Suffolk Mental Health Partnership NHS Trust v Hurst and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,and,Lord Justice Wall,Lord Justice Etherton |
| Judgment Date | 07 April 2009 |
| Neutral Citation | [2009] EWCA Civ 309 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 April 2009 |
| Docket Number | Case No: A2/2008/2870 & A2/2008/2877 |
[2009] EWCA Civ 309
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE ELIAS
Before : Lord Justice Pill
Lord Justice Wall And Lord Justice Etherton
Case No: A2/2008/2870 & A2/2008/2877
UKEAT/0332/08/RN
Miss Naomi Ellenbogen (instructed by Kennedys) for the First Appellants
Mr Andrew Stafford QC and Mr Jeremy Lewis (instructed by Messrs Wragge & Co LLP) for the Second Appellants
Mr Paul Epstein QC and Ms Betsan Criddle (instructed by Thompsons) for the First and Second Respondents
Hearing dates : 26 and 27 February 2009
Approved Judgment
Lord Justice Pill :
These are appeals from decisions of Elias J sitting as President of the Employment Appeal Tribunal (“the EAT”). On 6 November 2008, sitting alone, Elias J gave judgment in three cases which it had been ordered should be heard together on appeal from Employment Tribunals. Giving judgment, Elias J stated that “the appeals raise yet again the issue of the statutory grievance procedures [under the Employment Act 2002 (“the 2002 Act”)] and whether the [Employment] Tribunal properly had jurisdiction to hear various equal pay claims made by the claimants in each of those cases”. The judge found that the relevant Employment Tribunals had jurisdiction to hear each of the equal pay cases raised by the claimants. In two of the cases, the unsuccessful employers, Suffolk Mental Health Partnership NHS Trust (“the Trust”) and Sandwell Metropolitan Borough Council (“Sandwell”) and their co-appellants, who are the governing bodies of educational establishments, appeal to this court, by permission of Elias J.
The issues in the appeals were identified in advance of the EAT hearing and approved by the EAT:
“In relation
(1) To each individual grievance and
(2) Each collective grievance, whether there was compliance with the requirements of section 32 of the 2002 Act.
In particular:
(a) Was each such grievance a valid grievance for the purposes of section 32?
(b) Did each such grievance contain essentially the same complaint as the subsequent claim?” [the correlation principle]
Section 32 provides, in so far as is material:
“(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) 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) less than 28 days have passed since the day on which the requirement was complied with.
(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (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 (c 17) (employment tribunal procedure regulations).
(7) The Secretary of State may for the purposes of this section by regulations –
(a) make provision about the application of the procedures set out in Part 2 of Schedule 2;
(b) make provision about what constitutes compliance with paragraph 6 or 9 of that Schedule;
(c) make provision about circumstances in which a person is to be treated as having complied with paragraph 6 or 9 of that Schedule;
(d) make provision for paragraph 6 or 9 of that Schedule to have effect in such circumstances as may be specified by the regulations with such modifications as may be so specified.”
Section 2 of the Equal Pay Act 1970 (“the 1970 Act”) is a jurisdiction to which section 32 applies (Schedule 4 to 2002 Act).
Schedule 2 to the 2002 Act sets out statutory dispute resolution procedures and under the heading “Grievance Procedures” provides:
“CHAPTER 1
STANDARD PROCEDURE
Step 1: statement of grievance
6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.
Step 2: meeting
7.-(1) The employer must invite the employee to attend a meeting to discuss the grievance.
(2) The meeting must not take place unless –
(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and
(b) the employer has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
8.-(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the appeal meeting, the employer must inform the employee of his final decision.”
Paragraph 9 of schedule 2 appears under the heading “Modified Procedure”. That procedure can apply where the employee has ceased to be employed by the employer (regulation 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the 2004 Regulations”) made pursuant to the 2002 Act). Paragraph 9 differs from paragraph 6 in that the employee must set out, in step 1, in writing, not only the grievance but “the basis for it”, a requirement which does not arise under the standard procedure until step 2.
Regulation 9 of the 2004 Regulations provides a separate procedure for collective complaints:
“(1) Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has —
(a) written to the employer setting out the grievance; and
(b) specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance.”
The Regulation provides an alternative way of complying with paragraph 6:
“A claimant whose grievance is lodged through a regulation 9 procedure is deemed to have complied with paragraph 6 and therefore can satisfy section 32(3)(a); but the obligation to satisfy 32(3)(b) remains.”
(Elias J, President, in Alitalia Airport SpA v Akhrif & Ors [2008] ICR 813, at paragraph 34). Thus, subject to the passage of 28 days, a collective complaint can be presented to the Employment Tribunal without the meetings contemplated in paragraphs 7 and 8 of schedule 2. That is common ground.
“Grievance” is defined in regulation 2 of the 2004 Regulations as meaning “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”.
Because the statutory grievance procedure will take time, it is provided by regulation 15 of the 2004 Regulations that the normal time for presenting a complaint to an Employment Tribunal is extended for a period of 3 months beginning with the date after the day on which it would otherwise have expired.
Regulation 7 of the 2004 Regulations specifies circumstances in which the parties are treated as complying with the grievance procedures. Regulation 11 also sets out circumstances in which the statutory procedures do not apply or are treated as being complied with where the appropriate statutory procedure has not been commenced or a subsequent requirement of the procedure has not been complied with. These regulations are made pursuant to section 32(7) of the 2002 Act (set out above) and are plainly intended to protect employees from the full rigours of compliance with the provisions of sections 32(2) to (4). Under regulation 11(3) the circumstances are:
“(a) the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person;
(b) the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment; or
(c) it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period.”
Section 31 of the 2002 Act provides for the reduction of an award to an employee by from 10% to 50% (sub-section 2) and an increase in an award from 10% to 50% (sub-section 3) where “the statutory procedure was not completed before the proceedings were begun” and where the failure was that of the employee or the employer, respectively. The reduction or increase need not apply if there are exceptional circumstances that would make such course unjust or inequitable (sub-section 4). That sanction applies only on a failure to complete the procedure. It does not arise if, by virtue of the provisions of section 32(6)(b), the Tribunal is prevented from considering the employee's complaint.
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