THE INDUSTRIAL TRIBUNALS

CASE REFS:	7579/09
1259/10

CLAIMANT:	Paul Rainer 

RESPONDENT:	Past Times Trading Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is as follows:-

1.	The tribunal has no jurisdiction to hear the claimant’s first claim (ref 7579/09) since the claimant did not set out his complaint in writing and send a copy of it to the employer.  This claim is therefore dismissed.

2.	The claimant is permitted to amend the second claim form (ref 1259/10) in the terms set out in the attached Schedule, save for those paragraphs which have been struck out.

Constitution of Tribunal:

Chairman (sitting alone):	Ms June Turkington

Appearances:

The claimant appeared and was represented by Mr Timothy Warnock, Barrister-at-Law, instructed by T D Gibson & Co Solicitors.
 
The respondent appeared and was represented by Mr Eamonn McArdle, Barrister-at-Law, instructed by Brookstreet Des Roches LLP.

The Claims 

1.	There were two claims before the tribunal.  These were, firstly, a claim of discrimination on the grounds of sex and race under case ref 7579/09 and, secondly, a claim of constructive unfair dismissal under case ref 1259/10.

2.	At the outset of the pre-hearing review, the tribunal sought to clarify the issues in the case.  At this stage, the claimant narrowed considerably the scope of his first claim (ref 7579/09).  Counsel for the claimant confirmed in open tribunal that the claimant was unconditionally withdrawing all of his claims and allegations of sex and/or race discrimination, save for a claim relating to his non-appointment to 3 posts announced by the respondent on 20 October 2009.

3.	At a later stage in the hearing, Counsel for the claimant also confirmed that, in respect of this remaining claim of sex and/or race discrimination, the claimant did not intend to refer to or rely upon other allegations of alleged discrimination by way of background (as per the Anya case).  

The Issues

4.	In accordance with the Notice of Hearing, the issues to be determined by the tribunal on this pre-hearing review were:-

	(a)	Whether the claimant is entitled to present a claim to an Industrial Tribunal in view of the provisions of article 19(2) and (3) of The Employment (Northern Ireland) Order 2003 regarding the requirements to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the tribunal (“the statutory grievance issue”).

	(b)	Whether the claimant is entitled to amend his claim forms in the terms set out in the claimant’s further replies dated 8 October 2010 (“the amendment issue”).

Sources of Evidence

5.	The tribunal heard limited oral evidence from the claimant and from Mr Oultram on behalf of the respondent in relation to the issues before the tribunal on this 
pre-hearing review.  The tribunal also considered a number of documents in the agreed bundle submitted by the parties.  Finally, the tribunal considered and took into account the helpful submissions of counsel on behalf of both parties.  

The statutory grievance issue

The contentions of the parties in relation to the statutory grievance issue

6.	In view of the concessions on the part of the claimant referred to above, the issue before the tribunal became limited to whether or not the claimant had complied with step 1 of the statutory grievance procedure in respect of the remaining part of the first claim, namely the allegation of discrimination on the grounds of sex and/or race relating to the 3 posts.

7.	Counsel for both parties prepared very helpful written submissions and bundles of authorities.  In outline, counsel for the claimant relied on portions of the note of a meeting which appeared at page 134 of the agreed bundle as constituting a complaint in writing in compliance with the statutory grievance procedure.  Counsel for the claimant therefore contended that the tribunal had jurisdiction to hear the claimant’s remaining claim of sex and/or race discrimination as described in para 4 above.  Counsel relied on the fact that the respondent was clearly aware of this particular complaint and indeed proceeded to investigate it in the course of its investigation into the claimant’s grievances.

8.	On the other hand, counsel for the respondent contended that the tribunal does not have jurisdiction to hear this claim.  He argued that the claimant never recorded in writing his complaint about his non-appointment to the 3 posts, and sent a copy of it to the respondent as required by step 1 of the statutory grievance procedure.  Rather, the document now relied upon by the claimant as constituting his statutory grievance was recorded by the respondent in the course of a grievance meeting and the claimant could not rely on this document.  In support of his argument, counsel for the claimant relied on a number of cases, including the case of Aramark.

Findings of fact in relation to the statutory grievance issue

Having heard the oral evidence of the claimant and Mr Oultram and considered the documents submitted by the parties, the tribunal found the following relevant facts:-

9.	The claimant was employed by the respondent as a store manager of its outlet store in Banbridge.

10.	On 5 October 2009, the claimant prepared a written complaint which he handed to the Human Resources Manager of the respondent on or about 6 October 2009 at the company conference.  This document, which appears at page 73 of the agreed bundle, contains no mention of alleged sex and/or race discrimination.  Further this document contains no reference to the 3 posts which are now the only subject-matter of the claimant’s first claim.

11.	On 20 October 2009, an announcement was made at an Area Managers’ meeting at which the claimant was present, about the filling of 3 new posts.

12.	On 6 November 2009, the claimant attended a meeting with Mr A Oultram whom the respondent had appointed to hear the claimant’s grievance.

13.	The claimant gave evidence that he handed to Mr Oultram a copy of the notes he had made to assist his preparation for this meeting.  These notes appear at page 81 of the agreed bundle and the copy in the bundle contains a number of hand-written annotations.  Mr Oultram could not recall whether he had received a copy of these notes, although he was adamant that he had not seen the hand-written annotations which the claimant had added to these notes.  The claimant accepted that the copy of the notes he had handed to Mr Oultram did not contain these hand-written annotations.  

14.	Since the claimant’s evidence on these matters was clear and consistent and Mr Oultram candidly accepted that his recollection was vague, the tribunal accepts the claimant’s version of events.  The tribunal therefore finds as a fact that a copy of these notes was handed to Mr Oultram, but this copy did not contain any hand-written annotations.  This typed version of the notes did not contain any reference to the 3 posts or to alleged discrimination on the grounds of sex and/or race.

15.	A minute-taker attended the grievance meeting between the claimant and Mr Oultram on 6 November 2009 in order to take notes.  At the outset of the meeting, Mr Oultram recorded that he and the minute-taker were there to “be objective, and seek clarification, to take notes and capture the key points of the meeting” – page 121 of the agreed bundle.  The notes made in the course of the meeting recorded the claimant as saying (page 134 of the bundle) “I’m being sexually and racially discriminated against”.  Also “On 20 October 2009 at the Glasgow meeting there were three announcements.  Lynn King was made Champion.  Lynn from Dundee was made Senior Manager and the Lauren from Aberdeen was made an Auditor.  These roles were not offered or advertised.  Three Scottish females, three Scottish jobs”.  

16.	The claimant’s first claim form (ref 7579/09) was lodged with the Office of Tribunals on 8 December 2009.

Statement of Law

17.	Article 19 of the Employment (Northern Ireland) Order (“the 2003 Order”) applies to claims of discrimination on the grounds of sex and of race.  By article 19(2) of the 2003 Order, “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 or 9 of Schedule 1 applies, and

(b)	the requirement has not been complied with”.

18.	By article 19 (3) of the 2003 Order, “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 or 9 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”.

19.	Para 6 of Schedule 1 states that “the employee must set out the grievance in writing and send the statement or a copy of it to the employer”.

20.	A “grievance” is defined by the Employment (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the Dispute Resolution Regulations”) as “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”.

21.	One of the leading cases in relation to the statutory grievance procedure is the case of Canary Wharf Management Ltd v Edebi (2006 IRLR) 416.  In this case, the President of the EAT Elias P said that, in determining whether the claimant has complied with the requirements of [the equivalent of] Article 19(2), “the objective of the statute can be fairly met if 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.  If the statement cannot in context fairly be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the complaint, then the tribunal cannot hear the claim.  There is no overriding public interest of justice which can be invoked to save it”.

22.	In the case of Shergold v Fieldway Medical Centre 2006 ICR 306,  Burton J sitting in the EAT held that the statutory requirements in relation to a stage 1 grievance letter are minimal in terms of what is required.  It is simply that the grievance must be set out in writing.  There is no requirement for the step 1 letter to set out the exact nature of the case or to be identical to the subsequent tribunal claim, provided there is a material similarity.

23.	The EAT in the case of Sadare v London Borough of Lambeth 2009 All ER (D) 28 (aug) held that it was necessary for the purposes of [the equivalent] of article 19(2) that the employer should have been able to understand the legal character of the complaint being made.

24.	In the cases of Kennedy Scott Ltd v Francis 2007 UKEAT/0204 and the case of Aramark v Yahiaoui UKEAT/0115/09,  The EAT focused on the requirement for the employee to set out his grievance in writing and send the statement or a copy of it to the employer.  In the Kennedy Scott case, the employee had indicated to the HR manager that he wished to make a number of complaints and asked her to send him the forms needed and any other information.  The HR manager had replied saying that the claimant should raise his concerns informally with his line manager “who will record details of the grievance and attempt to resolve it with you”.  The claimant then had a meeting with his line manager and notes taken by the manager at that meeting were relied upon by the claimant as constituting a statutory grievance.  The tribunal found that the situation was that the claimant and the manager were working together to put something in writing.  The EAT said that “the question is whether, with the emphasis on substance, this claimant can be said in these circumstances to have set out his grievance in writing and sent it to his employer.  In my judgment, he can and the Chairman was right so to conclude”.

25.	The EAT in the case of Aramark distinguished the Kennedy Scott case describing its facts as unusual.  In the Aramark case, the tribunal found that complaints raised orally during the course of meetings could be found to be in compliance with step 1 of the statutory grievance procedure because a minute or note was taken of them.  The EAT found in this case that none of the factual context of the Kennedy Scott case was present.  The EAT noted that there was no arrangement that the employer should set out the grievance in writing on behalf of the employer or to avoid the filling out of forms.  The only similarity with the Kennedy Scott case was that there was a minute-taker present at the meetings and he was expressly recorded as being present to take notes on behalf of the employer.  The EAT therefore held that the tribunal had been wrong to find that the notes taken of what the claimant had said orally at a meeting constituted compliance with the requirement for the claimant to set out his grievance in writing and send a copy of it to the employer.

Conclusions on the statutory grievance issue

26.	Essentially, the issue for determination by the tribunal was whether the claimant in this case had set out his grievance in writing and sent a copy of it to the respondent.  The “writing” relied upon by the claimant was the notes taken by a note-taker at the grievance meeting on 6 November 2009.  The tribunal was satisfied that the content of this note could, in principle, constitute a grievance in accordance with the principles set out in the Canary Wharf case.  The question was whether the mechanism by which the note was created satisfied the requirement for the claimant to set out his complaint in writing and send a copy of it to the employer.  In these circumstances, the tribunal therefore focused its consideration on the cases of Kennedy Scott and Aramark.  In both these cases, the claimants relied upon notes recorded during a meeting with the employer as constituting compliance with the statutory requirements, as did the claimant in this case.

27.	The facts of the Kennedy Scott case were that the claimant had requested a form to record his grievance in writing and the employer had effectively diverted him from that course suggesting that the employer would instead arrange for the details of his grievance to be recorded at a meeting.  In the Aramark case, the EAT described the facts of Kennedy Scott as being unusual and this tribunal shares this view.  In the tribunal’s view, none of the factual context of the Kennedy Scott case is present in this case.  The claimant in this case had already submitted a detailed written grievance prior to the meeting on 6 November, albeit the 3 jobs had not been announced at that stage.  The claimant could have submitted a further written grievance after the 3 jobs were announced.  In this case, there was no prior arrangement that, rather than the claimant recording his complaint in writing, the respondent would have the details recorded on his behalf.

28.	In this case, the claimant made complaints orally at a grievance meeting which were noted down by the note-taker.  The role of the note-taker was simply to “capture the key points of the meeting”.  The tribunal has therefore concluded that the facts of this case are much closer to the facts of the Aramark case rather than the Kennedy Scott case.  The tribunal does not believe that what happened in this case could properly be described as “the employee [having] set out the grievance in writing and [having] sent the statement or a copy of it to the employer”. 

29.	Accordingly, the tribunal finds that step 1 of the statutory grievance procedure has not been complied with in relation to the claimant’s remaining claim of discrimination on the grounds of race and/or sex, that is the claim concerning the 3 jobs.  It follows that the tribunal has no jurisdiction to hear the claimant’s first claim (ref  7579/09).  This claim is therefore dismissed.

The amendment issue

Contentions of the parties in relation to the amendment issue

30.	The claimant sought to amend his second claim form (Ref  1259/10), that is the claim for constructive unfair dismissal, in the terms set out in his Replies served on 8 October 2010 (“the Replies”).  Counsel for the claimant indicated that these Replies were now subject to one adjustment, namely that the heading would now read “The claimant claims that he was subject to acts of maltreatment by the following employees of the respondent in the following ways”.

31.	The tribunal invited both counsel to discuss the terms of the proposed amendments to see whether the issues in dispute could be narrowed.  Counsel were able to confirm that a number of the proposed amendments were considered to be uncontroversial and the respondent was not resisting the inclusion of these particular paragraphs by way of amendment to the second claim form.  However, there were a number of other paragraphs which were in dispute between the parties.

32.	Generally, counsel for the claimant contended that the proposed amendments served to particularise the totality of the issues between the parties and to clarify the issues in dispute which must be determined by the tribunal.  He submitted that the amendment is in the interests of justice and serves merely to clarify the factual allegations of the claimant’s claim and does not add any additional legal claim.

33.	For his part, counsel for the respondent argued that the application for amendment had come very late in the day, after the claimant had served an initial set of Replies and after the legal and factual issues in the case had been agreed.  He further contended that many of the matters raised in the Replies are new factual allegations which change the basis of the existing claim.  The relevant facts were within the knowledge of the claimant when the second claim form was originally submitted.  Counsel also highlighted particular paragraphs of the Replies which he said constituted fresh allegations. 

Findings of fact in relation to the amendment issue

34.	It was agreed by counsel that it was not necessary for the tribunal to hear evidence in relation to this issue and that the matter could be dealt with by way of submissions only.  The tribunal has not therefore made any specific findings of fact in relation to this issue.

Statement of law relating to the amendment issue

35.	The tribunal has a general discretion under rule 10 (2) (q) of the Tribunal Rules of Procedure to grant leave to amend a claim form.  The leading case on the issue of amendment is Selkent Bus Co Ltd v Moore 1996 IRLR 661.  In this case, Mummery J confirmed that the discretion to allow amendment is a judicial discretion to be exercised “in a manner which satisfies the requirements ot relevance, reason, justice and fairness”.  Mummery J also indicated that the manner in which this judicial discretion should be exercised will depend on the nature of the application itself.  The tribunal must take account of all the circumstances, and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

36.	The first issue to be considered by the tribunal is whether the amendment sought is substantial or minor, in particular, whether the claimant is seeking to raise a new head of claim or merely adding further factual allegations to an existing claim.  Secondly, if relevant, the issue of time limits.  Thirdly, the tribunal must have regard to the timing and manner of the application, for example whether the application is made following the discovery of new facts.  

Conclusions on the amendment issue

37.	The tribunal took the view that the claimant’s application for amendment in this case came at a relatively late stage of the proceedings.  In particular, the application was made after a previous set of Replies had been served and Issues had been agreed.  All of the facts relating to the proposed amendments were within the claimant’s knowledge at the time the claim form was lodged.  This was not a case where the claimant had discovered new facts.  Accordingly, bearing in mind the over-riding objective of the tribunals and in order to avoid potential injustice to the respondent, the tribunal concluded that it was reasonable to allow those proposed amendments which were closely related to matters raised in the claim form or which essentially constituted further particulars of matters set out in the claim form.  On the other hand, the tribunal considered that it should not, at this stage, allow amendments which raised new allegations which were not related to matters raised in the claim form.

38.	The tribunal’s determinations in this regard are set out on the schedule attached.   The claimant is permitted to amend the second claim form (ref 1259/10) in the terms set out in the attached Schedule, save for those paragraphs which have been struck out.[Schedule available to view at the Office of the Industrial Tribunals]

Further CMD

39.	This tribunal considers that a further CMD should be convened as quickly as possible so that this case can be listed for hearing at the earliest opportunity.

Chairman:

Date and place of hearing:	24 and 25 January 2011, Belfast.

Date decision recorded in register and issued to parties: