Appeal No. UKEATS/0021/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 28 July 2009

Before
THE HONOURABLE LADY SMITH
MISS S AYRE FIPM FBIM
MR M SMITH

BELLS FOOD GROUP LIMITED	APPELLANTS

MS M J LATIMER  	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR D GORRY
(Solicitor)
Law at Work
151 St Vincent Street
Glasgow
G2 5NJ
	
For the Respondent	MR A STRAIN
(Solicitor Advocate)
Messrs Biggart Baillie LLP
No 2 Lochrin Square
96 Fountainbridge
Edinburgh
EH3 9QA	

SUMMARY

Circumstances in which Tribunal erred in finding that employers had failed to comply with the statutory grievance procedure.  Conflation of matters relevant to an assessment of fairness of procedure under s.98 of the Employment Rights Act 1996 with the narrow and more limited requirements of the SGP. 

THE HONOURABLE LADY SMITH

INTRODUCTION 
1.	This is an employers’ appeal against that part of the judgment of the Employment Tribunal sitting at Edinburgh, Chairman Mrs S Craig, that found the claimant entitled to be paid damages of £23,792.91.  The appeal is restricted to the Tribunal’s decision to award a 50 per cent uplift in compensation under s.31 of the Employment Act 2002. 

2.	We will continue to refer to parties as claimant and respondents.

3.	The claimant was represented by Mr T Sellar of the CAB before the Tribunal and by Mr Strain, solicitor advocate, before us.  The respondents were represented by Mr D Gorry, solicitor, before the Tribunal and before us.

BACKGROUND 
4.	The claimant claimed that she had been discriminated against on the grounds of her sex and the Tribunal found that she had been subjected to conduct which fell within the category of conduct proscribed by section 4A of the Sex Discrimination Act 1975.  They awarded compensation totalling £15,861.94 including interest.  The Tribunal then added an uplift of 50 per cent under s.31 of the 2002 Act, having found that the claimant had intimated a grievance and sought to “mediate a solution” to arrangements for a grievance hearing but:

“212.	 the respondents steadfastly, and for no good reason, refused to engage with her about this.”  
5.	The claimant sent a step 1 grievance letter to the respondents dated 27 December 2007, after she had been signed off work by her GP, on account of “work related stress”.  It set out the nature of her grievance and its last paragraph was as follows:

“I want you to know I am absolutely committed to contributing to the success of Bells and given a positive and equitable working environment, firmly believe I can do so.  It is because of this and the gravity of the situation, I am bringing this to your attention.  I would welcome the opportunity, when I am sufficiently recovered, to discuss this with you in order to move things forward in a constructive manner.” 

6.	By letter dated 9 January 2008, the claimant wrote to advise that she had been signed off for a further two weeks, with her next appointment with her GP being on 14 January.  The second and third paragraphs of that letter were as follows:

“I recognise that the company grievance procedure allows me to be accompanied by a colleague to any hearing, but given the nature of the attacks and comments made this is not something I would feel comfortable doing.  In the circumstances I would ask that I am accompanied by my partner to any meetings or hearings.
As stated previously I would welcome the opportunity to discuss this with you in order to move things forward in a constructive manner, when I am sufficiently recovered.”

7.	By letter dated 10 January 2008, the respondents’ Ronnie Miles replied, stating:

“I feel the letter does constitute a grievance and it is our intention to arrange a formal grievance hearing when you are able to attend.
In view of the seriousness of the allegations would you please confirm if you are able to attend a hearing whilst on sick leave?”

8.	The claimant replied by letter dated 14 January 2008 in which she stated:

“I have received your reply to my letters dated 9 January and 27 December and note your request that I attend a hearing whilst signed off as unfit for work.  I regret that at this stage I do not feel able to do so as the acute feelings of anxiety make this impossible for me to contemplate right now.

I have been referred by my GP for a course of counselling to enable me to deal with this situation and I will contact you when I feel sufficiently able to discuss this with you…..” 

9.	She also enclosed a further sick line, showing that her GP had signed her off for another three weeks.  She instructed a solicitor.  

10.	The claimant’s solicitor then wrote to the respondents by letter dated 4 February 2008 in which the claimant’s grievance was summarised.  The letter included the following paragraph:

“We understand that our client has lodged a formal grievance in relation to her concerns.  We would be keen to enter into a constructive dialogue with you with a view to addressing the issues raised.  In particular we would be grateful if you would address the issues raised in our client’s letters of 27 December 2007 and 9 January 2008.” 

11.	The claimant’s solicitors wrote again on 12 February 2008 stating:

“We …note we have yet to receive a response from you.  As you will have noted from the terms of our letter and as acknowledged by Ronnie Miles in terms of his letter of 10 January 2008, these matters are of an extremely serious nature and are causing significant distress to our client.
We should therefore be grateful if you could reply by the end of this week at the latest”

12.	The respondents replied explaining that they intended to arrange a formal grievance hearing once the claimant was fit to attend and in the meantime they considered it inappropriate to enter into discussions with her solicitor. 

13.	Thereafter, a telephone conversation took place between Mr Miles and the claimant’s solicitors in which Mr Miles advised that the respondents were not agreeable to the claimant being accompanied by her partner at the grievance meeting although she could be accompanied by a colleague or trade union representative.  

14.	By letter dated 26 February 2008 the claimant’s solicitors indicated that in that event, the claimant would like to follow the modified grievance procedure and deal with her grievance by way of written correspondence;  there is no indication of what made them think that the modified procedure would or could be appropriate in circumstances where the claimant was still in the respondents’ employment at that stage (See:  paragraph 6(3) of the Employment Act 2002 (Dispute Resolution) Regulations 2004).  In any event, the respondents did not agree to the modified procedure being used and wrote to the claimant by letter dated 7 March 2008 asking her to confirm when she would be available to attend a grievance meeting. 

15.	By letter dated 31 March 2008 the claimant replied, tendering her resignation and explaining:

“I have made every reasonable attempt to raise my grievance in a manner which will not be detrimental to my health.  I indicated that I was willing to participate in a grievance procedure whilst still unfit for work, but my requests that I am accompanied to any grievance hearing by my partner were ignored.  Indeed it was not until pushed by telephone that Mr Miles advised that you were not willing to do this almost six weeks after my initial request.
I further sought to put forward my grievance by use of the modified procedure.  This is something you have again refused to consider.
Your refusal to engage with reasonable requests to ensure my grievance is given a fair hearing without any detrimental impact on my health lead me to conclude that my position at Bells Bakers is untenable and you leave me no alternative but to tender my resignation with immediate effect.” 

Tribunal’s Judgment 
16.	The Tribunal is critical of the respondents in a number of respects.  They considered that the claimant’s letter of 27 December should have been responded to before 9 January.  They found, notwithstanding his prompt response of 10 January, that Mr Miles had repeatedly delayed in answering correspondence.  They are critical of the fact that the respondents did not reply to the claimant’s solicitor before 19 February by which time they had received a reminder from them notwithstanding that that letter was written within days of receiving the second letter from the solicitors and that they had sent that ‘reminder’ letter after barely a week had passed.  The Tribunal considered that the respondents ought to have acceded to the request to follow the modified procedure, commenting that “there was nothing to prevent the respondents adopting that procedure” (paragraph 95).  At paragraph 214, they comment that they formed an unfavourable impression of the way in which the respondents dealt with the claimant’s grievance.  They state:

“She should have been met with and apologised to;  instead the respondents repeatedly delayed in answering correspondence and wholly disregarded the seriousness of her claims.  Had they met her – and approached that meeting with an open mind – it may have been possible to address the claimant’s grievance in a constructive way.  However, on the facts that was never a possibility as, in the eyes of Mr Miles, there was ‘no way back’ for the claimant after she took the step of instructing solicitors.  In the view of the Tribunal the claimant would never have had a proper hearing from the respondents and thus their failure to complete the statutory procedures requires that it finds the uplift to be 50%.” 

17.	We would also make the following observations regarding the Tribunal’s approach.

18.	The Tribunal make no reference to the last paragraph of the claimant’s letter dated 27 December 2007, referring to her welcoming the opportunity to have a discussion when she is sufficiently recovered.  They confine themselves to criticism of the respondents’ Mr Bell, to whom the letter was addressed, for having passed it to Mr Miles and of Mr Miles for having failed to respond to it, without good reason.  That finding is made in circumstances where the letter was sent during the Christmas/New Year holiday period, the Tribunal make no finding as to when the letter was received and make no finding as to the days when the respondents’ business was closed over that period.  We cannot accept that not to have responded to a letter such as the claimant’s of 27 December 2008, prior to 9 January (the date of the claimant’s next letter, to which Mr Miles responded immediately) was prima facie unreasonable; the Tribunal’s conclusion that there was no good reason for Mr Miles not having responded before then strikes us as harsh and without foundation in the circumstances. 

19.	As regards the claimant’s letter of 9 January 2008, the Tribunal make no reference to the part of her letter in which she indicates that she is not, at that stage, sufficiently recovered to have a discussion about her grievance. 

20.	As regards the claimant’s letter of 14 January 2008, the Tribunal make no reference in their judgment to the claimant having indicated to the respondents not only that she was not fit enough to attend a meeting as at the time of her letter but also that she would contact them when she felt able to have a meeting.  They comment only on the fact that her letter repeated her request to be accompanied by her partner and they then, at paragraph 84, state:

“Mr Miles did not reply to that letter.  There was no good reason for his failing to do so.” 

21.	We have difficulty in understanding that conclusion.  The claimant’s letter of 14 January did not obviously call for a response.  She left matters on the basis that she would contact the respondents when she felt well enough to attend a meeting.  So far as the matter of whether or not she could be accompanied by her partner was concerned, that was responded to in the course of a subsequent telephone conversation between Mr Miles and the claimant’s solicitor. 

22.	The Tribunal found that Mr Miles formed the view that once the claimant involved solicitors there was no way back for her;  she had “gone past the point of no return.”  (paragraph 92).  They do not, however, explain that finding any further and we have difficulty in ascertaining what the Tribunal took from it.  Whilst they are critical of Mr Miles for taking that view, it cannot be correct to suggest that he thereafter discounted the possibility of properly following through the statutory grievance procedure.  On the contrary, his letter of 19 February to the claimant’s solicitors specifically refers to following the proper procedures and seeing to it that the matters raised by the claimant are investigated and his letter of 7 March referred to the holding of a formal grievance meeting. 

23.	The Tribunal does not remind itself of the terms of s.31 or of the relevant parts of Schedule 2 to the 2002 Act nor does it remind itself of the relevant part of the 2004 Regulations.

24.	We note, finally, that the Tribunal applied the 50 per cent uplift to a sum which they awarded under s.38 of the 2002 Act in respect of a failure to provide employment particulars, notwithstanding the provisions of s.31(5) which state that any s.31 uplift is to be applied before any sum under s.38 i.e. the s.31 uplift cannot be applied to a s.38 award. 

Relevant Law 
25.	The 2002 Act makes provision for statutory grievance procedures.  The standard procedure, set out in Part 2 Chapter 1 of Schedule to the 2002 Act applied in this case.  The claimant intimated her grievance by her letter dated 27 December 2007.  That having been done, the respondents then required to invite the claimant to attend a meeting.  That was a step which they required to take without unreasonable delay (paragraph 12 of Part 2). 

26.	Where a meeting takes place, it must be conducted in a manner that enables both employer and employee to explain their cases (paragraph 13 of Part 2).  However, as we have indicated, no meeting occurred in this case.  

27.	Where a grievance procedure has not been completed before proceedings before the Employment Tribunal are begun then if that non-completion is attributable wholly or mainly to failure on the part of the employer:

“…to comply with a requirement of the procedure.”  (s.31(3)(c)) 

then the Tribunal must, other then in exceptional circumstances, increase any award to the employee by 10 per cent and:

“if it considers it just and equitable to do so, increase it by a further amount but not so as to make a total increase of more than 50 per cent.”  (s.31 (3)).

28.	It is important to recognise that the issue when considering whether or not a s.31 uplift requires to be made is not whether or not the grievance procedure was fairly conducted or could have been conducted better but is, rather, whether the employer has complied with the requisite steps of the relevant statutory procedure.  Those steps are but the minimum that an employer has to achieve.  The fact that criticism can be levelled at him in respect of the way in which he achieved it is neither here nor there if he has complied with what the statutory grievance procedure requires.  Employment Tribunals require to bear in mind the clear distinction that is to be drawn between the duty to apply a fair procedure in respect of an employee’s grievances which may be relevant in a claim under s.98 (4) of the Employment Rights Act 1996 and the nature of the employers’ obligations under the statutory grievance procedures.  There is, otherwise, a risk of conflation.

29.	So far as the matter of uplift is concerned, as this Tribunal sought to explain in Aptuit (Edinburgh) Ltd v Kennedy UKEATS/0057/06/MT and McKindless Group v McLaughlin UKEATS/0010/08 MT, a Tribunal is not required to make an uplift of more than 10 per cent  and can only do so, the award must be justified as being just and equitable in all the circumstances.  There must, accordingly, be an explanation of how and why it is considered that the uplift should be more than 10 per cent.  Also, the circumstances in question are those surrounding the failure to complete the statutory procedure, not other extraneous circumstances. 

THE APPEAL
30.	To some extent we have summarised the main submissions which were so clearly made by Mr Gorry on behalf of the respondents, in our narrative of the background and the Tribunal’s judgment.  His point was, essentially, that the Tribunal had failed to have regard to the limited requirements of the statutory grievance procedures and that on any reading of the facts, most of which were laid out in the correspondence, it was plain that the respondents had invited the claimant to a grievance meeting and it was through no fault of theirs that the meeting did not take place.  Not every non–completion of the statutory procedure would be due to fault on the part of anyone;  it could be that no criticism was to be levelled at either party for such non completion and this was one of those cases. 

31.	Mr Gorry submitted that there was no failure to comply with the relevant part of the procedure without unreasonable delay.  Further, the Tribunal had relied on a number of irrelevant matters namely that the respondents had failed to meet with the claimant (in circumstances where she had indicated she was not fit to do so), that they surmised that the claimant would not, in any event, have had a proper hearing, that the respondents had refused to allow the claimant’s partner to accompany her, that Mr Miles had dealt with the grievance and that the respondents had refused to follow the modified procedure.  None of these had any bearing on the question of whether or not the respondents had failed to comply with the statutory grievance procedure.  In the event that the Tribunal had not erred in awarding an uplift they had, nonetheless, failed to justify awarding the maximum of 50 per cent.  Finally, they had erred in applying it to the s.38 award.

32.	For the claimant, Mr Strain’s submissions focussed on the Tribunal’s finding that the respondents had failed to engage with the claimant.  Ultimately, his case was that they were entitled to be critical of the failure to respond earlier to the claimant’s request that she be accompanied by her partner to any meeting.  The Tribunal were in fact, he suggested, indicating that they found that there had been a failure to comply with paragraph 13(2) of Schedule 2 to the 2002 Act;  the respondents had failed to engage with the claimant regarding the arrangements to facilitate the grievance meeting taking place.  The same could be said in respect of their comments about Mr Miles feeling that there was no way back once the claimant had instructed a solicitor and their assumption that she would not have got a proper hearing if one had been held.  That was a matter of the Tribunal appearing to have said to itself that there was no prospect of the respondents complying with the requirements of paragraph 13(2).  

DISCUSSION AND DECISION 
33.	We have no hesitation in upholding the appeal.  The Tribunal appear to have asked themselves a general question as to whether or not they have any criticisms to level at the respondents in respect of their approach to the claimant’s grievance and awarded the maximum uplift because they had a number of criticisms to make.  In so doing they have completely overlooked the provisions of s.31(3) and the statutory grievance procedure and failed to examine the factual background in the light of those provisions.  Had they done so, they would have noticed the limitations of the respondents’ obligations and not fallen into the trap of conflating considerations that might have been relevant for the purposes of s.98(4) of the 1996 Act with those that were relevant to the issue of whether or not an uplift under s.31 of the 2002 required to be awarded. 

34.	All that the Tribunal should have asked themselves was whether or not the respondents had invited the claimant to a meeting to discuss her grievance and whether that invitation had been issued to her without unreasonable delay.  It is quite clear from the correspondence that such an invitation was issued in their letter of 10 January 2008.  It cannot be said that an unreasonable delay had elapsed between whatever date the claimant’s grievance letter of 27 December was received and the issuing of that letter, as we have already observed.  The fact that the claimant sent a reminder on 9 January does not of itself show that there was unreasonable delay.  Further, the respondents confirmed their invitation to a meeting in their letters of 19 February and 7 March.  In short, they complied with the first part of step 2 of the standard grievance procedure.  The reason that the meeting did not take place was that the claimant was not fit to attend it at any time prior to her resignation.  She made that clear to the respondents in her letters of 27 December, 9 January and 14 January 2008.  She left it that she would get back to them once she felt able to attend such a meeting.  It is clear, on the facts, that no meeting was going to be able to take place until the claimant indicated that she felt well enough to attend it, irrespective of whether or not the respondents agreed to allow her partner to attend with her;  it was thus not open to the Tribunal to approach matters on the basis that the respondents were at fault in not having met with the claimant, as, from the terms of paragraph 214, they evidently did.  Further, specifically, on no view could it be said that the non-completion of the grievance procedure was attributable to any failure of the respondents to comply with a requirement of that procedure. 

35.	As regards the matter of whether or not the claimant’s partner was to be allowed to accompany her to any meeting, the statutory grievance procedure does not require an employer to accede to any such proposal (it is silent on the matter of persons accompanying employees at grievance meetings) and we reject Mr Strain’s suggestion that paragraph 13(2) could be read so as to allow for the imposition by an employee of any such condition.  The question of whether or not the respondents delayed unreasonably in responding to the claimant’s request that he be allowed to attend with her does not accordingly arise and should not have influenced the Tribunal in its conclusion on this matter.  In any event, we have some difficulty with the suggestion that it was unreasonable not to have responded to the question regarding the claimant’s partner before the middle of February, when an answer was provided in the course of a telephone call between the respondents and the claimant’s solicitor, particularly since it was made clear that their practice was to allow an employee to be accompanied only by a colleague or a trade union representative, a practice commonly followed by many employers.  

36.	We should also express our concerns regarding the Tribunal having determined that the claimant would, had a grievance hearing taken place “never have had a proper Hearing” (see para 214).  They make no findings from which that conclusion could properly be made nor, in any event, was it appropriate or relevant for them to speculate about what might or might not have happened had such a meeting taken place.  We, furthermore, reject Mr Strain’s suggestion that the Tribunal there had in mind the provisions of paragraph 13(2) of Schedule 2 to the 2002 Act.  Firstly, the Tribunal do not mention those provisions.  Secondly, paragraph 13(2) is concerned with examining what has occurred at a meeting which has taken place.  If either employer or employee have so conducted themselves at the statutory meeting as to prevent the other explaining their case then they will be held to have failed to comply with a requirement of the procedure.  That is not, however, a matter that can possibly be judged until the meeting has taken place. 

37.	Finally, the Tribunal also erred in their approach to the respondents’ refusal to agree to follow the modified procedure.  At paragraph 95 they comment that there was nothing to stop the respondents following that procedure.  Their error is as follows.  Firstly, the fact that agreement to the procedure is a condition precedent to its application (para 6(3)(c) of the 2004 Regulations) is indicative of Parliament not having intended that either employers or employees should feel pressured to agree to it but rather that they should have a genuine choice in the matter.  Secondly, and more importantly, since the modified procedure is not an applicable statutory procedure where the employee is still in the employer’s employment (para 6(3)(a) of the 2004 Regulations), if the respondents had agreed to follow it instead of the standard procedure, they would have been in breach of their statutory obligations.  Their agreement to the modified procedure would not have relieved them of their obligation to follow the standard procedure.  Thus there was a very good reason indeed for the respondents not agreeing to the modified procedure and no good reason at all for criticising them for failing to do so. 

DISPOSAL 
38.	In these circumstances, we will pronounce an order deleting that part of the Tribunal’s judgment which awarded the claimant an uplift under s.31 of the 2002 Act.  The amount awarded to the claimant will, accordingly be reduced to FIFTEEN THOUSAND EIGHT HUNDRED AND SIXTY ONE POUNDS NINETY FOUR PENCE (£15,861.94).