MR S WEARE v HBOS PLC [2008] UKEAT 0300_08_2810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0300_08_2810Case No Appeal No. UKEAT/0300/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S WEAREAPPELLANTHBOS PLCRESPONDENT
Before
Mr Justice EliasDate 28 October 2008
[1]APPEARANCES For the Appellant The Appellant in Person For the Respondent MR DESHPAL PANESAR (of Counsel) Instructed by: Messrs DLA Piper UK LLP Solicitors Princes Exchange Princes Square LEEDS LS1 4BY SUMMARY JURISDICTIONAL POINTS: 2002 Act and pre-action requirements The EAT upheld an appeal by the employee against a decision of the Employment Tribunal which held that it had no jurisdiction to hear certain claims alleging discrimination by reason of having made protected disclosures because the employee had failed to comply with the statutory grievance procedures. The EAT held that where a grievance is raised referring to the decision to initiate disciplinary procedures, it will relate also to disciplinary steps taken in the course of carrying out the disciplinary process. To that extent, therefore, the appeal succeeded. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is yet a further appeal concerning the operation of the statutory disputes procedures established by the Employment Act 2002 . The relevant law .[2]The essential features of the law relevant to this case can be summarised as follows. Section 32 of the 2002 Act provides that the Tribunal will not have jurisdiction to hear a complaint to an employment tribunal unless the employee has raised a relevant grievance with the employer and has allowed at least 28 days to elapse before presenting the complaint to a tribunal. The purpose of the 28 days is to give an opportunity for the issue to be resolved internally. The claims made to the Tribunal must in essence be the same as the complaint raised in the grievance: see the observations of the EAT (Burton P. presiding) in Shergold v Fieldway Medical Centre [2006] IRLR 76 (para.35).[3]The relevant legislation is as follows:
"32 Complaints about grievances … (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 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 has been complied with, and (b) less than 28 days have passed since the day on which the requirement was complied with."
[4]The relevant requirement to which reference is made is the requirement to raise in writing the grievance with the employer. (There are two different kinds of grievance which set down different procedures; in this case the relevant requirement is found in paragraph 6 of Schedule 2.) These provisions apply to jurisdictions listed in Schedule 4 to the Act, which include the claims presented to the Tribunal in this case.[5]Regulations have been made pursuant to the 2002 Act, namely the Employment Act 2002 (Dispute Resolution) Regulations 2004 . Regulation 15 concerns the extension of the usual time limits for presenting complaints. For the particular claims presented here, the time limit would normally be three months from the date of the alleged act. However, by regulation 15 the time limit is extended by a further three months in certain specified situations. This includes circumstances where the employee has lodged a grievance within the normal time limit but has not presented the complaint within that period. In those circumstances the time limit for presenting the complaint will be extended by a further three months. (There are exceptional cases where time can be further extended on the basis that it was not reasonably practicable for the employee to present his claim within the statutory limitation period. However, the Judge rejected a submission that time should be so extended in this case and there is no appeal against that conclusion.) The background .[6]The claimant (as he was below and as we shall continue to call him) appeals against a decision of the Employment Tribunal which concluded that it did not have jurisdiction to hear certain of his complaints because he had failed to lodge a grievance as required by the 2002 Act.[7]The claims before the Tribunal were for ordinary constructive unfair dismissal; automatically unfair constructive dismissal contrary to section 95(1)(c) read with section 103A of the Employment Rights Act 1996 on the grounds that the claimant had made protected disclosures; and claims that he had suffered detriments contrary to sections 47B and 48 of the 1996 Act as a consequence of making such protected disclosures. The claim form set out in detail a whole list of alleged protective disclosures and a detailed set of detriments allegedly suffered as a consequence of the claimant having made those disclosures.[8]The employers conceded that the claimant had raised a grievance with respect to the ordinary unfair dismissal claim and that accordingly the Tribunal had jurisdiction to hear that claim. Their contention was that no relevant grievance had been raised with respect to the claims based upon protected disclosures.[9]The claimant resigned from the respondent with effect from 29 or 30 November 2007 after giving 1 month's notice in a letter dated 30 October. He presented a claim to the Tribunal on 5 December 2007. In that claim he stated that he had put his complaints in writing to the respondent on 11 May 2007.[10]At the Employment Tribunal the claimant relied upon three documents as being written statements of his grievances sufficient to confer jurisdiction on the Tribunal. First, there was the letter of 11 May 2007 to which he had expressly made reference in his claim form; then a letter dated 30 October 2007 which was his resignation letter; and finally, there was a further letter dated 10 December 2007 which was, however, both after the dismissal had taken effect and, more importantly, after the claims had been lodged with the Tribunal. The Tribunal accepted - in my view, plainly correctly - that he could in principle seek to rely on these documents notwithstanding that only the 11 May letter had been relied upon in the claim form itself.[11]The employment judge concluded, however, that the letter of 10 December 2007 could not constitute a relevant statement of grievance since it was subsequent to lodging the claim. In our judgment, that is undoubtedly right and is not challenged in this appeal. The whole purpose of the procedure is that the grievances must be raised and thereafter at least 28 days allowed for resolving that grievance before the claims are lodged with the Tribunal.[12]It was conceded by the employers that the letter of 30 October constituted a valid statement of grievance for the purposes of the ordinary unfair dismissal complaint. However, they denied that any valid grievance had been raised with respect to the two sets of allegations relating to protected disclosures.[13]The issue which the Tribunal therefore had to determine was whether the claimant could rely upon the letters of 11 May and 30 October as written statements satisfying the first stage of the relevant grievance procedure. In that context the Tribunal followed the guidance of the EAT (Elias P presiding) in Canary Wharf Management Ltd v Edebi [2006] ICR 719 at paragraph 25, when the court said this:
"… the objective of the statute can be fairly met if the employees, 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 has been raised."
[14]The Tribunal considered the terms of the letter of 30 October. The letter was as follows:- " I have received your letter of 16 th October 2007 (received on 20 th October 2007), detailing the reasons for which you have decided to issue a written warning for misconduct against me under the terms of the HBOS Disciplinary Policy & Procedure. As you are aware, I have registered numerous complaints (both by way of grievance and allegations of harassment) in this matter over the course of the past 12 months. I consider several of the behaviours complained of to be, in themselves, repudiatory breaches of the implied term of mutual trust and confidence that exists in respect of my contract of employment with HBOS. I consider the reasoning contained within your letter of `16 th October 2007, and the associated behaviours clearly implicit within this reasoning, to constitute further breaches of this implied term of mutual trust and confidence. I also feel that the letter represents a continuation of the disingenuous manner in which HBOS has conducted itself in this matter. As a result of all the above matters I feel that HBOS has created a set of circumstances which render the continuation of my employment an untenable proposition. Through the acts (and failures to act) of various colleagues, the company has significantly eroded any trust or confidence I might have in it as an employer. Therefore I hereby accept HBOS's repudiatory breach of contract and tender my resignation with one month's notice. I wish to register further grievances in respect of one or more outstanding matters related to the above and I shall endeavour to inform you of these as soon as possible."[15]The claimant argued that the third paragraph is essentially reiterating earlier grievances, including those identified in the letter of 11 May, and asserting them (or at least some of them) to be breaches of the duty of trust and confidence.[16]The first question the Tribunal had to address was this: did this letter raise the issue of protected disclosures? The employment

judge held that it did not, for the following reasons:

"I am unable to read the letter of 30 October 2007 so as to include allegations that the Claimant has suffered any detriments by reason of having made alleged protected disclosures, or that the respondent had committed the fundamental breaches of contract referred to in the claim form for that reason. The letter refers to the making of complaints to the Respondent. I must consider the letter taking into account the background. In coming to my conclusion I have taken into account the factual allegations as set out by the Claimant in his claim form as being relevant background. The oral evidence given to me by the Claimant was in reality a repetition of those allegations. What is noticeably absent from those details and the Claimant's evidence is any reference to the Claimant having stated to the Respondent that the alleged treatment of him was by reason of his having made a protected disclosure. I therefore find that the Respondent could not be expected to realise that the Claimant was making complaints of poor treatment (to use a general phrase) and/or of breaches of contract by the Respondent caused by the Claimant having made protected disclosures. I therefore find that the letter of 30 October 2007 was not a step 1 complaint for the purposes of the two heads of jurisdiction relating to protected disclosures."
[17]In short, the employment judge considered that whilst the letter contained allegations that the conduct of various managers had given rise to breaches of the duty of trust and confidence by the employer, they contained nothing which would have caused the employer to suspect that there were claims relating to protected disclosure.[18]The employment judge then turned to consider the letter of 11 May. He noted that there was a whole series of detailed complaints made relating to the conduct of five individuals in particular. In total, some 29 specific allegations were made against them. There was also in this letter a specific complaint that the claimant had been subjected to various detriments as a consequence of having raised grievances alleging breaches of the Data Protection legislation. The claimant put this part of the complaint as follows:
"I was off work with stress for 3 months as a direct result of these incidents, and my attempts to return to work resulted in Stage 3 Disciplinary Proceedings being invoked in respect of a totally spurious accusation of Gross Misconduct relating to 'unauthorised absence'. I firmly believe that events leading to this action are directly resultant from the making of the above disclosures in that colleagues closely linked to this matter have been upset by my accusations and now perceive me as someone who is likely to cause further disruption. I believe that several of the individuals involved in this matter fully realise the significance of their actions, and naively feel that the only manner in which they can cover up their transgressions is by orchestrating my dismissal from the company. As a direct consequence of the origins of this matter, and its subsequent mismanagement, I am currently signed off work with stress and depression."
[19]The judge accepted that this letter did indeed raise grievances concerning protected disclosures. However, he considered that nonetheless it could not be relied upon so as to give jurisdiction to the Tribunal. The reason was this. The employment judge concluded that the grievance lodged on 11 May could not relate to any incidents which occurred after that date; it could only relate to alleged wrongdoing which had already occurred. However, in order for the claims to be presented in time they had to be presented - even with the extension permitted by regulation 15 - within six months of the date of the alleged wrongdoing. Here the claims were presented on 5 December; more than six months after the grievance was raised on 11 May. The employment judge therefore concluded that the matters raised in the letter of 11 May were all now out of time. In the circumstances it was not necessary for him to compare the claim with the grievance to see whether, and to what extent, there was sufficient correlation to confer jurisdiction on the Tribunal.[20]It followed, therefore, that neither letter could be relied upon to give the Tribunal jurisdiction. The letter of 11 May could not be relied upon because although it raised a relevant grievance with respect to protected disclosure complaints, it was in relation to complaints which were time-barred. By contrast, the letter of 30 October did not raise any protected disclosure complaints at all. The grounds of appeal.[21]Essentially the claimant identifies two errors of law. First, it is said that the employment judge did not construe the resignation letter of 30 October in its proper context. Had he done so, he would necessarily have concluded that the protected disclosure issues were raised.[22]Second, it is submitted that the Tribunal was wrong to hold that the letter of 11 May did not, in the particular circumstances, amount to a valid Step 1 grievance in respect of matters- or at least some matters- arising after that date. The claimant submitted that once the valid grievance is lodged it is not necessary for fresh grievances to be made where the allegation is one of a continuing complaint. He relied upon the judgment of the EAT (HH Judge Serota QC presiding) in Smith v Network Rail Infrastructure [2007] UKEAT/0047/07. He contended that all subsequent matters made the subject of claims in the Tribunal were covered by the complaint. These included a series of allegations relating to the handling of his grievances and appeals, allegations arising out of a request under the Data Protection Act , as well as the disciplinary proceedings leading to a formal warning.[23]As to the first ground, the claimant submits that he reiterated in the letter of 30 October the grievances he had identified earlier, including those set out in the letter of 11 May. Accordingly, when read in context the October 30 statement did raise the issue of protected grievances.[24]The difficulty with this argument, it seems to me, is that even if he was repeating the earlier statement of grievance (and I will assume in his favour that he was), he was still doing so only with respect to acts or incidents that had already been identified in those prior grievances. It does not assist the claimant to have done that. If the claim is not lodged within six months of the acts taking place, then it matters not how often the grievance is reiterated. The Tribunal has no jurisdiction even if a relevant grievance has been lodged (unless time is extended on the "not reasonably practicable" ground, which it was not in this case).[25]The claimant also submits that he raised the question of protected disclosure at certain meetings which were held between 11 May and 30 October and that this is part of the context in which the October letter should be read. The difficulty with this submission is that the Tribunal found in terms (see paragraph 15 above) that the claimant did not, either in the claim, or in his evidence to the Tribunal, make any reference to his having stated that the alleged treatment was by reason of his having made the protected disclosure. That is a finding of fact which this Tribunal cannot question. It follows that there is no basis for interfering with the Tribunal's analysis on this point. Even read in context, the Judge found that the letter of 30 October did not raise any question of dismissal or detriments because of protected disclosures. We see no error in that finding.[26]As to the second submission, the employers do not dispute that in principle there will sometimes be continuing acts and where that is so, it is not necessary to have to keep raising the same grievance. They submit that this was not one such a case. In Smith , the case relied upon by the claimant, the allegation was that the employers had failed to make reasonable adjustments to enable a disabled employee to return to work. The EAT held that the grievance in that case included action - or more accurately, failures to act - which continued after the grievance had been raised. The Tribunal drew the distinction between situations where a fresh grievance would be required and one where it would not in the following terms (paras 28 and 29):
"We can well understand that where the complaints are about specific acts or specific heads of claim – such as unfair dismissal, discrimination on the grounds of race, and discrimination on the grounds of sex – those must be set out in a grievance. To put the matter another way, a Claimant cannot raise a grievance about a specific incident of discrimination and then in his originating application seek to rely on other specific incidents. Similarly, he cannot raise a grievance, for example on the grounds of sex discrimination, and then in his originating application seek to rely on discrimination on the grounds of race, unless he has issued a further grievance letter. The position is quite different, in our view, when what is complained of in the grievance letter, as in the instant case, is that the Respondent has not been assisting the Claimant to find employment. That is a continuing complaint. It is a complaint that looks forward as well as back. The employer knows perfectly well what the complaint is and what he needs to do, and in the instant case it is exactly that complaint that appears both in the letter of grievance and in the originating application."
[27]The question is whether the grievance which clearly was raised in the 11 May letter could properly be said to relate to a continuing complaint or not. The claimant says that it can, with respect to all the later acts since they are part of a course of conduct. Alternatively, the complaint relating to the institution of the disciplinary process would cover all subsequent stages involved in carrying out the procedure. They are all part of a single process commencing with the initiation of the disciplinary process and culminating in a warning for misconduct. Various stages of the process took place after the 11 May letter. There was a disciplinary hearing on 5 October 2007, which was well within even the three month period prior to the claim being lodged, and that led to a written warning which was sent to the claimant on 16 October.[28]Mr Panesar, counsel for the employers, in an attractive submission contended that the Tribunal was correct to conclude that the grievance could not cover subsequent events in the circumstances of this case. There were a series of quite distinct acts. They could not be seen as continuing acts for the purposes of the Smith doctrine. As to the specific complaint referable to the disciplinary stages, he submitted that there is a clear distinction between a decision to initiate disciplinary proceedings and steps taken pursuant to that decision. He accepts that a grievance plainly was raised in the letter of 11 May in which the claimant alleged that he was being disciplined because he had made protected disclosures. But he submits, quite correctly, that no specific grievance has been raised - or at least not in writing - alleging that the subsequent steps were also the consequence of making protected disclosures.[29]I accept that many of the acts which occurred after the 11 May could not sensibly be said to be covered by that grievance. They are not linked to the previous acts which were the subject of the grievance so as reasonably to expect the employer to appreciate that the allegation is being made that the wrongdoing (to use a generic word) is the result of the claimant having made protected disclosures. It may be, as the claimant submits, that these acts, together with other acts raised in the 11 May letter, would constitute a series of acts within the meaning of section 48(3) of the Employment Rights Act 1996 for the purpose of determining whether claims have been presented in time, in accordance with the principles established in cases such as Hendricks v Metropolitan Police Commissioner [2003] ICR 530 and Arthurs v London Eastern Railway Ltd . [2007] IRLR 58 . However, in my view that is not the same test as has to be applied when determining which acts have been the subject of a relevant grievance.[30]However, I uphold the claimant's submission with respect to the acts which are part of the disciplinary process. In my view, it is unrealistic to see the various stages of the disciplinary procedure, in this context at least, as separate actions. I note that this was also the conclusion of the EAT (Underhill J presiding) in Tait v Redcar and Middlesborough Council [2008] UKEAT/0096/08 para.8, albeit that that case was concerned with time limits rather than compliance with the grievance procedure. Once the claimant had alleged that the disciplinary proceedings were being initiated because he had made protected disclosures then that allegation continues to apply to all stages of the process. The complaint is that but for the protected disclosures, this process would not have been set in train. In my view, each stage of the process is in turn logically referable to those protected disclosures.[31]Accordingly, I see no reason why there should have been a separate and distinct grievance raised with respect to each stage of the disciplinary procedure: all the stages in the disciplinary process are equally tainted - if tainted they be - by the original decision to initiate the process. To use the language adopted in the Smith case, the complaint looks forward as well as back. It is not a case of an entirely separate act of victimisation. The subsequent disciplinary steps necessarily follow from the initial decision being implemented. The employers knew that the claimant was challenging the whole disciplinary process on the grounds that it is a reaction to his protected disclosures, and they were in a position to resolve that grievance by terminating the process.[32]In fairness to the employment judge, it does not seem that the argument was run in quite these terms below, and nor was the judge apparently referred to the Smith case. However, Mr Panesar realistically accepts that this is not a fact sensitive issue and that whether a grievance raised with respect to initiating a disciplinary process should be deemed to relate also to all the steps taken in furtherance of that process is essentially a question of law. Disposal.[33]The appeal succeeds on this limited ground. The Tribunal erred in concluding that the 11 May letter did not at least raise a complaint which covered all aspects of the disciplinary procedure initiated, it is alleged, because of protected disclosures. The Tribunal appear to have concluded that a grievance could not in principle ever cover conduct or acts which were occurred after the written grievance had been raised. That was an error and is in my judgment inconsistent with the approach of the EAT in the Smith case.[34]In my judgment, the Tribunal will have jurisdiction to hear at least such aspects of the protected disclosure claims as are identified in the claim form and correspond to complaints relating to the disciplinary process. If there is a dispute about the scope of this, it will be for the Tribunal to determine which detriments this covers and how far, if at all, it bears upon the automatically unfair dismissal claim.