Appeal No. UKEAT/0116/09/MAA
UKEAT/0117/09/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 April 2009

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

MISS D SADARE	APPELLANT

LONDON BOROUGH OF LAMBETH	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J NECKLES
(Representative)	
For the Respondent	MR N SCAMPION
(of Counsel)
Instructed by:
London Borough of Lambeth
Corporate Legal Team
Room 205
Lambeth Town Hall
London SW2 1RW

SUMMARY

PRACTICE AND PROCEDURE: Review
JURISDICTIONAL POINTS: 2002 Act and pre-action requirements

The Tribunal held (a) that Appellant’s unfair dismissal claim was out of time and (b) that she had not previously lodged a grievance relating to her disability discrimination claim, so that the Tribunal had no jurisdiction by virtue of s.32 of the Employment Act 2002.  As to (a), appeal dismissed because the decision had been varied on review.  As to (b), held that although the acts complained of had been the subject of a grievance it was necessary for the purposes of s.32 that the employer should have been enabled to understand the legal character of the complaint being made; and that since the acts in question had been explicitly characterised as complaints of race and sex discrimination and there were no indications of a complaint of disability discrimination that requirement was not satisfied.  

THE HONORABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	The Claimant was employed by the London Borough of Lambeth, to which I will refer as “the Council” until her dismissal with effect from (subject to what I say at para. 3 below) 24 October 2007.  On 18 February 2008 she presented a claim in the Employment Tribunal raising a number of claims arising out of her treatment in the course of that employment and her eventual dismissal.  At or following a pre‑hearing review and case management discussion before Employment Judge Cheetham sitting at London (South), a number of preliminary rulings affecting those claims were made.  As a result of the judge being ill, the record of and reasons for those decisions was not signed until 27 June 2008 or sent to the parties until 4 July.

2.	The Claimant has appealed against two of those rulings, namely (a) that her claim for unfair dismissal was out of time and that, accordingly, the Tribunal had no jurisdiction to entertain it and (b) that the Tribunal did not have jurisdiction to hear a complaint of disability discrimination because no prior grievance had been lodged as required by section 32 of the Employment Act 2002.  The Appellant also sought a review as regards both those decisions, but on 24 July 2008 the Judge rejected that application on the basis that it had no reasonable prospect of success.  The Appellant appeals against that decision also.  She is represented before me by Mr John Neckles of her trade union, who also appeared below.  The Council is represented by Mr Nicol Scampion (of counsel) who did not appear before the Judge.  I will deal with the two substantive appeals in turn.

The Unfair Dismissal Claim

3.	The case proceeded before the Judge on the basis that the effective date of termination was 24 October 2007: Mr Neckles suggested before me that that might in fact have been wrong, but he accepted that for the purpose of this appeal I must proceed on that basis.  On that basis the three-month primary time limit for lodging a claim for unfair dismissal expired on 23 January 2008.  The Claimant’s claim was, therefore, prima facie presented four weeks late.  However, Mr Neckles submitted to the Tribunal that she was entitled to the benefit of the three‑month extension provided for by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 because she had (see regulation 15(2)):
“… reasonable grounds for believing … [as at 23 January 2008] … that a dismissal or disciplinary procedure … was being followed in respect of her dismissal.”

It was his case that the Claimant had submitted an appeal against her dismissal on 30 October 2007 and that since it had not been heard or determined she had reasonable grounds for believing that it was still in progress.  The Council denied that any appeal had been lodged.  

4.	The factual evidence relevant to that point derives from witness statements from the Claimant herself on the one hand and from a Ms Carter of the Council’s Employee Relations Department on the other.  Neither of them was cross‑examined, although the Judge recorded that the parties were “given the opportunity to call evidence”.  (What happened in this regard may not be entirely clear.  The Judge complained that he was under considerable time pressure to deal with the large number of points raised, and there may therefore have been some pressure on the representatives to agree to the procedure followed.)  In addition to the two witness statements - and perhaps in the circumstances rather more importantly - there was a bundle of contemporary correspondence.  

5.	Part of the Council’s case was that it was clear from the correspondence that even if the Claimant had indeed lodged an appeal on 30 October, she could not reasonably have believed that that appeal was being entertained.  The Employment Judge accepted that submission.  At paragraph 8 of the record of his decision he said simply this:
“Given the notification from the Respondents that the appeal had not been received, the Claimant did not - to paraphrase the Regulation - have reasonable grounds for believing, on 23 January 2008, that a dismissal procedure was being followed in respect of her unfair dismissal complaint.”

6.	The Claimant contends in her Notice of Appeal that in effect that conclusion was not reasonably open to the Judge on the basis of the correspondence to which he had been referred.  

7.	Mr Scampion submits that I need not, and indeed ought not to, consider that issue, or therefore the substance of the appeal at all, because events have moved on since the decision of the Judge and indeed since his first refusal to review.  As part of the order made on the sift on 19 August 2008, this Tribunal invited the Judge to consider some of the points made in the Notice of Appeal, in particular by reference to documents on which Mr Neckles claimed to have relied; and in consequence of that invitation on 15 September 2008 the Judge decided to conduct a review pursuant to rule 34(5) of the Employment Tribunal Rules.  On 4 November he, in effect, revoked his order of 27 June 2008, with the effect that the issue of whether the unfair dismissal claim was in time and more specifically of whether the Claimant was entitled to rely on regulation 15(2) remained live before the Tribunal.  He said that the issue was one which in the light of the documents which he had now considered, or reconsidered, required oral evidence.  At a subsequent case management discussion on 5 February 2009 that stance was confirmed.  In the record of the discussion, and after setting out the recent history on the point, the Judge said this, at paragraph 4:
“For the avoidance of doubt, the Tribunal reversed its decision that it had no jurisdiction to hear the unfair dismissal complaint, because it became apparent from looking at further documents that this was an issue that needed to be tested at the full merits hearing.  Therefore the issue of whether or not the Tribunal has jurisdiction to hear the unfair dismissal claim has yet to be determined.  It may be appropriate to deal with this as a preliminary matter at the start of the full merits hearing, but that is a matter for that particular Tribunal to decide.”

Mr Scampion submits that it would be plainly wrong for me to entertain an appeal from a decision which has since been revoked.  

8.	Mr Neckles however submits that the stance adopted by the Judge on the review is unsatisfactory and indeed self‑contradictory.  He submits that there is an inconsistency between his initial revocation of the order of 27 June and his treatment of the issue as one which is still open and falling for determination at the merits hearing.  He contends, as I understand it, that it follows from the fact that the original order was revoked that the Judge ought to have held that the Tribunal had jurisdiction; or in any event that in the interests of justice he should have grasped the nettle and decided the issue on that occasion - in which case he should, on the evidence before him, have decided it in the Claimant’s favour.  On that basis, he invited me to consider the appeal and submitted that I should allow it and hold definitively that the Tribunal had jurisdiction.  

9.	I am not prepared to take the course urged on me by Mr Neckles.  There may be a formal difficulty, in as much as his objection, in the circumstances as they now are, is not so much to the Judge’s original order as to his subsequent orders of 4 November 2008 and 5 February 2009 (being the date of the recent pre‑hearing review and case management discussion); and those are not the subject of this appeal.  But if that were the only difficulty it could perhaps be got round.  The more substantial point is that I do not think that it would be right for me to go behind the Judge’s conclusion that the issue is one which requires further consideration with the benefit of oral evidence.  I may as well say, since the parties are already aware of it, that I had on my pre‑reading of the papers on this appeal reached the provisional view (I emphasise provisional) that simply on the contents of the witness statements and the correspondence the Judge’s decision was, at the very least, highly questionable.  I can understand the argument that, since apparently both parties were content to allow the hearing on 7 May to proceed without oral evidence, it would be wrong now to allow the Council a second bite of the cherry.  But in my view that would be putting procedural matters before substantive justice.  The Judge had written submissions, which I have not seen, before making his decision of 4 November, and he heard further oral argument at the case management discussion on 5 February.  His decision that it was necessary in the interests of justice for the issue to be determined with the benefit of oral evidence was a case management decision which I ought to respect unless I was satisfied that it was clearly wrong.  I am not so satisfied.  It remains to be seen how much light oral evidence may shed on the issue under regulation 15(2), but I cannot say that it is plain that it will shed none.

10.	Accordingly, I do not think it is right for me to entertain the appeal as regards the Judge’s refusal of jurisdiction to hear the unfair dismissal claim.  It is perhaps a moot point whether the correct order is for me to dismiss the appeal; but I think that is the cleanest course to take, and I do so.  

The Claim under the Disability Discrimination Act

11.	The Claimant went off sick in February 2007 and at that point, or shortly thereafter, underwent an operation.  The Council has never been told the nature of that operation, apparently for reasons of confidentiality, and the sick notes received thereafter referred merely to “post‑operative complications”.  On 25 September 2007 the Claimant attempted to return to work, but she was told that she could not do so without a certificate from her GP that she was indeed well enough to return to work.  She did not in fact return at any time prior to her dismissal a month later.  As a result, she received only sick pay - or indeed, it may be, no pay at all if her sick pay had run out in the period from her attempted return to work at the end of September and the eventual termination of her employment.  

12.	That sequence of events formed part of the matters complained of in the ET1.  Paragraphs 35 to 37 make claims under different sections of the Disability Discrimination Act 1995 - specifically sections 3A(1), 3A(2) and 3A(5) - arising out of the same acts complained of, which are pleaded as follows: (a) a failure to permit the Claimant to return to work on 24 September 2007; (b) a failure to hold a return-to-work interview or meeting, notwithstanding that the Claimant had presented herself as fit and had obtained the necessary GP consent to return to work; and (c) a failure to pay the Claimant her salary or pay during the intervening period when she was prevented from returning to work.

13.	At the pre-hearing review on 7 May 2008 the Council took the point that no grievance had been lodged relating to the complaints so pleaded, and accordingly that the Tribunal had no jurisdiction to entertain them by reason of the provisions of section 32 of the 2002 Act.  

14.	The Judge’s decision on the point is brief.  Paragraphs 15 and 16 of the record of the pre‑hearing review and case management discussions read as follows:
“15.	The next matter concerned the Claimant’s grievance and the requirements of the Employment Act 2002 s.32.  The date at paragraph 3.5 of the Claim Form is incorrect and should read 6 December 2007.  The parties were given the opportunity to call evidence (there being witness statements before the Tribunal) but decided to approach this matter by way of submissions, with the Tribunal reading the statements.
16.	The grievance that was brought in December 2007 did not refer to the allegations of pre-dismissal disability discrimination (which are set out at paragraph 35 of the Grounds of Complaint).  Mr Neckles took the Tribunal to a number of documents, from which he claimed the Respondent should have inferred that the Claimant had a grievance relating to disability discrimination.  However, looking at these letters (including a letter of 25 September 2007 and a letter headed ‘Grievance Complaint’ of 15 October 2007), the most the Respondent will have understood was that the Claimant had health problems and that there was also a problem about her return to work.”

15.	On this appeal the Claimant contends that that conclusion was not open to the Judge on the documents put before him.  Mr Neckles relies on three documents in particular.  

16.	First, he relies on a document headed “Grievance Complaint” submitted by the Claimant to Ms Carter on 15 October 2007.  This reads as follows:
“This complaint is brought against Mr Julius Joseph on grounds of Race & Sex Victimisation, bullying and harassment.  This complaint is further reliant upon the attached chronology of facts herein attached in its totality. 
Complaint:
That on 25th September 2007 Mr Julius Joseph did carryout the acts/actions as described in my factual chronology herein attached.  The result of such actions which I deem amounts to unfavourable treatment, harassment; bullying and victimisation resulted in me suffering the following detriment:
•	Loss of Wages contrary to section 13 & 14 Employment Rights Act 1996
•	Medical Suspension in breach of contract
•	Exclusion from my place of work
•	The non contractual requirement to supply a GP Medical Certificate certifying my express fitness to return to work
•	The allegation of being in breach of the Sickness & Health & Safety Procedures, which is nothing more than a guise of retaliation for bringing ET Claims against my employer and some of its employees (Mr Brian Deans, Alam Choudry, Dan Seamer & Mrs Kelly Hemmise)”  

17.	Secondly, Mr Neckles relies on a letter written on the Claimant’s behalf on 19 October from an organisation called the Brighton and Hove Race Project.  I will not read that out in full but it raises essentially the same matters as the “Grievance Complaint” which I have just set out, though it does so in a little (though not much) more detail.  I should however refer to one paragraph in which the author of the letter says:
“We hope that you will appreciate that the events taking place must necessarily put immense stress, strain and pressure upon Denise Sadare and may have an impact upon her recuperation from her long term illness.”

18.	Finally, Mr Neckles relies on a letter from the Claimant to the Divisional Director of Environment, Culture and Community Safety at the Council dated 8 November 2007.  This is much less full than either of the previous letters in setting out the background to the complaint, but it contains a complaint for unpaid wages in the period from 25 September to 25 October, referred to as the period of “my medical suspension by Mr Julius Joseph”.

19.	There is no doubt from those documents that the Claimant had, prior to the presentation of her claim to the Employment Tribunal, complained about the facts set out in paragraphs 35 to 37 of the ET1.  But Mr Scampion’s point, which was equally made to the Judge at the pre‑hearing review, was that those documents did not contain any mention whatsoever of the Disability Discrimination Act or any indication from which the Council could or should reasonably have inferred that the Claimant was advancing a complaint that her rights under the Act had been infringed.  That contention in my judgment is clearly correct.  I have set out the entirety of the initial document headed “Grievance Complaint”:  this complains in terms of “race and sex victimisation”, but it contains not the slightest indication either that the Claimant regarded herself as disabled or that the acts of which she complained were said to involve a breach of her rights under the 1995 Act.  The same is true about the two other documents on which Mr Neckles relies, notwithstanding the passing reference to “long-term illness” in the letter from the Brighton and Hove Race Project.

20.	Mr Neckles submits that it is necessary to read any document which is relied on as constituting a grievance for the purpose of the statutory procedures in the factual context that would have been known to the employers.  I accept that proposition.  He submitted that once one factors in the fact that, as the employers knew, the Claimant had undergone an operation, and had thereafter been off sick for some seven months until her attempt to return to work in September, it should have been apparent that among the claims which she wished to advance was a claim for disability discrimination.  I cannot accept that.  The mere fact that the Claimant had had an operation and subsequent to that had suffered unspecified complications which had kept her away from work for over six months, would not in my view lead any employer to conclude either that she was disabled or still less that she wished to complain of disability discrimination - still less so when she goes out of her way to identify other forms of discrimination of which she does wish to complain.

21.	Mr Neckles also submitted that it was not open to the Council to complain of any obscurity as to the nature of the initial “step 1 complaint” when it itself had been in breach of its obligation to hold a “step 2 meeting”.  I am not sure that even if that submission were factually well-founded it would be correct: the “step 2” obligation only arises to the extent that the employee has properly taken step 1.  But in any event it fails on the facts.  The Council did call a step 2 meeting.  A letter to that effect was sent on 18 October 2007.  Mr Neckles’ case to the contrary depends on the fact that the Council’s response to the letter from the Brighton and Hove Race Project was effectively to decline to deal with that organisation until it had confirmation that it was acting with the Claimant’s authority.  Whether or not that stance was reasonable (and presently advised I cannot see that it was not), the contents of the letter of 19 October from the Project did not add substantially, at any rate for present purposes, to what had already been said in the Claimant’s own grievance.  The fact, therefore, that the Council did not follow it up in any substantive way did not invalidate the attempt to arrange a meeting.

22.	I raised with both representatives the question whether it was indeed necessary for the purpose of section 32 that the grievance should identify, however summarily or inferentially, the legal nature of the claim relied on.  In other words, might it not suffice that the Claimant had raised a complaint about the selfsame acts, irrespective of the legal characterisation of that claim?  That question does not appear to have been addressed head-on in any of the now quite numerous authorities on the requirements of a grievance under the statutory procedure.  In response, I was taken to the principal authorities, specifically Shergold v Fieldway Medical Centre [2006] IRLR 76, Canary Wharf Management Limited v Edebi [2006] IRLR 416 and Suffolk Mental Health Partnership NHS Trust v Hurst [2009] IRLR 12.  Having considered those authorities, it seems to me that their general thrust is indeed that it is necessary that the legal character of the claim being raised should be at least ascertainable; and in my view that is confirmed, even though the matter is not expressly discussed, by the reasoning of Elias J in the Edebi case.  In that case the Claimant had raised a grievance which clearly complained about his working conditions, with reference in particular to the impact on his own health, but that was held to be insufficient to raise a statutory grievance corresponding to a subsequent claim under the Disability Discrimination Act of a failure to make reasonable adjustments.  I refer to, but I need not set out, the summary of the parties’ submissions at paragraphs 35 to 40 of the judgment, and to the terms in which Elias J accepted the argument for the employer at paragraph 41.  He said this:
“But I do not think that it would be just to these employers, on a fair reading of the letter, to say that his references to his health problems fairly raised, even in a non-technical and unsophisticated way, an issue which the employer could reasonably understand had arisen under the Disability Discrimination Act.  He has not identified any failures specifically to make adjustments in this case, nor has he alleged that he was treated less favourably than other security officers in the same situation.”

23.	This approach, even if it may operate harshly in some individual cases, seems to me to conform to the policy of the Employment Act 2002 regime - and certainly in a case where, as here and in Edebi, there was a complaint of failure to make reasonable adjustments under the 1995 Act.  In order for the grievance procedure to have any real effect, it is necessary for the employer to know that the employee is alleging breaches of legal rights arising under that Act.  As I have already concluded, there is no such implication in the documents here: indeed, there were clear indications that the claims which the Claimant wished to advance were of discrimination of a completely different kind.  

24.	I was also referred to the judgment of HHJ Reid QC in Serco Group Plc v Wild UKEAT/0519/06.  That was a case in which a female employee had lodged a grievance complaining that she was being paid less than her colleagues, who included men; but she had not specifically referred to a claim under the Equal Pay Act 1970.  Judge Reid QC held that her complaint was nevertheless sufficient to constitute a grievance raising a claim under that Act, because, having regard to the background (which he set out in a little detail, including the crucial fact that the some of the colleagues in question were men):
“…It can have come of no surprise to them [Serco] that this grievance about pay, set out specifically as a grievance about her treatment in relation to a comparator, should be formulated as an equal pay claim under the Equal Pay Act …”

That conclusion seems to me wholly unexceptionable, but the circumstances are not comparable to those of the present case.  

25.	In those circumstances, it seems to me that the Judge’s decision, for the reasons which he shortly gave, was entirely open to him in law and was indeed correct.  I must therefore dismiss the appeal.  

26.	Finally, since the appeal against the Judge’s initial refusal to review is essentially parasitic on the two substantive appeals that too must be dismissed.