THE INDUSTRIAL TRIBUNALS

CASE REF:	2533/06

CLAIMANT:			Andrew Houston				

RESPONDENTS:		1.	Ministry of Defence
				2.	John Eagle
				3.	Dave Paterson
				4.	Morris Baalham					

DECISION ON A PRE-HEARING REVIEW 

The decision of the tribunal is as follows:

1.	Because of the effect of Article 19 of the Employment (Northern Ireland) Order 2003, the claimant is precluded from presenting a claim to an industrial tribunal in respect of any claims included within points 8 and 9 of the attachment to section 12 of his Claim form.  

2.	However, he is not precluded by that Article from presenting any of the other claims included in that Claim form. 

Constitution of Tribunal:

Chairman:			Mr P Buggy (Chairman sitting alone)

Appearances:

The claimant appeared in person (assisted by his wife).

The respondents were represented by Ms D McBride, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

REASONS 	

1.	In these proceedings, the claimant makes various claims under the Disability Discrimination Act 1995 (“the Act”).  In those claims, the claimant asserts that the respondents have carried out (or are legally responsible for) various acts of unlawful discrimination within the meaning of the Act.  

The key statutory provisions

2.	The key legislative provisions are to be found in Article 19 of the Employment (Northern Ireland) Order 2003 (“the Order”) and in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, SRNI 2004/521 (“the Regulations”).

3.	Paragraph 6 of Schedule 1 of the Order is in the following terms:

“6.	 The employee must set out the grievance in writing and send the statement or a copy of it to the employer”.

4.	Article 19(2) of the Order is in the following terms:

“(2)	An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –

(a)	it concerns a matter in relation to which the requirement in paragraph 6 … of Schedule 1 applies and
(b)	the requirement has not been complied with.”

5.	Article 19(3) of the Order provides as follows:-

“(3)	An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if 

(a)	it concerns a matter in relation to which the requirement in paragraph 6 … of Schedule 1 has been complied with, and 

 (b)	less than 28 days have passed since the day on which the requirement was complied with”.

6.	All the claims in these proceedings are made under Section 17A of the Act.  Section 17A is one of the jurisdiction to which Article 19 applies.

7. 	As already noted above, the requirement at paragraph 6 of Schedule 1 of   the Order is a requirement that the employee set out “the grievance” in writing and send the statement or a copy of it to the employer.  In the present context, a grievance is:

	“...a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him ...” 

That is clear because of the wording of 2(1) of the Regulations.  (In the present context, “action” obviously includes any omission).

8.	The Regulations make provision as to the matters to which the requirements of paragraph 6 (of Schedule 1 of the Order) apply.  According to Regulation 6, the grievance procedures apply in relation to any grievance about action by the employers that could form the basis of a complaint by an employee to a tribunal under the various jurisdictions listed in Schedule 3 of the Order.  Section 17A of the Act is among the jurisdictions listed in that schedule.

9.    	Accordingly, the combined effect of the Order and of the Regulations is that, as a general rule, a claimant will be precluded from presenting a claim, brought under Section 17A of the Act, to an industrial tribunal, if it concerns a matter in relation to which the requirement of paragraph 6 (of Schedule 1 of the Order) applies, if either of the following two situations exists:

(1)	At the date of commencement of the proceedings, the relevant requirement has not been fulfilled at all.
(2)	The requirement (to put the grievance in writing and send this statement or a copy of it to the employer) has been complied with, but less than 28 days have passed thereafter.

The preliminary issue

10.	This Pre-Hearing Review was held for the purpose of determining the following preliminary issue:

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

The claims

11.	In his Claim form, the claimant made clear (at paragraph 8 of the Claim form) that his various claims were all made in respect of disability discrimination.  
12.	He specified the various acts of discrimination in an attachment to section 12 of the form (“the attachment”), which consisted of 18 separate numbered points.    

13.	Ms McBride accepts that the claims set out at point 10 to 12 inclusive of that attachment were the subject of a grievance which was presented by the claimant more than 28 days before the commencement of the present proceedings.  

14.	The remaining points (the other points) were the following:

		1-9
		13-15
		16-18

15.	Against that background, the real issue which I have had to determine was whether or not an industrial tribunal is precluded from considering the claims contained in those other points (because of the effect of Article 19 and of the Regulations).

The claims at points 1- 9 

16.	In the Response form, the respondents state that the events described at 1 and 2 are events which occurred prior to 3 April 2005.

17.	In view of the content of the Response form, it is also clear that the respondents take the view that points 3 and 4 also relate to events which occurred prior to 3 April 2005.  (See paragraph 4 of Section 6.2 of the Response form).

18.	In the Response form, the respondents state that point 5 relates to events which occurred prior to 3 April 2005.

19.	Points 6 to 8 of the attachment are in the following terms:

“6.	More recently I have been subjected to ongoing harassment due to my disability from management and colleagues.  I have had staff make jokes about my condition and [sickness]…	

7.	My colleagues from the labour pool & stores would make comments on a regular basis about my sick asking how long are you back for this time or who’s the new start and most of the time have known what I have been off for even though I have not told them or at times asked me if I was off with my fits again.  They don’t ask out of genuine concern and can be quite vicious and ignorant to my privacy. 

8.	I spoke to my line manager Morris Ballham on another occasion asking about the overtime on Saturday mornings in the waste control site where I work, his response was that I would not be allowed to do it because of my epilepsy as only one person from the labourers is allowed in on a Saturday on a rotational basis and I would not be allowed to do it on my own.  Yet as I pointed out I work on my own most of the time through no choice of my own.  I am one of seven labourers and they all get overtime on Saturdays but I don’t”.

20.	Point 9 relates to an event which allegedly occurred in January or February 2006.

The claims at points 13 - 15

21.	Points 13 and 14 relate to ongoing disciplinary action against the claimant.  The claimant has raised those points in a written statement, which he has given to the employer in the course of the relevant disciplinary proceedings.  

22.	Point 15 is not a freestanding complaint of discrimination.  It is a commentary upon the implications of other points, along with an allegation that the claimant’s health has suffered because of the varied acts of alleged discrimination referred to in other points.

The claims at points 16 - 18  

23.	Points 16 and 17 relate to ongoing disciplinary action against the claimant. The claimant raised those points in a written statement, which he has sent to the employer in the course of the relevant disciplinary proceedings.

24.	Point 18 of the attachment is not a freestanding complaint of discrimination.  Instead, it is a commentary on how the employer has addressed the complaints mentioned at other points of the attachment.
	
The correspondence

25.	These proceedings were begun on 23 October 2006.  

26.	The claimant set out complaints in written correspondence which he sent to the employer on or about 24 August 2006, on or about 22 September 2006, on or about 12 October 2006 and on or about 30 October 2006.  The October communications were obviously not sent at least 28 days before the commencement of proceedings, so the focus has to be on the content of the August and September correspondence.

27.	The main thrust of the letter of 24 August is that it complains about the conduct of John Eagle in connection with an interaction between the claimant and Mr Eagle during July 2006.  

28.	However, that letter also refers to the claimant’s contention that, in July 2006, he had explained to Mr Eagle that he was being harassed by other members of the labour pool, and that they made jokes about his condition, passed comments on his sickness, and were generally giving him a hard time.  (See paragraph 19 above, which sets out points 6 and 7 of the attachment).

29.	The letter of 24 August was the subject of a reply from John Eagle on 31 August 2006.  This then resulted in a further letter from the claimant on 22 September 2006, addressed to Mr Dave Paterson.  The claimant’s letter of 24 August has to be read in conjunction with the letter of 22 September.  The letter of 22 September makes it clear that the claimant is complaining of discrimination contrary to the Act.

30.	The letter of 24 August and the letter of 22 September make no reference to the matters complained of at point 8 of the Claim form attachment.

31.	Disciplinary action against the claimant had been begun by the employer in September 2006.  While those proceedings were still pending, the claimant provided the employer with another written statement of complaints, on 30 October 2006.  That statement incorporated the entire content of points 1 to 17 of the attachment to section 12 of the Claim form.  

The arguments

32.	Ms McBride argued the respondents’ side of the case robustly, but fairly.  

33.	She pointed out that the legislation was designed to ensure that parties did not come to an industrial tribunal until they had availed of opportunities to pursue internal redress procedures.  She pointed out that the legislation has to be applied, regardless of any concerns there might be about its potential to deter meritorious claimants from presenting claims to tribunals.  

34.	The claimant (with the assistance of his wife) argued that the tribunal should take a broad and purposive approach to the application of the legislation; I should not allow technicalities to be an obstacle in the way of the claimant’s wish to have his issues ventilated and addressed in industrial tribunal proceedings.

The law

35.	In a number of Employment Appeal Tribunal judgments, provisions analogous to the provisions of Article 19 of the Order have been subjected to considerable judicial criticism, the main arguments being that the legislation is excessively technical and that it has the potential to deprive individuals of remedies merely because of minor procedural lapses.  In Shergold -v- Fieldway Medical Centre [2006] IRLR 76, at paragraphs 27 and 28 of the judgment, Burton P set out the proper approach to this legislation:-

	                    “27.	To that extent therefore, the need for parties to understand each other’s position before proceedings are lodged (and the opportunity for resolution short of litigation) is to be welcomed, but what must be guarded against, once such legislation has been enacted, is that it can create its own hostage to fortune and, in fact, introduce an entirely and, we are satisfied, unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides.

   28.	So far as the employee is concerned, the statutory wording is, so far as paragraph 6 of Schedule 2, Part II of the Act is concerned, very simple, and we believe that it was intended to be simple.  Of course an employee, before this statutory procedure is invoked, must set out something in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly, so far as the standard procedure is concerned.  The danger [obviously] is that the kind of pernickety criticism of the form or content of the “writing” exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here.  It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the 2002 Act and the 2004 Regulations; … It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal.  Those are sanctions, which should be very rarely used; the purpose of the legislation is quite [otherwise], as we have described”.

36.	I accept that the relevant legislation was enacted with a view to ensuring that recourse to tribunals would be allowed only if workplace grievance procedures had been initiated and 28 days had thereafter been allowed to elapse (so that an employer would have the opportunity to speedily address the grievance prior to the commencement of any proceedings).

37.	It will be recalled that paragraph 6 of Schedule 1 of the Order merely imposes a requirement to:

	“…set out the grievance in writing and send the statement or a copy of it to the employer”.

38.	However, as Burton P pointed out in Shergold (at paragraph 35 of the judgment):

	“… We agree with the submission of the respondent that the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with.  It is clearly no compliance with the requirement that there must be a grievance in writing before proceedings if the grievance in writing relates, for example, to unpaid holiday pay and the proceedings, which are then sought to be issued, are based upon race discrimination or sex discrimination with no relevance  to any question of holiday pay.  [My emphasis]”.

39.	The requirement in paragraph 6 of Schedule 1 of the Order does not apply in relation to a matter if the grievance is that the employer has dismissed or is contemplating dismissing the employee.  (See Regulation 6 of the Regulations).

40.	Paragraph (1) of Regulation 7 provides that, where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action (other than dismissal) against the employee, the standard grievance procedure does apply if one of the reasons for the grievance is:

		“(a)	that the relevant disciplinary action amounted to or, if it took place, would amount to unlawful discrimination; or

		  (b)	that the grounds on which the employer took the action or is contemplating taking it were or are unrelated to the grounds on which  he asserted that he took the action or is asserting that he is contemplating taking it …  ”.

41.	However, in either of the situations identified in the last paragraph, the parties will be treated as having complied with the standard grievance procedure if the employee sets out the grievance in a written statement and sends the statement or a copy of it to the employer prior to the initial disciplinary meeting or prior to the disciplinary meeting at the appeals stage of the disciplinary process.

42.	Regulation 18 of the Regulations makes “transitional provisions”.  The effect of those provisions is that the requirements of paragraph 6 of (Schedule 1 of the Order) do not, as a general rule, apply to a particular matter if the matter relates to action which occurred before 
        3 April 2005, and which did not continue thereafter.

Conclusions

43.	References below to “points” or to a “point” are references to “points” or to a “point” in the attachment to the Claim form.

Points 1 - 9

44.	The matter referred to at points 1 to 5 all relate to events which occurred prior to 3 April 2005. (See paragraphs 16 to 18 above). Therefore there was no legal requirement to present a pre-litigation grievance in respect of those matters. (See paragraph 42 above).
  
45.	The requirements of Paragraph 6 (of Schedule 1) were met in respect of points 6 and 7 because the matters there described were the subject of a written grievance, which was contained in the claimant’s letter of 24 August.  (See paragraph 28 above).

46.	The relevant legislation precludes an industrial tribunal from entertaining claims relating to matters mentioned at points 8 and 9 because of the following facts and circumstances:

                (1)  No grievance was raised during the course of the August and 
                      September correspondence in respect of any of those matters.
 
                (2) The “action” referred to at point 8 continued after 3 April 2005. (See paragraphs 19 and 42 above).

                (3)  The “action” mentioned at point 9 is alleged to have occurred
                      after 3 April 2005. (See paragraphs 20 and 42 above).      

Points 10 - 12

47.	The relevant legislation does not preclude a tribunal from entertaining claims encompassed within points 10 to 12 inclusive, because the claims referred to at those points were the subject of a grievance which complied with the statutory times scales, as Ms McBride has very fairly recognised. (See paragraph 13 above).

Points 13 - 15 

48.	The relevant legislation does not preclude a tribunal from entertaining claims relating to the matters raised at 13 and 14, because of the following fact and circumstances.  Those points relate to ongoing disciplinary action against the claimant, who raised those points in a written statement which he sent to the employer in the course of the relevant disciplinary proceedings.  (See paragraphs 21 and 39 - 41 above).

49.	Point 15 does not incorporate a freestanding complaint of discrimination.  (See paragraph 22 above).

Points 16 - 18

50.	The relevant legislation does not preclude a tribunal from entertaining the matters raised at points 16 and 17 because of the following facts and circumstances. Those points relate to ongoing disciplinary action against the claimant, who raised those points in a written statement which he sent to the employer in the course of the relevant disciplinary proceedings.  (See paragraphs 21 and 39 – 41 above).

51.	Point 18 of the attachment is not a freestanding complaint of discrimination. (See paragraph 24 above).

	
Chairman:

Date and place of hearing:	23 May 2007, Belfast.		

Date decision recorded in register and issued to parties: