LOTHIAN AND BORDERS FIRE RESCUE SERVICE v MR DAVID GRAY [2009] UKEAT 0001_09_0306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0001_09_0306Case No Appeal No. UKEATS/0001/09Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
LOTHIAN AND BORDERS FIRE RESCUE SERVICEAPPELLANTMR DAVID GRAYRESPONDENT
Before
Lady SmithDate 3 June 2009
[2]APPEARANCES For the Appellants MR M MOHAMMED (Solicitor) City of Edinburgh Council Legal Services Division City Chambers High Street Edinburgh EH1 1YJ For the Respondent MR B MCLAUGHLIN (Solicitor) Messrs Thompsons Solicitors 16-20 Castle Street Edinburgh EH2 3AT SUMMARY Statutory Grievance Procedure. Whether or not modified grievance procedure complied with. Employment Tribunal had erred in failing to have regard to the specific requirements of the modified procedure. Appeal upheld. THE HONOURABLE LADY SMITH INTRODUCTION 1. This is an employer's appeal against a judgment of the Employment Tribunal, Employment

Judge Mr K J McGowan, sitting at Edinburgh, registered on 20 October 2008 that:

"The Tribunal has jurisdiction to consider a complaint of failure to make reasonable adjustments based on treatment other than the act of dismissal."
I will continue to refer to parties as Claimant and Respondents. The Claimant was represented by Mr Forsyth, Advocate, before the Tribunal and Mr McLaughlin, solicitor, before me. The Respondents were represented by Mr M Mohammed, solicitor, before the Tribunal and before me. BACKGROUND[3]The Claimant presented a claim of disability discrimination. His form ET1 contained the following:
"The Claimant is a disabled person in terms of the Disability Discrimination Act 1995. The Respondent discriminated against the Claimant, treated him less favourably and subjected him to detriment for a reason related to his disabilities. The respondent failed to make reasonable adjustments."
[4]There were in fact two associated claims presented to the Tribunal but, for present purposes, all that requires to be noted is that the disability discrimination claim which is relevant for the purposes of this appeal was presented on 31 July 2008. Prior thereto, a formal grievance letter dated 19 June 2008 was sent to the Respondents by the Claimant's solicitors . In that letter, they state:
"For the particulars of the grievance, I refer to Mr Gray's letter of grievance dated 16 April 2008." and "
I ask that this grievance be dealt with under the modified procedure as set out in regulation 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ."[5]The Claimant's letter of 16 April 2008 runs to over four pages. In the first paragraph of the first page he states:
"During my period of ill health I have returned to work on light duties to attempt to get back to full fire fighting duties. Unfortunately, the extent of my injuries resulted in a period of sickness absence from my normal employment and as a result the FRS suspended my light duties."
On the third page at numbered paragraph 5, the Claimant states:
"At no time during my absence from duty has any form of reasonable adjustment or redeployment been offered or discussed"
. The period of ill health to which the Claimant referred was ill health following upon injuries at work. RELEVANT LAW[6]Section 32 of the Employment Act 2002 provides:
"(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."
[7]Claims under the Disability Discrimination Act are a jurisdiction to which section 32 applies. Paragraphs 6 to 9 of schedule 2 to the 2002 Act contain the statutory grievance proceedure whose demise is now a welcome feature of Employment Tribunal procedure, but was in force as at the time of presentation of the Claimant's complaint. The modified proceedure is set out in paragraph 9 and it provides:
"9.

(b) Send a statement or a copy of it to the employer"

[8]I discussed the requirements of the modified grievance procedure in the case of Clyde Valley Housing Association Ltd v MacAuley UKEATS/0045/07/MT and my views have not changed since then. In particular, it is plain that the distinction that has to be drawn between the standard and modified grievance procedure is that under the modified procedure the Claimant must set out the evidential basis of his grievance in addition to the nature of the grievance itself. As I indicated there, as regards the question of what amounts to the "basis" for the grievance, it is that which the employee relies on to substantiate his complaint. The requirement arises in a procedure which does not envisage that there will be a meeting and, accordingly, fair notice which is fuller than that which requires to be given to the employer in a standard procedure grievance letter must be given in the letter intimating it. THE TRIBUNAL'S REASONS[9]The Employment Judge considered the terms of the letter of 16 April. At paragraph 26 he said:
"It is clear that it is a grievance – it says as much. Much of the letter is concerned with matters other than any potential disability discrimination claim but I am satisfied that a complaint of reasonable adjustments is identified (see paragraph 5) where the Claimant says that what has gone wrong from his point of view is that ' no form of reasonable adjustment of redeployment' had been offered at any time during his absence. The period of the Claimant's absence is something that the Respondent knew, accordingly, that complaint is one which the Respondent could investigate and answer."
[10]On that reasoning, the Employment Judge found that the requirements of the statutory grievance procedure had been satisfied in this case and he had, accordingly, jurisdiction to consider the complaint or failure to make reasonable adjustments. THE APPEAL[11]In a careful submission, Mr Mohammed submitted that the Tribunal had fallen into error. It had never been argued in this case that the standard grievance procedure applied. The question was whether or not the modified procedure had been complied with. It plainly had not. It could not be said that the letter of 16 April 2008 set out the basis for the grievance. The Employment Judge had failed to ask himself the correct question. He had not asked himself whether the basis of the claim was set out in the grievance letter. Mr Mohammed referred to the Clyde Valley Housing Association Ltd case. He also referred, for the purpose of distinction, to the cases of Suffolk Mental Health Partnership NHS Trust v Hurst and Others [2009] IRLR 452 and City of Bradford Metropolitan District Council v Pratt [ 2007] IRLR 192 noting, appropriately, that in both those cases it was the standard procedure rather than the modified procedure which was under consideration.[12]Mr Mohammed moved that the appeal be upheld and the judgment of the Tribunal be reversed.[13]For the Claimant, Mr McLaughlin conceded that he had not provided, as he put it, many specific instances in his statement of grievance but, as the Employment Judge had commented, there was enough said to enable the Respondents to investigate and answer it. He referred to Canary Warf Management Ltd v Edebi [2006] ICR 719 at paragraph 25 where Elias J, as he then was, commented that the objective of the statute could be fairly met if the employers on a fair reading of the statement in context could be expected to appreciate that the relevant complaint was being raised. He did not, however, appear to appreciate that those comments related to the requirements of the standard grievance procedure, not the modified one. In a similar vain, he referred to certain comments made in the Suffolk Mental Health Partnership NHS Trust case.[14]So far as the letter of 16 April 2008 was concerned, Mr McLaughlin submitted that adequate notice of the basis of the grievance was contained in the third paragraph of the first page. Although not much detail was given, it raised the issue of a reasonable adjustment having been made in the past. That, he said, could be read as foreshadowing what he expected to discuss at the grievance meeting. He accepted that it was not expressed in the clearest of terms or the most chronological or logical of terms, but it was, he said, enough.[15]In a separate chapter of his submissions, Mr McLaughlin made reference to correspondence subsequent to the grievance letter in which the Respondents made reference to "light duties" having been afforded to the Claimant and those being the only form of redeployment and reasonable adjustment available in respect of his post. Although not spelt out, the Claimant's grievance was, he said, that he had not been offered light duties whilst absent from work. The Respondent's letter of 4 July 2008 showed that they had appreciated that that was the reasonable adjustment that he was complaining about. That showed that his grievance was adequately stated. DISCUSSION[16]I am satisfied that the Tribunal fell into error. The Employment Judge has not addressed the issue of whether the written grievance set out not only the grievance but the basis for it. Whilst he considered whether the complaint was one which the Respondent could investigate and answer, that is not the point. The requirement is to set out the basis for the grievance in the sense to which I have referred to above. In a case where the grievance is a failure to make reasonable adjustments, the explanation of the basis would require to set out , in outline, facts showing that a provision, criterion or practice applied by on or behalf of the employer or a physical feature of the premises occupied by him but the disabled person at a substantial disadvantage (Disability Discrimination Act 1995 s.4A(1)) and that, in some way, the employer had failed to take steps which the employee alleged were reasonable to remove or diminish that disadvantage. Mr McLaughlin suggested that that requirement was met, in this case, in one or more of three ways. Firstly, he referred to the third paragraph of the first page of the letter of 16 April 2008. I do not see that as intimating a "reasonable adjustment" grievance to the Respondents. Even if it could be seen as indicating that the Claimant regarded "light duties" as a reasonable adjustment, all it says is that he had been on light duties during his period of ill health in the past but, unfortunately, the extent of his injuries had been such as to result in the light duties being suspended. On no view could that be interpreted as a grievance on his part that he had not been offered further light duties. Secondly, I turned to the sentence at paragraph 5 of the third page. It contains nothing more than a bald assertion of a failure to offer or discuss reasonable adjustments during his period of absence from duty. Whilst that might have been sufficient to satisfy the standard procedure, I cannot see that it is sufficient to satisfy the modified procedure requirement that the basis for the grievance is specified. Finally, I turn to Mr McLaughlin's submission that the requirements could be seen to have been satisfied because in their letter of 4 July 2008, the Respondents made reference to light duties and reasonable adjustments. However, the statutory requirement is absolute. If the Claimant does not specify the basis for the grievance in a modified procedure case then there is no compliance. It does not matter if the employer subsequently, by chance or otherwise, identifies what the basis of the grievance was. Whilst that may well serve to highlight the fact that these statutory provisions, to a large extent, were unsatisfactory and failed to achieve their objective, it does not mean that there was compliance by the Claimant.[17]In all the circumstances I am persuaded that the appeal is well founded and will pronounce an order upholding the appeal and substituting for the Tribunal's judgement a judgment that it has no jurisdiction to consider a complaint of failure to make reasonable adjustments based on treatment other than the act of dismissal.