NOTTINGHAM TRAM CONSORTIUM v MRS A CHEETHAM [2009] UKEAT 0145_09_2808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0145_09_2808Case No Appeal No. UKEAT/0145/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NOTTINGHAM TRAM CONSORTIUMAPPELLANTMRS A CHEETHAMRESPONDENT
Before
His Honour Judge AnsellDate 28 August 2009
[1]APPEARANCES For the Appellant MR D MASSARELLA (of Counsel) Instructed by: Messrs Nelson Solicitors Sterne House Lodge Lane Derby DE1 3WD For the Respondent (DEBARRED) SUMMARY DISABILITY DISCRIMINATION PRACTICE AND PROCEDURE: procedural irregularity The Employment Judge in error in holding that a letter constituted a valid grievance, the letter also being sent more than 3 months from the act or omission complained of. HIS HONOUR JUDGE ANSELL Introduction This has been an appeal from a decision of Employment Judge Walker sitting alone at a Nottingham Tribunal on 16 January 2009, who determined that a grievance letter sent by the employee Mrs Cheetham on 31 March 2008 complied with section 32 of the Employment Act 2002 for the purposes of an allegation of non-dismissal disability and discrimination, and in particular the failure to make suitable adjustments to allow her to return to work other than in the company of a particular trainer with whom she alleged had difficulties. The claim itself was filed at the Tribunal on 30 June 2008. The Judge had held that letter did not set up a separate grievance in relation to the manner in which her grievance had been dealt with and the process involved in that but could be linked back to a previous grievance which had begun on 26 June 2007 in a written document headed Grievance Statement. The Facts[2]Leave to appeal was given on the sift by Silber J by order dated 31 March 2009. Mrs Cheetham has failed to file an answer to the Notice of Appeal and by order dated 18 August 2009 the Registrar of this court ordered that she should be debarred from taking any further part in this appeal, and she has not attended today.[3]The Respondent had started working for the Appellant on 3 October 2005 as a member of a tram crew, completing her training on 14 September 2006. She began driving duties on 26 September 2006. On 31 October she was signed off sick and thereafter did not return to work. On 26 June 2007 she raised a grievance concerning unfair treatment by a colleague, Mr Parnell, whilst being trained by him between June and July 2006. Although this document was referred to in the Employment Judge's reasons there does not appear to have been any analysis by him of whether this document contained any reference to any alleged disability discrimination. Indeed the nature of the discrimination had been set out by the Employment Judge in paragraph 1.1 of his Reasons; namely a failure to make reasonable adjustments in relation to an alleged perpetrator Mr Parnell. In fact that was not a complete summary of the allegation because it related to an alleged failure to make reasonable adjustments to allow the Respondent back to work. In her Particulars on the ET1 she added:
"… I asked I would not have any one to ones or be alone with this person, who was a trainer, but the management said they could not guarantee that. It would have been simple to do as there were other trainers within the group."
[4]I refer to those Particulars because it is important to establish the date of the act or omission relied on in terms of triggering off the time limits. A further failure of the Employment Judge alleged is that he appeared simply to concentrate on the date of the grievance rather than focussing on the date of the act.[5]Just to return to the history for a moment; on 26 September 2007 the employer wrote to the employee informing her that her grievance had not been upheld. That letter was simply referred to and outlined by the learned Employment Judge but in fact if one looks at the particulars of that letter one sees that it does appear to contain the very refusal that Mrs Cheetham complained about in her ET1. The letter states as follows:
"You also requested that on your return to work you should be allocated the first available training but requested not to be trained or assessed by Mr Parnell. I will organise this but there may be times when due to circumstances beyond anybody's control this may not be possible."
[6]Just to complete the history; she appealed against that decision of 29 September and on 10 December she was written to informing her that her appeal was not upheld.[7]The only other further letter is the one that the Employment Judge placed particular emphasis on, namely the Respondent's letter of 31 March 2008. I read it in its entirety:
"I am writing to inform you that due to the conduct and conclusions reached regarding my grievance received by you on 26/06/2007. I am left with no alternative but to raise a further grievance of discrimination while being in a mentally disabilitating state of mind . I feel my vulnerable mental state left me incapable of handling such an aggressive and personal attack on myself and my family which was totally irrelevant. The case has been concluded on:- 1. Flawed statements. 2. Inaccurate transcripts. 3. Informal unrecorded meetings/discussions. 4. Conclusions formed by personal opinion and not facts. 5. Relevant information ignored. 6. Accusations made about me that are untrue. 7. Conclusions reached of cause - No evidence. 8. Closed questions asked. I feel that this whole affair has been used in such a way as to try and portray me as an incapable, unreliable, untruthful and unspoken / out of control employee who I am amazed you wish to encourage back to work. I also have concerns of the support I would get from some managers on my return to working in a 'safety critical' environment. I am therefore unable to give you a back to work date at this time."
[8]There followed an absence procedure and her employment was terminated on 30 April resulting in the claim being instituted on 30 June. The Legislation[9]It is important in these complicated cases of times and grievance procedures just to remind oneself of the provisions that do apply because, as I have already indicated above, the substantial complaint made against the Employment Judge is that he did not remind himself of the basis principles, and it can be seen in concentrating on the letter of 31 March and coming to the view that this was a continuous grievance relating back to 26 June he concluded by reaching the view that the ET1 presented on 30 June 2008 was within the three-month time limit "for presenting this non-dismissal discrimination claim".[10]Taken briefly, that is clearly a wrong approach to the statutory principles. First of all the date of the act itself. The Disability Discrimination Act 1995 Schedule 3 Part 1 paragraph 3(1) makes it clear that the three-month period for lodging a complaint of discrimination runs from the period when the "act complained of was done". If one moves down to 3(3)(c) one sees that the act complained of can include a deliberate omission, which is "treated as done when the person in question decided upon it".[11]Mr Massarella has referred me to Humphries v Chevler Packaging Ltd UKEAT [2006] 0224/06, the decision of HHJ Reid QC, which makes it clear that where there has been a refusal or deliberate omission to make a reasonable adjustment, time runs from the date of that refusal or deliberate omission. As I indicated in my analysis of the facts, if one looks at the complaint on the ET1 namely that of a failure to make suitable adjustments in terms of Mr Parnell to facilitate the Respondent's return to work, the refusal can only be that which is contained in the letter of 26 September.[12]That refusal would of course have to be followed before commencement of the proceedings within three months by a grievance. That is clear if one looks at the provisions of the Employment Act 2002 . Section 32 makes it clear that in claims of this nature, generally called non-dismissal discrimination claims, a claim cannot be brought unless there has been a grievance which complies with the Act and complies with the well-known provisions that are set out in the schedule to the Act, Schedule 2 Part 2 Chapter 1, requiring the employee to set out the grievance in writing. If that is done then time is extended by a further period of three months, and that can be seen from Regulation 15(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.[13]The learned Employment Judge failed first of all to identify the date of the act or omission, and therefore even if he was correct in his analysis that the letter of 31 March 2008 amounted to a grievance he would have been required to go through a process of determining whether it was just and equitable to extend time since that grievance would have fallen outside the three-month time limit, the act or omission having occurred on 26 September 2007. Even extending matters beyond that to the date when her appeal was rejected, namely 10 December 2007, the letter of 31 March would still have been outside the three-month time limit.[14]Moreover, I cannot agree with the Judge's view that the letter of 31 March, either taken by itself or indeed in conjunction with the earlier document sent in June 2007, raised the grievance which is the subject matter of the complaint in the ET1. The general principles have of course been set out in a number of recent cases, particularly Canary Wharf Management Ltd v Edebi [2006] IRLR 416 . A statutory grievance would be held as being raised if the employers on a fair reading of the statement and having regard to the context could be expected to appreciate that the relevant complaint is being raised. Conclusion[15]To my mind the letter of 31 March 2008 was simply a complaint about the process and the manner in which the grievance had been handled and made no reference whatsoever to the issue of the conditions that had or had not been imposed to facilitate a return to work. Even on the Employment Judge's analysis of reading that letter in with the earlier letter, the Employment Judge failed in any way to actually analyse what was contained in that earlier document and did not ask himself the question did that earlier document revived in some way by the 31 March letter raise the complaint. Mr Massarella has referred me to that earlier document and on any view there is no reference to the complaint. Indeed it would be surprising perhaps to see one in that earlier document bearing in mind it preceded the act or omission complained of, namely the letter of 26 September.[16]Even if I am wrong on this analysis there is, as I have indicated already, a time problem because the letter of 31 March would fall outside the three-month time limit even taking the latest possible date of 10 December. Therefore just and equitable principles that would have to be considered were not considered or even raised before the Employment Judge, as I understand it, as an alternative basis for putting forward these claims. I have seen no material that would justify any extension of time. The refusal to agree to her plans concerning returning to work was clearly set out in the letter of 26 September, and in my view could have been acted upon within the three-month period either by initially a letter of grievance followed up if necessary by proceedings.[17]It follows therefore that to my mind there has not been a valid grievance within the period, that the Employment Judge was wrong so to rule, and the proceedings instituted effectively without such a grievance were not valid and that part of the claim therefore must be dismissed. There was a dismissal claim as well and that will continue. There will be an order allowing the appeal and the non-dismissal disability claim must be dismissed. There will have to be a transcript because Mrs Cheetham is not here.