Appeal No.  UKEAT/0273/06/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 August 2006

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR A SCOTT-DAVIES	APPELLANT

REDGATE MEDICAL SERVICES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	

APPEARANCES

For the Appellant	Mr A Scott-Davies
(The Appellant in Person)

For the Respondent	Mr B Gardiner
(of Counsel)
Porter Dodson Solicitors
Central House
Church Street
Yeovil
Somerset
BA20 1HH	

SUMMARY

Practice and Procedure – 2002 Act and Pre-action requirements

There is no free-standing right to complain of a breach of the statutory procedures in the absence of a valid claim of unfair dismissal (here by a person with less than one year’s service). 
The right to a statement of particulars of contractual terms under Employment Rights Act 1996 Part I is not one to which the procedures apply.

HIS HONOUR JUDGE McMULLEN QC

1.	This case concerns the availability of remedies to a person with less than one year’s service in respect of whom the employer has not operated the statutory grievance and disciplinary procedures and has not provided written particulars of contract.  I will refer to the parties as the Claimant and the Respondent.  

2.	It is an appeal by the Claimant against a decision not to accept his claim form, since the Tribunal did not have jurisdiction to hear free-standing complaints of failure to follow the statutory procedures.  That was recorded as a decision of Mr C G Toomer, Chairman at Bristol Employment Tribunal, sent to the Claimant on 2 March 2006.  The Claimant was dissatisfied with that and lodged an appeal which was registered here.  The matter came before me and I decided that this should be heard, since it raised reasonably arguable points.  Mr Scott-Davies represented himself and has done so in concise terms orally and in his written skeleton, for which I am grateful.  The Respondent is represented by Mr Bruce Gardiner of Counsel.  

Background
3.	The background is that Mr Scott-Davies was dismissed before he had served one year with Redgate Medical Services and therefore was excluded by s108(1) of the Employment Rights Act 1996 from bringing a claim of unfair dismissal.  His simple contention is that had he been allowed access to the proper procedures and been given written particulars of his contract he may not have been dismissed, and it was the unfairness inherent in not allowing him to access those procedures which caused his dissatisfaction and his application to the Employment Tribunal.  

4.	The issue for me is to decide whether, as has been suggested, there are free-standing rights to make complaints of these matters.    

Written particulars
5.	I will take first the statement of employment particulars.  Pursuant to Employment Rights Act 1996 s1, not later than two months after the beginning of employment an employer is required to provide the employee with a statement of particulars.  The remedy for a person who has not got any or adequate particulars is set out in s11. This is by way of a reference to an Employment Tribunal where the powers include, broadly speaking, the power to encapsulate in writing what the terms are.

6.	A significant feature of s11 is that the remedy does not include compensation.  This is a unique employment right.  We set out in our book Employment Tribunal Procedure, LAG 3rd Ed 2005 (page 22ff) the full extent of the rights available before Employment Tribunals. A claim for breach of s1 is made by way of a reference, not a complaint, and the remedy is not in any monetary terms.  The limitation period applicable to such a claim is that it is available during the employment and for three months thereafter, see s11(4.)  As noted in this work, certain rights carry with them the right to the statutory procedures under the 2002 Employment Act and the 2004 regulations issued thereunder.  Section 11 is not one of them. 

7.	Thus, the reference under s11 can be looked at without reference to the new procedures.  Schedules 3-5 to the 2002 Act which cites the provisions which attract the statutory measures do not include s1 and s11.  Thus, it is not necessary before going to an Employment Tribunal on a reference for an employee to have filed a grievance.  That there is no monetary claim would not prevent the reference being heard and at the outset of today’s proceedings I asked Mr Scott-Davies whether this claim was about money, and he very fairly said that it was about seeing that the procedures should be followed through.  However, he recognises that no financial compensation can be made for a breach of s1 and since he is no longer an employee there is no utility in the Tribunal determining what the terms are as between the parties. I will deal with the relevance of s38 EA, below.

Unfair dismissal
8.	The second issue is the Claimant’s accessibility to the statutory procedures.  In my judgment, Mr Gardiner is correct in his approach to the new procedures.  The statutory references are important and I will take the summary as given by Mr Gardiner. The statutory grievance procedures are set out in Part III of and Schedule 2 to the 2002 Act, together with the Employment Act 2002 (Dispute Resolution) Regulations 2004. In summary, so far as is relevant:
a.	There is a minimum grievance procedure prescribed by statute - either a standard procedure or a modified procedure (s29 and Schedule 2 EA 2002);
b.	Failure by an employee to initiate a grievance may prevent that employee from issuing tribunal proceedings in relation to that complaint (s32 EA 2002);
c.	Where a tribunal is making an award in favour of an employee for breach of an employment right and there has been a failure by the employer to comply with the statutory grievance procedures, there will ordinarily be a percentage increase in the award by at least 10% and potentially 50% (s31(3) EA 2002).
d.	Where the claim is about dismissal, that failure makes the dismissal automatically unfair (s98A ERA).
e.	Where a tribunal dismisses a complaint for breach of an employment right and there has been a failure by the employer to comply with the statutory grievance procedures, there is no award to which a percentage uplift can be made. S31 EA 2002 provides no other remedy in this circumstance. Therefore the employee receives no award. If there is no remedy in this latter situation, it follows that there can be no remedy where there is merely a complaint that there has been non-compliance with a statutory procedure. There is no statutory provision conferring jurisdiction on tribunals to consider free-standing complaints that there has been a failure to comply with a statutory procedure. If such a statutory provision existed, it would specify the time limits for bringing such a claim and the potential remedies for breach of the statutory procedures. Indeed it would be contrary to the purpose of the dispute resolution procedures for the tribunal to have jurisdiction to consider such free-standing complaints. It would have the effect of increasing the volume of tribunal claims.

9.	I accept in general terms that the principle behind their introduction is as embodied in Shergold v Fieldway Medical Centre [2006] ICR 304, Burton J, President, and members at para 26 which is as follows:

“It is quite plain that the purpose of this legislation was to encourage conciliation, agreement, compromise and settlement rather than the precipitate issue of proceedings. It is not unlike the system of pre-action protocols in relation to High Court and County Court litigation, although hopefully it is even more likely to succeed because of the relationship, or the immediately preceding relationship, between the parties in an employment dispute”

I know from the consultation process proposing this regime that it is the policy of this legislation that there should be fewer Employment Tribunal claims and that if the statutory procedures are properly invoked there will be less recourse to Employment Tribunals. It follows from that alone that where there is no statutory right the application of the statutory procedures is inapt.  Since there is no statutory right to invoke the procedures in respect of a statement under s1, they do not apply.  Since there is no statutory right to make a complaint of ordinary unfair dismissal by a person with less than one year’s service, again there is no requirement (indirectly through the compensation awards and s98A) to use the procedures before Employment Tribunal proceedings.  Thus the policy of the legislation is carried through. It is good practice for employers to use the procedures for all employees but that does not give new rights in the Employment Tribunal where none now exists. 

10.	I accept the point that if a valid claim had been made, that is, if Mr Scott-Davies had more than one year’s service, he would have succeeded in his claim under s98A(1) for automatic unfair dismissal, because the Respondent accepts that it followed neither the grievance nor the disciplinary procedures. The complaint of failure to follow a statutory procedure is invoked only as part of an otherwise valid application, so that where as here there is no jurisdiction to hear a claim, nor can there be any jurisdiction to link to it a complaint of failure to follow a statutory procedure.  There must be a valid claim running under one of the relevant jurisdictions which are set out in schedule 3, 4 or 5 and I find there is none here.  All that is sought is a remedy for the failure to go through the statutory procedures in an abstract sense.  

11.	The only way this could be done is to invoke s38 (adjustment of awards), but s38 does not apply either to s1 ERA or to claims which cannot validly be made.  I accept the construction advanced by Mr Gardiner. The 2002 Act, taken together with the 1996 Act, grants the tribunal jurisdiction to award such a remedy only if there is already a valid claim. S38 EA does not create the jurisdiction to complain to a tribunal of a failure to give a statement of employment particulars. 

12.	The wording of s38 should be contrasted with the clear wording throughout the ERA where jurisdiction is intended to be conferred on the Employment Tribunals eg s26 (unauthorised deductions from wages); s48 (protection from detriment); s93 (failure to provide a written statement of reasons for dismissal); s111 (unfair dismissal)); and the discrimination legislation eg s63 Sex Discrimination Act 1975; s54 Race Relations Act 1976, sl7A Disability Discrimination Act 1995). In each case the formula is the same: “A complaint may be presented to an employment tribunal.” 

13.	Far from granting a right to an employee to bring a free-standing complaint to the Employment Tribunal, s38 imposes duties on Employment Tribunals (see s38(5)) to make awards where the conditions in sub-sections (2) or (3) are satisfied. Sub-sections (2) and (3) draw a distinction between “the claim to which the proceedings relates” (in sub-sections (2)(a) and (3)(a)), and a breach of the duty under s1(1) of the ERA (in sub-sections (2)(b) and (3)(b)). This distinction requires that the claim to which the proceedings relates is a valid claim, different from the breach of duty under s1(1) of the ERA. Indeed, if there is a valid claim, there is no requirement that there be a further claim for a breach of s1 ERA. It is sufficient that that the Employment Tribunal make a finding at the hearing that the employer was in breach of s1 ERA at the time when the proceedings were begun. This is consistent with there being no jurisdiction to bring such a claim. 

14.	It is implicit in sub-section (2) that there is a pending claim for which the Employment Tribunal has jurisdiction to make an award apart from s38 EA 2002. Part of the premise on which the Employment Tribunal is making an award under sub-section (2) is that it has made no award in respect of the claim to which the proceedings relate (subsection 2(a)). If the only pending claim is a breach of s1 ERA, then the Employment Tribunal cannot at the same time make no award and also make an award. 

15.	It is significant that s3l(5) EA refers to s38 EA as adjusting an award. This presupposes a valid claim for which an award is being made. There is no provision within s38 setting out the time limits for bringing a claim of a failure to give a statement of employment particulars (it is already in.s11(4) ERA) All other employment legislation conferring jurisdiction on employment tribunals to consider complaints provides a time limit for doing so. 

16.	If this is the true interpretation of s38, then the fact that s38 has been listed in Schedule 5 to the Act does not confer jurisdiction where otherwise there is none. Schedule 3 EA, (dealing with s31 EA) lists “Tribunal Jurisdictions to which Section 31 applies”  and includes s31 even though s31 confers no jurisdiction to bring a complaint that the statutory procedures have not been complied with, but merely deals with the adjustment of awards. Similarly the list in Schedule 4 EA 2002, (dealing with s32 EA) includes s32 even though s32 confers no jurisdiction to bring a complaint about non-compliance with the statutory grievance procedures, but rather limits the circumstances in which an employee can complain to the Employment Tribunal where he or she has not initiated the grievance procedure. In each schedule, the statutory section which incorporates the schedule has been included in statutory sections listed in the schedule, even though it was not strictly necessary for this to be done.

17.	It has also been contended that the availability of a free-standing right to complain about non-compliance with the statutory procedures arises from s30 EA, but without reciting it, it is simply necessary to note that this provision did not take effect on 1 October 2004 when the rest of the statute and the regulations did.  The consultation document issued by the Government on these procedures indicated that there would be a gap between the two, so that experience would show whether s30 should be implemented.  It was foreshadowed that this period would take at least two years and it has not yet been, so whatever argument there may be when these provisions are implemented it is not available to Mr Scott-Davies today.  

18.	The upshot is that the Tribunal was correct to reject for want of jurisdiction free-standing claims for remedy as they were set out in the claim brought by the Claimant, essentially to the effect that he sought to bring into being a right and to claim compensation for its breach, based on s38 when there was no substantive right – in this case unfair dismissal – upon which it can operate and in the case of s1 when there was no formal remedy other than the recording of the contractual particulars which he no longer seeks.

19.	I am grateful both to Mr Scott-Davies and to Mr Gardiner for coming today.  The appeal is dismissed.