THE INDUSTRIAL TRIBUNALS

CASE REF:	249/06

CLAIMANT:		Carrie-Anne McLoughlin	

RESPONDENT:	Land of Leather	

DECISION
The decision of the tribunal is that the claimant is entitled to present her claim to the tribunal as the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 have been complied with regarding the requirement to send a grievance in writing to the respondent and wait 28 days before present the claim to the tribunal.

Constitution of Tribunal:
Chairman (sitting alone):		Mr S A Crothers
 Members:			

Appearances:	
The claimant was represented by Mr Sherrard, Barrister-at-Law, instructed by McGuigan Solicitors.
The respondent was represented by Mr Underwood of Personnel Management Services.

1.	The claimant presented her claim to the tribunal alleging breach of contract, constructive dismissal, and sex discrimination on 27th February 2006.  The respondent contended that the without prejudice correspondence from the claimant’s solicitors dated 6 January 2006 did not constitute a grievance under stage 1 of the standard grievance procedure.

2.	The issue before the tribunal was whether the claimant was entitled to present her claims to the tribunal in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 “The Order” regarding the requirement to send the grievance in writing to the respondent and to wait 28 days before presenting the claim to the tribunal.

3.	The tribunal was assisted by correspondence presented to it by the respondent.

4.	Having carefully analysed the documentary evidence insofar as same as relevant to the issue  before it, the tribunal made the following findings of fact:-

(i)	The claimant’s solicitors without prejudice correspondence of 6th January 2006 directed to the respondent states as following:-

“We refer to the above named client.  We understand that our client has been employed by land of leather Newry branch for some 5 months.  Our client instructs that she was forced to leave the employment on 26 December 2005 following numerous derogatory remarks and harassment received at the hands of Simon Harris, who we understand is the manager of the Newry branch. 

We can confirm that these remarks were of a sexually explicit nature, which greatly upset and embarrassed our client who is a young girl of 17 years of age.

This behaviour is simply unacceptable and our client wishes to make a formal complaint against Simon Harris.  We also await an offer of compensation in relation to this matter or have instructions to proceed to the industrial tribunal.

We await hearing from you.

Yours faithfully…….”

(ii)	A reply was sent to the claimant’s solicitors on 16 January 2006 which reads as follows:-

“Dear Sirs

Re: Your client Carrie-Anne McLoughlin – Claim of Sexual Harassment 

With regards to the above named person and your letter date 6th January 2006, please note the following;

I have received your letter at Head Office and will  be investigating the issues that your raised in your letter.

I will revert to you in due course.

Yours faithfully

Emma Johnstone
HR Manager”.

Further correspondence was forwarded by the respondent to the claimant’s solicitors on 26 January 2006, explaining the outcome of an investigation.

5.	The tribunal heard submissions from Mr Sherrard and Mr Underwood.  Mr Sherrard contended that the heading of Without Prejudice was a mistake and that any rate did not prevent the respondent from accepting the content of the correspondence of 6 January 2006 as a statutory grievance under the standard procedure.  Mr Underwood contended that the employer was right not to treat the correspondence of 6 January 2007 as a statutory grievance on the basis, first of all, that the correspondence was entitled “without prejudice” and secondly, with or without that heading, it constituted a letter of claim and not a statutory grievance.

6.	The law in this matter is succinctly summarised by Harvey on Industrial Relations and Employment Law at T309 et seq. Paragraph 309.1(iv) states:-

“As to the content of the statement, the requirement imposed by paragraph 6 is “minimal” and does not require formality or technicality (Shergold per Burtton J, at para 30; Canary Wharf at para 23).  It is enough that the employee identifies the complaint.  There is no need for him to set out the basis of the claim (unlike the position in paragraph 9 under the modified procedure).  All that is required is that the complaint to the employer is essentially the same complaint that is subsequently made to the tribunal.  The determination of this question is not, however, to be approached in a technical way.  It is not necessary for the grievance statement to specify every instance that may subsequently be raised before the tribunal.  It is not even necessary for the employee to indicate that he want or expects the complaint or be dealt with; nor is he required to invoke a grievance procedure, statutory or contractual (Canary Wharf at para 22; Shergold at para 33)”.

Harvey then goes on to state at (v) that –

“In determining whether a grievance has been made, Elias J postulated the appropriate test as being whether “the employers, 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 is being raised” (Canary Wharf at para 25).  As to the consequences of the employee not surmounting this hurdle, Elias J stated: “If the statement cannot in context he read even in a non-technical and unsophisticated way as raising the grievance which is the matter of the tribunal complaint, then the tribunal cannot hear the claim.  There is no overriding interest of justice which can be invoked to save it (Ibid at para 31)”.

The tribunal also took into account the Employment Appeal Tribunal decision in Arnold Clark Automobiles Limited – v – (1) Richard G Stewart, (2) Barnetts Motor Group Ltd (UK EATS/0052/05/RN) in which it was held, inter alia, that it did not matter that the details of the claimant’s grievance was set out in a letter of claim or that it was marked “without prejudice”.

7.	The tribunal, having considered the findings of fact in relation to the issues before it together with the relevant law and the submissions made concludes as follows:-

(i)	This is a case in which the relevant procedure is the standard grievance procedure referred to in Schedule 1 to the Order.
(ii)	The correspondence of 6 January 2006, in the light of the authorities referred to, does constitute a proper written grievance in relation to the allegations of breach of contract, constructive dismissal and sex discrimination and therefore the claimant is entitled to present such claims to the tribunal.

Chairman:

Date and place of hearing:	11 June 2007, Belfast		

Date decision recorded in register and issued to parties: