THE INDUSTRIAL TRIBUNALS

CASE REF:	1454/07

CLAIMANT:			Tony Coll

RESPONDENT:		Royal Mail Group Limited

DECISION ON A PRE-HEARING REVIEW
The decision of the industrial tribunal is that the claimant is not entitled to present a claim under Article 74 of the Employment Rights (Northern Ireland) Order 1996 as he has not complied with the requirement to send a grievance in writing to his employer.

Constitution of Tribunal:
Chairman (sitting alone):		Mr D Buchanan

Appearances:
The claimant was represented by Mr D Bell, of The Communication Workers Union.
The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

1.	(i)	By a claim presented to the Fair Employment Tribunal on 19 February 2007 the claimant made an allegation of political discrimination.

At Paragraph 8.4 of the claim form he stated that he was complaining about receiving a penalty short of dismissal which he believed was due to his trade union activities.	
			
	(ii)	At a Case Management Discussion held on 2 August 2007, following correspondence from the claimant’s representative dated 18 July 2007, it was directed that the claim be registered as an industrial tribunal claim under Article 74 of the Employment Rights (Northern Ireland) Order 1996 (detriment on grounds related to union membership or activities).  The respondent had no objection to this course of action, and the claimant’s representative confirmed in open tribunal that the claim before the Fair Employment Tribunal was being withdrawn.	
			
2.	(i)	By letter of 28 August 2007 the respondent’s solicitors wrote to the Office of the Tribunals stating that the claimant had not lodged valid grievances in relation to the claim under Article 74 of the 1996 Order.  Consequently, the matter was listed for a pre-hearing review on the following issue:-	

“Whether the claimant is entitled to present a claim to the industrial tribunals in view of the provision of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the tribunal.”

	(ii)	The claimant, at Paragraph 5.5 of his claim form, stated that he had put his complaint in writing to the respondent on 20 December 2006.

However, at the hearing, the claimant’s representative placed reliance on Regulation 6(5) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 which provides:-	

“Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissal of the employee.”

		It is common ground that the claimant has not been dismissed by his employer, but the claimant contends that at the relevant time the employer was contemplating his dismissal.	

3.	The tribunal was provided with documentary evidence, and from that documentary evidence it is satisfied of the following facts:-

(i)	For the avoidance of doubt, the letters submitted by the claimant to his employer on 20 December 2006 do not constitute the making of a valid grievance.  They make no reference to detriment on the ground of trade union membership or activities, and essentially make allegations of defamation against two Royal Mail Managers.  The employer would not have realised from these letters that a grievance about an Article 74 complaint was being raised.

(ii)	On 2 November 2006 the respondent’s delivery manager wrote to the claimant informing him that he was to be charged with harassment contrary to the respondent’s Code of Business Standards and Bullying and Harassment policy.  A formal conduct interview ultimately took place on 21 November 2006.  It was concluded that the claimant should receive a serious warning which would remain on his record for two years.  The claimant was told of the outcome of the conduct case on 25 November 2006.  He was also told that he had a right of appeal which he did not exercise.

(iii)	Following the conduct interview the claimant submitted grievances against two managers, who had provided evidence in the investigation against him.  These were contained in the two letters dated 20 December 2006, to which reference has been made in Paragraphs 2(ii) and 3(i) above.

(iv)	By letter of 18 January 2007, the respondent rejected these grievances.  The claimant was told that it was an inappropriate use of the grievance procedure, and that his actions were viewed as being taken in bad faith.  The claimant’s representative drew attention to Paragraph 12 of the respondent’s bullying and harassment policy which provided that if it were found that a complaint had not been made in good faith, appropriate action, which included dismissal, could be taken.  It is the claimant’s case that, in these circumstances, it can be said that the respondent was contemplating dismissal.

4.	The tribunal cannot accept the claimant’s contention, which involves placing an interpretation on the respondent’s letter of 18 January 2007 which it cannot bear.  The letter did not refer to Paragraph 12 of the Code.  It rejected the grievances and spoke of “the need to move on from any campaign or a confrontation at any level”.  It made no reference to disciplinary proceedings or starting any such proceedings, and in those circumstances it cannot be said – indeed, it would be stretching language to say – that dismissal was being contemplated.

When the claimant lodged his tribunal application on 19 February 2007 there was no disciplinary issue outstanding against him.  The complaint of harassment had been dealt with by 25 November 2006.  There had been earlier disciplinary proceedings against him but these too had been finally concluded by 31 January 2006.  In any event the letter of 18 January 2007 cannot be of assistance to the claimant, whose complaint relates to alleged action short of dismissal in November 2006.

5.	The tribunal is satisfied that the claimant did not raise a valid grievance in relation to his complaint of detriment on the grounds of trade union membership or activities in accordance with Article 19(2) of the 2003 Order.  It is further satisfied that he cannot rely on the exemption set out in Regulation 6(5) of the 2004 Regulations.  This grievance cannot be said to be about a contemplated dismissal.

The tribunal does not therefore have jurisdiction to determine his complaint.

Chairman:

Date and place of hearing:	16 October 2007, Belfast

Date decision recorded in register and issued to parties: