Appeal No. UKEAT/0645/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 March 2007
Judgment handed down on 28 March 2007

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

LONDON BOROUGH OF HOUNSLOW	APPELLANT

MR A MILLER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JONATHAN COHEN
(of Counsel)
Instructed by:
London Borough of Hounslow
Legal Services
The Civic Centre
Lampton Road
HOUNSLOW
TW3 RDN	
For the Respondent	MS RHEIAN DAVIES
Instructed by:
Messrs Ashton Rowe
Solicitors
128 Northfields Avenue
Ealing
LONDON
W13 9RT	

SUMMARY

Contract of Employment -&- Unfair Dismissal

The employee lodged two complaints, one of disability discrimination and one of unfair dismissal.
Tribunal Chairman stayed the complaint of disability discrimination pending compliance with the grievance procedures.  The employers contended that this was inconsistent with the statutory provisions, that a stay was impermissible, and that a fresh complaint had to be lodged once the statutory procedures had been complied with.  The EAT agreed and upheld the appeal on this point. 
The employers also challenged the decision of the Chairman to extend time under section 111 of the Employment Rights Act 1996 to allow an unfair dismissal claim to be pursued.  This ground was dismissed; the Chairman had not misdirected himself or reached a perverse decision. 

THE HONOURABLE MR JUSTICE ELIAS 

1.	This is an appeal against the decision of the Chairman, Mr Snelson, who held that the Employment Tribunal had jurisdiction to hear the respondent’s claim of disability discrimination, and also unfair dismissal.

The background
2.	The background can be summarised relatively briefly. Mr Miller, the respondent to the appeal, was employed as an approved social worker (“ASW”) by the London Borough of Hounslow. On 20 July 2005 Hounslow suspended his ASW warrant. Following an investigation, they made certain disciplinary charges relating to his conduct at work and the performance of his duties.

3.	He was subjected to disciplinary proceedings which culminated in a written warning which was given to him on 16 January 2006. He was sent a letter by his employers in which he was told that he could either appeal in writing to the appellants within 5 days or go to an Employment Tribunal within 3 months.  It is not clear precisely what the employers envisaged might be the basis of his Tribunal claim.

4.	He lodged a complaint to the Tribunal on the 8 March 2006 in which he raised no specific complaint in relation to dismissal, either actual or constructive. He did, however, complain that he had been demoted from an ASW status and had suffered financially as a consequence. He also contended that he was disabled and had not been allowed to park near his office. That complaint was not, in fact, made under the “Discrimination” box in his Claim Form but under a separate box headed “Other Information.”

5.	There was a Case Management Conference and pre-hearing review held before Ms Hyde on 12 May 2006. She made a number of orders.  Specifically with respect to the discrimination claim, she noted that no grievance had been lodged with respect to it. She did not, however, dismiss that aspect of the claim but by agreement with the Council’s then representative, a solicitor, she ordered that that part of the claim should be stayed until 16 June 2006. On that date the parties were to inform the Tribunal what progress had been made in relation to the claimant’s grievance and the claimant had undertaken to lodge the written grievance by 19 May 2006. 

6.	Various other orders were made.  These included orders relating to trial preparation.  Apparently, Ms Hyde indicated that she considered that the complaint about ASW status being suspended was in substance a complaint by Mr Miller that he had been dismissed, relying upon the decision of the EAT in Hogg v Dover College [1990] ICR 39.  That case envisages that there may in some circumstances be an actual dismissal because the particular employment contract has come to an end even although the employee remains in the employment of the same employer.  Mr Miller was appearing in person and understandably was willing to adopt that characterisation of his case.  Ms Hyde recognised that this claim would be over four months out of time unless time was extended pursuant to s.111(2) of the Employment Rights Act 1996.  She did not, however, resolve that issue at that stage.

7.	Following that hearing, the Council instructed Mr Cohen of Counsel who appeared before us on the appeal.  He considered that Ms Hyde had been wrong to stay the proceedings, and he made an application for a further pre-hearing review to determine whether the Tribunal had jurisdiction to hear either of the claims.  He contended that there was no power to stay the claim to give time  for the grievance procedures to operate; and that if there were to be a valid claim, a fresh complaint would have had to be lodged following the determination of the grievance.  He also contended that insofar as the dismissal claim was concerned, it was out of time and there was no good reason to justify extending time.  These issues were determined by a different and very experienced Chairman, Mr Snelson.  He held that the Tribunal had jurisdiction to hear both claims.  Both those conclusions are now challenged on this appeal.

8.	I respectfully doubt whether the Chairman ought to have reconsidered the first issue.  The stay had been ordered, and it seems to me that if the Council considered that to be inappropriate - and it must be remembered that the Council agreed to that course - then they should either have sought a review by Ms Hyde, or else they should have sought to appeal the order.  Save for very exceptional cases, in the absence of any change in circumstances it is highly undesirable for another Chairman to revisit an issue which has already been determined by a different Chairman on an earlier occasion, however tempted he or she may be to do so: see the observations of the EAT (Elias P. presiding) in Hart v English Heritage [2006] ICR 655, paras.31-38.   However, it has not been contended before me that the second hearing constituted an abuse of process or anything of that nature, nor was it contended before Mr Snelson that the Council was in some way estopped from challenging the stay since they had acceded to that course of action.  Accordingly I have to deal with the second decision as it stands.

The decision
9.	Before considering the decision of Mr Snelson, I first set out the material legislation.
The Employment Act 2002, section 32, so far as material, states:-

“(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
(3) 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 paragraphs 6 or 9 of Schedule 2 has been complied with, and 
(b) less than 28 days have passed since the day on which the requirement was complied with.
(4)	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 has been complied with, and 
(b) the day on which the requirement was complied with was more than one month after the end of the original time limit for making a complaint.
…
(6)	An employment tribunal shall be prevented from considering a complaint presented in breach of sub-sections (2) to (4), but only if –
(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or
(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 … (Employment Tribunal Procedure Regulations).”

Rule 1 of the Employment Tribunals Rules of Procedure 2004 (headed “Starting a claim”) includes this provision:
“(8) When section 32 of the Employment Act applies to a claim or part of one and a chairman considers in accordance with subsection 6 of section 32 that there has been a breach of subsections 2 to 4 of that section, neither a chairman nor a tribunal shall consider the substance of the claim (or the relevant part of it) until such time as those subsections have been complied with in relation to the claim or the relevant part of it.””
			
10.	The only complaint of disability discrimination which Miss Hyde had allowed to continue was the complaint relating to car parking. It was common ground that no grievance had been issued with respect to that matter. 

11.	Mr Cohen submitted that the case fell clearly and unambiguously within the scope of s.32(2); that the issue had been raised by the employer under s.32(6)(b), and that in the circumstances the Tribunal had no jurisdiction to hear the matter at all. It was necessary for the claimant to lodge a further fresh complaint, if he were in time so to do. He submitted that the earlier claim had to be struck out; there was an absolute bar to the Tribunal giving it any consideration.  The failure to lodge a grievance went to the jurisdiction of the Tribunal.

12.	The Chairman took a different view. He relied upon rule 1(8) of the Procedure Rules, to which we have made reference. He noted that that rule merely precludes a Tribunal from considering the substance of the claim until the sub-sections have been complied with. He considered that this objective would be met by staying the proceedings as Miss Hyde had done.  Furthermore, he observed that the purpose of the legislation, which is to provide an opportunity for the dispute to be remedied by the parties before being considered by a Tribunal, would be furthered by this approach. 

13.	The Chairman referred to one of his earlier decisions in Sinclair v L’Oreal Luxury Products, (Case number 2300958/06), in which he had adopted the same approach. In paragraphs 10 and 11 of that decision the Chairman suggested that the effect of staying the proceedings pending the parties seeking to resolve the disputes in accordance with the legislation would be as follows:
“10.	If the reasoning so far is correct, a successful s32(6) submission will focus the Tribunal’s attention on the breach and the action necessary to remedy it (if any). In a case of breach of s32(2) (failure to issue a grievance at all), the remedial action will consist of raising a grievance, and the proceedings can be stayed in the meantime. In a s32(3) case (failure to wait 28 days after issuing the grievance and before commencing Tribunal proceedings), the 28 day period will almost inevitably have expired before the Tribunal has adjudicated on the s32(6) submission. But the only remedial action which could even theoretically be required would be to allow the remainder of the period to expire before proceeding with the litigation. In a s32(4) case (grievance too late) there would be no possibility of any remedial action and it would appear to follow that the only proper course would be to dismiss or strike out the relevant claim.
11.		It might b objected that my reading of the legislation would enable a Claimant to rely on a grievance presented later than, in the case of a new claim, s32(4) would have permitted. That may be so, but it should not be a cause for offending sensibilities. The provisos to s32(6) make clear that the entitlement of an employer to complain about a claim which has wrongly slipped through the acceptance procedure is itself qualified and not intended to be an absolute right. The legislation contemplates Tribunals hearing claims in circumstances where grievances ought to have been, but have not been, raised. I see no reason why the fact that the remedial action was taken outside the period prescribed by s32(4) should militate against the interpretation which I favour. By r1(8) and r10(2)(h) the Tribunal is equipped with the procedural means of ensuring that the relevant litigation does not become stale. If, for example, the claimant does not take prompt action to remedy the breach in a s32(2) case, the respondent may apply for the stay to be lifted and the claim in question to be struck out or dismissed.”

14.	I confess to being somewhat confused by the analysis, and neither Counsel could assist me with it. Paragraph 10 appears to rest on the assumption that if a stay is ordered then it can only be in circumstances where it would be possible for the employee to put in a fresh claim which the Tribunal could properly hear. In other words, the effect of the stay would do little more than relieve the employee of that formal obligation of entering a fresh claim, but it would still be necessary for the provisions of the statute to be strictly complied with. In effect, it is as if the claim presented by the employee can be treated as being continually presented such that once the procedures have been complied with, there is full compliance with the statute. 

15.	Paragraph 11 appears to say something different. It suggests that a claimant can rely on a grievance presented later than that which would otherwise be allowed by the statute. The effect here would seem to be that once a claim is validly presented, then it is open to a Tribunal to stay the proceedings to allow time for the grievance to be lodged and 28 days for it to be considered, but that since there is a claim still on foot, it can be properly considered even where the timescales specified in s.32 are not met.

16.	Mr Cohen submits that whilst there is much merit at least in the former approach which does seem to do justice to the objective of the legislation, nonetheless even that construction simply flies in the face of the statutory provisions. That criticism he makes with considerably greater force if the effect of the stay is to involve a departure from the timescales stipulated in the legislation and the related regulations.

17.	Mr Cohen submits that the wording of s.32 can brook no doubt. It provides that “an employee shall not present” a complaint unless the requisite grievance procedure has been lodged and 28 days has elapsed. Until there is proper presentation, there can be no jurisdiction to consider the complaint; and there cannot be proper presentation until the grievance has been lodged and twenty eight days allowed for its resolution.

18.	Furthermore, he submits that if the stay allows the employee to run the grievance outside the statutory timescales, then there is complete uncertainty as to when the claim will be considered to have been lawfully presented. Can it, he asks rhetorically, be at any stage in the future once the procedures have been complied with?

19.	The Chairman considered some of the arguments advanced against his approach. He accepted that neither the Act nor the Regulations made pursuant to them in terms provided that any breach of the rules could be remedied in this way; and he accepted that procedural rules could not override primary legislation. But he considered that rule 1(8) could be read consistently with the legislation in the way he had suggested and that it would form a coherent scheme. 

20.	He pointed out that there was no specific rule requiring a ‘strike out’ of a claim which had been presented in breach of the rules and he considered that rule 1(8) would only have any sensible meaning if it entitled a Tribunal to stay the proceedings in this way. He contended that there would be no purpose behind rule 1(8) if the employee were obliged to submit a fresh claim. There was no reason for the rules to tell Tribunals that they could hear claims if they had been lodged in compliance with the relevant statutory provisions. That much was obvious. 

21.	The Chairman recognised that his construction would require a wide reading of the word “complied” in rule 1(8). He accepted that on one view compliance with the statutory provisions meant that the claim could not be presented until all the requirements had been met i.e. the presentation of the claim occurring after the grievance procedures had operated. However, he preferred an alternative construction which limited the meaning of  “complied” so that it applied not to the presentation of the claim itself, but merely to the dispute resolution steps which were found in sub-sections (2)–(4) of s.32.  In short, a claim could be presented and it would be a valid presentation contingent on subsequent compliance with the grievance procedures.

22.	Ms Davies, acting for Mr Miller, has supported this analysis. She contends that it is entirely within the spirit of the Dispute Resolution Procedures for matters to be dealt with in this way.

Conclusion
23.	I have considerable sympathy with the approach which Mr Snelson has adopted to these procedures. It has frequently been said that they are not well drafted and have created many difficulties, but it seems to me that his construction involves too great a strain on the statutory language. 

24.	In my view, once the issue of procedural compliance has arisen in a way envisaged by s.32(6), then the Tribunal simply has no jurisdiction to hear a claim unless it is presented after compliance with the procedural steps. It may be unduly formalistic to require a fresh presentation of another claim, but it seems to me that that is what Parliament has required. Plainly, as the Chairman recognised, rule 1(8) cannot trump the statutory provisions, and in any event, the construction given by the Chairman to this rule does seem to me to give an artificial meaning to the word “complied” in that rule. 

25.	In my judgment, “compliance” must mean compliance with the provisions in s.32, and I accept Mr Cohen’s submission that this requires the filing of the grievance letter and then a subsequent submission of the ET1. This construction is reinforced by rules 3(2)(c) and 3(6).  The former states that a Secretary “shall not accept” the claim if it is clear that it has been presented in breach of s.32; and the latter obliges the Secretary in those circumstances to notify the claimant of the time limit applicable to the claim or part rejected and of the consequences of non-compliance.  These rules do not, in my view, sit happily with the construction adopted by the Chairman.  They do not provide that the claim may be stayed pending compliance with the grievance procedures.

26.	I accept that on the contrary analysis rule 1(8) is strictly unnecessary, but it has the merit of alerting those reading the rules to the limitation on the Tribunal’s power. It is intended to reflect the substance of the statutory provisions and not in any way to regulate their effect. It would not in my view be absurd to have a rule of this nature; it highlights a point which readers of the rules should be aware. 

27.	I should add that were the effect of the stay to alter the impact of s.32(4), as the Chairman suggested that it could, and to permit claims to be considered which are outwith the time limit specified in that provision, then this would be an additional reason for rejecting the Chairman’s analysis. The effect would be to permit rule 1(8), when combined with the procedural rule to grant a stay, to be relied upon so as to evade completely the limitations in that sub-section. I do not think that can be a legitimate use of the procedural rules.

28.	Accordingly, this ground of appeal succeeds. I say this with some reluctance in this case, not only because there is much to be said in policy terms in adopting the Chairman’s approach, but also in particular because had this point been run at the first hearing before Ms Hyde, and had she come to the view that a stay was not appropriate, then it seems likely that there would have been time for the claim to have been lodged following compliance with the procedures specified in s.32. The injustice may, in fact, be ameliorated here because the contention of the claimant at least is that the problem over car parking continues. If that is right then he can, even now, put in a fresh claim to the Tribunal and have the disability discrimination issue determined.

Unfair dismissal
29.	I turn to the second aspect of this appeal. Mr Snelson had concluded that the Tribunal should extend time under s.111 of the Employment Rights Act [1996] on the grounds that it was not reasonably practicable for Mr Miller to have put in his claim in time. With respect to this part of the claim the Chairman heard evidence from the Assistant Director of Adult Social Care on the Council and he had a written statement from the claimant. The Chairman noted that the event relied on by the claimant constituting the dismissal was the suspension of his ASW warrant in July. It appears that that in fact the ASW warrant was automatically terminated in any event some time in November and it was not renewed. 

30.	The Disciplinary Hearing itself took place on 12 January 2006 and a warning was given with respect to deficiencies in file recording. These did not relate specifically to the ASW part of the claimant’s practice. 

31.	The Claim Form was presented to the Tribunal on 8 March. On the premise that the trigger was the suspension of the warrant, this was plainly well out of time. However, the Chairman concluded that Mr Miller was not put on enquiry as to his rights until he received the letter from the employers informing him that one of his options was to appeal within three months to the Employment Tribunal. This, of course, he did.

32.	The Chairman observed that the focus of the employee’s activity was understandably to seek to have the removal of his warrant reversed. It was not a case where a layman would recognise there may be a dismissal in accordance with the Hogg v Dover College principle. Mr Miller had not obtained legal advice, although he had discussed matters with a legally qualified friend. In these circumstances the Chairman concluded that he was entirely satisfied that it was not reasonably practicable for the claim to have been lodged in time.  The employee was not aware of his right to claim, and there was no reason why he should have been.  The Chairman went on to consider whether the claim was lodged within a reasonable time of the claimant being made aware of his rights. He concluded that, in particular in view of the representation from the employers that he had three months to lodge a claim, it was.

33.	Mr Cohen quite properly does not seek to challenge the latter conclusion of the Chairman. He realistically accepts that in view of the employer’s letter, any delay after the letter was sent was reasonable.  He submits, however, that there was a plain error of law in the Chairman’s analysis of the basic question, namely whether it was reasonably practicable for the employee to have put in his claim in time. He submits that there was a singular failure by the Chairman to analyse what steps Mr Miller had or ought to have taken to discover how he might complain of the suspension of the warrant. The letter from the employers could not possibly be an explanation as to why Mr Miller had failed to present his claim prior to that letter being received.

34.	I do not accept this submission. Plainly, the Chairman was not saying that Mr Miller was in any way misled by the employers prior to their sending him the letter in early January. What he was saying was that although there was or at least might potentially be a claim under the Hogg v Dover College principle, there was no reason why the employee should have had any notion that he had such a claim. It is not reasonably practicable to lodge a claim in time if the claimant does not know of his rights and is not put on inquiry: see the observations of Lord Denning MR in Dedman v British Building and Engineering Appliances Ltd. [1974] ICR 53, 61.  Once put on inquiry, he put his claim in within a reasonable period thereafter.

35.	That was a conclusion which, it seems to me, the Chairman was entitled to reach. He gave his reasons, and they do not in my view demonstrate any error of law.   I should, however, add that nothing in this judgment is meant to indicate that the Hogg v Dover College principle does properly apply to the particular facts here. That is an exceptional principle and Mr Cohen submits that there are cogent arguments why it would be inapplicable in the circumstance of this case. However, that is a battle for another day.

Disposal
36.	The appeal with regard to the disability discrimination claim succeeds, but the appeal against the Chairman’s extending time to permit the dismissal claim to be pursued fails. It follows that the dismissal claim will now have to be heard by the Tribunal.