Appeal No. UKEAT/0525/05/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 2005

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MR B R GIBBS
MR S YEBOAH

GALAXY SHOWERS LTD	APPELLANT

MR WALTER EDWARD WILSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

	APPEARANCES

For the Appellant	MR E McFARLANE
Representative	
For the Respondent		

SUMMARY

Whether the requirements of the 2002 Act were satisfied in a case of construction dismissal where the “grievance” was contained in and consisted of a letter of resignation; whether a grievance had to indicate an intention to pursue it with the employer; whether granting an employer an appeal hearing, where he had complained of the holding of the initial disciplinary hearing and procedural defects such that there should be a fresh hearing, satisfied the employer’s obligation under Stage 2 of the Statutory Grievance Procedure.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.	This is a Preliminary Hearing in an appeal from an Employment Tribunal sitting at Birmingham whose Extended Reasons were promulgated on 2 August 2005.  It involves interesting and we are told controversial issues about the application of the Employment Act 2002 and the disciplinary and grievance procedures and complaints and dispute resolution procedure to which it relates to a case of constructive dismissal where it is alleged that the dismissal is an unfair one.
 
2.	Although at one time we were wondering whether we might (because of the importance of the issues generally and the absence of any significant case law thus far) give permission to proceed to a full hearing, we are so satisfied that the law as it relates to the present appeal is beyond reasonable argument that we have determined this case at this stage and will do so by rejecting the appeal.  Nonetheless, what we say (unusually perhaps for a Preliminary Hearing) may be of interest more widely to professional advisors.  

The Facts
3.	The Claimant was employed from 8 July 2002 by Galaxy Showers whom we will call “the employer” as a customer service supervisor.  He resigned with effect from 31 December 2004 in circumstances in which he claimed he was entitled to do so by reason of the employer’s conduct toward him.  A letter setting out his complaints and indicating that unless they were resolved they would lead to his resignation on 31 December was sent by him to the general manager of the works on 9 December 2004.  

The Tribunal’s Findings
4.	The Tribunal found that the employer had failed to observe its own disciplinary procedure.  It had formally warned the Claimant as to his conduct without any proper investigation or formal disciplinary hearing and in breach of the ACAS Code.  Indeed by the time the matter came to the Tribunal the employer admitted the failure.  It found in addition that the employer had failed to treat the letter of 9 December as a formal grievance and had in effect refused to acknowledge its own faults at that stage in failing to abide by its own procedure – see paragraph 17 of the Tribunal Decision.

5.	In summary, the Tribunal said, quoting from paragraph 18:
“18	…We find the respondent’s breaches of the procedure in this case, coupled with its failure to respond to the opportunity given by the claimant to rectify the breach, were significant breaches going to the root of the contract, showing a clear intention no longer to be bound by an essential contract term.”

In addition at paragraph 20 the Tribunal found that the employer had behaved in a number of other respects towards the claimant in a way which was in breach of the implied term not so to act as to be likely to destroy or damage the relationship of trust and confidence between employer and employee.  

6.	The issue before us has not however related to the findings of fact so far as they concern Mr Wilson’s entitlement to claim constructive dismissal, nor the application of the law in respect of constructive dismissal itself.  Instead the challenge is made to the jurisdiction of the Tribunal to hear the claim at all.  It is said that there was a failure to comply with the dispute resolution process as required by the Employment Act 2002.

The Legislation
7.	The Employment Act 2002 provides by Section 32 so far as is material as follows:

“32
(2)	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.”

By Subsection (1) and Schedule 4 to the Act, the jurisdiction to which Subsection (2) applies includes the jurisdiction conferred by Section 111 of the Employment Rights Act 1996, that is in respect of the right to complain of unfair dismissal.

By Section 32 Subsection (7)(a) it is provided that the Secretary of State may, for the purposes of Section 32, by regulation make provision about the application of the procedures set out in Part II of Schedule 2.

Thus one has to go to the appropriate regulations in order to answer the question posed by Section 32(2)(a) as to whether a complaint such as the complaint made in this case concerned a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies.

The regulations are the Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752.  Regulation 6 deals with the situation in which the grievance procedures, as set out in paragraphs 6 and 9 of Schedule 2, apply.  Regulation 6, paragraph 1 says as follows:

“The grievance procedures apply in accordance with the paragraphs (2)-(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 4.
 … 
or could do so if the action took place”

8.	The word “grievance” is not simply left open.  It is defined by Regulation 2.  It “means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him.”  We note that a grievance is therefore a complaint.  The complaint has as its essential characteristic to be “about” action by his or her employer.  We think that that must cover inaction as well as action but that point is immaterial to the present case.  It is action which “could form” the basis of a complaint by an employee to an Employment Tribunal. 

9.	It is plain that if the employer behaves in a way which an employee considers is in breach of his contract of employment, either by doing or failing to do something which the employee considers he should or should not do, that is subject to the Section.  It could form the basis of a complaint.  Consideration however of whether there has been a failure to follow or a compliance with the grievance procedures will be relevant only if the employee subsequently seeks to bring a complaint before the Employment Tribunal.  This is not a provision which requires an employee to make a complaint if there is something about which he could complain as a matter of general law.  

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”.  Although the word statement might suggest a degree of formality what is said is as follows:

“The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”
“Grievance” must be given the same force as it is in the Regulations.  It is therefore for the employee as a first step to complain in writing about that which his employer has or has not done in relation to him.

Step 2, described as a “meeting”, is set out in paragraph 7.  It provides:

“(i)	the employer must invite the employee to attend the meeting to discuss the grievance.  
(ii)	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 
(iii)	the employee must take all reasonable steps to attend the meeting
(iv)	after the meeting the employer must inform the employer 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 provides for an appeal.

The modified procedure is not directly relevant to the present case.  It provides for a written complaint and written response in those circumstances to which paragraph 9 of the Schedule applies.  

The Tribunal’s Conclusions as to the Jurisdiction Argument
11.	It was argued by McFarlane before the Tribunal as it was by him before us today that the Claimant had failed to comply with the statutory grievance procedure and that therefore there was no jurisdiction to hear the claim.  What the Tribunal found to have happened as relevant fact was that the Claimant had written in terms which the Tribunal summarised at paragraph 4.24 on 9 December.  We have seen a copy of the letter.  The Tribunal states:

“Firstly, the respondent had breached its own disciplinary procedures and the requirements of employment law in disciplining him without a full investigation, failing to give him the opportunity to see the evidence against him and hearing his point of view.  Secondly, there had been a misrepresentation of the company’s motives in putting him to work to the shop floor and he had been told that in view of his attitude to customers he was an unnecessarily expensive adviser being paid as a supervisor.  These accusations were, he believed, “a fabrication devised to remove me from the company and as such make my position untenable”.  He gave notice of his intention to leave at the end of the month “failing an alternative arrangement being agreed”.  The notice period was given to give the company an opportunity to put things right by retracting the warning and starting the process again, observing the correct procedures.”

12.	The Tribunal describes the company’s response at paragraph 4.25.  That response was to invite the Claimant to lodge an appeal against the verbal warning.  It gave no acknowledgement of what was later to be admitted: namely, that the procedures had been breached.  Mr Wilson replied that he would not attend an appeal unless instructed to do so as that would inevitably continue the character of a disciplinary meeting and that by attending he felt he would be legitimising a process he thought was defective.

13.	At paragraph 4.27 the Tribunal recorded the fact that the factory manager, Mr Pointon said that it had not occurred to him to treat the letter of 9 December as a grievance, and so he had not considered setting up a grievance meeting for the purpose of discussing it.  That, of course, may relate to pursuing a grievance within the company’s own contractual grievance procedure and it needs to be noted that we are concerned with the operation of the procedures referred to in statute which may in many, perhaps most, cases be different from contractual schemes.  But nonetheless it does indicate that the Tribunal had evidence that it had not occurred to a senior manager to treat the complaints as complaints which required a separate meeting to discuss them.  

14.	In his submissions to the Tribunal Mr McFarlane submitted that the Claimant’s letter of 9 December was not a grievance within the meaning of the regulations.  That was a bold submission to make.  The Respondents, in completing the response to the Tribunal claim when made had been invited to answer a question at paragraph 2.4:

“Had the substance of this claim been raised by the claimant in writing under a grievance procedure?”

They did so.  They answered ‘Yes’.  Accordingly, one might have been forgiven for thinking that there was no factual issue arising between the parties as to whether or not there had been a grievance within the terms of the 2004 Regulations.  Undeterred, however, Mr McFarlane made the submission to the Tribunal as he did to us.  In fairness to him it is right to record that at one stage he frankly observed that in the circumstances we had some right to be sceptical about it.  His submission was this.  It was that a written grievance in order to trigger a process should indicate as a matter of substance that the complainant wished to proceed further to some discussion or resolution of the matters of complaint.  In argument the term “complaint” has been used to describe a simple complaint implying no need for further discussion and “complaint plus” as indicating a complaint which within its terms suggests the triggering of some more formal process.

15.	He argues that the grievance within the regulations is part of a process which is carefully designed to give the employer a chance to respond and the employee a chance to discuss the subject matter of any grievance or complaint so as to avoid the necessity or the time, trouble and waste of resources both in terms of time and money of the Courts and the parties in the determination of a Tribunal claim.  This purposive approach to the Regulations thus would require that the complaint should indicate that it is intended to be taken further.  The Tribunal answered that in these terms:

“13	We reject the submission.  We find the letter of 9 December sets out very clearly a statement of Mr Wilson’s complaints about the actions the company had taken against him: principally that it had breached the disciplinary procedure and issued a warning without a fair process.  We considered that letter satisfied the definition of “grievance in reg 2(1).  The claimant gave notice of his intention to leave on 31 December “failing an alternative arrangement being agreed”.  We find that this gave the employer an opportunity to fix a meeting to discuss the complaint.  We find the respondent’s failure to do so, instead requiring the claimant to appeal against the verbal warning, was a failure to comply with “step 2” of the statutory procedure.”

It went on in paragraph 14 to say that it therefore found the Tribunal had jurisdiction to hear the claim.  

16.	We consider that the Tribunal was entirely right to take the view it did.  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.  As we have already noted that requires a complaint.  It does not in its terms require anything more than that, however desirable it might be for any letter or statement to indicate that that the complaint may go further.  What is looked at is a matter of substance.  The issue whether there was such a complaint in the present case was plainly resolved by this Tribunal.  The only argument to the contrary would be one of perversity.  That is not alleged nor we think could it be sustained upon the findings of fact which this Tribunal made.  

17.	In part of his argument Mr McFarlane sought to link the question of whether there was a sufficient grievance to comply with Step 1 of the grievance procedure under Schedule 2 with the question of whether there had been a meeting.  His argument was to the effect that in the circumstances of the present case the Claimant had refused a meeting when, following his complaint, he was invited to one.  Accordingly, he had demonstrated by that refusal that he had no intention of pursuing the complaints he had made in the letter of 9 December through to any form of process.  Accordingly, since he did not intend that the complaints would act as the starting point of a process of discussion and possible resolution they could not qualify as a complaint or grievance within the regulations.

We reject that submission.  It is attempting to argue “complaint plus” in another guise.  We should add that it seems to us that what is essential is that the substance of complaint is raised.  What does not matter is the particular form or indeed the particular time at which it is raised.  We are told by Mr McFarlane that there have been a number of cases in which an employee has complained about circumstances which have subsequently given rise to his resigning and alleging that his resignation amounts to a constructive dismissal.  Apparently some Tribunals even if he has complained before resigning have taken the view that, such an employee is required to complain once again about the circumstances which have culminated in his constructive dismissal if he is to be able to pursue a claim before the Employment Tribunals.  The unreality of such a procedure in most cases is readily apparent.  We cannot say there may not be some cases in which it is appropriate but will merely observe, in case it may assist others, that what matters is that the statute is complied with.  The statute does not require any particular timescale in respect of the complaint.  It requires that the complaint is raised in writing.  It does not require any particular formality about it.  We consider that in any case in which the substance of the complaint has been raised, and in which there has been subsequent discussion between the parties about that complaint, it is likely that the requirements of the Regulations will have been fulfilled.  However, we appreciate that this can only be a general statement, and we appreciate (in case it should be relevant in later cases) that so far as the present case is concerned it must be regarded as guidance and not ratio.  

18.	The second argument that Mr McFarlane proceeded to was to urge upon us that by refusing to attend the meeting which was called as an appeal from the disciplinary hearing which gave him the warning the Claimant had failed to attend a meeting which would comply with stage 2 of the grievance procedures.  Thus because it was his fault that such a meeting had not taken place he would be disabled from bringing a claim before the Tribunal.  What the Tribunal said about that was at paragraph 16.  At paragraph 13 it had observed that the meeting which was called was by way of appeal against a verbal warning.  At paragraph 16 it added:
“… in any event, an appeal hearing, in which the Managing Director’s role was to review Mr Pointon’s decision was entirely inappropriate in this case and could not have cured the breaches of the disciplinary procedure which had occurred.”

19.	Mr McFarlane compared and contrasted what he had originally submitted was an impermissibly wide view taken by the Tribunal of the necessary contents of a grievance, if it were to comply with the 2004 Regulations, with what he argued was an over narrow view of the meeting which would have to be called in respect of the grievance procedure.  That meeting is, we remind ourselves, described in paragraph 7 of Part II of Schedule 2 of the Employment Act 2002 in these terms: “the employer must invite the employee to attend a meeting to discuss the grievance”.  There has to be an invitation, which is at least specific, to a meeting which according to the wording has a purpose.  We cannot see that “a meeting to discuss the grievance” can comprehend a meeting without that purpose.

20.	Although we can well understand that a small employer, for instance may respond, to a situation in which an employee such as the present Claimant objects to both the substance of a disciplinary hearing and the procedures by which it has occurred by seeking to resolve those issues, the appeal and the complaint at one and the same hearing.  But it must be in substance at least part of the purpose of the meeting to discuss the grievance itself.  There is a plain link between the purpose of the meeting and the invitation to it which suggests to us that the substance of the matter is that the employer must indicate to the employee that there is to be a meeting which in substance will at least in part deal with the complaints which he has already made.

21.	Mr McFarlane argues that there was such a meeting here.  The meeting by way of appeal was a meeting at which inevitably the Claimant would raise the subject matter of his complaint.  He urges that such a meeting would fulfil the requirements of the Act.  We are of the view that “a meeting” is insufficient.  Indeed, Mr McFarlane accepted that an invitation by an employer to any meeting subsequent to a complaint would be insufficient to come within the statutory requirement set out in paragraph 7 of the Schedule.  A meeting about a completely different subject for instance might be a practical opportunity for an employee to raise matters of concern with an employer, but unless the meeting has the purpose at least in part of discussing those concerns it will not be a meeting which will comply with the requirements.  Mr McFarlane, it seems to us, felt constrained in argument to accept that.  It is our view therefore that the meeting must relate to the substance of the grievance.

22.	In the present case the Tribunal identified the substance of the grievance as having been the Claimant’s objection to being put through a disciplinary process which he should not have been put through, and which if it were to have taken place at all should have taken place in compliance with his contract and not in breach of it.  We consider that the Tribunal took the view of that what the employer was doing in response was to ignore the Claimant’s complaints.  Instead it sought to deal with an appeal.  The appeal, particularly given that it was by way of review, would be based upon the procedural appropriateness of the first hearing.  The meeting was therefore called upon a basis which assumed the opposite of that which the Claimant was asserting.  On the face of it, it did not appear in substance to have, as its purpose, a discussion as to whether or not the procedure had been properly undergone.  Rather, it prejudged that issue and did so contrary to the Claimant.

23.	It seems to us,as Mr Yeboah pointed out in argument, that there is in any event a difference between a grievance and a disciplinary procedure.  The essence of the latter is that the employer invokes it where an employee is said to have done wrong.  On the other hand, a grievance procedure begins where the employee is upset by that which is done by the employer.  The two have rather different objects in mind.  In this case the Tribunal regarded the meeting as being part of a disciplinary process.  The employers were not, in substance, responding to the complaint at all by offering to discuss it.  Accordingly, it seems to us that the matter is resolved as one of fact, in respect of which, once again, allegations of perversity are not advanced.  Even if they were they would have no reasonable prospect of success.  

24.  A third ground of appeal was iterated in the skeleton argument of Mr McFarlane.  That was predicated upon the second ground of appeal and we should therefore say no more about it, the second ground of appeal have fallen.  It follows that for the reasons we have given that, despite the best efforts of Mr McFarlane, we cannot see that any error of law arises.  The fact that this legislation is relative by untried and untested does not in this case give rise to a need to consider it with the assistance of the Claimant’s representatives.  We felt able to resolve the issues of law such as they are, at this stage.  No other conclusion is reasonably arguable.  The appeal is dismissed.