Appeal No. UKEAT/0238/11/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 September 2011
	   Judgment handed down on 8 December 2011

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

SHEFFIELD CITY COUNCIL	APPELLANT

MISS J DOLBY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR COLIN BOURNE
(of Counsel)
Instructed by:
Sheffield City Council
Legal Services
Town Hall
Pinstone Street
Sheffield
S1 2HH	
For the Respondent	MR PAUL KIRTLEY
(of Counsel)
Instructed by:
Raleys Solicitors
Permanent Building
Regent Street
Barnsley
S70 2EH	

SUMMARY

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

On a step 3 appeal the Claimant raised for the first time a qualifying disclosure under PIDA. The Employment Judge incorrectly found that the employer would reasonably know this was a step 1 grievance and refused the Respondent’s application to dismiss the claim. Solicitors’ letters invoking the earlier grievances which did not cite any PIDA complaint could not make the step 1 grievance for per-employment detriments, and constructive unfair dismissal on PIDA grounds. The ordinary constructive unfair dismissal case would now be heard.

HIS HONOUR JUDGE McMULLEN QC 

1.	This case is about the application of the repealed procedure which excludes a claimant from the seat of judgment if she has not issued a prior grievance conforming to the Employment Act 2002.  If the grievance procedure is not completed and fault is found there are serious consequences for the respondent.  I will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against a Judgment of Employment Judge Trayler sitting alone at Sheffield over three days, sent to parties on 11 March 2011.  The Claimant was represented by different counsel from Mr Paul Kirtley who appears today.  The Respondent was represented by Mr Colin Bourne.  The PHR conducted by Judge Trayler was to make decisions in respect of the gateway to an Employment Tribunal which must be passed in those days prior to the repeal of the statutory regime by the Claimant registering a grievance.  This applied to her claims of per-employment detriments prior to her resignation, and of constructive dismissal, for making a protected disclosure in accordance with the insertion into Employment Rights Act 1996 of provisions from the Public Interest Disclosure Act 1998.

3.	That elliptical summary does not do justice to the countless case management directions and orders given in this case.  In particular, a Judgment of a three person Employment Tribunal chaired by Employment Judge Shore at a PHR on 18 July 2010 for reasons sent on 28 July 2010 considered these very points.  But for reasons not connected with the construction of the documents in this case or their context the Employment Tribunal of its own motion conducted a review and set aside this Judgment in its entirety.  Nevertheless, this judgment was put in front of me and it refers to certain documents which are not in the bundle before me but which I hold are relevant to the context which I am determining.  As it happens, I agree with the Shore three-person Tribunal and disagree with Employment Judge Trayler’s decision on the construction point.  I also agree with Employment Judge Shore’s depiction of this case as labyrinthine.

4.	In the Judgment under appeal, the Judge allowed the Claimant’s complaints of per-employment detriments to be advanced to a full hearing and that both aspects of her constructive dismissal should go there too: ordinary or “vanilla” straightforward unfair dismissal and automatic unfair dismissal for having made a protected disclosure.  A large number of the Claimant’s other complaints across the employment protection regime were dismissed.  The Employment Tribunal stayed proceedings pending appeal in this case.  During the course of the hearing of this appeal it appeared further submissions would need to be made on a document which was not available to Judge Trayler and I am grateful to both counsel for having produced the material and made submissions upon it – it is in respect of the appeal against the dismissal of the Claimant’s second relevant grievance which took place on 1 December 2008.  We are thus examining matters more than three years old and in fact going back to 2006 and there has not yet been a trial.  

5.	The Respondent appeals against the Judge’s decision to allow the per-employment detriments case and the constructive unfair dismissal case on PIDA grounds to go forward to a full hearing.  Alternatively, it takes a discreet approach to certain findings as to detriment if the primary case is not accepted.  Underhill J (P) on the sift sent this appeal to a full hearing noting the proceedings in the Employment Tribunal on the substantive case had been stayed hitherto.

The law
6.	A person is protected, if she makes a protected disclosure, from detriments and from dismissal (see Part IVA and section 103A of the Employment Rights Act 1996).  A disclosure qualifies for protection for both detriment and dismissal if in the reasonable belief of the worker a disclosure of information tends to show some wrongdoing.  A protected disclosure qualifies under the statute if a worker makes it to her employer.  There is no dispute that the only disclosure relied on in this case qualifies under the statute.

7.	As a matter of procedure the Employment Act 2002 contained the following relating to grievances setting out procedures which must be followed in order for a claim to be presented to an Employment Tribunal:

“Standard procedure
Step 1: statement of grievance
6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.
Step 2: meeting
7. (1) The employer must invite the employee to attend a meeting to discuss the grievance.
(2) The meeting must not take place unless –
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and
(b) the employer has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the appeal meeting, the employer must inform the employee of his final decision.
Modified procedure
Step 1: statement of grievance
9. The employee must -
(a) set out in writing –
(i) the grievance, and
(ii) the basis for it, and
(b) send the statement or a copy of it to the employer.
Step 2: response
10. The employer must set out his response in writing and send the statement or a copy of it to the employee.”

8.	Guidance was given as to the application of these procedures in Canary Wharf Management Ltd v Edebi [2006] IRLR 416.  Elias J President said the following:

“24…[W]e agree with Burton J that in identifying whether or not the complaint is identical to that which has been lodged before the tribunals, 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.  Indeed, if it succeeds he will have to pay additional compensation to the extent of at least 10%.  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.  I do not think this formulation is essentially different to that urged upon me by Mr Solomon for the appellant, namely ‘how a reasonable employer, with the actual or constructive knowledge of the employer at the time he received the grievance, would have understood it’, although I would prefer to avoid concepts of actual or constructive knowledge.  Nor do I think that any of the earlier cases to which I have made reference are at all inconsistent with my approach.”

The facts
9.	Sheffield City Council is a local authority.  The Claimant was employed by it on 10 December 2001 as an Education Welfare Officer.  Her job included investigation and reporting upon attendance of children at school.  On 17 May 2006 she made a referral, known as a section 47 referral, in respect of what she considered to be a child protection issue within Family R.

10.	The Claimant was absent from work from 10 May 2007 until her resignation on 30 July 2008.
11.	Eighteen months after her s47 referral, on 12 November 2007, the Claimant submitted what she described as a complaint under the Respondent’s Dignity and Respect at Work policy.  It was against four named employees.  Broadly speaking, it contained criticisms of their approach to the Claimant and to issues raised in respect of Family R.  She summarised them as being examples of victimisation, bullying and harassment and all she ever wanted to do was to be treated the same as other employees were.  There is interchangeability of language – throughout these proceedings, that is described as either a complaint or a grievance.  Apparently under the relevant policy the next stage is a verification meeting which took place on 5 December 2007.  There is nothing in the draft notes of that verification meeting nor in her suggested amendments to them which indicates that the Claimant had made a protected disclosure and had suffered detriment from it.  There is a good deal of talk about the intervention by the Respondent into Family R but the Claimant does not rely upon her deployment to Family R in 2006 as itself constituting a qualifying disclosure.  

12.	On 3 March 2008 the Claimant appears to have been aware that her first grievance/complaint had been rejected for on that date she wrote:

“I am writing to formally lodge a grievance in respect to the outcome of a complaint that I registered last year…. I believe that …. an insufficient investigation into my grievance has taken place…”

13.	On 12 March 2008, formal notification was given to the Claimant of the “outcome of Dignity at Work complaint”.  The Claimant had threatened legal proceedings and at the time was represented by a trade union and a solicitor.  

14.	It appears that the meeting on 3 March 2008 was part of the process of the first relevant grievance.  There was no appeal.

15.	Turning then to the second grievance registered on 3 March 2008 (see above), the Claimant was invited to a formal grievance hearing which took place on 28 April 2008.  The substance of the hearing was effectively the attack by the Claimant on the delay in, and handling of, the Claimant’s first grievance.  In other words, it was separate from the substance of the first grievance.  The outcome was given on 29 April 2008. She appealed against the rejection of her second grievance on 2 May 2008 and provided grounds for it on 8 May 2008.  This was described as “an appeal against the decision of the formal grievance hearing”.  She raised a number of matters but relevant to today is the following:

“I have been subjected to detriments as a result of the protected disclosures I made… as regards case R/where the Council actually forbade me from reporting the matter to the police and/or other proper authorities.”

16.	This is accepted by the Council on its face to be a qualifying disclosure.  That appeal hearing was set up but, by agreement between the parties, this did not take place.  The Respondent sought further information.  The Claimant decided that she would return to work and gave notice of that on 15 July 2008 but the Respondent contended that that could not take place without medical clearance.  On her presentation at work on 18 July 2208 she was turned away.  The appeal hearing was re-fixed on 29 July 2008 to 15 August 2008 but on 30 July 2008 she resigned.  

17.	On 8 August 2008 the first of two letters written by her solicitor was sent.  The Claimant did not attend on 15 August 2008 at the grievance appeal and the Respondent sought to know whether the Claimant was appealing the outcome of the first grievance hearing.  The second of the solicitor’s letters was sent on 15 September 2008.  The appeal against the grievance hearing took place on 1 December 2008 when the Respondent’s Senior Officer dismissed the appeal.  The claim form was presented to the Tribunal on 2 January 2009.

Submissions and conclusions
18.	There is no dispute between counsel that the Employment Judge directed himself correctly on the authorities.  Whether a grievance has been lodged is a matter of construction not only of the documents themselves but also of the context in which they were sent, and whether in this case the employer could reasonably understand to be the presentation of a grievance to it.  

19.	Mr Bourne complains with some force that the purpose of the statutory regime is to allow proper ventilation of a grievance or an opportunity for that prior to presentation of a claim form and essential to that is that the employer should understand the substance of the grievance.  If it gets this wrong, the consequences should the Claimant succeed are very serious because an uplift in compensation of up to 50% can be made.  Claims for constructive dismissal and for per-employment detriments fall under the regime.  He submits that in a case where the grievance procedures are being operated, they are not required to start again when at an appeal a new point is raised which might constitute a grievance.  That applies to this case.  

20.	The only written grievance relating to PIDA prior to the Claimant’s resignation is in her appeal against the outcome of the second grievance hearing.  Since that is accepted to be a reference to a protected and qualifying disclosure, the only issue is whether it constitutes a grievance under the statutory regime.  In my judgment it does not and in this respect I agree with the three person Tribunal chaired by Employment Judge Shore.  The Claimant was by then well into the statutory procedure should she wish to raise any matter in subsequent employment tribunal proceedings.  She had been given a step 2 meeting and was seeking to raise a new grievance at a step 3 appeal. She raised for the first time the PIDA complaint.

21.	If that is to be treated as the starting afresh of a new matter it fails to meet step 1 as setting out the statement of a grievance and in any event it fails to meet step 2 because the Claimant has not set out information for the basis of the statement so as to provide the Respondent with a reasonable opportunity to consider its response.  If this were held to be a proper step 1 statement or a step 2 basis of information, the Respondent would be in difficulty because it did not hold a meeting to consider that point. What occurred, at the Claimant’s instance, was an appeal against the second grievance. Neither the first nor the second grievance contained on its face and in context any PIDA complaint.  As a matter of history the Respondent at the appeal against the outcome of the second grievance on 1 December 2008, but which was not necessarily before the Judge in the present case, decided just that: the PIDA point was a new matter and did not fall within the remit of an appeal against the grievance which was actually heard.

22.	It is next necessary to consider the two solicitors’ letters.  These both provoked denials from the Respondent and requests for further information about the nature of the claims being made.  The content of these letters was described as difficult by the Employment Judge who on the whole considered that an employer might reasonably form the view that these were unclear.  The letter of 8 August 2008 says this:

“Our client remains wholly dissatisfied with your response to her longstanding grievances and in particular to the issues surrounding her return to work on 18 July 2008 and it is for these reasons that she tendered her resignation with effect from 30 July 2008.
Our client has instructed us to pursue a claim for compensation for constructive dismissal … under the Public Interest Disclosure Act but before we do so please treat this letter as a formal grievance in relation to the matters referred to therein.”

23.	This provoked a request for further information specifically to clarify the PIDA point asking what I regard as entirely proper questions so as to put it in a position to answer any complaint if this were to be part of the grievance procedure which the Claimant’s solicitor asserted it was.  On 5 September 2008 the Claimant’s solicitors wrote again saying the following:

“However, for the avoidance of doubt we refer you to our client’s numerous medical certificates, the report from the Occupational Health Service dated 24 September 2007 and our client’s grievances documented in her letters to Mr Marshall dated 12 November 2007 and 03 March 2008.
Our own letter dated 08 August 2008 fully documents the issues constituting our client’s latest grievance and states, in terms, the reasons why Miss Dolby resigned from the Council’s employment on 30 July 2008 and the basis upon which any claim for constructive dismissal will be pursued.
In any event, with respect to the questions raised in your letter dated 20 August 2008 we do not consider it necessary for you to determine … whether a qualifying disclosure has been made under the provisions of the Public Interest Disclosure Act for you to deal with these grievances.”

24.	I do not consider these provide sufficient context to make it clear to the Respondent as to what was being said about PIDA.  Given that there was nothing before the second grievance appeal on 8 May 2008, references to the Claimant’s earlier letters of 12 November 2007 and 3 March 2008 do not assist.  On their face, the two letters seek to reprise the Claimant’s dissatisfaction with the treatment of her first grievance.  By her second grievance she complains of the slowness of the process and the scope of it.  Her first grievance does not raise a PIDA complaint and nor does the second.  References to both of these grievances therefore cannot encompass the lodging of a grievance in respect of a PIDA complaint which was only made on 8 May 2008.  By that date, both grievances had been determined against her.  As a matter of construction, and in context, “her longstanding grievances” means the first grievance, decided on 3 March 2008.  It cannot mean the second, lodged on that date, which was going through to a step 3 appeal, postponed by mutual agreement. If it does mean both grievances, neither contains a PIDA point.  So the two letters which draw on the extant grievances cannot create a PIDA grievance.  Grievance in the context of a formal solicitors’ letter means the two lodged by the Claimant under the Respondent’s policies and not a new point sought to be taken on appeal. It may be that the two formal grievances are of long standing, being the substantive complaint and the handling of it, but not the PIDA matter lodged only on 8 May 2008. The latest grievance in the second letter is the return to work problem; but if it is the longstanding grievances of the first letter, they are not based on PIDA.

25.	In those circumstances it is not necessary for me to determine the secondary position of the Respondent as to certain of the detriments which were allowed to proceed namely 9, 12, 15, 28, 31, 38.  But if necessary for my decision, I would uphold in full the written submissions of Mr Bourne on each of these detriments.  They as a matter of logic cannot proceed because of the chronology and of the outcomes of the various issues.  Nor can they be rolled into one.

26.	I then turn to the constructive dismissal point.  It will be recalled that the Claimant is going ahead with her “vanilla” ordinary constructive unfair dismissal case.  The only way the Claimant may bring a PIDA claim is if she has raised this as part of an unfair dismissal grievance.  Given that I have discounted the interlocking of the detriments up to the date of her resignation, the specific unfair dismissal claim must be determined by reference to the letters of the solicitors and their context.  As a matter of law I hold that it is correct to view the ordinary and the automatic unfair dismissal separately since Parliament has separately constituted these two causes of complaint, albeit they are types of unfair dismissal.  There are different remedies and a PIDA claim is akin to a discrimination claim. Neither of the solicitors’ letters makes clear that the Claimant is resigning because of her PIDA complaint.  This complaint suffers the same defect as the per-employment detriment case.  

Disposal
27.	I would like to thank both counsel for their original and further submissions.  I see no reason why the stay should not now be lifted and the Claimant’s constructive unfair dismissal case be heard unless the parties can with the assistance perhaps of ACAS reach a conciliated solution to what was an old and very wide case and is now very much reduced. The appeal is allowed.