Appeal No. UKEATS/0008/09/BI

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

	At the Tribunal
	On 1 July 2009

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

MR J LAMONT	APPELLANT

HUNTLEIGH HEALTHCARE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Written representations	
For the Respondent	MISS SHARP
(Representative)
EEF Legal Services
Broadway House 
Tothill Street
London 
SW1H 9NQ	

SUMMARY
Jurisdictional Points: 2002 Act and pre-action requirements.
Tribunal had erred in holding that a letter from the Claimant had not constituted a grievance statement under the statutory procedures: Shergold followed.

THE HONOURABLE MR JUSTICE UNDERHILL
1.	This is an appeal against the decision of an Employment Tribunal comprising Employment Judge Cape (sitting alone) that it had no jurisdiction to hear the Claimant’s complaint by reason of the provisions of Section 32(2) of the Employment Act 2002.  The Claimant has not attended on the hearing of the appeal but has asked me to proceed on the basis of his notice of appeal and written skeleton argument, which I have done.  The Respondent has been represented by Miss Sharp of EEF Legal Services.

2.	The claim form, as presented on 14 March 2008, raised a claim of unfair constructive dismissal, together with a claim for unlawful deduction of wages on two distinct occasions.  The breach of contract on the part of the Respondent on which the Claimant relied for the purpose of his claim of constructive dismissal was a failure to move him to a higher grade - that is, from grade SE1 to SE2 - within six months of the completion of a training course, elsewhere referred to as a six-month probationary period.  The Claimant said that he had completed the course “in or around 2005” which elsewhere, in fact, is said to have been January 2005, but that he had not been promoted, as promised, although he had, in fact, been required to perform SE2 duties while being paid at SE1 rates.  He said that he had complained repeatedly to his line manager, a Mr Totten, and another manager, but that the problem had not been resolved.  He said that he became ill with stress as a result and had been off work from January 2007 until his eventual resignation, which was effected by a letter dated 15 November 2007.  There was some ambiguity as to whether the effect of that letter was to terminate the employment forthwith or on the expiry of one month’s notice, but nothing turns on that for present purposes.  The first deduction from wages claimed by the Claimant consisted of the amount that he said he would and should have received had he been moved to grade SE2 as promised.  The second related to non-payment of sick pay in the last two-and-a-half months - or maybe, depending on the date of termination, six weeks - of his employment.

3.	The issue for the Judge was whether the Claimant had, prior to the issue of proceedings, sent the Respondent a written statement raising those complaints, in accordance with step 1 of the standard grievance procedure as set out at paragraph 6 of Schedule 2 to the 2002 Act.  The Claimant relied on two documents as constituting his compliance with step 1, the first being his resignation letter dated, as I have said, 15 November, and the second being a letter which he said he had sent on 7 December 2007.  As to the former, the Judge held that it failed identifiably to raise the grievances which were the subject of the claim.  As to the latter, she found that the letter in question had never been sent.  The Claimant challenges the Judge’s decision on both points; I take them in turn.

4.	As regards the letter of 15 November 2007, this was in the following terms:

“I wish to inform you of my decision to resign from Huntleigh Healthcare.  
When I joined the company in 200 (sic) I felt that Huntleigh Healthcare offered me an opportunity to develop my career.  I saw myself as an enthusiastic, committed team member who could progress and develop through the training courses which Huntleigh makes available to all employees.  Rather than progression I have experienced regression due to the discriminatory actions of Mr J Totten jnr Depot Manager.  These actions have brought me to the stage where I feel my position has now become untenable.  
It is my intention to initiate legal action against Huntleigh Healthcare.  
I would appreciate confirmation of your receipt of this letter.”

5.	That letter was acknowledged by letter from Ms Mansfield, a Human Resources Adviser with the Respondent.  I need not read the letter in full, but it begins:

“I am writing to acknowledge your letter dated 15th November 2007 informing us of your resignation.  Your letter states that you experienced ‘discriminatory actions of Mr J Totten jnr’ and that these actions brought you to the stage where you felt that your position ‘has now become untenable’.  Huntleigh Healthcare takes these type of situations very seriously and will start an investigation of the issues you have raised.  
In order for the company to deal with your complaint properly, could you please provide in writing as soon as possible the details and facts of the ‘discriminatory actions’ you mentioned in your letter.”

6.	At paragraph 68 of the Reasons, the Judge said this:

“Turning to the resignation letter of 15 November, I find that it does not constitute a grievance in terms of the statutory procedure for either complaint.  The subject of his grievance is the respondent’s failure to regrade him as promised to a higher grade, and the consequent failure to pay him the salary which that attracted.  In his letter of resignation, he refers to experiencing regression due to the discriminatory actions of Mr Totten.  If anything, that implies demotion, which was not his complaint.  I find that the employer, on a fair reading of the statement and having regard to the particular context in which it was made, could not be expected to appreciate that the relevant complaint was being raised.  It could not be read even in a non-technical and unsophisticated way as raising the grievance which was the subject matter of the complaint.”

7.	The Claimant submits that that conclusion was wrong.  He relies on the various authorities in this Tribunal in which it has been emphasised that it is unnecessary that a Claimant should have given any elaborate details of the grievance in question and that it is enough that the statement in question should convey, even if in a non-technical and unsophisticated way, the nature of the complaint being made and that that is the same complaint as that being raised in the proceedings: see, classically, Shergold v Fieldway Medical Centre [2006] ICR 304 and Canary Wharf Management Ltd v Edebi [2006] ICR 719.

8.	In my judgment that submission is well-founded.  The letter of 15 November made it clear that the Claimant was resigning because he had been led to believe that he would have the opportunity to “progress” but that the company generally, and Mr Totten in particular, had denied him that opportunity.  That, it seems to me, is essentially the same complaint as that advanced in the unfair dismissal claim.  It is, of course, extremely generally expressed but that is not fatal; see the observations of Burton J in Shergold at paragraph 30.

9.	The Judge’s view to the contrary was based on her focusing, exclusively, on the statement in the letter that the Claimant had “expressed regression due to the discriminatory actions of Mr J Totten”.  That phrase is, no doubt, important but it must be read in the context of the preceding sentences.  There are two particular elements in the phrase to which, as I understand it, the Judge attached particular importance.  The first is the reference to “regression”, which she said suggested a complaint of demotion, which was not the complaint in fact being made.  The second is the reference to “discriminatory actions”.  As to the first, I do not think that this rhetorical flourish on the part of the Claimant can disguise the true nature of the complaint as I have summarised it - that is to say, that he had not experienced the progression which he had been led to expect.  The fact that he says that he had positively “regressed” does not seem to me to make a substantial difference, and Miss Sharp sensibly did not base any part of her argument on this aspect.  As to the question of “discriminatory actions”, which was the point on which Miss Sharp focused her submissions, I see of course that the word “discrimination” naturally suggests a claim of discrimination on one of the now many grounds proscribed by legislation; but that is not its only meaning.  It can refer to any situation where a person is treated differently from others and, insofar as it is a matter of complaint, where that difference in treatment is said to be unfair or unjustifiable.  It seems in fact that it was in the latter sense that the Claimant was using it.  It can be seen from other documents, though not from those with which we are primarily concerned here, that part of his complaint was that other trainees taken on at the same time had been promoted to grade SE2, whereas he had not.  I accept, however, that precisely what the Claimant meant by “discriminatory actions” would not have been clear from the letter of 15 November and that it is likely enough that the employers understood it to be a claim of a breach of one of the statutory anti-discrimination laws, though it would not have been clear which.  But the fact that an ambiguous label of this kind was attached to the complaint does not, again, disguise the substance of what was being complained about.

10.	I therefore think that the letter of 15 November 2007 did in substance raise the complaint now sought to be raised in the present proceedings.  It certainly did so in a non-technical and unsophisticated way, with no useful particulars; but the policy of the legislation requires no more than that the employer should have been put on notice that there was a complaint and the broad nature of that complaint.  In my judgment, this letter crosses that threshold.

11.	Miss Sharp submits, however, that the question is not what view I take about the effect of the letter, but only whether the view taken by the Employment Judge was one which was reasonably open to her on the facts.  She draws my attention to an observation by the Lord President in the decision of the Inner House in Cannop & Ors v Highland Council, which so far as I am aware is unreported but appears on BAILII as [2008] ScotCS CSIH 38.  Having discussed the need for a relationship between the complaint raised by way of the putative grievance and the complaint raised in the proceedings, the Lord President goes on to say at paragraph 27:

“Whether there was such a relationship in the present cases, was essentially a question of fact and degree, an issue which was for the Employment Tribunal to resolve.  It was ‘fact sensitive’.”

12.	That observation is, on its face, contrary to the well known rule that the meaning and effect of a document is a question of law: see, classically,  the decision of the House of Lords in Davis v Presbyterian Church of Wales [1986] ICR 280, approved with some reluctance, though distinguished, in the subsequent decision of the House of Lords in Carmichael v National Power PLC [1999] ICR 1226 (see in particular the discussion in the speech of Lord Hoffman at pages 1232 to 1235); and I am not in fact sure if it is part of the ratio of the Inner House’s decision.  But even if it is indeed ratio, and is accordingly binding on me, I am satisfied, with all respect to the Employment Judge, that her reasoning does portray an error of law, inasmuch as she misdirected herself by focusing only on the single phrase that I have identified rather than the effect of the letter of 15 November as a whole.  

13.	Accordingly, I would allow the appeal as regards the claim of unfair dismissal.

14.	I turn to the complaints of unfair deduction from wages.  It seems to me that once the unfair dismissal claim is permitted to proceed, the first of the two claims of unlawful deduction must be admitted also, since it is essentially consequential to, or by way of remedy for, the treatment which is the subject of the primary complaint.  The Claimant’s case is that if he should have been promoted he should receive the pay that he would have received in that case.

15.	That reasoning does not, however, apply to the second claim of unlawful deduction, which is entirely distinct from the first.  That claim is wholly unheralded in the letter of 15 November, and indeed in the subsequent letter of 7 December, nor can it be viewed as in any way inherent or comprised in the complaint that the Claimant has in effect been denied progression.  

16.	Having reached that conclusion, it is in fact unnecessary that I consider the second ground of appeal.  The only potential relevance of the letter of 7 December would be if it had raised a complaint about the second alleged deduction, but it does not.  However, I will briefly deal with it.  As I have said, the Tribunal made an express finding, on the balance of probabilities, that the Claimant had not sent the letter.  The Claimant’s evidence had been that he had sent it but that he had put the wrong street number on the envelope.  However, it is clear from the Judge’s reasoning that she intended to find not simply that the letter had gone astray, but that the Claimant had never sent it at all: see in particular paragraphs 56 to 58 and 60 of the Reasons.  That is a pure conclusion of a fact and none of the grounds advanced in the Notice of Appeal or skeleton argument are capable of undermining it.  

17.	By reason of my conclusion in relation to the effect of the letter of 15 November, I must allow the appeal to the extent that the claim of unfair dismissal and the claim of unlawful deduction of wages, in respect of the failure to pay the Claimant at SE2 rates, must be permitted to proceed.  I should, however, make it clear (since the Claimant is now, as I understand it, unrepresented) that this decision is limited to the question whether his claim is debarred by Section 32 of the 2002 Act.  It should not be read as expressing any view at all about whether the claim is likely to succeed.