Appeal No. UKEAT/0569/05/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2005
Judgment delivered on 21 December 2005

Before
HIS HONOUR JUDGE PETER CLARK
MS K BILGAN
MR J MALLENDER

THE MUDCHUTE ASSOCIATION	APPELLANT

MR D PETHERBRIDGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARTIN YOUNG
A Representative
The Mudchute Association
Pier Street
Isle of Dogs
London
E14 3HP	
For the Respondent	MR TOM COGHLIN
(Of Counsel)
Instructed by:
Messrs Thompsons 
Solicitors
Congress House
Great Russell Street
London
WC1B 3LW

SUMMARY

Statutory Grievance Procedure 2004 Regulations.  Transitional provisions, Regulation 18.  Meaning of ‘action’ in Regulation 2(1).

HIS HONOUR JUDGE PETER CLARK

1.	This is the Respondent employer’s appeal against the Judgment of a Chairman, Mr Patrick Milmo QC, sitting alone at Stratford Employment Tribunal, at a Pre Hearing Review held on 19 July, promulgated with Reasons on 3 August 2005, that the Employment Tribunal had jurisdiction to consider the Claimant’s complaint of constructive unfair dismissal, that claim being made within time by virtue of the provisions of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the 2004 Regulations).

Background
2.	The Claimant commenced employment with the Respondent as farm manager at their City Farm on 8 September 2003.  In June 2004 Tim Atkinson was engaged by the Respondent as Business Development Director.  He became the Claimant’s line manager.

3.	That relationship, on the Claimant’s account, was not a happy one.  On 8 September 2004 the Claimant raised a written grievance through his Trade Union, the GMB, against Mr Atkinson.  He there mentioned a number of specific complaints regarding Mr Atkinson’s attitude and conduct, concluding that he felt bullied, harassed and belittled by Mr Atkinson in front of other employees.  He said that his health had been adversely affected; he was signed off work and, in the event, never returned to work.

4.	That grievance was considered by the personnel sub-committee of the Respondent Association.  It was rejected by letter dated 18 October, following a meeting held on 14 October.  That letter was signed by Mr Martin Young, a Trustee, who represents the Respondent in these proceedings.  Against that decision the union appealed and the appeal was heard by the board of trustees, excluding the personnel sub-committee members who had first considered the grievance.  The appeal meeting took place on 10 November and the following day the Claimant was informed of their decision.  On 21 November the Claimant resigned, citing the reasons given at his grievance appeal hearing.

5.	On 5 February 2005 the Claimant wrote to Mr Young.  He said that the appeal was the final straw.  In addition to complaints about Mr Atkinson he also complained about Maureen Frith, a Trustee and member of the personnel sub-committee with Mr Young and Mike Barraclough, another Trustee.  Finally, he complained about the lack of support, as he saw it, from the Trustees, who had sided with Tim Atkinson.

6.	He presented his claim form alleging constructive unfair dismissal to the Employment Tribunal on 14 March 2005.

The Law
7.	The primary 3 month limitation period for claims of unfair dismissal expired on 20 February 2005.  However, Regulation 15 of the 2004 Regulations provides:

“15   Extension of time limits
(1)  Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and –
(a)	…
(b)	either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;
the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.”

And by Regulation 15(3)

“(3)   The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal –

(a)	within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or
(b)	after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit.”

Claims for unfair dismissal are mentioned in both Schedules 3 and 4 of the EA 2002.  The statutory grievance procedure applies to claims of constructive unfair dismissal by virtue of Rule 1(6) ET Rules of Procedure 2004.  

8.	The question for the Employment Tribunal was whether the Claimant’s letter of 5 February 2005, sent to the Respondent within the primary limitation period, operated as Step 1 in the Statutory Grievance Procedure (SGP), complying with paragraph 6 of Schedule 2 to the 2004 Act.

Paragraph 6 of Schedule 2 provides:

“Step 1: Statement of grievance
6.  The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”

By Regulation 2(1) of the 2004 Regulations
“‘grievance’ means a complaint by an employee about action which his employer has taken … in relation to him.”

Regulation 18 of the 2004 Regulations, which came into effect on 1 October 2004, provides; so far as material:

18.  Transitional Provisions

These Regulations shall apply –

(a)	...
(b)	in relation to grievances, where the action about which the employee complains occurs or continues after these Regulations come into force,
but shall not apply in relation to a grievance where the action continues after these Regulations come into force if the employee has raised a grievance about the action with the employer before they come into force.

The Employment Tribunal Judgment
9.	The Chairman considered 2 arguments advanced by the Respondents in support of the proposition that the Claimant’s letter of 5 February 2005 to Mr Young did not constitute a grievance for the purposes of Regulation 15(3)(b).  They were:

(1)	that the letter was not a grievance within the meaning of Regulation 2(1); it was a private communication to Mr Young, explaining his reasons for resigning, and/or

(2)	the Claimant had already raised a grievance prior to 1 October 2004, in his letter of 8 September, so that Regulation 18 operated to exclude reliance on the letter of 5 February.

10.	The Chairman rejected both arguments.  His reasoning on the first point is contained in paragraph 13 of his Reasons; on the second at paragraphs 14-15.

11.	He held that time was extended by operation of Regulation 15.  The claim was presented in time.  

The Appeal
12.	The Respondent, through Mr Young, relies only on the second of the arguments addressed below in support of this appeal.  He also seeks, at a late stage, to amend the Respondent’s grounds of appeal to add a further point, formulated in this way:

“(1)   The learned Chairman erred in holding that the matters referred to in the Claimant’s letter of 5 February 2005 constituted a grievance within the meaning of a proper construction of regulation 2 of the Employment Act 2002 (Dispute Regulations) 2004, (“the Regulations”).

(2)   The learned Chairman ought to have held that “action” within the meaning of regulation 2(1) of the Regulations did not include action which was itself the carrying out by the employer and the employee of the standard procedure provided by Part 2 Chapter 1 of Schedule 2 of the Employment Act 2002 or action associated with the carrying out of that procedure.”  

13.	Mr Coghlin formally opposed that application.  He submits that it raises a new point, not argued below.  He relies on the statements of principle laid down by the Court of Appeal in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719.

14.	We granted the amendment application.  The point, albeit a new one, now raised develops the second argument raised below and pursued in this appeal.  It is a hard-edged point of law, requiring no further factual enquiry.  Mr Coghlin is not prejudiced, since he has responded to the new point on its merits in a supplementary skeleton argument.  The point goes to the Employment Tribunal’s jurisdiction.  Accordingly it falls within the exceptional  circumstances envisaged in Glennie.

Regulation 18
14.	Mr Young submits that the Claimant’s letter of 5 February, insofar as it raised complaints about the Trustee’s handling of his earlier grievance dated 8 September, is parasitical on that earlier grievance.  It relates to the action about which the Claimant complained before 1 October 2004 and which continued thereafter.  Thus the proviso in Regulation 18 is engaged and time is not extended by Regulation 15.

15.	We reject that submission.  In our judgment the Chairman was entitled to draw a distinction between the original complaint relating to Mr Atkinson and the Claimant’s further complaint about the way in which the Trustees dealt with that earlier complaint.  (See the Chairman’s Reasons paragraph 15).  Insofar as the letter of 5 February related to complaints about Mr Atkinson it was caught by the proviso; however the fresh complaints about the trustees’ treatment of the original grievance were not.

The new point
16.	Following from our earlier conclusion, we also reject the new point of construction raised by way of amendment.  The word ‘action’ in the Regulation 2(1) definition of grievance is, in our view, capable of including action by the employer on an earlier grievance raised by the employee.  As Mr Coghlin points out, the SGP does not apply where the grievance is that the employer has taken or is contemplating disciplinary action (Regulation 6(6) and 7).  Had Parliament wished to exclude grievances about the way in which the grievance procedure is operated it would have said so.

17.	Further, we accept Mr Coghlin’s further submission that failure to deal with a grievance properly may itself amount to a breach of the implied term of Trust and Confidence, giving rise of itself to a claim of constructive unfair dismissal.  See Goold (WA) (Pearmak) Ltd v McConnell [1995] IRLR 516.  It cannot be the position that such a complaint of constructive dismissal cannot be the subject of the SGP.

Conclusion
18.	In these circumstances this appeal fails and is dismissed.