Appeal No. UKEAT/0050/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 March 2009

Before
HIS HONOUR JUDGE RICHARDSON
(SITTING ALONE)

MR S M ELHAERES	APPELLANT

CHUBB SECURITY PERSONNEL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR BEN COOPER
(of Counsel
	
For the Respondent	MR MALCOLM CAMERON
(Representative)
MHL Support Plc
Brunswick Court of Appeal  Brunswick Street
Newcastle-Under-Lyme
Staffordshire ST 1HH	

SUMMARY
JURISDICTIONAL POINTS:  2002 Act and pre-action requirements
The Employment Judge erred in law in holding that the claims were barred by section 32(2) of the Employment Act 2002.

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Mr S M Elhaeres against a judgment of the Employment Tribunal presided over by Employment Judge Moore dated 28 October 2008 and further against a decision of Judge Moore dated 18 November 2008 refusing to review that judgment.  Mr Elhaeres had made claims of constructive unfair dismissal, race discrimination and discrimination on the grounds of religion or belief against his former employers, Chubb Security Personnel Ltd, (“Chubb”).  The Employment Judge dismissed all these claims on the grounds that they were barred by s32(2) of the Employment Act 2002.  

2.	Section 32(2) 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.”

3.	The claims which Mr Elhaeres presented to the Tribunal are matters to which the requirement in paragraph 6 of Schedule 2 applied.  By paragraph 6 of Schedule 2 Mr Elhaeres was required to set out his grievance in writing and send a copy to his employer.  

4.	The Employment Judge’s reasoning was short, to the point, and unfortunately wrong.  He said:

“2.	S:32(2) of the 2002 Act in conjunction with Schedule 2 requires the Claimant to have submitted details of his complaint to his employer in writing and then to have waited 28 days before submitting a claim to the Tribunal.  His evidence on the point was that following his resignation he had not written to the Respondents at all.
3.	Since a failure to comply bars the Tribunal from hearing the claim and since on his own clear evidence he had not complied, the only course open to me is to dismiss this claim.”
5.	The Tribunal judge went on to observe that there had also been time points before him.  He said:
“4.	The Respondents raised arguments relating to the fact that at the time that this claim was lodged with the Tribunal the incidents relied upon were some considerable time outside of the statutory time limit.  Given that my determination on the first point is conclusive of the claim I have not determined this latter point.”

6.	Mr Elhaeres was employed by Chubb as a security officer from 8 August 2005 until early in 2007.  During his employment he complained of incidents when he was verbally and physically abused by members of staff at the place where he was performing security duties.  He was dissatisfied with the manner in which these complaints were addressed.  He complained in writing.  His complaint dated 19 September 2006 says that he was picked on “because of my race and religion”.  In an undated letter shortly afterwards he complained of being picked on because of his race.  This letter actually led to a grievance hearing on 12 October 2006.  In a further letter dated 27 November 2006 Mr Elhaeres complained of “discrimination” by his Area Manager.  When he resigned in a letter dated 10 January 2007 Mr Elhaeres said, in writing, that he felt due to the way he had been treated after recent incidents he must leave the company.  

7.	Mr Elhaeres did not commence proceedings in the Employment Tribunal until May 2008.  He said in his ET1 claim form that he had put his complaints in writing to Chubb although he gave a wrong date.  Not surprisingly in its response Chubb took the point that he was long out of time for making an application to the Employment Tribunal; but on the question of the statutory procedures Chubb accepted that the substance of his claims had been raised by Mr Elhaeres in writing under a grievance procedure.  

8.	Chubb was right to accept that this was so.  There are well-known cases about what a Claimant must do to comply with paragraph 6 of Schedule 2 to the 2002 Act.  In particular, it is well-known that a complaint set out need not be detailed and may be set out informally, for example in a letter of resignation Shergold v Fieldway Medical Centre [2006] IRLR 76.  

9.	Despite Chubb’s admission the Employment Judge asked Mr Elhaeres if he had written to Chubb following his resignation.  It does not matter at all if Mr Elhaeres had written to Chubb after his resignation: the Employment Judge asked the wrong question.  If the Employment Judge had inquired whether Mr Elhaeres had written to Chubb before or at the time of his resignation he would have been in all probability directed to the correct documents which had led Chubb to accept that the grievance procedures had been complied with.  There is no rule that paragraph 6 of Schedule 2 must be complied with after a resignation; nor could there be, for many claims to which this provision applies do not depend on termination of employment.  The Employment Judge’s decision rests on a misconception.

10.	I would add, though it is not especially germane to this appeal, that the Employment Judge was also wrong in so far as he suggested that a grievance letter for the purpose of paragraph 6 of Schedule 2 requires “details” of a complaint.  It does not.  Under the statutory procedure details are required prior to the step 2 meeting.

11.	Mr Elhaeres appeared in person before the Employment Judge. Shortly after the hearing he prepared a focussed application for a review, pointing out that he had complied with paragraph 6 and giving chapter and verse.  The Employment Judge said that the review was refused as having no reasonable prospect of success.  That is unfortunate; it would appear that despite the matter being drawn to his attention he still did not appreciate the basic error of law he had made.  It is I suppose possible that he thought he could not correct his mistake and had to leave it for the Employment Appeal Tribunal but if so it would have been proper to acknowledge his mistake in his reasons.  At all events, it is today common ground that on the s32(2) point the appeal must be allowed.

12.	On behalf of Chubb Mr Cameron points out that the Judge heard evidence and submissions on the time points but did not deal with them in his judgment and reasons.  He submits that firstly, this Employment Appeal Tribunal can, for itself, see that there is no prospect of success in the time points and therefore determine them without the matter being remitted to the Tribunal.  

13.	It is only in an exceptional case, where the evidence can truly be said to be ‘all one way’, that the Appeal Tribunal can take such a course.  The Employment Tribunal, not the Appeal Tribunal, is vested by Parliament with all questions of fact and discretion.  The Employment Appeal Tribunal is vested only with a power to consider appeals on a question of law.  In this case Mr Elhaeres presented to the Employment Tribunal evidence, including a medical certificate, to the effect that he had been seriously ill during the period when his Tribunal claims ought to have been presented if they were to be in time.  The evaluation of that evidence is a matter for a Tribunal.  It is not appropriate for the Appeal Tribunal to take a view upon it.

14.	Mr Cameron also submits that the matter may be remitted to the same Judge.  Since that Judge heard some evidence and submissions on the time points, Mr Cameron submits that it would be appropriate to remit to him.

15.	I reject that submission.  It is common for the Appeal Tribunal to remit a case to the same Tribunal where that Tribunal has dealt with a substantial number of issues and, for example, made an error or failed to give proper reasons on one of those issues.  It would be quite different to remit to the same Tribunal where that Tribunal has made a fundamental error of law on one issue and made no findings of fact and given no reasons on another.  The appropriate course in this case, I have no doubt, is to allow the appeal and to direct that the issue relating to time points be considered afresh before a different Employment Judge.