Appeal No. UKEAT/0204/07/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 May 2007

Before
THE HONOURABLE MRS JUSTICE COX
(SITTING ALONE)

KENNEDY SCOTT LTD	APPELLANT

MR R A J FRANCIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR GALBRAITH-MARTEN
(of Counsel)
Instructed by:
Messrs Blake Lapthorn Linnell Solicitors
Seacourt Tower
West Way
Oxford
OX2 0FB	
For the Respondent	MR R A J FRANCIS
(The Respondent in Person)	

SUMMARY
Practice and Procedure – 2002 Act and Pre-action Requirements
Has the Claimant complied with Step 1 of the statutory grievance procedure where he presents his complaint at a meeting with his line manager who notes it down, it is accepted, accurately and contemporaneously?  Employment Tribunal decided that he had.  Appeal, given the particular facts found, dismissed.

THE HONOURABLE MRS JUSTICE COX
Introduction
1.	This is the expedited full hearing of the Respondent employers’ appeal from a Judgment of the Watford Employment Tribunal, the Chairman Ms J Eady QC sitting alone, following a pre-hearing review on 5 February 2007.  Her decision, for reasons sent to the parties on 6 March was, so far as is relevant to this appeal, that the Tribunal had jurisdiction to hear the Claimant’s complaints under the Race Relations Act 1976 and the Sex Discrimination Act 1975; and that they should now proceed to a hearing together with his complaint of unfair dismissal, about which there was no dispute as to jurisdiction.  A case management discussion is listed for 14 May next and to assist the parties I am giving this reserved judgment orally today (8 May) following the hearing before me on 3 May.  I shall, as requested, order a transcript to be expedited.

2.	This appeal raises yet another point on the question whether a Claimant has complied with the statutory grievance procedure under the Employment Act 2002 and, therefore, whether the Tribunal has jurisdiction to determine his complaints of sex and race discrimination.  On the evidence she heard, and the facts found, the Chairman held in the Claimant’s favour on these issues.  

3.	The Respondents were represented before me by Counsel, Mr Galbraith-Marten.   The Claimant, Mr Francis, appeared in person before me as he did below.   Whilst he had prepared no skeleton argument he had, with the assistance of the EAT staff, dictated his Answer to the Notice of Appeal over the telephone so that I was able to understand his case in resisting the appeal.  I note that he referred below to being dyslexic and, before me, he mentioned his “illiteracy”, which I understood to be a reference to his discomfort on occasions with the correct use of language.  Notwithstanding his concerns however, he presented his arguments on the issues in this appeal most ably and succinctly.  His application to introduce fresh evidence in relation to two documents, which he said should have been before the Tribunal below, was unopposed, Mr Galbraith-Marten submitting that, whilst relevant, they in fact took matters no further.  These were:

(1)	A copy of the Respondents’ grievance procedure dated 5 April 2006, which was in very similar terms to the undated procedure already in the bundle;
(2)	Notes of a meeting between the Claimant and Lisa Clark, human resources manager, taken by Ms Clark on 22 March 2006.

4.	Finally, by way of introduction, the Claimant had entered a late cross-appeal, in which he sought to appeal against what he understood to be a costs order made against him below.  I pointed out to him, and he accepted, that no application and therefore no order for costs had yet been made. The Chairman, in paragraph 37 of her reasons, had merely recorded that the Respondents were reserving their position in relation to a costs application.  The Claimant therefore sensibly withdrew his cross-appeal and the appeal proceeded.

The Facts
5.	The Respondents deliver training programmes designed to help unemployed persons to return to work.  The Claimant commenced employment with them as a job broker on 1 June 2004.  The relevant events in the months leading up to the Claimant’s dismissal on 5 July 2006 were, chronologically, as follows. 

6.	On 17 March the Claimant emailed Ms Clark to arrange a meeting “about my developed and the ongoing bullying by manager and other members of staff.”  The “developed” there referred to was the Claimant’s performance development plan (PDP).  Ms Clark replied on the same day, suggesting a meeting on 22 March and adding the following words:

“…I am very concerned that you should mention bullying in this communication.  If you feel you are being bullied you should follow the attached grievance procedure.  If it is your manager that is bullying you can discuss it with me as an alternative.”

7.	They met on 22 March and the notes show that they discussed the PDP and some of the Claimant’s concerns about his treatment at work, including a recent “outburst” during a meeting by another member of the team, who had been told next day that it was unacceptable.  Ms Clark noted: 

“I informed Rymell that there is a grievance process should he wish to make a complaint.  He said he just wanted the opportunity to discuss his concerns with me at this time.”

8.	Mr Galbraith-Marten observes that there was nothing said at this stage to put the Respondents on notice that the Claimant was complaining about discrimination.  This is correct, although in view of the complaints that the Claimant made subsequently, it should be borne in mind, as Mr Galbraith-Marten accepted, that some employees may initially be hesitant about articulating complaints about their treatment in the workplace as complaints of discrimination.

9.	On 16 May, the Claimant emailed Ms Clark again as follows:

“I do wish to make a number of complaints at this time about the treatment received, the verbal abuse from management and mentor on more than one occasion and the opportunity to have my comments noted.  If you could please sent me the forms needed and any other information.”

In her reply, on the same day, she said in relation to this matter:

“I would recommend that you initially raise the matter/concerns informally with your immediate Manager (Mandy Fishley), who will record details of the grievance and attempt to resolve it with you.  
Should you be dissatisfied with the result, or if the grievance cannot be resolved informally, you may write to me informing me of the nature of the grievance.  Kennedy Scott will invite you to attend a meeting to discuss the grievance at which you may be accompanied.”  
10.	Also on the same day Ms Clark emailed Ms Fishley, enclosing copies of the correspondence and asking her to do her best to resolve the situation informally.

11.	In a further email to Ms Clark on 17 May, the Claimant said: 

“I have on a number of occasions spoke informally with you, Zehra, Per, and Janet about the matters that I wish to complain about.  It still persisted and got worst throughout my development plan.”

Ms Clark in reply encouraged him:

“to speak to Mandy regarding your concerns and she will try to help you resolve any issues.”  

The Claimant was therefore being told (a) that he should address his complaints to Ms Fishley who was the appropriate person, as his line manager, to seek to resolve them; and (b) that she would record them in writing.

12.	The Chairman found on the evidence that a meeting was held in May or June between the Claimant and Mandy Fishley and the notes taken by Ms Fishley at this meeting were produced at the hearing.  In fact, they were emailed to the Tribunal by Ms Fishley only on the morning of the hearing, 5 February 2007 and their provenance was initially queried by the Respondents.  The Chairman found however that they were genuine, contemporaneous notes of the meeting that took place between them, signed off by Ms Fishley as the Claimant’s line manager, and there is no challenge to that finding before me now.  

13.	Mr Galbraith-Marten submits that these notes show that Ms Fishley saw herself as someone who was hearing the Claimant’s grievance in accordance with the Respondent’s grievance procedure.  In the procedure dated 5 April 2006, it is provided at para 3.1: 

“where you have a grievance arising from your employment you should initially raise the matter informally with your immediate manager, who will record details of the grievance and attempt to resolve it with you.”

14.	The Chairman placed considerable reliance on Ms Fishley’s notes of the Claimant’s grievance in arriving at her conclusions in this case.  She described them, at paragraph 23 of her reasons, as containing:
 
“…various details of complaints made by the Claimant which could, at least in places, reasonably be expected to raise with any employer reading them, concerns about allegations of sex and race discrimination, in particular the reference in a number of places to the race, origin and gender of certain comparators, and the reference to the racist abuse on one occasion. The notes end with the sentence ‘Minutes of meeting taken by Mandy Fishley, Rymell Francis, nearest line manager.’”

15.	The Respondents accept that the Chairman’s description is correct and there is no challenge to that finding in this appeal.  The notes are headed “Rymell Frances Grievance Notes (May/June 2006)” Further, as the Chairman observed, Ms Fishley’s covering email to the Tribunal refers to the document as “Notes on the Grievance Heard”.  The Chairman accepted the Claimant’s evidence that these notes accurately reflected the grievance which he had raised with Ms Fishley in the meeting, as he had been advised by Ms Clark.  Further, he had seen Ms Fishley type up these notes at the time of their meeting.  

16.	By this stage, during the early summer of 2006, the Respondents were carrying out a redundancy exercise, caused by a re-organisation and by the diminution of their work in the place where the Claimant was employed.  In the witness statement from Ms Fishley, which she had also emailed to the Tribunal along with the notes, and to which the Chairman briefly referred, she said at the bottom of page 4, when dealing with what happened after their meeting that: 

“Rymell then decided he would not go ahead with the grievance as he felt this would lead to further discrimination and could also influence the outcome of the redundancy process”.  

17.	The Chairman found that redundancy consultation meetings were held with the Claimant in late June 2006 but, ultimately, the decision was taken that his employment should be terminated.  This was communicated to him by letter of 5 July 2006; and by letter in reply of the same date the Claimant appealed against his dismissal for redundancy.  He wrote again on 25 July as follows:   

“Re. Former Grievances
I am writing to ask whether you provide me with information on the outcome of any investigations in regards to the above.  
There were a number of grievances that I raised initially with my manager (Zehra) informally and then in writing to the HR Manager (Lisa Clark).  As yet I still await a formal written response…..”

18.	At the appeal hearing on 5 September before the Respondent’s manager, Mark Lunn, the Claimant was represented by Vaughan West, a full-time officer of the GMB/APEX union.  The notes show that Mr Lunn sought to explore further the question of the Claimant’s grievance, as follows:

“Rymell asked about a grievance that had been put forward before.  Rymell and Mandy had begun to write a grievance letter of Rymell’s grievances but he was made redundant so did not have time to finish it.  Rymell said there are some emails about it.  Rymell said Mandy felt there was a case.”

19.	In fact no-one suggests that there was any letter drafted by anyone. The Claimant says that this is a misunderstanding by the note-taker because the only document written by Ms Fishley was her record of his grievance at their meeting.  It is correct however that his grievance had not been dealt with further before the Claimant was dismissed in July.  Mr Lunn indicated that he would check the position about grievances after people had left the company.  He did so and obtained the assistance of Ms Clark who helped by printing off the various emails on her system which, as the Chairman found, “evidenced the Claimant’s grievances back in March and May 2006.”  

20.	Mr West sent an email to Mr Lunn on 20 September asking “when is Rymell likely to get the outcome of his grievance?”  There was a delay in the Respondents dealing with the appeal and the Claimant, no doubt in order to comply with the relevant time limits, submitted his complaint to the Employment Tribunal on 3 October 2006.  In it he complained of unfair dismissal and, further, of sex discrimination, race discrimination and disability discrimination.  He stated on his form ET1 that he had put his complaints in writing to the Respondents.  He referred there to his appeal letter of 5 July and the Chairman found, looking at that letter, that it was “subsequently given further flesh by the Claimant’s letter of 25 July”, which was found in turn to refer back to the previous grievances set out above.

21.	The Claimant’s appeal was formally rejected in the letter from Mr Lunn, dated 17 October.  In relation to the grievances, he said as follows:

“Former Grievances
Lisa Clark did receive an email from you and her response was to advise you that you would need to provide a written statement of the grievances.  You did not do so, so she was unable to progress this.  I understand however that your line manager resolved this matter with you informally.”  

22.	Mr Lunn then wrote to the Claimant again on 25 October, clarifying his earlier statement and asking the Claimant to send further information if he wished Mr Lunn to investigate his grievances further, including confirmation as to “whether the concerns that you raised in your email to Lisa have been resolved.”  Mr West responded on the Claimant’s behalf by an email of 10 November stating, so far as is relevant, that “Mandy Fishley assisted Rymell in beginning to draft his grievance but ran out of time due to Rymell’s redundancy before it was completed.”

The Tribunal’s Decision
23.	The Claimant’s case was that, so far as his complaints of sex and race discrimination were concerned, he had complied with the statutory grievance procedure before submitting his form ET1 by raising his complaints as he was asked to with Ms Fishley, who wrote them down correctly at their meeting.   Ms Clark’s evidence, accepted by the Chairman, was that Ms Fishley was an efficient manager who was the kind of person who would have taken such matters seriously and written down such matters carefully in this way.  The notes properly reflected the Claimant’s complaints and the Chairman held, at para 25 that:

 “…it would be consistent with the evidence given to Mr Lunn in the appeal process that the Claimant had sought to draw up some document evidencing his grievance with Ms Fishley but events had been overtaken by the redundancy exercise.”

24.	The Claimant accepted, however, that he had not previously made any reference to any complaints of disability discrimination, which relate to how his disability-related absences from work were discussed with others.  The Chairman therefore struck out the 1995 Act complaint, there having been no compliance with the relevant statutory grievance procedure; and there is no challenge to this decision. 

25.	In relation to the sex and race discrimination claims the Chairman directed herself to the relevant statutory provisions and to the EAT decisions in Shergold v Fieldway Medical Centre [2006] ICR 304 (Burton J) and in Edebi v Canary Wharf Management Ltd [2006] IRLR 416 (Elias P).  She derived from these authorities the following principles, set out at paragraph 8: 

“8.1	First, I should not approach the requirements of the statutory grievance procedure in an overly technical way.
8.3	Indeed the procedure has been put in place to allow each party to understand each other’s position before proceedings are issued.  The requirements on the parties are, as such, fairly minimal.
8.3	The employee does not have to set out the basis of the claim but merely to identify the complaint.  He does not have to attach the appropriate legal label or give every detail particular but must raise the substance of the complaint that he seeks to bring before the employment tribunal.”

26.	Her conclusion, at paragraph 33, was as follows:

“33.	In the circumstances, on the balance of the evidence before me I accept that the notes were made at the time, in which case I would find that this was a written statement of grievance provided to the Respondent’s employer, i.e. his then line manager.  I do not accept – and in fairness, Ms Robinson, for the Respondent, did not suggest – that it has to be the Claimant who physically writes up the statement for the purposes of Step 1 of the statutory procedure.  There seems to me no reason why an employee should not rely on the notes he has witnessed his employer (by his line manager) typing up.”

27.	The point for decision in this appeal is therefore whether, as Mr Galbraith-Marten contends, the Chairman erred in finding on these facts that the Claimant had complied with Step 1 of the statutory procedure, which requires him to:

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

The Law
28.	Section 32(2) of the Employment Act 2002 provides as follows:

“An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—
(a)	it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and
(b)	the requirement has not been complied with.”

29.	By s32(1) the jurisdictions to which the sub-section applies are those listed in Schedule 4.  These identify virtually all the employment rights which may constitute the basis of a claim to an Employment Tribunal.  They include discrimination in the employment field under the Sex Discrimination Act 1975 and the Race Relations Act 1976.  By s32(3) it is specifically provided that, where paras 6 or 9 have not been complied with, the Tribunal will not have jurisdiction to hear a claim unless at least 28 days have passed since the day on which the requirement was complied with.  

30.	Paragraph 6 of Schedule 2 is found in Part 2 under the heading “Grievance Procedure”.  Chapter 1 of Part 2 deals with what is termed the “Standard Procedure”, which applies when the employee was still at the material time in the employment of the employer, as in the present case.  Chapter 2 contains the “Modified Procedure” dealing with the situation where the employee may no longer be employed.  The relevant requirement identified in paragraph 6 is Step 1 of the standard procedure.  It is as follows:

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

31.	Step 2 of the standard procedure then requires the employer to invite the employee to attend a meeting so as to discuss the grievance, but the meeting should not take place until and unless the employee has informed the employer as to the basis for the grievance and the employer has had a reasonable opportunity to consider his response to that information.  Step 3 concerns the right of appeal.

32.	Under s32(7) the Secretary of State is empowered to make regulations about the application of these procedures and, more specifically, about what constitutes compliance with para 6 or para 9 of Schedule 2.  This he has done by the Employment Act 2002 (Dispute Resolution) Regulations 2004.  Under regulation 2, grievance is defined as follows:

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

33.	Regulation 6 then deals with the circumstances in which these grievance procedures are to be followed.  Regulation  6(1) states that:

“6(1) The grievance procedures apply, in accordance with the paragraphs (2) to (7) of this regulation in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so if the action took place.”

It is then provided that the standard grievance procedure will apply, save in certain exceptional cases, and it is not necessary for the purposes of this appeal to consider those exceptions.

34.	As the EAT President observed in Edebi, echoing similar sentiments expressed by others, “These are complex and not happily structured regulations.”  The question whether there has been compliance with Step 1 of the procedure is one that has arisen in a number of cases before the EAT in a variety of different factual situations.  There is little doubt that, in interpreting and applying these provisions, the EAT has deliberately sought to avoid undue technicality and formality, and has stressed the importance of substance and flexibility, which Mr Galbraith-Marten accepts is the correct approach.  

35.	In Edebi Elias P. expressly agreed with the analysis made of the requirements of paragraph 6 in previous cases, namely Shergold,  Galaxy Showers Ltd v Wilson [2006] IRLR 83, Mark Warner Ltd v Aspland [2006] IRLR 87 and Thorpe & Soleil Investments Ltd v Poat and Lake [2006] All ER (D) 30 January.  
36.	In contending that there cannot be said to be compliance with Step 1 in this case, Mr Galbraith-Marten relies on the President’s observations at para 31 in Edebi, that if the employee’s statements of grievance:

 “…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 Tribunal complaint, then the tribunal cannot hear the claim.  There is no overriding interest of justice which can be invoked to save it.”

37.	In the present case, there is no challenge to the Chairman’s finding that Ms Fishley’s notes of the Claimant’s grievances did raise matters which are now the subject matter of the Tribunal complaint, which was the main issue in Edebi.  Mr Galbraith-Marten’s point is that, if the Claimant has not complied with Step 1, he cannot rely on any overriding interest of justice to save his claims of race and sex discrimination, which must therefore fall through lack of jurisdiction.   The real question here is therefore whether this Claimant can be said, in the circumstances of this case, to have set out the grievance in writing and sent it to the employer. 
  
38.	 In determining that question, the following principles to be gleaned from the authorities are of particular relevance and assistance.  As Elias P stated in Edebi (see paragraphs 20-24) there is “considerable flexibility” about the “form of the grievance”.  The requirements for a statement of grievance in writing are not onerous.  It may therefore be raised in what is primarily a letter of resignation, or by a solicitor as an agent of the employee in a communication to the employment’s solicitor, or in a letter before action.  It may be raised after a dismissal has taken effect and it matters not that other issues are raised at the same time as the complaint, whether additional complaints or otherwise.  It is not even necessary that the employee should indicate that he wants or expects the complaint to be dealt with.  He does not need to be actively invoking the grievance procedure, statutory or contractual.  Indeed, any contractual grievance procedure is irrelevant (see Thorp & Soleil).  Paragraph 6 is satisfied “simply if the complaint is made.” (Edebi para 22).

39.	In Galaxy, Langstaff J. said at para 10:

“The definition of grievance does not upon the face of it contain any requirement that the complaint should go any further than being a complaint about what the employer has or has not done. There is no particular formality required by the statutory wording. There is no link at this stage which needs to be drawn between the making of the complaint and any intention to follow the complaint through to a grievance process or a further hearing or a meeting. What is required at this stage is simply to identify whether there has been a complaint.  If there is a complaint to which paragraph 6 or 9 of Schedule 2 applies then one has to look to see what requirements Part II of Schedule 2 imposes and whether or not those requirements had been fulfilled. Part II of Schedule 2 to the Employment Act 2002 is divided into two chapters: the standard procedure and the modified procedure. Under the standard procedure paragraph 6 provides as a first step for a "statement of grievance".

And at para 16:

 “We consider that the only issue which arises for determination in a case such as this is whether or not there has been something in writing which complies with the definition contained in the 2004 Regulations.”  

40.	Burton J. pointed out in Shergold (paragraph 27): 

“…the need for parties to understand each other’s position before proceedings are launched… 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.”  

41.	At paragraphs 24 and 25 of Edebi Elias P. said this:

“24.	…one must not approach the issue in a technical way.  The law in this area is directed at employees who in many cases – perhaps most – will have no knowledge at all of the relevant law.  The aim is to promote the use of appropriate procedures.  It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner.  At the same time it must not be forgotten that an employer who receives a grievance and is at fault in failing to take matters further is at risk of paying additional compensation if the claim ultimately succeeds… But he cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged.  
25.	It seems to me that 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.”
42.	Thus, in considering whether there has been compliance with Step 1, the focus is on substance, not technicality.  Employers should know where they stand but, in providing employers with that knowledge, the threshold to be crossed by employees should not be set high, and should not place in their way unduly legalistic obstacles.  

43.	I refer finally to a recent decision of Wilkie J, dated 27 February 2007, namely Gibbs v Harris (UKEAT/0023/07/RN, unreported) which Mr Galbraith-Marten drew to my attention.  In this case the Claimant resigned and claimed unfair constructive dismissal.  The Tribunal found that he had not previously raised a grievance and that there was no jurisdiction to hear his claim.  He then brought a second claim for breach of contract and successfully argued before the Employment Tribunal that his first ET1 had set out his grievance in relation to the second claim.  Wilkie J, allowing the appeal, emphasised that the two processes, litigation and the use of an internal grievance procedure, each called for a separate and distinct approach, and that the Claimant could not rely on an earlier form ET1 as constituting a statement of grievance.  Further, the claimant had sent the ET1 to the Tribunals Service, which could not be said to be acting as his agent, by sending it on to his employer in accordance with the usual practice.  On its particular facts this, in my view, is entirely correct.  

This Appeal
44.	Mr Galbraith-Marten submits that the facts of this case do not permit a finding of compliance by the Claimant with Step 1, which requires the Claimant, or someone acting as his agent, to set out his grievance in writing and to send it to his employer, thereby placing the onus on the Claimant to take that step.  Here, the Claimant’s line manager was not acting on behalf of the Claimant in setting out his grievance in writing, and there was no finding by the Chairman that she was, or that there was any agency relationship between them.  On the contrary, Ms Fishley was instructed by Ms Clark to seek to resolve his grievance as his line manager.  At this meeting she was therefore conducting an oral hearing of his grievance, on behalf of the Claimant’s employers, and making notes of it for that purpose.  She was not making a written record of the grievance on the Claimant’s behalf.  If there had been no note made at all, and the grievance had merely been discussed orally, there could be no suggestion that Step 1 had been complied with, and a record made of the grievance by an employer for a different purpose cannot mean that the employee has complied with Step 1.  Mr Galbraith-Marten contends that the Chairman erred in concluding, at paragraph 33, that the mere fact that the notes existed was sufficient for the purpose of Step 1, rather than asking whether, as a question going to the jurisdiction of the Tribunal, there had been compliance by the Claimant with the statutory provisions.  The taking of minutes of a meeting in circumstances such as these is not sufficient to enable an employer clearly to understand that the statutory grievance procedure has been activated and that it is necessary to proceed to Step 2, failure to do so putting the employer at the risk of sanctions imposed by the Tribunal.  For all these reasons he submits that the Chairman’s decision was wrong.  

45.	I have considered these submissions carefully but, in my judgment, the Chairman was entitled to conclude as she did on the facts of this case.  I emphasise the importance of the facts found because the question whether a Claimant has complied with Step 1 will always depend on the particular facts of each case, as the authorities show.  

46.	It is correct that the Chairman did not state that Ms Fishley, when she made the notes, was acting as the Claimant’s agent.  As Mr Galbraith-Marten accepted during argument, in the context of workplace grievance procedures it might not always be helpful to consider the question of compliance with Step 1 by reference to the laws of agency, where a Claimant has not physically written out the complaint himself.  Mr Galbraith-Marten nevertheless submits that, in order to comply with Step 1, Ms Fishley must have been acting on the Claimant’s behalf in writing it, rather than making notes of his grievance, which she was hearing. The Chairman did not find that she was acting on his behalf.  

47.	There was, however, no finding in this case that she was not, or a finding that she was only making a written record of the grievance for her own purposes, or for some other specified purpose, e.g. for ensuring the accuracy of records retained by the Respondent’s human resources department.  Indeed the Chairman’s observations at paragraph 25 indicate that she regarded them as working together to put something in writing, and that the purpose of this exercise was to enable the Claimant  “to draw up some document evidencing his grievance with Ms Fishley.”   This, in my view, was the reality of the situation on the facts found. 

48.	The precise purpose of making the written record does not seem to me to be material. Nor does it matter, in my view, that the Claimant was informing his employer, via Ms. Fishley, of his grievance at a meeting where Ms Fishley was both contemporaneously recording it in writing and seeking to discuss with him both his grievance and his more general concerns, with the aim of seeking to resolve them.  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.

49.	In the present case, it is clear on the evidence that Ms Clark was aware, from the email to her of 16 May, that the Claimant wished to make a number of complaints about his treatment on various occasions, including verbal abuse from management and his mentor, and that he wanted the opportunity to have his comments noted.  He requested forms necessary for that purpose to be sent to him.  In her reply, Ms Clark recommended to him that he should raise his concerns with Ms Fishley, and he was told expressly that she would “record details of the grievance and attempt to resolve it”.  A “record” in this context, as Mr Francis said in argument having looked up the word in his dictionary, means simply “a written account of something that someone is saying.”  His employers, he says, were therefore aware both that he was going to make a complaint and that his line manager would write down what he was complaining about.  

50.	It is not in dispute, on the facts of this case: 

(a) 	that at the meeting in May or June 2006 this Claimant raised a grievance which, as regards his complaints of race and sex discrimination, is accepted to be consistent with his subsequent Tribunal claim; 

(b) 	that he raised it with his line manager who, for these purposes, is accepted to be his employer; 
(c) 	that his grievance was committed to writing by his employer at that meeting and was seen by the Claimant to be written down contemporaneously; 

(d) 	that the HR manager, Ms Clark, knew that he was going state his grievance at a meeting with Ms Fishley and that she would record details of it; and 

(e) 	that the written record of the Claimant’s grievance accurately reflected what he had complained about.  

51.	The Claimant’s employers were therefore aware, or should have been aware, after this meeting that a grievance had been raised by the Claimant and recorded in writing.  The fact that the grievance was not then taken further is not to the point in considering compliance with Step 1.  Whether there had then been compliance with Step 2, or whether the employers were at fault in failing to comply and sanctions should be imposed, will always fall to be determined by the Tribunal on the particular facts.  Tribunals are likely to have regard to the sensitivities involved in cases involving complaints of discrimination in the workplace, and to the consequent difficulties presented for employers in complying with Step 2 where, for example, a line manager who receives a grievance takes it no further at the time, due to the employee’s expressed belief that pursuing it might lead to further discriminatory treatment or might influence the outcome of a current, selective redundancy process.  

52.	There is, on the authorities, no necessity for the Claimant personally to put the grievance in writing and send it to his employer.  It must, of course, clearly be his grievance, his employer must receive it, and it must relate, intelligibly, to his subsequent Tribunal claim.  In the present case if, at the end of the meeting with Ms Fishley, the Claimant had asked to borrow the notes and had then either re-written them in the first person in his own hand, or had simply added at the end the words “This is my grievance” and handed them back to her, there would be compliance with Step 1 and Mr Galbraith-Marten fairly accepted this to be the case.  The absence of such a step cannot be regarded, in my judgment, as invalidating compliance with Step 1 on the facts of this case.  Such a conclusion seems to me to lead to the unduly legalistic and technical approach, which the EAT has deliberately and wisely sought to avoid in interpreting these provisions.  

53.	There is, in any event, nothing to prevent an employer from assisting an employee in setting out his or her grievance.  Mr Galbraith-Marten acknowledged, for example, the guidance given in the ACAS Code of Practice on Disciplinary and Grievance procedures at paragraph 75, which states: 

“…..Under the Disability Discrimination Act 1995, employers are required to make reasonable adjustments which may include assisting employees to formulate a written grievance if they are unable to do so themselves because of a disability.”  

There may be other circumstances where, even though the 1995 Act is not engaged, an employer may provide such assistance where, for example, no trade union or employee representative or work colleague is willing or able to assist and an employee has certain learning or literacy difficulties. 

54.	The Chairman was therefore in my view right to conclude as she did in this case. Mr Galbraith-Marten rightly pointed out that the Claimant’s unfair dismissal claim remains live, so that he can still, as it were, “have his day in court” in relation to the complaints about his treatment by his employers. The effect of counsel’s submissions, however, would be that the Claimant is prevented from having his complaints of race and sex discrimination being determined by the Tribunal at the same time.  In my view, Parliament cannot have intended an employee, who has previously made a complaint of such discrimination to his employer and had it recorded in writing, to be debarred from an Employment Tribunal for failing to comply with Step 1.  This is particularly so having regard to the observations of the House of Lords in Anyanwu and Ebuzoeme v South Bank Students Union and South Bank University [2001] CR 391 and in particular those of Lord Steyn at paragraph 24, page 399, in stating:

“Discrimination cases are generally fact-sensitive and their proper determination is always vital in our pluralistic society.  In this field perhaps more than any other, the bias in favour of a claim being examined [by an employment tribunal] on the merits or demerits of its particular facts is a matter of high public interest.”

55.	For all these reasons therefore this appeal must be dismissed.