it relates to Mrs Hunter's case. She had appealed her grievance and the appeal had never been resolved because there was no hearing. The fact that that was because she was ill does not alter matters. There never was any resolution of her original grievance, far less the additional matters that she raised in her appeal.[41]The position is more complex with respect to Mrs Fox. She did raise two particular matters in her letter of 7 March which were alleged to constitute victimisation, namely the change in her working hours, and an allegation of damaging a garment. However, this grievance was at the time apparently resolved in her favour, as the employment judge found. It was accepted that her hours had to be restored and the employers emphasized that they were not making an accusation of improper conduct, but were merely exploring an incident of a damaged garment. The only written grievance raised thereafter was that contained in the first ET1, but for reasons I have given, that cannot constitute a relevant grievance as a matter of law.[42]The issue that arises in those circumstances is whether the claim subsequently made, or any part of it, can properly be related back to the grievance identified in the 7 March letter. The employers make the powerful point that since the grievance was resolved, it cannot. However, there may be an argument that in fact the grievance never was properly resolved, only apparently so, and that, for example, the second reduction in hours referred to in the claim form should be treated as part and parcel of the same grievance as was raised in the 7 March letter and therefore covered by it. The employment judge did not consider whether the 7 March letter read alone was capable of constituting the relevant grievance. In this context it is important to note that there will be circumstances where a grievance can be treated as continuous so as not to require separate statements on each occasion that a complaint arises: see Smith v Network Rail Infrastructure [2007] UKEAT/0047/07 (HH Judge Serota QC presiding) and Weare v HBOS [2008] UKEAT/0300/08 (Elias P presiding).[43]It follows that I have come to the conclusion that the appeal fails with respect to Mrs Hunter but must succeed against Mrs Fox. The principal grievance which Mrs Fox relies upon is that constituted by the original ET1, but as I have said, that is not capable of amounting to a relevant written statement of grievance within the law. She therefore has to fall back on the one letter written in March. The matter will have to be remitted to the employment judge who will have to determine whether the constructive dismissal claim can to any extent properly be treated as referable to that grievance letter, notwithstanding that the grievance was, ostensibly at least, resolved. This may involve hearing evidence from the parties. I see no reason why this should not go back to the same employment judge if possible, since he is well acquainted with the issues in the case. Disposal . The appeal against Mrs Hunter fails, but the appeal against Mrs Fox succeeds. Mrs Hunter can pursue her unfair dismissal claim; whether or not Mrs Fox will ultimately be able to do so will depend on the outcome of the remission to the employment judge.[44]I recognize that if it is subsequently found that Mrs Fox cannot pursue her claim, this creates a highly artificial distinction between two women who appear to have very similar claims. I think many people would consider it highly objectionable if Mrs Fox's case, involving as it does allegations of serious acts of victimisation against a woman who had given many years of loyal service to the employer, is not to be considered on its merits. However, if that is the outcome, it is the consequence of this unfortunate and ill-conceived legislation.