MRS N BURT v UK SPORTS CENTRES LIMITED [2008] UKEAT 0290_08_1107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0290_08_1107Case No Appeal No. UKEAT/0290/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS N BURTAPPELLANTUK SPORTS CENTRES LIMITEDRESPONDENT
Before
Mr Justice UnderhillDate 11 July 2008
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant written submissions For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY PRACTICE AND PROCEDURE: Application/claim STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Whether applicable Employment Judge refusing to "accept" claim for redundancy payment (and associated claims) under rule 3 of the Rules on basis that claimant had not properly pursued the statutory grievance procedure – Held that Judge wrong to refuse to accept claim because claimant had raised an arguable case that it was not reasonably practicable for her to do so: See reg. 6(4) of the Dispute Resolution Regulations. THE HONOURABLE MR JUSTICE UNDERHILL On 16 April 2008 the Claimant presented to the Employment Tribunal a claim against her previous employer, UK Sports Centres Ltd. What exactly the claim was intended to be for needs a little analysis. In completing section 3 of the ET1 the Claimant answered questions 3.3 and 3.4 - that is to say, 3.3 "Is your claim, or part of it, about a dismissal by the respondent?" and 3.4 "Is your claim about anything else, in addition to the dismissal?" – by ringing "Yes" in both cases: that would suggest an intention to claim both for unfair dismissal and under other jurisdictions. However, in relation to question 3.3 she also ticked the "No" option, and section 5 of the ET1 is left blank. It does not, therefore, in fact appear that any claim of unfair dismissal was being made. The only substantive section of the form which is completed is section 7, which is concerned with redundancy payments. Here the Claimant says:
"I feel I'm entitled to this payment because I've worked for the company for 10 years and had no notice pay and had holiday remaining. Filled out RP1 form without success because we were informed he had not gone legally into liquidation."
Strictly speaking, the claims for notice pay and holiday pay there adumbrated belong under section 8 of the form, but the fact that they are included in the wrong section is not in any way fatal.[2]Returning to section 3 of the form, the Claimant answered "No" to question 3.5 - namely "Have you put your complaint(s) in writing to the respondent?". On that basis she was required to answer question 3.7 - namely "Please explain why you did not put your complaint in writing to the respondent or, if you did, why you did not allow at least 28 days before sending us your claim." She answered that as follows:
"Went into work one day to be told the sports centre was going to be closed that day (22.11.07) and would not re-open. We had no forwarding address for our employer Mr P Murphy and he was very unlikely to ever return to the sports centre."
[3]On 21 April 2008 the Regional Secretary at the Southampton Tribunal wrote to the Claimant as follows:
"I am returning the claim because your complaint is one to which the statutory grievance procedure applies. Such a complaint cannot be presented to an Employment Tribunal unless you have first sent a written statement of grievance to the respondent at least 28 days before presenting the claim. Although you explained why you did not send a written statement of grievance to the respondent, your explanation does not fall within one of the exceptions set out in the Dispute Resolution Regulations. An Employment Judge, Mr R Peters, has therefore decided it cannot be accepted."
[4]This is an appeal against that decision. Neither party has attended, but the Claimant has put in written submissions through her local Citizens Advice Bureau. In my judgment the decision of the Employment Judge was wrong. I do not believe that it should have been "clear to him", as required by rule 3(2) of the Employment Tribunals Rules of Procedure , that the Tribunal's jurisdiction was ousted by the provisions of the Employment Act 2002 (Dispute Resolution) Regulations 2004 . My reasons are as follows.[5]I take first the claim for a redundancy payment. That is a claim to which section 32 of the Employment Act 2002 applies, with the result that by virtue of subsection 2 a claim could not be commenced unless, to paraphrase, the Claimant had complied with any applicable grievance procedure. What procedures are applicable, and in what circumstances, depends on the provisions of the 2004 Regulations. As to that, regulation 6(4) provides as follows:
"Neither of the grievance procedures applies where - (a) the employee has ceased to be employed by the employer; (b) neither procedure has been commenced; and (c) since the employee ceased to be employed it has ceased to be reasonably practicable for him to comply with paragraph 6 or 9 of Schedule 2."
In my judgment the Claimant's answer to question 3.7 in the ET1, which I have set out, short as it was, made it impossible for the Judge to be satisfied that it was reasonably practicable for the Claimant to comply with paragraph 9, being (I think) the relevant paragraph of Schedule 2. She stated in terms in that answer that she did not know how to contact her employer. It seems to me that that at least raised a serious question as to whether regulation 6(4) of the 2004 Regulations was in fact satisfied.[6]I should say that I have been given in support of the appeal rather more information than the Claimant gave to the Tribunal. This makes it clear that Mr Murphy, who was apparently the moving spirit behind the employer and who it now appears is regrettably extremely ill, was indeed entirely incommunicado and that the Claimant made determined but unsuccessful efforts to contact him. Strictly speaking, I should ignore that information because it was not put before the Tribunal - as it would have been better if it had been - but it does make me the more confident that the conclusion which I have reached is correct and does practical justice in this case.[7]In the unlikely event that this judgment attracts any wider attention, I would not want it thought that it was satisfactory for claimants to give the tribunal as little help as the Claimant gave the Tribunal in this case. If a claimant wishes to contend that it has not been reasonably practicable for him or her to commence the relevant grievance procedure, sufficient detail ought to be given to the tribunal to enable it to reach a confident decision on reliable material.[8]Having reached that decision in relation to the redundancy payment claim, I must find that the position is the same or a fortiori as regards the other two claims. I am not in fact entirely sure that section 32 (2) applies to a contractual claim for notice pay; but even if it does the reasoning in relation to that and the holiday pay claim must be the same as in relation to the claim for a redundancy payment.[9]This appeal is therefore allowed, with the result that the Employment Tribunal must be directed to accept the Claimant's claim pursuant to rule 3 of the Rules of Procedure . It appears from correspondence which I have seen from the Citizens Advice Bureau that there are other similar claims proceeding which are listed for hearing in the Tribunal in the next week or two. Although it is not for me to make a direction to this effect, it would plainly be highly desirable for this claim to be listed on the same occasion.