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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> DMC Business Machines Plc v Plummer [2006] UKEAT 0381_06_2112 (21 December 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0381_06_2112.html Cite as: [2006] UKEAT 381_6_2112, [2006] UKEAT 0381_06_2112

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APPEARANCES

 

For the Appellant	Mr D READE (of Counsel) instructed by: Messrs Copley Clark & Bennett Solicitor Pathtrace House 91-93 High Street Banstead Surrey SM7 2NL
For the Respondent	MR M REED (of Counsel) Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ


 


SUMMARY

Unfair Dismissal – Constructive dismissal

Constructive dismissal case – Appeal based on alleged non-compliance by employee with s.32 (2) of 2002 Act by reason of failure to lodge a grievance in relation to the matters relied on as entitling him to resign – Appeal dismissed because (1) grievance held, on its true construction, to be adequate to cover the matters in question; and (2) employer had not raised the issue of non-compliance in accordance with s. 32 (6) (b).


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. This is an appeal against the decision of an Employment Tribunal sitting at London South that the Respondent, Mr. Plummer, was (constructively) unfairly dismissed by the Appellant, DMC Business Machines Ltd. (to whom we will refer as "the employers"). The appeal is not concerned with the merits of the Tribunal's substantive decision but entirely with the effect of Part 3 of the Employment Act 2002 ("the 2002 Act") and the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the 2004 Regulations"). In attempting to thread the labyrinth of these exceptionally awkwardly-drafted provisions we have had the advantage of succinct and helpful submissions from Mr. David Reade for the employers and Mr. Michael Reed for Mr. Plummer (neither of whom appeared below); but their task, and ours, has been the more difficult because of the messy procedural history in the context of which the issue arises.

The Facts

2. Mr. Plummer was employed as a warehouse manager. For some time prior to the events which give rise to this claim he had enjoyed a poor working relationship with a Mr. D'Alena, who worked as a warehouse assistant in the afternoons. On 26 May 2005 matters came to a head when there was a heated exchange between the two men in the middle of the day, followed by an incident early in the evening when Mr. D'Alena's brothers came down to the warehouse and there was some kind of confrontation. According to Mr. Plummer, he believed that he was going to be beaten up; but other witnesses suggested that there was "a lot of hot air" but no real threat.
3. The employers initiated disciplinary proceedings, and after investigatory meetings on 29 April both men were summoned to a meeting on 5 May at which they were told that they would both be given a final written warning. It was, to anticipate, the Tribunal's conclusion that the conduct of the disciplinary procedure was inadequate in various respects and that the outcome – which appeared to treat Mr. Plummer and Mr. D'Alena as equally culpable – was unfair, and that that constituted a fundamental breach of contract entitling Mr. Plummer to treat himself as dismissed: we set out the relevant passage from the Judgment at para 17 below.
4. On 9 May 2005 Mr. Plummer wrote to the employers in the following terms:

"I am sorry to tell you I am writing to formally resign from my position with DMC within the terms of my employment contract with immediate effect.

The decision to leave was a difficult one but I feel with the conflict between myself and Brett Delana it has reach a level of life threatening proportions to myself in the warehouse environment of which I can no longer work, I have enjoyed contributing to our achievements and wish you every success in the future."

The Tribunal found that Mr. Plummer's decision to resign was as a result of the fundamental breach identified above. That conclusion seems likely enough, and in any event it is not now challenged before us. But for the purpose of the issues on this appeal it is important to observe that the letter of resignation makes no complaint about the disciplinary process or its outcome; nor indeed any complaint against the employers at all.

5. Mr. Plummer appears to have left the job with immediate effect: it is common ground that the effective date of termination was 9 May 2005. But over two months later, by an undated letter to the employers received on 18 July 2005, he submitted a complaint in the following terms:

"Following my resignation from my position with DMC Ltd on May 9 2005, I wish to raise a complaint concerning the handling of events by the company which led to my resignation.

These events include the long history of difficulties with Brett Delana and his attitude towards me, in particular, the incident on the 26^th April 2005 when I was threatened with assault.

I have received the pay slip for May 2005 and see that you have made a deduction of £323.07 for holiday. I am not aware of an agreement with you to enable you to do this.

I have not received a pay slip for April 2005

I am agreeable to the 3 complaints above being dealt with in writing."^[1]

Of the three complaints referred to in the letter, we are in this appeal concerned only with the first - that is to say, the complaint raised by the first two paragraphs. Precisely what is being complained about there is far from clear. There is, again, no explicit reference to the disciplinary process or its outcome. There is a reference in the first paragraph to the employers' "handling of events", but the only details which are given, in the second paragraph, relate to the conduct of Mr. D'Alena. On that basis, Mr. Reade submits that what Mr. Plummer must be understood to be complaining about is the employers' conduct in exposing him to, or not sufficiently protecting him from, the "difficulties" which he experienced with Mr. D'Alena, culminating in the risk of assault: it cannot be read as a complaint about the disciplinary proceedings. However, Mr. Reed submits that, in context, the complaint must be read as covering also the entirety of his treatment by the employers, which includes the conduct and outcome of the disciplinary proceedings. Which reading of the letter is correct is one of the determinative issues in the appeal; but before we attempt to address that issue it is unfortunately necessary first to pursue the story in more detail.

6. In response to that letter, the employers wrote to Mr. Plummer to offer him a meeting, but in the event no such meeting took place. The Tribunal appears – though the finding is not entirely clear – to have found that this was because of a failure on the part of Mr. Plummer to respond to the employers' offer; but this is not an aspect which we need to resolve.

The Proceedings

7. The present proceedings were commenced on 7 November 2005, i.e. just short of six months after Mr. Plummer's resignation. Mr. Plummer does not appear to have been represented at that stage. The section of the ET1 relating to "Unfair dismissal or constructive dismissal" was completed; and in section 5.1, where the claimant is invited to explain why he thinks his dismissal is unfair (including, in a case of constructive dismissal, what it was that made him feel that he could no longer continue to work for his employer), Mr. Plummer wrote this:

"The decision to leave DMC was a difficult one but I feel with the level of conflict between myself and Brett D'Alena it had reached a level of life threatening proportions to myself in the warehouse environment of which I could no longer work.

A heated argument between myself and Brett D'Alena happened on 26/04/05 of which threats were made by Mr. D'Alena to "sort me out" after work by himself and the use of his brothers. The argument was forgotten about in the afternoon and work continued as normal.

At approx 18.15pm Mr. D'Alena walked across the road to talk to two gentlemen sitting in a nearby car. The two gentlemen got out of the car and proceeded at a quickened pace. I was currently loading up the collection lorry and I retreated very quickly into the warehouse where they followed me into the building where they threatened me with assault. Fortunately another member of staff turned up and they left the building but still threatened me from the edge of the shutter doors and did not leave the premises for another 15 – 20 minutes. After the area was secured I had to finish off the days work."

It will be seen that, again, Mr. Plummer raised no complaint about the conduct of the disciplinary proceedings or their outcome. It is in fact not clear how the facts pleaded could have supported a claim for constructive dismissal, since they do not make it clear what act or omission by the employers is said to constitute a fundamental breach of contract.

8. In section 3 of the ET1 – "Action before making a claim" – Mr. Plummer, in response to question 3.5 - "Have you put your complaint(s) in writing to the respondent?" - answered "Yes" and gave the date of 2 June 2005. That date is a mystery, since it does not correspond to any date evidenced by the documents before us, and neither counsel could shed any light on it. But for the purpose of this appeal we do not need to solve the mystery. All that matters procedurally is that on the face of the ET1 Mr. Plummer was claiming to have invoked the statutory grievance procedure.
9. The employers' ET3 set out short grounds of resistance covering the issue of unfair dismissal. No point was taken as to limitation or otherwise as to jurisdiction. The employers did not answer question 2.6 of the form, which asked whether the substance of Mr. Plummer's complaint had been raised under one of the statutory procedures: they simply answered "no" to questions 2.3 and 2.4 and left questions 2.5-2.6 blank.^[2]
10. On 22 December 2005 the Leatherhead and District Citizens Advice Bureau wrote to the Employment Tribunal as follows:

"We are advising Mr. Plummer in the above case and enclose a copy of his signed form of authority.

We have discovered that when our client's ET1 was faxed to you, some pages appear to have been omitted. None the less, the ET1 was accepted at your office. Section 5.1, in which our client stated his complaint for constructive unfair dismissal, was faxed in completely and other pages were omitted.

We show on the attached sheet 1 a typed transcript of the section 5.1 as faxed. We asked that an amendment to this section be accepted and supply this amendment on the attached sheet 1.

For your convenience we have given the new complete section 5.1 on sheet 2.

In view of the delay this omission will have caused, we would like to ask for an extension to the ACAS conciliation period."

11. The attached amendment set out, under the heading "section 5.1 as faxed with ET1", the text which we have set out in para. 7 above down to the words "the use of his brothers". It then omitted the following sentence ("the argument … as normal") and the whole of the remainder of the section. The omitted words correspond to a page break in the original ET1. It would seem that the CAB themselves did not have a copy of the page in question and wrongly believed that nothing more had been sent to the Tribunal than appeared on the page which they had. The passage which they claimed that it had been intended to send does not correspond to the second page which was in fact sent. Although, like the page as sent, it starts with an account of the conclusion of the incident involving Mr. D'Alena's brothers, the account is in different terms and somewhat fuller. More importantly, however, it contains a fairly detailed account of the disciplinary process and concludes as follows:

"I think that the way in which the incident of the 26 April was handled and the outcome of the disciplinary hearing was wrong. I was in no way to blame for Brett D'Alena calling his brothers onto company premises and therefore to give us both final written warnings is wrong. It shows that that the disciplinary process was not even handed.

I believe that in view of the above I had no option but to resign as there had been a serious breakdown in trust and confidence between myself and my employer."

It will be seen that this puts the case on a quite different basis than appeared from the original ET1. In the original, the claim appeared to be based entirely on the deterioration in the relationship of Mr. Plummer and Mr. D'Alena; and, as we have pointed out, there was – as in the letters of 9 May and 18 July – no explicit complaint about the disciplinary procedure or its outcome; but now, for the first time, Mr. Plummer is advancing the case on the basis of which he eventually succeeded.

12. The employers appear to have written on 3 January 2006 to object to the proposed amendment, although we do not have a copy of the letter. But by letter dated 9 January 2006 a Chairman (Mr Snelson) allowed the amendment.
13. The case came on for hearing before the Tribunal on 24 February 2006. The employers asked for a review of the decision to allow the amendment. It was apparently their case that the explanation given by the CAB for the omission of the passage in question was false. That conclusion seems indeed to be inescapable: although no one has suggested – and we certainly do not – that the CAB intended to mislead the Tribunal, it seems clear that nothing was accidentally omitted at the time of the lodging of the original ET1 and it rather looks as though the passage sought to be substituted by way of amendment represents someone's second thoughts. In any event, the Tribunal acceded to the request for a review and rescinded Mr Snelson's order allowing the amendment. Para D7^[3] of the Judgment is in the following terms:

"The unanimous decision of this Tribunal is to reverse the decision to allow the amendment. We have reviewed the decision to allow the amendment made on 9 January 2006 and we accept the point made by the Respondent's representative that the amendment should not have been allowed. We believe that refusing the request to amend will cause no prejudice to either side as is clear from the ET1 the substance of the complaint which was (a) conflict which amounted to "a level of life threatening proportions to myself in the warehouse environment of which I could no longer work" and (b) the ET1 also makes reference to a subsequent grievance which was raised of which the ET3 is silent. No denial is made that the grievance was lodged; and (c) the only additional point raised in the amendments was a reference to the grievance raised, which was on the face of the ET1 and the manner in which the matter was handled, which was implicit in the resignation letter, because he clearly feels he could no longer continue to work in the Respondent's employ. This letter is referred to in the ET1 and ET3 and therefore the amendment merely adds evidence to the bones of the original complaint."

14. It is on the face of it odd that the Tribunal should have refused leave to amend and yet gone on (as we have indicated above) to find for Mr. Plummer on the basis of the very allegation which he had failed to make in his original pleading and was seeking to introduce in the rejected amendment; and this criticism featured largely in the employers' Notice of Appeal and was relied on by Burton J in his decision at the "sift" stage. But the Tribunal's thinking – although, with respect to it, it is not very well expressed - appears to have been that everything that was said in the amendment was already raised in the ET 1, even if only implicitly or indirectly. That might have been thought to be a reason for allowing, rather than rejecting, the amendment; but it does at least explain the apparent anomaly that, as Mr. Reade acknowledged, the case proceeded thereafter without objection from the employers on the basis that their conduct of the disciplinary proceedings was in issue. In the end, in his oral submissions before us Mr. Reade did not persist in his challenge to this aspect of the decision.
15. The case had to be adjourned part-heard to 24 April 2006. On that occasion the employers took for the first time a limitation point. The claim had of course been brought outside the normal time limit of three months from the effective date of termination, and the question was whether Mr. Plummer was entitled to the benefit of the extended period for bringing proceedings afforded by reg. 15 of the 2004 Regulations. Reg. 15 is, so far as relevant, in the following terms:

"(1)     Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 [to the 2002 Act] and—

(a)     either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or

(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.

(2)     …

(3)     The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal—

(a)     within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or

(b)     after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit.

(4)-(5)     …"

The requirement of para. 6 or para. 9 of Schedule 2 to the 2002 Act which is referred to in para. (3) (b) above is simply that, in a case falling within one or other version of the statutory grievance procedures, "the employee must set out the grievance in writing and send the statement or a copy of it to the employer".

16. The Tribunal held that Mr. Plummer was entitled to the benefit of the extended time limit under reg. 15. Since this was a claim of constructive dismissal, it held - following Shergold v. Fieldway Medical Centre [2006] ICR 304 and Canary Wharf Management Ltd v Edebi [2006] ICR 719 – that the case fell under para. (1)(b) of reg. 15, so that the essential question, in accordance with para. 3(b), was whether Mr. Plummer had within the normal time limit lodged a grievance about the matters on which he relied as entitling him to resign. It held that he had, on the basis that the letter of 18 July was sufficient to raise the matters in respect of which he was complaining in the unfair dismissal claim. The relevant passage from para. 10 of the Judgment is as follows:

"The grievance letter is at page 54 of the bundle and the breach is identified as being 'the long history of difficulties'. This classification is therefore clear so as to amount to a grievance letter and relates to raising a grievance giving the employer the opportunity to deal with the issues raised. The only requirement necessary to form a grievance is under section 32 (2) of the Employment Act 2002 which makes it plain that that the grievance must 'be essentially the same complaint that is subsequently advanced before the Tribunal'^[4]. That has been satisfied in this case."

It may be said that this reasoning does not really address the point (which counsel had plainly made) that the letter of 18 July makes no express reference to the employers' conduct of the disciplinary proceedings, which was (now) at the heart of the unfair dismissal claim. Nevertheless on its face it was an explicit finding by the Tribunal that the complaint raised by the letter and the complaint raised by the claim were "essentially the same".

17. The Tribunal's decision on the substantive issue of unfair dismissal was sent to the parties on 10 May 2006. It found that the way in which the employers had conducted the disciplinary proceedings against Mr. Plummer, and the outcome of those proceedings, did indeed constitute a fundamental breach of contract entitling him to resign. The relevant passage in the Judgment is as follows:

"D4. The employer owes the employee a duty of trust and confidence not to act in such a way as to damage or destroy the relationship. The employer has by their actions failed to follow their own disciplinary procedures, which is accepted by Mr Hill. They failed to follow clause 1(c) in that they did not "fully investigate". The Respondent did not seek the Claimants comments on Mr. D'Alena's statement, nor did they compare the evidence that they had collated from others, if they had done they would have noticed that the allegation made by Mr. D'Alena that the Claimant "threw a punch" at his brother was not corroborated by the Business Post Driver, this showed that's evidence was somewhat unreliable. Mr. D'Alena also admitted that he was accusing the Claimant of not working during the day and in front of Mr Bruce at the end of the day he was calling him lazy. The Respondent did not inform the Claimant of the case against him. The claimant also did not have an opportunity to state his case. He also had no clarification as to what the allegations against him were. There was a discrepancy between Mr Hill and Mr Bruce as to what the allegations were against the Claimant and why he should not be provided with the same disciplinary sanctions as Mr. D'Alena. On the back of a fundamentally flawed procedure, The Respondent had made a decision to give the Claimant the final warming, the same sanction that was given to Mr. D'Alena who had committed an act of insubordination and had been disrespectful to a senior person as well as calling his brothers to confront the Claimant in the work environment. This was the final straw, which the Claimant accepted and treated himself as dismissed. The Claimant's resignation letter made it clear that he was treating himself ass dismissed due to the fact that he felt his life was threatened.

D5. The Claimant's decision to treat himself as dismissed was a result of the Respondent's failure to deal with the matter according to the procedures and then reaching a conclusion that appeared to be irrational that both the Claimant and Mr. D'Alena should be given the same level of warning for the events of the 26 April. The Claimant also had a real fear then that he was no longer safe in the working environment, as, inn the light of the incident of 26 April, the Claimant had a real concern that there may be a repeat of such an incident in the future and the Claimant was fearful of working with Mr. D'Alena in the light of what had occurred. The Claimant also had no confidence that the employer would protect him in the workplace as there had been no measures put in place either to prevent such an incident occurring to protect him from any further threats of violence. This was a reasonable view for the Claimant in the light of the series of events that had occurred since early 2005.

D6. The Respondents committed a fundamental breach and that breach was the last in series of events from 26 April to the conduct of the procedure culminating in the decision to award the Claimant a written warning on the 8 May. We do not believe that there were two separate breaches, as proposed but the Claimant's representative, being firstly the failure to investigate and secondly the failure of the Respondent to ensure the Claimant gas a safe working environment. We believe that these breeches are inextricably bound up into one set of facts. There was no reasonable investigation, the respondent made no appropriate findings of fact, the Claimant had been given no opportunity to known the allegations against him and to respond to them despite the fact that the Respondent said in the meeting of the 29 April that they would let the Claimant know the outcome of their investigations, they never did. The Respondent failed to deal with the fact that the Claimant had said in that meeting that he feared for his life, this is something that they should have applied their minds to. The Respondent failed to offer to put in place any supervision, protection or control of their working environment to ensure that the Claimant felt safe and supported in the workplace and to ensure that Mr. D'Alena followed all reasonable instructions. The Respondents failed to apply their minds as to how these two employees would work together safely in the future. The fact that the Respondents closed their minds and failed to follow a thorough procedure, resulting in the award to the Claimant of disciplinary sanction and no offers of comfort or reassurances for his personal safety, resulted in the employer committing a fundamental breach entitling the Claimant on 9 May to treat himself as dismissed."

The Appeal

18. As noted above, the employers' Notice of Appeal focused largely on the apparent inconsistency on the part of the Tribunal in finding against them on the basis of allegations contained in an amendment which it had refused to allow. There were also points taken on (a) whether the employers' conduct could reasonably have been held to constitute a fundamental breach and (b) whether, in any event, Mr. Plummer had resigned in response to any such breach. But in his submissions before us Mr. Reade abandoned those points. He took instead a single point about the Tribunal's jurisdiction, which was raised neither before the Tribunal nor in the Notice of Appeal. He submitted that, notwithstanding that it was a new point, it was open to him because it went to jurisdiction. The particular authority which he referred to in this regard was Glennie v. Independent Magazines (UK) Ltd [1999] IRLR 719; but the Court of Appeal in that case certainly did not hold that the fact that a point went to jurisdiction necessarily meant that it had to be allowed to be taken in the Appeal Tribunal. However, we will for the present proceed on the basis that the point can legitimately be argued.
19. Mr. Reade's core submission was that the Tribunal was deprived of jurisdiction to entertain the claim by reason of the provisions of s. 32 of the Employment Act 2002. We should start by setting out the relevant terms of s. 32, which are as follows:

"(1)     This section applies to the jurisdictions listed in Schedule 4.

(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)-(5) …

(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) … .

(7)-(8) …"

20. It is necessary to spell out the effect of the various cross-references in those provisions:

(1) "Schedule 4", referred to in s-s. (1), sets out a large number of statutory provisions giving the Tribunal jurisdiction. They include s. 111, which gives the Tribunal jurisdiction to entertain claims of unfair dismissal.

(2) "The requirement in paragraph 6 or 9 of Schedule 2" referred to in s-s. (2) is the requirement to lodge a grievance in writing: see para. 15 above. Whether such a requirement "applies" to a "matter" seems to be governed by reg. 6 of the 2004 Regulations, which is headed "Application of the grievance procedures" and is, so far as relevant, in the following terms:

"(1)     The grievance procedures 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)-(7) …"

(3) The reference at s-s. (6)(b) to "regulations under section 7 of the Employment Tribunals Act 1996" is, in effect, to the Employment Tribunal Rules of Procedure (which form Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004)). The Rules of Procedure do not directly prescribe how an employer should "raise the issue of compliance with [s. 32 (2)-(4)]"; but rule 4 (2) does require employers to present their response to a claim on the prescribed "response form" (aka the ET3), and that is presumably what s-s. (6) (b) is referring to. Qu. 2.6 in the prescribed form of ET3 is intended to elicit whether there is an issue as to compliance with s. 32.

21. Against that background, the steps in Mr. Reade's submission can be spelt out as follows:

(a) Unfair dismissal falls within the scope of s. 32, as defined in s-s. (1), because it is one of the jurisdictions defined in Schedule 4.

(b) Mr. Plummer's complaint "concerns a matter to which the requirement in paragraph 6^[5] … of Schedule 2 applies", so that s. 32 (2) (a) was satisfied. Although Mr. Reade did not fully articulate this, his submission necessarily was that Mr. Plummer's complaint was "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": otherwise it would not fall within reg. 6 (see para. 20 (2) above). Although the actions by the employers complained of by Mr. Plummer did not as such attract the operation of any of the statutory jurisdictions – that is, they were not, e.g., complaints of discrimination or about an unlawful deduction of wages – Mr. Reade's case presumably was that they could nevertheless become "the basis of a complaint" because if he resigned in response to them (as he did) he could complain of unfair dismissal. There may be room for argument about whether that is in fact a permissible reading of reg. 6^[6]; but Mr. Reed took no point on it, and we need not consider the question further.

(c) The requirement in para. 6 was not satisfied because Mr. Plummer had never set out his grievance in writing. He had of course set out a grievance, in the letter of 18 July, but that was not the grievance relied on for the purpose of his unfair dismissal claim or on the basis of which the Tribunal found that he had been unfairly dismissed. Mr. Reade drew attention to the observations of Elias P. in Canary Wharf Management Ltd. v. Edebi (above) to the effect that the statement under para. 6 "must of course be a statement of the same complaint as the employee is seeking to have determined by the tribunal" (see para. 16, at p. 722 G-H) and that "the complaint to the employer must be essentially the same complaint as is subsequently advanced before the tribunal" (see para. 21, at p. 723G). S. 32 (2) (b) is accordingly also satisfied.

(d) Since Mr. Plummer was in breach of s-s. (2), the Tribunal was by virtue of s-s. (6) prevented from considering his claim.

22. Step (c) of course involves the same question as the Tribunal had already determined, in Mr. Plummer's favour, on the limitation point (see para. 16 above) – namely whether the letter of 18 July raised substantially the same complaint that Mr. Plummer was relying on in his claim of constructive dismissal. That is to be expected, since s. 32 and reg. 15 are meant to be complementary. Mr. Reade thus has to, and does, submit that the Tribunal's conclusion that the letter of 18 July covered a complaint about the employers' conduct of the disciplinary proceedings was wrong; and he made it clear that – although this was not the primary way he put his case – the effect of his submission was that the Tribunal was wrong in its conclusion on limitation.
23. Mr. Reed's response to Mr. Reade's submissions was twofold:

(i) that "step (c)" was wrong, because Mr. Plummer's letter of 18 July did adequately raise the matters complained of in the proceedings;

(ii) that even if it step (c) was established, step (d) was wrong, because s. 32 (6) only operates to prevent a claim if one or other of the conditions specified as (a) and (b) are satisfied, and they were not.

We consider those points in turn.

24. As to (i), we have set out the terms of the letter of 18 July at para. 5 above, together with the parties' submissions as to what it can reasonably be understood to cover. With considerable hesitation, we have come to the conclusion that it was apt to cover the complaint on which Mr. Plummer succeeded before the Tribunal. The key phrase is "the handling of events by the company which led to my resignation". Although it is unfortunate and odd that Mr. Plummer did not make any explicit reference to the disciplinary proceedings or their outcome, it is hard to see to what else the employers' "handling" of events could have been understood to refer; and the subsequent paragraph referring to Mr. D'Alena's conduct does not undermine that view. We are encouraged by the fact that this is also the conclusion which the Tribunal reached, albeit in the context of a different submission: see para. 16 above. Although its reasoning as expressed is not entirely easy to follow, the Tribunal is likely to have had a better feel than we can hope to have about the factual background against which the employers would have had to read the letter. But we must emphasise that Mr. Plummer only just scrapes over the hurdle. We fully endorse the recent authorities from this Tribunal emphasising that in order to satisfy the requirements of paras. 6 and 9 of Schedule 2 to the 2002 Act written statements of a grievance need be neither formal nor elaborate, but it must nevertheless be made sufficiently clear to the employer what the complaint is about; and we would not encourage employees or advisers to believe that a complaint expressed as shortly and allusively as this will necessarily suffice.
25. As to (ii), Mr. Reed pointed out that even where there may have been non-compliance with the relevant requirements, s. 32 (6) only prevents the bringing of proceedings where - to paraphrase - either (a) the Tribunal itself takes the point that there has been non-compliance, on the basis that that appears from the employee's own ET1 or (b) the employer has taken the point in his ET3. In other words, non-compliance by an employee with the statutory procedures does not automatically deprive the Tribunal of jurisdiction: it is necessary that the point is taken in, or as a result of, the pleadings. As to (a), the Tribunal had not taken the point, because the ET1 did assert that a relevant grievance had been lodged: see para. 8 above - at this stage of the argument it does not matter whether that assertion was correct. As to (b), the employers had not taken the point in their ET3: see para. 9 above. In response, Mr. Reade acknowledged that he could not rely on (a), but he sought to rely on (b). He said that the employers were not obliged to raise the issue of non-compliance because it did not arise in relation to the pleaded claim: the employers could not have asserted that no grievance had been raised about their conduct of the disciplinary proceedings because the only claim pleaded was about Mr. D'Alena's conduct – see para. 7 above.^[7] What ought to have happened, he submitted, was that Mr. Plummer's complaint about the disciplinary procedures should have been pleaded by amendment, at which point the employers could have amended their ET3 to raise the issue of non-compliance; but that had never occurred because the Tribunal had refused leave to amend. That analysis seems to us correct as far as it goes: we agree that the requirement that the issue of non-compliance be raised "in accordance with [the Rules of Procedure]" can in principle be met by the employer raising the issue in an amendment (since the Rules provide for amendment). But the problem for Mr. Reade is that, as he accepted, the hearing proceeded, rightly or wrongly, on the basis that the matters in question were properly pleaded by Mr. Plummer irrespective of the rejected amendment: see para. 14 above. Once that became clear, even if not before, the onus was indeed on the employers, if they wished to invoke s-s. (6), to seek to amend to raise the issue of non-compliance with s-s. (2); and they did not do so. It is true that they did raise a question about time limits, and that if the Tribunal had accepted their submission on reg. 15 it would have followed as a matter of logic that there had been non-compliance with s. 32 (2); but the phrase in s-s. (6) (b) is "as a result of the employer raising the issue of compliance with those provisions", and it seems to us that the requirement on the employer is to plead explicitly that there has been non-compliance with s. 32.
26. In our view, therefore, both of Mr. Reed's answers to Mr. Reade's jurisdiction submission are good. In those circumstances we need not decide whether the point is in fact open to Mr. Reade in the first place. We would only observe that it would have been somewhat artificial to exclude it as a "new point" in circumstances where the central question had in fact been decided by the Tribunal, albeit in a superficially different context, and the decision of the Tribunal on that issue could properly have been appealed.
27. Accordingly we dismiss this appeal.

Note 1    We have silently corrected one or two minor typographical errors in the letter.    [Back]

Note 2    This omission was venial, since the way that the form is laid out may mislead the unwary. Following qu. 2.4 - “If the claim includes something other than dismissal, does it relate to an action you took on grounds of the claimant’s conduct or capability?” – the rubric says “if “yes”, please now go straight to sec. 2.6”. That may have conveyed the impression that if their answer was “no” – as it was - it was unnecessary for them to go to qu. 2.6.     [Back]

Note 3    Rather inconveniently, the Judgment has two sets of paragraph numbers. The introductory material is covered in paragraphs 12 to 39, after which there is a heading “The Decision” and the paragraph numbers re-start. To avoid confusion, in this judgment we will pre-fix a letter “D” to references to the second series of paragraph numbers.     [Back]

Note 4    The words quoted are not in fact from the Act but from the judgment in the Canary Wharf case: see para. 21 (c) below.    [Back]

Note 5    In so far as this was a case of a post-dismissal grievance, it was potentially a case for the application of the “modified procedure”, in which case para. 9 rather than para. 6 would have been the applicable paragraph. But that would only have been so if the parties had agreed – see reg. 6 (3) (c) of the 2004 Regulations – and they apparently did not.     [Back]

Note 6    This issue does not appear to have arisen in either Shergold or Canary Wharf.     [Back]

Note 7    Given the employers’ failure to answer qu. 2.6 on the existing pleading, it must be doubtful whether they would have done so even if Mr. Plummer had pleaded his full case from the start; but that is not an aspect which we need to pursue.    [Back]