Appeal No. UKEAT/0049/08/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 2 July 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
THE HONOURABLE LORD MORRIS OF HANDSWORTH OJ
MISS S M WILSON CBE

MR L PROCEK	APPELLANT

OAKFORD FARMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS S JANES
(Representative for the Appellant)
Instructed by:
Cheshire Halton & Warrington Racial Equality Council
92 Watergate Street
CHESTER
CH1 2LF
	
For the Respondent	MR G BEARLY
(Consultant for the Respondent)
Instructed by:
Peninsula Business Services Ltd
Litigation Department
Riverside
New Bailey Street
MANCHESTER
M3 5PB	

SUMMARY

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
  Whether infringed

Employee lodged a grievance but stated that it was intended to be informal and not a statutory grievance. Employment Tribunal held that in the circumstances it could not be treated as a statutory grievance, and since no other grievance had been lodged prior to presenting the claim, the Tribunal had no jurisdiction to hear the case.  
EAT upheld the appeal and concluded that the grievance fell within the terms of the statute.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is yet another appeal on the statutory disputes procedures. Again, a claimant has been denied the right to take a case to an Employment Tribunal, this time in respect of a race discrimination claim, because of an alleged failure to lodge a grievance and then allow 28 days for that grievance to be determined before the claim was presented to the Tribunal.

2.	The claimant was a Pole, who alleged that he was treated less favourably than other nationals, and in particular, was paid less than they were. He lodged a grievance clearly identifying these matters on 12 June 2007. The grievance was, in fact, considered and rejected by the employer. Subsequently, on 8 June he presented his case to the Employment Tribunal, having resigned from employment three days earlier. The question was whether the grievance lodged in January was a relevant grievance for the purposes of the statutory grievance procedure. If not, the Tribunal had no jurisdiction to hear the claim.

3.	There is no doubt that the claimant raised in his grievance matters which subsequently were the subject of his Tribunal claim. (We are told that he also raised other issues that were not, but we are not concerned about that today.) The reason why it was contended that it was not a relevant statutory grievance was because the claimant had said this in his letter:
“I wish to bring to your attention the following points which I suggest are dealt with in an informal basis within the next 14 days, failing which I will lodge my step 1 FORMAL GRIEVANCE OF RACIAL DISCRIMINATION under The Employment Act 2002 (Dispute Resolution) Regulations 2004 in relation to the worse treatment I have and continue to receive on the grounds of my being of Polish origin.”
He then sets out the detail of the grievance.

4.	The short point before the Tribunal was this. The employers contended that this could not be a statutory grievance because the claimant had said in terms that it was not. He had wanted it to be treated as an informal indication of his complaints and had said in terms that he would in due course lodge a statutory grievance if he were not satisfied with the outcome.

5.	The employment judge, as he said reluctantly, accepted this argument. He summarised his conclusion as follows:
“The problem is …. that because the claimant has said in terms that he was raising an informal complaint, which if it were not treated he would raise in the statutory form, the respondent was entitled to conclude that this was not a statutory grievance.”

6.	The employers have supported the decision of the employment judge, essentially for the reasons relied on before him. In particular, they submit that whilst recognising that the statutory requirements are minimal in terms of what is required for a Step 1 grievance letter, nonetheless this does not satisfy that requirement. 

7.	More specifically, they point out that they did not consider that they were in the statutory procedure and did not, for example, notify the appellant that he had a right of appeal. 

8.	The effect of not complying fully with the grievance procedures is that the level of compensation in any successful complaint can be increased: see section 31(2) of the Employment Act 2002. They submit it would be quite unjust for employers to be subject to that in circumstances where they had been led to believe by the employee that he was not wishing to invoke the statutory procedure.  ( It was also suggested that the employers would be liable for automatically unfair dismissal, but that is not so. That applies where there has been a failure to comply with the statutory dismissal procedures, but not the grievance procedures: see section 98A(1) of the Employment Rights Act 1996).

9.	Furthermore, it is submitted that the purpose of the legislation is that the parties “put their cards on the table” and employers should not find themselves in a tribunal when they had been led to believe that there was no potential claim in the offing. This was litigation by ambush.  The employee was obviously well aware of the statutory requirements and he should be held to the categorisation he had made; he chose to describe his grievance as informal rather than statutory.  The purpose of the legislation, at least in part, was to let employees know where they stood, and it would undermine that purpose if the employee were not to be held to his word. 

10.	 The claimant (the appellant before us) relies on a number of cases in which the EAT has emphasised that an informal and non-technical approach should be adopted towards the construction of these grievance letters. In Shergold v Fieldway Medical Centre [2005] IRLR 76 (para 30) Mr Justice Burton confirmed that the statutory requirements are:
“minimal in terms of what is required. It is simply that the grievance must be set out in writing.” 

11.	In Canary Wharf Management Ltd v Edebi [2006] IRLR 416 Elias P noted (para 22) that: 
“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. The paragraph is satisfied simply if the complaint is made …”

12.	A similar observation was made by Mr Justice Langstaff, giving the judgment of the EAT in Galaxy Showers v Wilson [2006] IRLR 83 (para 10) when he said:
“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 employee has or has not done. There is no particular formality required by the statutory wording … What is required at this stage is simply to identify whether there has been a complaint.”

13.	The claimant further observes that step I of the grievance procedure merely requires that the employee must “set out the grievance in writing”. That had been done here, and the employer was fully aware of that complaint and had every opportunity to resolve it. Indeed in this case he had taken that opportunity, albeit that the complaint had not been resolved to the claimant’s satisfaction. The label put on the complaint by the employee was irrelevant.

Conclusion.
14.	In our judgment, the claimant is correct. The issue is not whether the grievance lodged is stated to be a statutory grievance. The only question is whether it satisfies the requirements laid down for a Step 1 grievance letter. This merely requires that the grievance is set out in writing and sent to the employer. That has been done. We do not see that the classification placed on it by the claimant can affect that conclusion. 

15.	We do see some merit in the observation that it would be unjust to treat this as a statutory grievance because the employer ought not to be subject to a potential increase in compensation in circumstances where he could reasonably take the view that no statutory grievance had been lodged.   (Even then, however, it might be said that a reasonable employer ought to deal with the grievance raised.)  We would simply point out that this is not an inevitable outcome of our decision. A tribunal has power to hold that it was not just or equitable to make any increase in any award that might otherwise be made: see section 31(4) of the 2002 Act.  Of course, it would be up to the tribunal hearing that argument to decide whether in the particular circumstances it did constitute a situation where that exception should be invoked.  

Disposal.
16.	In our judgment, the relevant letter complying with Step 1 of the grievance procedure had been sent. The requisite 28 days had then been allowed - indeed considerably more than that – before the claim was lodged. The purpose of the legislation had been achieved.  Accordingly, we uphold the appeal and conclude that the Tribunal has jurisdiction to hear such claims as were the subject of the grievance.