Appeal No. UKEATS/0022/06/RN & UKEAT/0023/06/RN

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

	At the Tribunal
On 18 August 2006

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

UKEATS/0022/06/RN

MRS C BISSET	APPELLANT AND 

MS CLARICE MARTINS	FIRST RESPONDENT

CASTLEHILL HOUSING ASSOCIATION LTD 	SECOND RESPONDENTS

UKEATS/0023/06/RN

MS CLARICE MARTINS	APPELLANT

MRS CAROL A BISSET	FIRST RESPONDENT

CASTLEHILL HOUSING ASSOCIATION LTD	SECOND RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For Ms Clarice Martins	Mr Napier, Q.C.
Instructed by: 
Messrs Allan McDougall & Co Solicitors
3 Coates Crescent 
Edinburgh
EH3 7AL 	
For Castlehill Housing Association Ltd	Mr Clark, Solicitor
Messrs Paull & Williamsons Solicitors
Braemar House
267 Union Street
Aberdeen
AB11 6BR	
For Mrs Carol A Bisset	Mr Kemp, Solicitor
Messrs Simpson & Marwick Solicitors
4 Carden Terrace 
Aberdeen
AB10 1US	

SUMMARY

Time bar.  Whether separate time bar for claim against fellow employee respondent. Employment Tribunal found there was not but the Employment Appeal Tribunal disagreed.  The claims were separate and the extension provisions of regulation 15 of the 2004 regulations did not apply in the case of the claim against the fellow employee.  Grievance letter.  Whether adequate notice of disability discrimination claim.  Circumstances in which tribunal erred in their assessment of the letter as not giving such notice.

THE HONOURABLE LADY SMITH

Preliminaries 
1.	These cases are two appeals arising out of a judgment of an employment tribunal sitting at Aberdeen, Chairman Mr R G Christie, sitting alone, following a preliminary hearing at which the issues of whether the case against the second respondent was time barred and the competence of a claim against both respondents under the Disability Discrimination Act 1995 were considered.

2.	The Chairman determined that the case against the second respondent was not time barred.  He dismissed the claimant’s complaint insofar as it was brought under the Disability Discrimination Act 1995 (“DDA”) in respect that he was of the view that the claimant’s grievance letter gave no notice of any such claim.  She had not, accordingly, complied with the requirements of s.32 and schedule 2 to the Employment Act 2002 (“the 2002 Act”). 

3.	I will refer to parties as claimant (Ms Clarice Martins), first respondents (Castlehill Housing Association Ltd) and second respondent (Mrs Carol A Bisset).

Introduction
4.	As at 6 May 2005, it appears that there was an ongoing disciplinary process against the claimant.  On that date she wrote a letter to the first respondents headed: 
“Grievance against Carol Bisset and Gordon Kyle”.

The second section of the letter specified her grievance against Gordon Kyle and included the following:

“9. 	Refusal to abide by my reasonable request to have all correspondence relating to the disciplinary hearing sent to my representative, Victor Fraser, in the first instance.  I have made this request because Castlehill’s aggressive correspondence to date has seriously affected my health.  Gordon’s letter of 29 April, threatening summary dismissal, felt like the last straw.  Direct receipt of correspondence that constantly moves the goal posts has resulted in exacerbating my work related condition of stress, anxiety and depression.” 

That letter was not copied to the second respondent.

5.	The claimant was dismissed on 9 May 2005.

6.	The claimant’s complaints, which were contained in a form ET1 presented to the tribunal on 8 August 2005, were in respect of allegations of unfair dismissal, race discrimination, disability discrimination and holiday pay.  Under the heading “Disability Discrimination”, she stated:
“Further following the commencement of the Disciplinary process the Claimant requested that all correspondence in connection therewith be forwarded to Victor Fraser.  The Respondents refused to do this.  In these circumstances it is asserted on behalf of the Claimant that they failed to take (sic) reasonable adjustment.”

7.	The latest date of any discrimination by the second respondent that was alleged was 5 April 2005.  The tribunal application was, accordingly, presented more than three but less than six months after the latest act of discrimination complained of. 

The Issues 
8.	Two separate issues arose. 

9.	Firstly, could the claimant benefit from the extension of time provisions contained in regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the 2004 regulations”) in respect of her claim against the second respondent?

10.	Secondly, were the terms of the claimant’s grievance letter such as to satisfy the requirements of s.32 and Schedule 2 paragraph 6 of the 2002 Act that before presenting a claim to the tribunal, the employee must, in the case of certain claims (of which the present is one) have first set out the grievance in writing and sent it to the employer, insofar as the Disability Discrimination Act case was concerned? 

The Tribunal’s Decision 
Time Bar 
11.	The tribunal noted that both the Race Relations Act 1976 (“RRA”), by s.32, and DDA, by s.58, acknowledged an employer’s vicarious liability for the discriminatory acts of his employees.  They noted further that both pieces of legislation permitted findings of discrimination to be made against an individual employee.  On behalf of the second respondent, it was submitted that the grievance provisions did not apply to a complaint against an individual employee, that, therefore, the extension provisions contained therein did not apply and the case against the second respondent was time barred.  The tribunal rejected that submission.  They were satisfied that, despite the fact that the relevant statutory terms refer only to “employer”, they were wide enough to encompass action by a fellow employee and so the claimant was entitled to the benefit of the three month extension provided for by regulation 15 of the 2004 regulations.  The tribunal advanced two reasons for its decision.  Firstly, many employers were corporate bodies whose actions could only be carried out by individuals who were its employees who: 
“will almost always be fellow employees of the employee who is complaining.” (paragraph 20)

12.	That meant that where the 2004 regulations referred to “grievance about actions by the employer” that had to be read as including a grievance about actions of a fellow employee.  Insofar as the actions complained of required to be capable of forming the basis of a complaint by an employee to an employment tribunal (regulation 6 of the 2004 regulations), the present proceedings were encompassed because it was possible, under the provisions of RRA and DDA to take a complaint to the tribunal directed against an individual employee. 

13.	Secondly, tribunals were exhorted to avoid undue technicality, particularly if the result was to deny access to the tribunal.  The complaint about the second respondent was one and the same thing as the complaint about the first respondents; the second respondents’ approach was tainted with undue technicality in these circumstances.

Grievance Letter 
14.	Having examined the terms of the letter of 6 May 2005, the tribunal reached the view that in no respect could it be interpreted as covering a claim under DDA.   They, accordingly, dismissed that part of the claimant’s claim.  At paragraph 48, the tribunal having indicated how difficult it was to identify a clear complaint of discrimination on grounds of disability in the grievance letter states:
“However, there must be something in the content by which the employer can understand at least the general nature of the complaint being made.  The essence of a complaint under the DDA (and here I use deliberately general language) is that the employee has in some way been treated unfavourably for a reason which relates to a disability.  It is not particularly easy to see that, and perhaps particularly the causal link, in the present case.  Neither of the words ‘disability’ nor ‘discrimination’ is used in the letter but such omission is not fatal.  The problem lies more in the meaning that is conveyed by the content.”

15.	Paragraph 9 of the letter is given particular consideration and at paragraph 49 of the Employment Tribunal’s judgment, it is stated:
“I cannot construe what is said as in any way conveying the meaning that the actions complained of were themselves in any way carried out because of or for a reason related to a pre- existing condition, which is the essence of a Disability Discrimination Act 1995 complaint.” 

16.	In the same vein, at paragraph 52 of the tribunal’s judgment, it is stated:
“…some examination must be made in order to ascertain the meaning of what is being conveyed, and the question must still be – Would the employer reasonably understand upon receiving the letter that at least part of the complaint against him was that he had treated the claimant unfavourably because of an impairment which she had?  I cannot think that he would do so.” 

Submissions on Appeal on behalf of the Second Respondent 
Time Bar:
17.	Mr Kemp submitted that the tribunal had erred in law.  The starting point was to recognise that the claim against the second respondent was entirely distinct from the claim against the first respondents.  The fact that a grievance letter was sent to the first respondent had no effect on the time bar that operated against the second respondents.  That was not because a grievance letter required to be sent separately to the second respondent.  Rather, the statutory provisions did not require grievance letters to be sent to a fellow employee against whom a discrimination claim was directed, at all. 

18.	Mr Kemp referred to the three month time bar provisions that affected both race and disability discrimination claims:  RRA ss.54(1) and 68(1)(a), (7)(b) and (6); DDA s.17A and Schedule 3 paragraph (3).  The effect of these provisions was that, since the claimant’s claim against the second respondent was brought more than three months after the latest date that discrimination was alleged, it was ex facie time barred. 

19.	Did the provisions of the 2002 Act and the 2004 regulations change matters?  In Mr Kemp’s submission they did not.  The claimant had two claims, one against each respondent.  They were separate.   Whilst the first respondents were liable, under s.32(1) of RRA and s.58 of DDA, for the actions of the second respondent, she did not become liable for any action of theirs. 

20.	He drew attention to the fact that although, under s.29 of the 2002 Act, the Secretary of State was empowered to make provision for persons who were not employers to be treated as employers for the purposes of Schedule 2.  That power could, conceivably, have been used so as to provide that a fellow employee was to be treated as an employer for grievance procedure purposes, but that had not been done. 

21.	Mr Kemp referred to sections 31, 32, and 33 and to schedule 2 of the 2002 Act.  All these provisions were clearly intended to apply to employers but not to a case where a claimant claims against a fellow employee. What was the grievance procedure for?  It was to have the employer do something:  Shergold v Fieldway Medical Centre Employment Appeal Tribunal /0487/05, Arnold Clark Automobiles v Stewart & ors UKEATS/0052/05.  The whole ethos was to do with the resolution of disputes as between employer and employee.  Further, the definition of “grievance” in the 2004 regulations, solely focussed on the actions of the employer.  There was no applicable statutory procedure as between employee and employee. 

22.	Referring specifically to the tribunal’s judgment, Mr Kemp submitted that it was wrong to regard the two claims as the same.  Further, time bar was always technical and it was wrong to have approached matters otherwise.  Time limits required to be strictly enforced:  Robinson v The Post Office [2000] IRLR 804 at paragraph 32; Canary Wharf Management Ltd v Edebi [2006] IRLR 416 at paragraph 41.  The second respondent was entitled to the benefit of the time bar provisions and it was not open to the tribunal to rewrite the legislation which was what, in effect, they had done. 

23.	Mr Kemp submitted that the tribunal was wrong to have determined that the claim against the second respondent was not time barred.  It was, further, clear that it would not be just and equitable to allow any extension.  The claimant had a claim against the first respondents in respect of the actions of the second respondent that she complained of.  It was not suggested that the first respondents would not be able to meet any award which she succeeded in securing.  The only explanation that had been given for seeking to include the second respondent was that that was the claimant’s instructions.  Failing dismissal on grounds of time bar, there should, Mr Kemp submitted, be a remit leaving all questions of time bar standing on the basis that the issue of whether or not it was just and equitable to allow an extension could be determined after proof. 

Grievance Letter 
24.	Mr Kemp adopted the submissions of Mr Clark regarding the issue of whether or not the tribunal had erred in dismissing the DDA claim. 

Submissions on Appeal for the Claimant 
Time Bar:
25.	Mr Napier pointed out that regulation 6 of the 2004 regulations was wide enough to cover circumstances where an employee has a complaint about action taken by the employer and about action taken by a fellow employee for whom the employer is vicariously liable.  He submitted that it would make nonsense of the legislation to construe it so that the grievance procedure applied to the former but not to the latter. 

26.	He observed that the second respondent had been made the subject of a claim that was distinct from the claim made against her employer.  It was based on the assistance that she was deemed to have given the employer in the commission of the unlawful act arising from its vicarious liability.  The complaint was not, therefore, just about the second respondent’s own acts.  The effect of s.32(1) of RRA was that her grievance about the second respondent was also a grievance about action taken by the employer.  The point raised by the second respondent would have some force if she was a person who was not a fellow employee who had allegedly knowingly assisted an employer to commit an unlawful act (s.33(1)) since in that situation, s.32(1) would not apply . But that was not the situation. 

27.	The obligation was to comply with the statutory grievance procedure and it did not matter that the grievance was also concerned with action by a fellow employee.  There was no obligation to send a copy of it to the fellow employee. The tribunal had not erred. 

Grievance Letter 
28.	Mr Napier submitted that the tribunal had erred in finding that the grievance letter was defective so far as intimation of a complaint of disability discrimination was concerned.  He referred to paragraph 9 of the letter, which is quoted above.  That amounted to a complaint of a failure to make reasonable adjustments.  The tribunal had failed to consider whether the letter such a complaint.  It had considered whether or not the complaint was of less favourable treatment because of or on a ground related to disability.  But a failure to make a reasonable adjustment amounted to discrimination:  Beart v HM Prison Service [2003] IRLR 238 at paragraphs 26 and 27.  That was something that the tribunal appeared to have ignored.  

29.	The content of the grievance letter required the complaint to be essentially the same as that which was subsequently advanced before the tribunal:  Martin v Class Security Installations Ltd UKEAT/0188/06DM & UKEAT/0189/06 and Shergold v Fieldway Medical Centre.  That test was met.  The complaint made in each document was the same. 

Submissions on Appeal for the First Respondents
Time Bar:
30.	It had been intimated on behalf of the first respondents prior to the hearing that they did not oppose the second respondent’s appeal. 

Grievance Letter
31.	Mr Clark submitted that there was no express or implicit error of law in the tribunal’s decision.  There had been appropriate regard to the authorities and appropriate direction in law.  The tribunal had reviewed the terms of the letter and reached the view that they were not sufficient to amount to a grievance.  It was not for this tribunal to reach a different view on the question, which was one of mixed fact and law.  The claimant sought to take the comments of the tribunal in paragraphs 48 and 49 out of context.  They did not purport to make a detailed examination of disability discrimination.  They were expressed in general terms.  At paragraph 51, consideration had been given to a failure to make reasonable adjustments. 

Relevant Law 
32.	A number of statutory provisions require to be considered in the light of the arguments advanced. 

33.	The relevant provisions of RRA include:
“1(1)	A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(a) 	on racial grounds he threats that other less favourably than he treats or would treat other persons.”

4(1)	It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another.

32(1)	Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

(3)	In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.

33(1)	A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.

(2)	For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal.

54(1)	A complaint by any person (‘the complainant’) that another person (‘the respondent’) –

(a)  	has committed an act… against the complaint which is unlawful by virtue of Part II [, section 76ZA or, in relation to discrimination on grounds of race or ethnic or national origins, or harassment, section 26A, 26B or 76];  or
(b)	is by virtue of section 32 or 33 to be treated as having committed such an act… against the complainant,

may be presented to an [employment tribunal].

68(1)	An [employment tribunal] shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of –

(a)	the period of three months beginning when the act complained of was done.”

34.	The relevant provisions of the DDA include:
“3A(1)	For the purposes of this Part, a person discriminates against a disabled person if –

(a)	for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply.

(2)	For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.”

4(1)	It is unlawful for an employer to discriminate against a disabled person.

17A(1)  	A complaint by any person that another person –
(a)	has discriminated against him [, or subjected him to harassment,] in a way which is unlawful under this Part, or
(b)	is, by virtue of section 57 or 58, to be treated as having [done so],

may be presented to an [employment tribunal].

57(1)	A person who knowingly aids another person to do an [unlawful act] is to be treated for the purposes of this Act as himself doing the same kind of unlawful act.

(2)	For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 58 (or would be so liable but for section 58(5)) shall be taken to have aided the employer or principal to do the act.

58(1)	Anything done by a person in the course of his employment shall be treated for the purposes of this Act as also done by his employer, whether or not it was done with the employer’s knowledge or approval.

(5)	In proceedings under this Act against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from – 

(a)	doing that act;  or
(b)	doing, in the course of his employment, acts of that description. 

Schedule 3
3(1)	An [employment tribunal] shall not consider a complaint under [section 17A or 25(8)] unless it is presented before the end of the period of three months beginning when the act complained of was done.”

35.	As regards disability discrimination, it is evident from the terms of s.3A(2) that a failure to make any reasonable adjustments which an employer has a duty to make is, of itself, unlawful discrimination.  That is confirmed by what was said by Lord Justice Peter Gibson at paragraphs 26 and 27 of Beart v HM Prison Service.

36.	Accordingly, Parliament has, in respect of both race and disability, provided that that it is unlawful for employers to discriminate in certain respects.  Further, where an employee suffers discrimination at the hands of a fellow employee then, unless it is shown that the employer has taken such steps as were reasonably practicable to prevent such discrimination occurring, that discriminatory act will be regarded as having been done by the employer.  That being so, if it amounted to unlawful discrimination, the employer can be held liable for having breached the duty that the statute imposes on him, even although the actings complained of were not his but those of his employee.  In short, if the statutory defence of having taken reasonably practicable steps to prevent the discrimination is not made out, then vicarious liability will ensue. 
 
37.	Separately, Parliament has provided for the situation where a person knowingly assists the employer to commit unlawful discrimination.  In the case of the fellow employee, he can be held to have committed an unlawful act of discrimination not because he has breached any duty that the statute imposes directly on him but if the circumstances are such that his employer is held liable for the employee’s actions under the statutory provisions, or would be held so liable if it the statutory defence was not made out.  It is thus open to an employee claiming that he has been discriminated against to direct his claim against his employer for his own acts or for those of a fellow employee or both.  It is also open to him to direct his claim against a fellow employee if he was acting in the course of his employment and the claim against the fellow employee survives even if the statutory defence is made out by the employer.  It is possible, therefore, for a claimant to obtain an award against his employer or his fellow employee or against both and if the latter, there could, it seems, be separate or joint and several awards.  

38.	The relevant provisions of the 2002 Act include:
“29(1)	Schedule 2 (which sets out the statutory dispute resolution procedures) shall have effect.

(2)	The Secretary of State may by order –

(a)	amend Schedule 2;
(b)	make provision for the Schedule to apply, with or without modifications, as if –
(i)	any individual of a description specified in the order who would not otherwise be an employee for the purposes of the Schedule were an employee for those purposes;  and
(ii)	a person of a description specified in the order were, in the case of any such individual, the individual’s employer for those purposes.

30(1)	Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure.”

39.	The relevant provisions of the 2004 regulations include:
“‘grievance’ means a complaint by an employee about action which is employer has taken or is contemplating taking in relation to him.”

6(1)	The grievance procedure apply, in accordance with the paragraphs (2) to (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 3 or 4, or could do so if the action took place.

(2)	Subject to paragraphs (3) to (7), the standard grievance procedure applies in relation to any such grievance.

(3)	Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance where –

(a)	the employee has ceased to be employed by the employer;
(b)	the employer –
(i)	was unaware of the grievance before the employment ceased, or
(ii)	was so aware but the standard grievance procedure was not commenced or was not completed before the last day of the employee’s employment;  and
(c)	the parties have agreed in writing in relation to the grievance, whether before, on or after that day, but after the employer became aware of the grievance, that the modified procedure should apply.

15(1)	Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and –

(b)	either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;
the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.”

40.	Regarding time limits, it is, accordingly, clear that the starting point in discrimination cases is that the claimant’s application must be made to the tribunal within 3 months of the last act of discrimination complained of.  However, the tribunal has the power to consider an application made outwith that period if, in the circumstances of the case, it considers that it is just and equitable to do so.  Further,  where either of the two grievance procedures detailed in part 2 of schedule 2 to the 2002 Act applies, the three month period is extended by a further three months.  As to the correct approach when time limits are under consideration, the norm is that they are strictly enforced.  Whilst claimants may pray in aid their own special circumstances and those circumstances may, in an individual case, be such as can properly persuade the tribunal to relax the time limits, it is important that the a tribunal bears in mind the adverse consequences to a respondent of doing so.  Thus, in the case of Robinson, at paragraph 32, the President, Lindsay J, said:
“It is to be borne in mind that time limits in employment cases are, in general, strictly enforced – see London Underground v Noel [1999] IRLR 621, 624, para 21 CA and see also Aziz v Bethnal Green [2000] IRLR 111, in the Court of Appeal which again illustrates a strict approach to time limits, albeit different time limits, in the employment law field.” 

and in the Canary Wharf case, the President, Elias J, said, under reference to the 2004 regulations:
“These regulations can operate in a harsh way and it gives me no pleasure to say that I find that the tribunal lacked jurisdiction to deal with this matter in this case.  But as I have said, we must bear in mind that the employers also suffer an adverse consequence if one does not read the letter fairly and assess whether in all the circumstances it can properly and reasonably be said to have raised the complaint which has subsequently been put before the employment tribunal.” 

41.	Whilst the Canary Wharf case concerned the question of whether adequate notice of a disability discrimination complaint had been given in a grievance letter, rather than the, perhaps simpler, issue of whether the three month time limit should be extended on just and equitable grounds, the point made regarding the need to take account of adverse consequences to the respondent as well as the difficulty that a claimant may find himself in, would appear to be of wider application.  In particular, it would seem to be apt in the context of time limits.

42.	Turning to the matter of the effect of the grievance procedure requirements, the effect of s.32 of the 2002 Act is that a tribunal has no jurisdiction to entertain a complaint if concerns a matter in respect of which the claimant was required to issue a grievance in writing and the claimant has failed to do so.  The purpose of these requirements is, as has been discussed in previous cases (see:  e.g. Shergold v Fieldway Medical Centre; Arnold Clark Automobiles v Stewart & ors) to encourage conciliation, agreement and, if appropriate, compromise and settlement, rather than the pursuit of claims before the tribunal.  The requirement is one which is statutorily inserted into every contract of employment by s.30(1) of the 2002 Act.
Discussion and Conclusions
Time Bar:
43.	The claims against the first respondents and the second respondent are, I am satisfied, separate claims.  The latter could survive the former if, for instance, the first respondents make out the statutory defence.  There is potential for an award to be made against the second respondent and enforced against the second respondent.  A person in the position of the claimant could choose to direct his claim only against a fellow employee as might happen, for instance, if the employer is insolvent.

44.	I would add that I do not share Mr Napier’s view that it would be open to a claimant to direct a claim against a fellow employee purely because of a desire to obtain a declaratory order.  Whilst section 56(1)(a) of RRA empowers the tribunal to make a declaratory order, it can only do so in respect of the rights of a claimant and respondent in relation to the acts complained of.  The legislation does not, however, impose any duties on fellow employees – hence the need for the somewhat elaborate mechanism in sections 32 and 33 – and, accordingly, no correlative right in a claimant in respect of the actings of a fellow employee arises.  The right that the claimant has is the right not to be discriminated against by his employer.  Others, including a fellow employee, could be found liable, but only because they satisfy the statutory requirements whereby they are to be held to have aided the employer in breaching his duty.  I do not, accordingly, see that it would be open to a tribunal to declare that a fellow employee had infringed a claimant’s right not to be discriminated against.

45.	I am not persuaded by Mr Napier’s approach to the issue of whether or not the claims against the respondents are separate.  His approach involves regarding the claim against the second respondent as being, in effect, the same as the claim against the first respondents because of the statutory mechanism that makes it competent.  I recognise that the ability to advance a claim against the second respondent is dependent on the claimant also being able, in terms of the statutory provisions, to advance a claim against the first respondents.  No such claim could, for example, be advanced if the second respondent had been acting outwith the course of her employment.  That is because in those circumstances, the first respondents could not be made liable under s.32(1) of RRA and , as a consequence, she could not have satisfied the requirements of s.33(2) and (1), the provisions of which govern the competence of such a claim.  However, the fact that the route to the establishment of the competence of the claim against the fellow employee must necessarily pass through the possibility of a claim against the employer does not, in my view, have the effect of preventing the claim against the fellow employee emerging, at the end of that journey, as a separate claim in its own right.  It seems to me that the tribunal has clearly erred.  The fact that corporate employers act through employees is relevant to a consideration of the application of s.32(1) of RRA but does not have the effect of subsuming the claim that Parliament has allowed a claimant to make directly against a fellow employee (s.33(2) and (1)) within any s.32(1) claim that is also made.  Nor do I consider that it was appropriate to dismiss the second respondent’s time bar arguments as being unduly technical.  They are, certainly, the product of some complex legislative drafting but that does not mean that the second respondent is not entitled to advance them or that they are, being technical in that respect, wrong.

46.	I proceed, accordingly, on the basis that the claim against the second respondent is a separate claim and requires to be considered separately and in the same way as it would be considered if there were no claim directed against the first respondents.  The claimant intimated a grievance letter to the first respondents.  Does that mean that the extension provisions of regulation 15 of the 2004 regulations apply so as to extend the time limit for presenting the claim by a further three months?  My response is a resounding no. 

47.	Regulation 15 only confers the benefit of the extension if “either of the grievance procedures” applies.  So, did either of the “grievance procedures” contained in part 2 to schedule 2 of the 2002 Act apply so far the claimant’s complaint against her fellow employee, the second respondent, was concerned?  Plainly, they did not.  Firstly, the requirement to follow such procedures only arises because it is made a condition of every contract of employment (s.30 of the 2002 Act).  No contract subsists as between fellow employees.  Secondly, it is inconceivable that the grievance procedures were intended to operate as between employees.  They refer to steps that the “employer” must take which cannot be interpreted, in my view, as steps that could be required of a fellow employee.  A fellow employee could not, for instance, be expected to notify a complainant of his right of appeal.  Thirdly, it would not be possible to ascertain whether the standard or modified grievance procedure applied, (paragraph 6 of the 2004 regulations) that being a matter which depends on matters solely referable to the contract of employment.  It is clear that Parliament did not have in mind that grievance procedures should operate as between employees.  That was not the purpose of these provisions which are, rather, directed to encouraging the resolution of disputes arising out of the relationship of employer and employee without their having to have recourse to the tribunal.  The extension of the time bar period, though significant, is evidently seen as fair to employers because of the potential for resolution of the problem that Parliament thought the use of the grievance procedures would engender and the inclusion of statutory provisions designed to compel employees to comply with them.  None of that is to do with employees sorting out complaints between themselves. 

48.	I should add, however, that I do not share Mr Kemp’s view that the failure of the Secretary of State to make an order under s.29 of the 2002 Act which would have the effect of causing a fellow employee to be treated as an employer for the purposes of the 2004 regulations shows that that was not what Parliament intended.  Section 29 would not, it seems, empower the Secretary of State to do so; the power only arises in circumstances where a person who is not in fact an employee at all is to be treated as though he is an employee and another person is to be treated as though he is that person’s employer.  In the present case there is no doubt that the claimant was an employee at the relevant time; she is, in short, already an “employee for the purposes of the Schedule”, to use the language of s.29.  Her problem is not that she is not an employee but only that her fellow employee is not her employer.

49.	It is agreed that the claimant’s application was presented to the tribunal later than the expiry of the three month period after the last act of discrimination by the second respondent that is complained of.  As I have indicated, the three month time bar applies and is not automatically extended by the provisions of regulation 15.  That being so, the only question that remains is that of whether it would be just and equitable to allow the claim to be presented though out of time.  The tribunal did not deal with that question.  Were I to do so, I would be at risk of usurping its function.  I do not consider that it would be appropriate to decide the matter and will remit the case for that question to be considered.

Grievance Letter
50.	I have reached the conclusion that the tribunal erred in respect of this matter also.  Firstly, the tribunal have dismissed “the claim brought under the Disability Discrimination Act …as against both respondents”.  It is, however, plain from the terms of the grievance letter and the terms of the claimant’s ET1 form that she makes no allegation of disability discrimination against the second respondent.  Her only complaint of disability discrimination (as was confirmed by Mr Napier) was that the first respondents had refused to send correspondence relating to her being disciplined to her representative which adversely affected her pre-existing ill health.  It is, accordingly, wrong to suggest, as the tribunal’s order does, that there was ever such a complaint made against the second respondent.

51.	Secondly, it was incumbent on the tribunal to take account of the fact that a failure to make reasonable adjustments could, of itself, amount to relevant discrimination (s.3A(2) of DDA;  Beart v HM Prison Service).  The discussion in paragraphs 48 and 52 of the judgment clearly refer to the language of s.3A(1) but are not appropriate in the context of s.3A(2).  There is a passing reference to reasonable adjustments in paragraph 51 but it is not in relation to paragraph 9 of the part of the grievance letter relating to the claimant’s complaints about Mr Kyle having refused to accede to her request to redirect her correspondence.  Otherwise the clear impression given is that the tribunal have overlooked the fact that relevant disability discrimination could be found to have occurred in respect of a failure to make reasonable adjustments and that the part of the ET1 form relating thereto mirrors what is set out in the grievance letter.  The problem lies not in any failure on the part of the tribunal to take account or understand the principles as discussed, for instance, in the Shergold and Arnold Clark cases, but in failing to recognise that the grievance letter did set out a description of a relevant disability discrimination complaint.

Disposal 
52.	In the foregoing circumstances, I will pronounce an order which (a) remits to the same tribunal to determine whether it is just and equitable to allow the claim against the second respondent to be considered notwithstanding that it is presented out of time, and (b) setting aside the tribunal’s determination that the claimant’s claim under the Disability Discrimination Act 1995 claim be dismissed.