THE INDUSTRIAL TRIBUNALS

CASE REF:	131/06

CLAIMANT:			Steven Somers		

RESPONDENT:		Shaws of Bangor Ltd		

DECISION ON PRELIMINARY ISSUE

The decision of the tribunal on the preliminary issue is that the tribunal determines that the claimant is not entitled to present his claim to the industrial tribunal in view of the provisions of Article 19(1) and (2) of the Employment (Northern Ireland) Order 2003 regarding the requirement to present a grievance in writing to the employer and waiting 28 days before presenting a claim to the tribunal. The tribunal has no jurisdiction to hear and to determine the claimant’s claim and the claim is struck out, without further Order.   

Constitution of Tribunal:

Chairman:		Mr J V Leonard (Chairman sitting alone)

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Mr M D Shaw, a Director of the respondent company.	

REASONS

1.	The tribunal conducted a Pre-Hearing Review in accordance with Rule 18 contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  The tribunal heard evidence from Mr Shaw, a Director of the respondent company, and examined such documents as were placed before it and considered a submission on behalf of the respondent that the claim ought properly to be dismissed.

THE CLAIM

2.       In this case the claimant made a claim to the Industrial Tribunal which was dated 23 January 2006 and was received by the Office of Tribunals on 24 January 2006.  In that, the claimant contended that he had been constructively dismissed and the claimant also contended that he had been subjected to harassment on account of his taking a claim against the respondent for personal injuries which he alleged had been sustained in the course of his employment.  In the section of the claimant’s claim form entitled “action before making a claim” the claimant stated that he had not put his complaint in writing to the respondent. The reason he had not done this was, as the claimant put it:-

                    “I am no longer employed by the respondent and I did not put my grievance in writing to my employer prior to the date my employment ended.  I believe I was harassed during my employment and believe that if I had put my grievance in writing to my employer that this would have resulted in further harassment given that I believe that incidents occurred as a result of my personal injury claim”.  

           In the claim form the claimant further elaborated on what he alleged to have been harassment at work which he stated he had suffered on the grounds indicated by him. 
 
THE RESPONSE

3.	In the respondent’s response to the claim, the respondent contended that the substance of the claim had not been raised by the claimant.  It was contended that the claimant had left employment on 25 October 2005 and that since leaving no complaint had been raised either verbally or in writing with the respondent save as detailed in the claimant’s claim to the tribunal.  No complaint had been made by the claimant using the company’s grievance procedures.  Further, it was indicated by the respondent that the claim of constructive dismissal was to be resisted and the claimant’s allegations were denied by the respondent.  

4.	The matter was listed for a Pre-Hearing Review on the following issue:-

	“Whether the claimant is entitled to present a claim to the Industrial Tribunals in view of the provisions of Article 19(1) and (2) of the Employment (Northern Ireland) Order 2003 regarding the requirement to present a grievance in writing to the employer and waiting 28 days before presenting a claim to the tribunal”.

5.	A Notice of a Pre-Hearing Review dated 21 March 2006 and listing the matter for hearing on 5 May 2006 was dispatched by the Office of Tribunals to the parties and there was nothing to indicate that the said Notice of Pre-Hearing Review was not received both by the claimant and the respondent.  

THE ISSUES

6.	In respect of the claimant’s contentions as set out in the claim and the content of the response thereto, and such evidence as was before the tribunal, the tribunal had to determine the preliminary issue as foregoing.  In the absence of the claimant attending or being represented at tribunal, the tribunal was cognisant of Rule 27(5) of the Industrial Tribunals Rules of Procedure 2005, as contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The tribunal thus disposed of the proceedings in the absence of the claimant.

THE TRIBUNAL’S FINDINGS

7.	On foot of such evidence as was before it, the tribunal made the following findings of fact, material to the preliminary issue:-

(a)	The claimant was employed by the respondent and that employment came to an end on 25 October 2005.  The claimant had contended in his claim that he had been constructively dismissed with effect from that date.  The respondent did not concede that the claimant had been either dismissed or constructively dismissed but the respondent did accept that the employment had terminated on that date.

(b)	The respondent company had a staff handbook which contained amongst other things company rules governing pay, absence procedures, disciplinary and grievance procedures, expected company standards and activities, expenses, benefits, and adherence to statutory requirements.  Each of the respondent's employees was given a copy of a statement of written particulars of employment including a copy of the staff handbook. In the case of the claimant, he received his copy from the respondent and he signed a receipt for that dated 7 June 2004.  Contained in the handbook were written grievance procedures to be followed by employees.  

(c)	Whilst the claimant had made certain allegations of harassment in the written claim to the tribunal, the claimant did not appear nor did he by any means adduce any further evidence in support of these allegations. At the hearing the allegations were strenuously denied by the respondent.  From the claim and any further evidence available, the tribunal was unable to make any findings of fact in support of the claimant’s allegations generally. Materially, the tribunal was unable to make any findings of fact in support of the contention put forward by the claimant in his originating claim that, on account of the fact that he had been harassed during his employment, he had proper and valid grounds for not putting his grievance in writing to his employer as doing so would have resulted in further harassment being sustained by him.  

(d)	Certainly, at no time during the employment did the claimant make any complaint in writing to the respondent. Furthermore, at no time after the employment had ended did the claimant make any complaint in writing to the respondent, save for the institution of these proceedings.  

(e)	The tribunal did not need to determine any further findings of fact for the purposes of its determination in this claim.

THE APPLICABLE LAW

8.	The Employment (Northern Ireland) Order 2003 (“the 2003 Order”) makes provision at Part IV for statutory procedures for dispute resolution.  Article 15 of the 2003 Order provides that Schedule 1 of the 2003 Order sets out statutory dispute resolution procedures which shall have effect.  Article 16 of the 2003 Order provides that every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure.  Article 19 of the 2003 Order provides as follows:-

	19. – (1)	This Article applies to the jurisdictions listed in Schedule 3.

(2)	An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –

(a)	it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 applies, and

(b)	the requirement has not been complied with.

(3)	An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –

(a)	it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with, and

(b)	less than 28 days have passed since the day on which the requirement was complied with.  

          In regard to whether or not Article 19 of the 2003 Order applies, there are a number of statutory reasons upon which a claimant might seek to rely for not complying with the statutory grievance procedure.  

          The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”) provide at Regulation 11 for general circumstances in which the statutory procedures do not apply or are treated as being complied with.  Regulation 11 of the 2004 Regulations provides as follows:- 
    			
11. – (1)	Where the circumstances specified in paragraph (3) apply and in consequence the employer or employee does not commence the procedure that would otherwise be the applicable statutory procedure (by complying with paragraph 1, 4, 6 or 9 of Schedule 1), the procedure does not apply.

         (2)	Where the applicable statutory procedure has been commenced, but the circumstances specified in paragraph (3) apply and in consequence a party does not comply with a subsequent requirement of the procedure, the parties shall be treated as having complied with the procedure.

        (3)	The circumstances referred to in paragraphs (1) and (2) are that –

(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 a 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.

(4)	In paragraph (3)(b), “harassment” means conduct which has the purpose or effect of – 

	(a)	violating the person's dignity; or

(b)	creating an intimidating, hostile, degrading, humiliating or offensive environment for him,
           
           but conduct shall only be regarded as having that purpose or effect if, having regard to all the circumstances, including in particular the perception of the person who was the subject of the conduct, it should reasonably be considered as having that purpose or effect.

TRIBUNAL’S DECISION

9.      In the absence of the claimant appearing to give evidence before the tribunal or being represented in order to call witnesses or to make submissions, the tribunal has taken note of the case made out by the claimant in his originating claim and in particular the content of paragraph 5.7 of the claim form where the claimant had stated as follows:-

	“I believe I was harassed during my employment and believe that if I had put my grievance in writing to my employer that this would have resulted in further harassment given that I believe that incidents occurred as a result of my personal injury claim”.

10.	In the details of claim, the claimant made the case that he had been constructively dismissed.  Constructive dismissal (in contrast to unfair dismissal which is not claimed as constructive dismissal), is a type of complaint which does fall within the ambit of Article 19 and Schedule 3 of the 2003 Order.  Unless therefore the circumstances of the complaint can bring the claimant within one of the statutory exceptions, or if the claimant may be otherwise treated as having complied with the procedures, Article 19(2) of the 2003 Order provides that the employee shall not present a complaint to an industrial tribunal unless that requirement has been complied with.  The tribunal therefore looked at the case to establish whether or not the specific exception to or exemption from the procedure contended by the claimant in paragraph 5.7 of his claim (or more generally otherwise in the originating claim) might be applicable.  The specific case made out by the claimant was a case based on Regulation 11 of the 2004 Regulations. The claimant specifically relied on Regulation 11(3)(b), in the contention that the claimant had been subjected to harassment and that he had reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would have resulted in his being subjected to further harassment.

11.	In the content of the claim form and at paragraph 12.1 thereof, the claimant made a number of specific identifiable complaints.  These are as follows:- 

(i)	A work colleague’s attitude changed towards him when he returned to work following an injury at work which resulted in his apparently making a claim for personal injuries.  
(ii)	The same colleague (unnamed) became abusive towards him and began calling him names including “fat”.  
(iii)	On one occasion the (same unnamed) work colleague threw a cup of tea at him and the cup hit him and the tea spilled over him. 
(iv)	On one occasion the Director of the Company telephoned him and when he answered the telephone the Director made a comment with regard to the claimant's sexuality.  The claimant alleged that he heard another person in the background tell the Director that he should not say things like that.
(v)	A male work colleague (unnamed) had a work dispute with him which resulted in the work colleague shouting at him in a way that could be heard by customers and other employees. 
(vi)	When the foregoing matter came to the attention of the respondent’s Service Manager, the Service Manager called the claimant and the other work colleague into his office. In the context of an apparent investigation, the Service Manager alleged that the claimant had been telling lies.  
(vii)	Finally, the (same but unnamed) female work colleague who had previously been abusive to him called him a “stupid wee child”.

12.	Examining the case made out by the claimant (which was vehemently denied by the respondent’s Director at hearing) the only discernible case was of alleged harassment by a Service Manager and by two work colleagues (both unnamed and one male and one female), save for an alleged comment made in a telephone conversation by the Director of the Company regarding the claimant’s sexuality.

13.	In this case on account of Regulation 11 (3) (b) of the 2004 Regulations, the onus rests with the claimant to satisfy the tribunal that he had been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with a subsequent requirement would result in his being subjected to further harassment.  The definition of harassment in the 2004 Regulations is capable of covering conduct which includes harassment both on grounds otherwise covered by anti-discrimination legislation and also encompassing bullying and other forms of intimidation.
14.	The tribunal notes the Guidance issued by the Department of Trade & Industry and paragraph 96, 97 and 98 of that guidance comments on the topic of harassment.  

           Paragraph 96 states as follows:-

	         “96.	Harassment is defined as creating an intimidating, hostile, degrading,
humiliating environment, for instance where there is harassment related to gender, race or disability.  Such circumstances make the constructive discussion of work place disputes impossible.  However, it is important to note that stress or anxiety on the part of one of the parties will not usually be sufficient to cause any exemption to apply”.

15.	The tribunal accordingly considered the import of the foregoing statutory provisions, and noted the assistance provided by the commentary in the Department of Trade & Industry Guidance. The tribunal thus considered the case made out by the claimant in his claim form, and noted that the claimant’s contentions were strenuously denied by the respondent company both in its response to the claim and also in the evidence of the claimant’s witness appearing before the tribunal, Mr Shaw. The tribunal had to be satisfied that the claimant had been subjected to harassment and had reasonable grounds to believe that commencing the procedure or complying with a subsequent requirement would result in his being subjected to further harassment.  

16.	Examining the facts from such evidence as was available, the tribunal is not satisfied in the absence of further proof that the claimant did have reasonable grounds for such a belief as foregoing.  That being the case, and there being no other ground made out upon which the claimant might either be treated as complying or exempt from compliance with the statutory procedures, the tribunal finds that the provisions of the 2003 Order Article 19 do apply to the circumstances of this case. These provisions, taken together with the 2004 Dispute Regulations, do not provide any exemption to the claimant.  Accordingly, on account of Article 19(2) of the 2003 Order, the tribunal finds, in answer to the preliminary issue to be determined, that the claimant is not entitled to present his claim to the industrial tribunal in view of these statutory provisions. Accordingly the tribunal has no jurisdiction to hear and to determine the claimant’s claim.

17.	Rule 18 of the 2005 Rules of Procedure provide by virtue of Rule 18(7) that a chairman conducting a pre-hearing review may make an Order as to the entitlement of any party to bring or to contest particular proceedings. Rule 18 (5) of the 2005 Rules of Procedure provide that at a pre-hearing review a chairman may make a decision on any preliminary issue of substance relating to the proceedings, including an order resulting in the proceedings being struck out or dismissed or otherwise determined.  In this case the tribunal determines that the claimant is not entitled to present his claim to the industrial tribunal in view of the foregoing statutory provisions. The tribunal has no jurisdiction to hear and to determine the claimant’s claim and the claim is struck out, without further Order.         
   	
Chairman:

Date and place of hearing:	5 May 2006, Belfast.	

Date decision recorded in register and issued to parties: