Appeal No.  UKEAT/0191/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	       At the Tribunal
	On 28 September 2006

Before
HIS HONOUR JUDGE McMULLEN QC
MS G MILLS CBE
MR M WORTHINGTON

MR MARTIN LIPSCOMBE	APPELLANT

FORESTRY COMMISSION	RESPONDENT

Transcript of Proceedings

JUDGMENT

	

APPEARANCES

For the Appellant	Mr Martin Lipscombe
(The Appellant in Person)	

For the Respondent	Mr P Paterson
(Solicitor)
Messrs Tods Murray LL Solicitors
Edinburgh Quay
133 Fountainbridge
Edinburgh
EH3 9AG	

SUMMARY

Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke; 
2002 Act and Pre-action Requirements

The Employment Tribunal failed correctly to construe the Claimant’s resignation letter as containing a grievance in accordance with the 2004 Regulations and wrongly struck out his claim.  Alternatively this was an exceptional case justifying the EAT allowing a point conceded below to be re-opened on appeal.

The finding of the Employment Tribunal that the Claimant was not prevented by harassment from complaining was correct and the appeal on this ground was dismissed.
HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the use of the statutory grievance procedures before a claim of unfair dismissal is instituted.  It also deals with the power of the EAT to admit a new point.  The judgment represents the view of all three members.  We will refer to the parties as Claimant and Respondent.  

Introduction

2.	This is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at Birmingham, Chairman Mr D Kearsley, registered with reasons on 22 November 2005.  The Claimant represented himself.  The Respondent had the advantage to be represented by Mr Paterson, a solicitor.  The Claimant claimed unfair dismissal and unlawful deductions from pay.  The Respondent denied the claims. 

3.	The issues were set up to be heard before an Employment Tribunal at a full hearing. It decided however to accede, after evidence being called by the Claimant, to a submission on behalf of the Respondent that there was no case to answer, and the claim should be struck out.  The basis of the application was non-compliance with the 2004 statutory regime for registering a grievance prior to the acceptance by an Employment Tribunal of a claim of unfair dismissal.  The Claimant appeals against the judgment of the Tribunal to strike out his claim.  Directions sending this appeal to a preliminary hearing were given in chambers by Langstaff J and thence to a full hearing by HHJ Reid QC and members.  
The legislation
4.	The relevant provisions of the legislation are contained in s32 of the Employment Act 2002 and regulations following it.  There is no dispute as to the principles, which were correctly set out by the Employment Tribunal in its judgment at paragraph 13:

“13)	Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004.
Section 32(2) Employment Act 2002 provides that:-
‘An employee shall not present a complaint to an employment tribunal under a jurisdiction to which the section applies if-
(a)	it concerns a matter in relation to which the requirement in paragraph 6 or paragraph 9 of Schedule 2 applies; and
(b)	the requirement has not been complied with.’
14)	Section 32(6) provides that:
‘An employment tribunal shall be prevented from considering a complaint presented in breach of subsection (2)10(4) but only if-
(a)	the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of proceedings, or
(b)	the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under Section 7 of the Employment Tribunals Act 1996.’
15)	Paragraph 6 of Schedule 2 relates to standard grievance procedures which require that an employee must set out the grievance in writing and send the statement or a copy of it to the employer.
16)	Section 32 applies, amongst other things, to complaints of unfair constructive dismissal and complaints of unlawful deduction from wages.
17)	Regulation 11 of the Dispute Regulations 2004 provide that a party is not required to commence the procedure or to complete the procedure, once commenced, if
(a)	the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, or any other person or the property of any other person;
(b)	the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to harassment; or
(c)	it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period.
18)	“Harassment” means conduct which has the purpose of affect of; 
(a) violating the persons dignity, or
(b)	creating an intimidating, hostile, degrading humiliating or offensive environment for him, 
but conduct shall only be regarded as having that purpose of affect if, having regard to all the circumstances, including in particular the perception of the person who was the subject of the conduct, it should be reasonably be considered as having that purpose for effect.”
The facts
5.	We will say little about the facts because we have determined that this matter should go back to an Employment Tribunal to be heard in full.  The Claimant submitted a claim form on legal advice which included an answer to the question in the statutory form, “No”, in respect of whether or not a grievance had been submitted.  The claim was rejected by a Chairman and an amendment was made which provided the following:

“In regards to the statutory requirement to pursue a grievance procedure, no higher level of Management remained to whom the Claimant could have lodged a further formal grievance.  Had the Claimant done so the Party against whom the Claimant is further aggrieved would have been in the biased position of standing in judgment of themselves…
Moreover, the Claimant believes that if he had instigated/continued grievance procedures within the above constraints he would have been subjected to further harassment and he feared that to do so would further damage his health.”

6.	The Claimant presented evidence at the Employment Tribunal. It had been constituted as a full hearing notwithstanding an application, we hold very properly made by Mr Paterson, that the claim should be not accepted by the Tribunal for failure to comply with the statutory regime.  Nevertheless, the Tribunal went on to hear the Claimant’s constructive unfair dismissal claim.  The Tribunal described the procedural background as having a chequered history, and focused on whether or not there had been compliance with the statutory regime.  It said this:

“9)	The respondent duly made its application before evidence was given.  The claimant confirmed that he was relying on the contents of his Claim and the contents of the witness statement in support of his assertion that he was not required to embark upon the Statutory Grievance Procedure.
10)	The tribunal rejected the respondent’s application at that stage.  The respondent reserved its right to make a further application in due course.  The tribunal then heard evidence from the claimant and from two witnesses called on his behalf, Mr D Ireland and Mr L Edwards.  The claimant was then cross-examined about his reasons for not commencing the Statutory Grievance Procedure.”

7.	The history of the Claimant’s dissatisfaction with his employers goes back a number of years.  We will describe this as the ‘early material’.  It is not accepted by the Respondent that the early material constituted a grievance.  It is common ground that the statutory regime applied.  However, it did not apply to the Respondent insofar as the Respondent was not, in respect of the 2003 matters, obliged to carry out the steps of an employer, since the regime was not in effect.  The Claimant was obliged to submit a grievance by the time he had made the complaint to the Employment Tribunal.  And so focus was trained by the Tribunal on what constituted the submission of a grievance.  The Tribunal found this:

~
“31)	The respondents operate a grievance / complaints procedure (671b). This includes both an informal and a formal procedure. The formal procedure requires:
‘Any grievance taken beyond immediate line management should be made in writing to the Chief Executive Forest Research / Head of Division/ FECE’s / Country Directors, if the individual believes that the grievance has not been given a satisfactory response and is sufficiently serious.’
32)	In evidence the claimant confirmed that he had raised no formal grievance in respect of the matters about which he complained under the procedure prior to termination of employment. He considered that the internal investigation carried out at the request of BMI represented a formal grievance investigation with an unsatisfactory conclusion.
33)	A formal grievance in respect of the unsatisfactory investigation, the withdrawal of the retirement offer and indeed any other matter about which the claimant wished to complain would have been heard by Professor Lynch. The claimant had not met and did not know Professor Lynch.
34)	On 28 October 2004 Mr David Taylor, Personnel Services Manager, wrote to the claimant acknowledging receipt of the resignation. The letter includes the following:
‘Whilst there is no obligation upon us to do so, nonetheless we feel an obligation to draw your attention to paragraph 6 of the Employment Act 2002 (Dispute of Regulations) 2004. In particular paragraph 6 states that any grievance about any action of an employer that could form the basis of a complaint by an employee to an Employment Tribunal should first be the subject of a grievance process within the Forestry Commission. This requires the employee to indicate that they wish a grievance hearing and they require to do this in writing.’
35)	The claimant replied by e-mail (581). His reply included the following:
‘A most noble gesture indeed. I suggest the management investigation not only met but far exceeded the requirements of the said Employment Act (pity the PC only permitted less than 25% completion).’
36)	The claimant raised no further grievance.”

8.	Thus, the background to considering whether or not there had been a grievance was plainly set out.  The Tribunal then went on to consider the application of the harassment exception in regulation 11.  It determined as a matter of fact that the Claimant had not failed to submit a grievance on the basis of his being harassed.  The Tribunal said this:

“44)	The claimant has confused the risk of an unsatisfactory outcome with the risk of his being harassed.  He has demonstrated no reasonable basis for such a belief.  The tribunal accept that the claimant had lost trust and confidence in the respondent.” 

The submissions
9.	The Claimant appeals against those findings and submits that there was “robust evidence” before the Tribunal by way of statement and documents to indicate that he had pursued a grievance.  The Claimant was employed by the Forestry Commission and we hope we will be forgiven for suggesting that the Claimant seems to have lost sight of the wood for the trees.  The early material may or may not constitute a grievance within the terms of the Act, but the Claimant has today relied upon the letters surrounding his resignation in 2004.  It is fair to say that he also relied on it, albeit not as we understand it by oral evidence, but through documents at the Tribunal, for the Tribunal recorded this:

“30)	…Notwithstanding, the claimant treated the withdrawal of the offer as the “final straw” in his relationship with the respondent and resigned by e-mail dated 15 October 2004 with effect from 30 November 2004. (116)”

Thus, he submits, the Tribunal looked at his resignation letter and he contends that this, together with two other documents at that time, constitute compliance.  The Tribunal was at pains to see whether the Respondent accepted that there was compliance by reason of the material, and reminded him that the Respondent had drawn attention to these regulations by a letter on 28 October 2004.  His response was that he had already submitted a grievance complying with the Act.

10.	On behalf of the Respondent, Mr Paterson has today conceded that the written material is potentially capable of being a grievance.  We regard that concession as correctly made.  The resignation letter says this:

“Overall the FC has given me a good way of life and I would like to stress that my grievance was never with the FC but with parties who in pursuance of their own agenda and egos appear to have lost sight of who pays their wages.  I believe it is time those parties were woken up from their illusionary worlds of “play business” and that is precisely what I intend to do.  What action the FC subsequently decide to take against those parties will be of no concern nor business of mine.”

That of course refers to a grievance.  It refers to the history and it refers to grievances against persons within the Respondent .  The email of 19 October 2004 mentions Employment Tribunal proceedings as being envisaged and so does a further email of 27 October 2004.  

11.	The reservation Mr Paterson put upon the concession he made on behalf of his client relates to his contention that the Claimant had not even today asserted that by these documents he had registered a complaint satisfying the Act.  He further contends that this is a new point and the Claimant, having received legal advice, did not before the Employment Tribunal assert that a grievance had been made.  Reliance is placed on the judgment of the Court of Appeal in Jones v The Governing Body of Burdett  Coutts School [1999] IRLR 521 precluding new points

Discussion and conclusions

12.	We accept the force of Mr Paterson’s argument relating to new material before the EAT.  He initially came to argue that new material should not be adduced but during the course of his argument, when we pointed out to him that the Tribunal had in fact noted one of these documents and Mr Lipscombe gave us the page numbers for the bundle before the Tribunal, Mr Paterson accepted that the material was indeed before the Employment Tribunal.  Thus, there is no new material for us to entertain.  What he contends is that the Claimant, in his oral evidence to the Tribunal, did not draw attention to this material.  But that cannot be right, with respect, for the Tribunal has - either by looking at the document itself or being guided to it - seen the relevant letter. It is sufficient that the resignation letter complies with the Act.
13.	The other point made with force by Mr Paterson relates to the opening up of matters conceded below, for Robert Walker LJ in Jones said as follows:

“20	These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal. In Kumchyk, the Employment Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason. In Newcastle, the Employment Appeal Tribunal (presided over by Talbot J) said that it was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer, this court (in a judgment of the court delivered by Slade LJ which fully reviews the authorities) was inclined to the view that the test in the Employment Appeal Tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal. In particular, it was inclined to the view of Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302, 307, that is to follow:
‘The well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter fairly, without injustice to the other party, and without recourse to a further hearing below.’
21 	In this case the Employment Appeal Tribunal recognised that the consequence of allowing Mr Jones’s appeal would be a new hearing with fresh evidence (so far as that can be an appropriate term for evidence given in 1998 of events of five years ago): [19971 ICR at pp:398—9. It was therefore a case in which the Employment Appeal Tribunal would have had to have exceptionally compelling reasons for taking such an unusual course. It is necessary to consider the course of the proceedings to see whether there were such compelling reasons.”

That represents the unbroken jurisprudence of the EAT, see most recently the judgment of the Court of Appeal approving  Leicestershire County Council v Unison [2005 IRLR 920 EAT.

14.	However, we have come to the conclusion that this is an exceptional case.  The Claimant was a litigant in person.  He is articulate in his approach.  He is, however, suffering from a mildly severe stress disorder and an allowance should be made for that.  When we said above that the Claimant may have lost sight of exactly what he had to show, we mean to say that his focus on early matters may have distracted him from the simple solution which was that his resignation letter itself complied.  Indeed, his resignation letter drew attention to the 2003 matters and in response to the Respondent’s very fair suggestion that he consider the statutory regime (see paragraph 34 of the Tribunal’s reasons) he again asserted that what he was doing had already exceeded the requirements of the statutory regime. With those materials in mind, the Tribunal ought in our judgment to have held that there was compliance with the statutory regime.  

15.	The Tribunal cannot be criticised for not understanding the position more carefully.  It must borne in mind that there had been little, if any, guidance from the EAT in relation to the statutory regime, the major authority Shergold v Fieldway Medical Centre [2006] IRLR 76 only being published on 5 December 2005.  That was a judgment of Burton J (P), sitting with Mr Worthington, who sits with us today, and with Mr Harris.  It is fair to say that the principles set out in that judgment represent a more flexible approach to the statute and we accept the submissions made by Mr Paterson in his skeleton argument as to the impact of these matters, but we need not rehearse them.  The Claimant was a litigant in person, was suffering from the stress disorder, drew attention to his earlier 2003 matters and linked them in his three letters which were before the Tribunal. Although the Claimant did at one stage tick the box saying he had not carried out the procedures, and did so on legal advice, when he went into the Employment Tribunal he was likely to be confused as to the meaning of a formal grievance.  In our judgment, the Tribunal erred in failing to recognise that that was his case.  

16.	If we are wrong about that and the Tribunal was correct to hold that he had conceded the point, we consider it is in exceptional circumstances that we will allow this matter to be opened.  Our path to do so has been made easier by Mr Paterson’s concession that the writen material would constitute a grievance if that point were put.  

17.	Mr Lipscombe, in his final address to us, said he relied upon the material before the Tribunal - robust evidence in documentary and oral form - and we accept that. Thus, there was a grievance meeting the terms of the 2004 regime, and the Tribunal should not have struck out the claim.  
18.	In order to complete our examination of this appeal, we can deal quickly with the harassment issue.  Mr Paterson submitted that the Tribunal was right to dismiss the alternative case of the Claimant based on harassment.  It is not unfair to say that the Claimant has not responded in terms to that.  In our judgment, the Tribunal was dealing with a uniquely fact-sensitive matter and came to a firm conclusion against the Claimant’s case, having heard his evidence in full.  No error of law arises out of this, and that aspect of the appeal is dismissed.

19.	The appeal is allowed, and this matter will now go on to a full hearing at the Employment Tribunal.  

20.	All three of us want to make clear that in the light of the Respondent’s offer by way of conciliation of these disputes, further consideration should be given by the parties to resolving the matter between them without resort to the Employment Tribunal.  This will require now an open mind and attention to what can be achieved during sensible negotiations, and we earnestly hope that the parties can reach a conciliated solution, for there was at one stage good will indicating that position.  We would very much like to thank both Mr Paterson and Mr Lipscombe for coming today and for making the arguments which they have.