Appeal No. UKEAT/0016/06/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2006
Judgment handed down on 6 February 2007

Before
THE HONOURABLE MR JUSTICE KEITH
(SITTING ALONE)

MS C ODOEMELAM	APPELLANT

THE WHITTINGTON HOSPITAL NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr Christopher Camp
(of Counsel)
Instructed by:
Messrs Fisher Meredith
Solicitors 
Blue Sky House
405 Kennington Road
London
SE11 4PT	
For the Respondent	Mr Mugni Islam-Choudhury
(of Counsel)
(Employed Barrister)
Instructed by:
Messrs Bevan Brittan LLP Solicitors
Fleet Place House
2 Fleet Place
Holborn Viaduct
London 
EC4M 7RF	

Summary
Statutory grievance procedures 
Need for grievance to identify that complaint is one of racial discrimination - application to claims against employees as well as to claims against their employers

THE HONOURABLE MR JUSTICE KEITH

Introduction
1.	The Claimant, Christine Odoemelam, is employed by the Whittington Hospital NHS Trust (“the Trust”) as a staff nurse.  She is black.  On 4 May 2005, she lodged a claim of racial discrimination against the Trust and two of its employees.  The Chairman of an Employment Tribunal at Watford found that Ms Odoemelam had failed to submit her grievance to the Trust before lodging her claim with the Tribunal, and he concluded that that prevented the Tribunal from considering her claim.  Ms Odoemelam now appeals against that ruling, as well as against an order for costs against her which the Chairman also made.  

The facts
2.	The facts can be shortly stated.  On 7 September 2004, Ms Odoemelam wrote a letter to Fiona Elliot, the Trust’s Divisional Manager for Medical Services in the Operations Directorate (“the Elliot letter”).  She claimed that a patient who had previously been banned from the ward on which she worked for threatening and pushing her had been readmitted to the ward on 18 August 2004.  She complained that her fear of the patient had been ignored, and that her unwillingness to return to the ward while the patient was still there had resulted in her being threatened with disciplinary action.  The copy of the letter provided to the Tribunal had some text missing at the bottom of the second page, because the second page ended with the ending of a paragraph, and the third page began mid-sentence.  I shall return to the significance of that later.  

3.	Following the receipt of the Elliot letter, the manager of the ward, Nicole Adams, wrote to Ms Odoemelam.  That was the next day.  She suggested a meeting to discuss Ms Odoemelam’s concerns.  For a variety of reasons, no meeting took place before Ms Odoemelam lodged her claim with the Tribunal, though in correspondence Ms Odoemelam had referred to the issues which she had wanted to discuss when a meeting eventually took place.  However, at no time prior to lodging her claim with the Tribunal had she ever alleged that the treatment of her of which she was complaining was because she was black.  In particular, she had not said that in the Elliot letter.

4.	In her ET1, which she clearly drafted herself, Ms Odoemelam’s complaint to the Tribunal was that since returning to work on 14 October 2004 following a period of “sick leave” from 19 August 2004, she had come into contact with the patient several times.  She blamed Ms Adams for putting her health and safety at risk by having readmitted the patient to the ward in the first place.  She also claimed that the matron, Shaun Harrison, had been aware of “how [she] was being treated … throughout this period” – by which she meant, I was told, after her return to work on 14 October 2004 – but nothing had been done about it.  Ms Adams and Mr Harrison were the two employees of the Trust who were named as additional respondents in the ET1.

The relevant statutory provisions
5.	The combined effect of sections 32(2) of the Employment Act 2002 (“the Act”), when coupled with sections 32(1) and 32(6) of the Act, was to prevent the Tribunal from considering Ms Odoemelam’s claim if (a) her claim concerned a matter in relation to which the requirement in para. 6 of Schedule 2 to the Act applied, and (b) she had not complied with that requirement.  The requirement in para. 6 of Schedule 2 to the Act had been for her to set out her grievance in writing and to send a copy of it to the Trust.  Ms Odoemelam’s case was that the Elliot letter constituted her grievance.  The Chairman’s view was that the letter could not have amounted to a statement of her grievance so as to permit the Tribunal to consider her claim since it did not mention racial discrimination at all.  The critical question for the Chairman was whether the requirement to set out her grievance in writing applied to her claim at all.  

6.	Both section 32 of, and Schedule 2 to, the Act came into force on 1 October 2004.  So did the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Regulations”) which addresses, among other things, when the requirement in para. 6 of Schedule 2 to the Act is to apply.  Reg. 6(1) provides that it is to apply “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 [to the Act], or could do so if the action took place”.  A complaint of racial discrimination in the employment field is one of the jurisdictions listed in Schedule 4.  However, the applicability of the Regulations was subject to reg. 18 which provides, so far as is material:
“These Regulations shall apply … in relation to grievances, where the action about which the employee complains occurs or continues after these Regulations come into force, but shall not apply in relation to a grievance where the action continues after these Regulations come into force if the employee has raised a grievance about the action with the employer before they come into force.”

The Chairman read reg. 18 as requiring Ms Odoemelam to have raised a grievance about racial discrimination before 1 October 2004 if the Regulations were not to apply.  Since the Elliot letter had not alleged racial discrimination, the Regulations applied, and since she had not raised a grievance about racial discrimination before presenting her claim to the Tribunal, her claim could not be considered.

The Elliot letter
7.	The Chairman did not err in law in concluding that the Elliot letter did not contain an allegation of racial discrimination.  It is true that the Elliot letter contrasted Ms Odoemelam’s treatment with that of a white member of staff, Bernadette Clark, who had been threatened by a patient.  That patient had not been allowed to return to the ward while Ms Clark was still working there.  The Elliot letter did not refer to the fact that Ms Clark was white, though the Trust would, of course, have known that, as well as knowing that Ms Odoemelam was black.  The fact that the Elliot letter did not refer to Ms Clark being white - and to Ms Odoemelam being black for that matter - was nevertheless crucial.  Without a reference to that, the Trust would only have thought that Ms Odoemelam was complaining of inconsistent treatment.  It would not have known that she was complaining that she had been treated inconsistently because she was black.  If the Elliot letter was to constitute a grievance that she had been discriminated against because of her race, it had to spell out that it was her colour which had resulted in the inconsistent treatment between her and Ms Clark.  

The Ireland letter
8.	Ms Odoemelam claims to have sent another letter – also dated 7 September 2004 – at roughly the same time as the Elliot letter to another employee of the Trust, Jill Ireland (“the Ireland letter”).  That letter was in almost identical terms to the Elliot letter, save that at the bottom of the second page, Ms Odoemelam talked of having been “victimised and treated very badly”.  This is the passage which was omitted from the copy of the Elliot letter supplied to the Tribunal.  The relevance of the Ireland letter is that Ms Odoemelam’s advisers wanted to argue that, if the Elliot letter had not contained any reference to an allegation of racial discrimination, the reference to victimisation in the Ireland letter meant that the Ireland letter had done so, and it could therefore have constituted the written grievance required by para. 6 of Schedule 2 to the Act.  For its part, the Trust claims that that letter was never received by Ms Ireland, and in any event it says that only the Elliot letter was placed before the Tribunal.

9.	Since Ms Odoemelam’s advisers were claiming that the Ireland letter had been placed before the Tribunal, the Chairman was asked for his recollection.  He said that only the Elliot letter had been placed before him.  That is consistent with a particular point made by the Trust’s counsel, Mr Mugni Islam-Choudhury.  If the Ireland letter had been placed before the Tribunal, there would have been some discussion about the reference to victimisation in it, and Mr Islam-Choudhury could not recall any.  I therefore proceed on the basis that the only letter relied on by Ms Odoemelam before the Tribunal was the Elliot letter.  Indeed, Mr Christopher Camp for Ms Odoemelam, who did not represent her in the Tribunal, conceded that it would be right for me to proceed on that basis.  

10.	Since the Ireland letter was not placed before the Tribunal, it is not strictly necessary to say anything more about it.  But two comments should be made.  First, the reason why the copy of the Elliot letter which the Tribunal was provided with had a passage missing could have been because what the Tribunal was actually provided with was the first two pages of the Elliot letter and the last page of the Ireland letter.  If that is so, the original of the Elliot letter sent to the Trust – as well as the Ireland letter – would have included the passage about victimisation, though the Chairman of the Tribunal was not to know that.  Secondly, I doubt whether the passage about victimisation could have made any difference.  The Ireland letter did not go on to state why Ms Odoemelam was being victimised.  For all a reader of the letter knew, she could have been alleging victimisation – in the lay sense of being targeted rather than in the technical sense in which it is used in the Race Relations Act 1976 – for reasons unconnected with the fact that she was black – for example, that she was not liked.  

The nature of the grievance
11.	The Chairman of the Tribunal proceeded on the assumption that because Ms Odoemelam’s claim was a claim of racial discrimination, the grievance which she had to have raised if her claim could be considered by the Tribunal was one of racial discrimination.  Mr Camp contended that it was here that the Chairman fell into error.  Her grievance was that the patient had been readmitted to the ward, that the patient had remained on the ward despite her complaint that the patient’s presence on the ward intimidated her, and that the Trust had treated her inconsistently with the way it had treated at least one other employee whose concerns about a patient had been met.  That was what she had spelt out in the Elliot letter.  Para.6 of Schedule 2 to the Act merely required her to “set out the grievance in writing”.  Reg. 2(1) of the regulations defined “grievance” as meaning “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”.  This definition focuses on the action complained of, rather than the reason for it, even though the reason for the action complained of may have been an essential feature of the grievance for the purpose of the claim lodged with the Tribunal.  Since Ms Odoemelam had referred to the action complained of in the Elliot letter, it was contented that the Chairman should have found that the Elliot letter constituted a complaint by her of the action which the Trust had taken in relation to her, and that the Tribunal was not prevented by section 32(6) of the Act from considering her complaint.  

12.	I cannot accept this argument.  It takes no account of the critical link required by reg. 6(1) of the Regulations between the grievance and the claim lodged with the Tribunal.  Although the grievance has to be about “action by the employer”, it has to be about action “that could form the basis of a complaint by an employee to an Employment Tribunal under a jurisdiction listed in Schedule 3 or 4” to the Act.  That was why Burton P in Shergold v Fieldway Medical Centre [2006] IRLR 76 stated at [35] that “the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with”, and why Elias P said in Canary Wharf Management Ltd v Edebi (UKEAT/0708/05, 3 March 2006) at [16] that the statement of the grievance must be “the same complaint as the employee is seeking to have determined by the Tribunal”.  Accordingly, if the claim is to be considered by the Tribunal, the grievance is required to include that part of the action by the employer which made the complaint one which could be considered by a Tribunal.  Since all employers act through their employees, the action of the Trust complained of were the acts of Ms Adams and Mr Harrison, and the feature of their conduct which formed the basis of the claim to the Tribunal was that Ms Odoemelam had been treated less favourably than other employees would have been treated because she was black.  That was what had to be spelt out in the Elliot letter, and it had not been.

The effect of reg. 18
13.	The next question is whether the requirement in para. 6 of Schedule 2 to the Act applied to Ms Odoemelam’s grievance at all.  If the Regulations did not apply to her complaints, the requirement in para. 6 of Schedule 2 to the Act did not apply to them either, because the requirement in para. 6 only applied to her complaints in the circumstances set out in reg. 6 of the Regulations.  Whether the Regulations applied to these complaints depended on the application of reg. 18 to the facts of the case.  The case advanced on Ms Odoemelam’s behalf before the Tribunal was that, on a proper application of reg.18 to the facts of the case, the Regulations did not apply to her complaints. 

14.	What had first to be determined under reg. 18 was whether the action of which Ms Odoemelam was complaining was a single occurrence or whether it continued over a period.  The effect of reg. 18 is that if it was a single occurrence, the Regulations would not have applied if it had occurred before 1 October 2004.  But if the action of which she was complaining occurred over a period, what had to be determined was when it had started and whether it had continued after 1 October 2004.  If it had not continued after 1 October 2004, the Regulations would not have applied.  If it had started after 1 October 2004, the Regulations would have applied.  But if it had started before 1 October 2004 and had continued after then, the Regulations would not have applied if Ms Odoemelam had raised a grievance about it before 1 October 2004.

15.	The Chairman did not address these issues.  He regarded the fact that Ms Odoemelam had not complained about racial discrimination before 1 October 2004 as decisive.  But that was irrelevant if the action of which she was complaining was either a single occurrence which had taken place before 1 October 2004, or a continuing state of affairs which had ceased before 1 October 2004.  I am just as equipped as the Chairman was to decide this issue, and I propose to do so in this judgment.  

16.	The question whether the action of which Ms Odoemelam was complaining was a single occurrence or continued over a period is not dissimilar from the question which Tribunals have to decide when considering, for the purpose of section 68(7) of the Race Relations Act 1976, whether any act extends over a period.  The jurisprudence on section 68(7) distinguishes between the continuance of the discriminatory act itself and the continuance of the consequences of the discriminatory act.  Only the former can be regarded as extending over a period: see, for example, the decision of the Court of Appeal in Barclays Bank Ltd v Kapur [1989] ICR 753 at p.770A-F (affirmed by the House of Lords on other grounds at [1991] ICR 208).  There is, I believe, no reason why that distinction should not equally apply to whether the action complained of  by Ms Odoemelam continued over a  period for the purpose of reg. 18.  

17.	In my judgment, the action complained of in respect of Ms Adams related to the occasion on 18 August 2004 when the patient was readmitted to the ward, even though the consequences of that action continued to be felt by Ms Odoemelam up to when her ET1 was lodged.  The Regulations therefore did not apply to that allegation, and the Chairman was wrong to conclude otherwise.  However, the action complained of in respect of Mr Harrison – namely his failure from when Ms Odoemelam returned to the ward on 14 October 2004 to do anything about Ms Odoemelam’s concerns – is in a different category.  Whether the allegation related to individual occasions on which acts of discrimination occurred or to a continuing state of affairs, the acts of discrimination either occurred or continued after 1 October 2004.  The Regulations applied to that allegation and the Chairman was correct to conclude that they did.  
18	For these reasons, I have concluded that the requirement in para. 6 of Schedule 2 to the Act did not apply to the action complained of in respect of Ms Adams, but it did apply to the action complained of in respect of Mr Harrison.  The absence of any reference in the Elliot letter to racial discrimination on the part of Ms Adams did not therefore prevent the Tribunal from considering that part of the complaint because the Regulations did not apply to it.  But the absence of any letter of grievance relating to Mr Harrison meant that the Tribunal could not consider that part of the complaint because the Regulations applied to it.  

The claims against Ms Adams and Mr Harrison
19.	So far I have been considering the action complained of in respect of Ms Adams and Mr Harrison in the context of Ms Odoemelam’s claim against the Trust.  But Ms Adams and Mr Harrison have been named as respondents in their own right.  Mr Camp argued that the claims against both of them, not just against Ms Adams, in their individual capacity could proceed despite the provisions of the Regulations, since the Regulations do not require grievances to be raised about fellow employees in order to enable a claim to be brought against those employees.  The basis of that argument is that reg. 6(1) of the Regulations provides that the grievance procedures in Part 2 of Schedule 2 to the Act (which includes para.6 of Schedule 2) only apply to grievances about “action by the employer”.  

20.	This issue was considered by Lady Smith in Bissett v Martins and Castlehill Housing Association Ltd (UKEAT/0022/06, 18 August 2006).  She came to the view that the Regulations do not require grievances to be raised about fellow employees in order to enable claims to be brought against those employees.  She gave a number of reasons for that view, though to understand them it is necessary to identify the various steps required to be taken under the grievance procedures in Part 2 of Schedule 2 to the Act and the effect of section 30 of the Act.  Two grievance procedures are set out in Part 2 of Schedule 2 to the Act: the standard procedure and the modified procedure.  In the standard procedure, the first step is the one which this judgment has already addressed – namely, the reduction of the grievance into writing and sending it to the employer.  The subsequent steps require the employer to invite the employee to a meeting to discuss the grievance, to inform the employee of its decision on the grievance, and to take similar steps if the employee wishes to appeal against that decision.  The modified procedure in effect dispenses with the need for such meetings.  The effect of sections 30(1), (2) and (4) of the Act is that every contract of employment is to be treated as requiring the employer and employee to comply with the requirements of the relevant procedures, i.e. not just the grievance procedures, but the dismissal and disciplinary procedures in Part 1 of Schedule 2 to the Act as well, and section 30(3) enables the Secretary of State to make regulations providing for the application of those procedures.  

21.	Lady Smith’s conclusion was questioned by Judge Clark in London Borough of Lambeth v Corlett (UKEAT/0396/06, 12 October 2006) at [25]-[26].  Judge Clark did not reach a concluded view on the topic, but he thought that it was at least arguable that since the acts of an employee are generally attributed to the employer in claims of discrimination, so that the employer becomes primarily liable for the employee’s acts of discrimination, such acts of discrimination amount to “action by the employer” within the meaning of reg. 6(1) of the Regulations.  

22.	Against that background, the reasons which Lady Smith gave at [47] in Bissett for concluding that the Regulations do not apply to claims against fellow employees as opposed to claims against one’s employer were these:
“Firstly, the requirement to follow [the grievance procedures in Part 2 of Schedule 2 to the Act] only arises because it is made a condition of every contract of employment (section 30 of the Act).  No contract subsists as between fellow employees.  Secondly, it is inconceivable that the grievance procedures were intended to operate as between employees.  They refer to steps that the ‘employer’ must take which cannot be interpreted, in my view, as steps that could be required of a fellow employee.  A fellow employee could not, for instance, be expected to notify a complainant of his right of appeal.  Thirdly, it would not be possible to ascertain whether the standard or modified grievance procedure applied (reg. 6 of the Regulations) that being a matter which depends on matters solely referable to the contract of employment.  It is clear that Parliament did not have in mind that grievance procedures should operate as between employees.  That was not the purpose of these provisions which are, rather, directed to encouraging the resolution of disputes arising out of the relationship of employer and employee without there having to have recourse to the Tribunal.  The extension of the time bar period, though significant, is evidently seen as fair to employers because of the potential for resolution of the problem that Parliament thought the use of grievance procedures would engender and the inclusion of statutory provisions designed to compel employees to comply with them.  None of that is to do with employees sorting out complaints between themselves.”

23.	I do not share Judge Clark’s reservations about Lady Smith’s conclusion.  An act of discrimination is done by the person who did it.  But if that person did it in the course of their employment, their act will be treated as done by their employer as well as by them: see section 41(1) of the Sex Discrimination Act 1975 and section 32(1) of the Race Relations Act 1976.  Thus, the employee will be directly liable as the person who did the act complained of, and the employer will be vicariously liable.  The fact that the employee’s act is treated as the employer’s for the purpose of rendering the employer vicariously liable does not mean that the employee’s act amounts to “action by the employer” within the meaning of reg. 6(1) of the Regulations in the context of the employee’s direct liability.  On the contrary: the words “action by the employer” in reg. 6(1) relate to acts of employees in the context of claims against their employer pursuant to the employer’s vicarious liability.  I do not see how an employee’s acts which do not have to be treated as the acts of the employer when it is the employee’s direct liability which is being invoked can amount to “action by the employer”.

24.	That is not to say that I should be taken to agree with the reasons given by Lady Smith.  As for the first of those reasons, Mr Camp conceded that it was flawed.  The only part of section 30 to have been brought into effect is section 30(3).  There is, therefore, no difference between employers and employees, and between fellow employees, in this respect.  In neither case is there a contractual requirement to follow the statutory procedures: there is no such requirement between employers and employees because the relevant parts of section 30 have not yet come into force, and there is no such requirement between fellow employees, because they are not in a contractual relationship with each other at all.  

25.	Nor have I been persuaded that Lady Smith’s second and third reasons are compelling.  I appreciate that some of the steps could only be taken by the employer.  After all, it is the employer who must invite the employee to a meeting and who must decide the grievance, but that does not mean that the grievance procedures were not intended to operate as between employees.  There is nothing to prevent an employee raising with their employer a grievance which they have with another employee.  And in respect of Lady Smith’s third reason, I do not think that the question as to which grievance procedure applies depends solely on matters referable to the contract of employment.  As I read regs. 6(2) and 6(3) of the Regulations, it depends on other matters entirely, such as whether the employee’s employment has come to an end.  

26.	Having said all that, I am sure that Lady Smith came to the right conclusion since I do not see how employees’ acts for which they are directly liable should be regarded as those of their employer simply because in addition their employer is vicariously liable for them.  Indeed, I think very considerable practical difficulties would arise if claimants had to raise a grievance about an employee with the employee’s employer before they could issue a claim against that employee.  How could the employer be expected to determine the grievance if, for example, the employer is no longer trading?  I accept that the combined effect of reg. 6(7), reg. 11(1) and reg. 11(3)(c) absolves someone from the requirement to raise a grievance if it is impracticable to do so, but whether the employer’s cessation of trading renders the raising of a grievance impracticable will depend on the circumstances of the particular case.  Should the employer be expected to determine the grievance even if the employee had not been acting in the course of his employment when he or she did the act complained of, or if the employee had left their employment by the time the grievance was raised? And suppose the employer chooses to ignore the grievance.  The Claimant would be entitled to enhanced compensation from the employee under section 31(3) of the Act, even though the employee might have had no say in what his employer did.  I acknowledge that section 31(4) of the Act enables the Tribunal in exceptional circumstances to mitigate the consequences of that by not awarding enhanced compensation.  But would the conduct of the employer in ignoring the grievance always be regarded as an exceptional circumstance?

27.	For all these reasons, I have concluded that the Regulations did not require Ms Odoemelam to raise a grievance against Ms Adams or Mr Harrison in order to bring her claim against them.  

28.	But that is not the end of the matter.  The argument that the Regulations did not require Ms Odoemelam to raise a grievance about Ms Adams or Mr Harrison in order to bring her claim against them is a new point.  It was not raised in the Tribunal in response to the Trust’s reliance on Ms Odoemelam’s failure to raise the grievance alleging racial discrimination.  Nor was the point taken in the notice of appeal filed on Ms Odoemelam’s behalf.  It was only taken after Mr Camp was instructed a few days before the hearing of the appeal to represent Ms Odoemelam.  When he identified the point, he included it in a short skeleton argument and in a proposed amendment to the notice of appeal.

29.	The Employment Appeal Tribunal’s discretion to allow a new point of law to be raised should only be exercised in exceptional circumstances and only for compelling reasons.  That is especially so if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the Employment Tribunal.  There is a strong public interest in the finality of litigation.  The inexperience of a party’s advocate (and it should be noted that Ms Odoemelam was represented, not by lawyers, but by a firm of employment consultants at the hearing in the Tribunal, and it was they who drafted her notice of appeal) is not a sufficient reason for allowing new points to be raised.  Nor is the importance of the point to be raised.  All of this was what the Court of Appeal held in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.  

30.	Not without some hesitation, I have concluded that exceptional circumstances and compelling reasons exist for allowing this new point to be taken.  It is a pure question of law, not dependant on the finding of any facts.  But the more compelling point is that this is an evolving branch of the law.  The case was heard by the Tribunal on 14 October 2005, which was well before professional advisers had been alerted to the point by the judgments in Bissett and Corlett.  Even a lawyer with expertise in employment law might be forgiven for not identifying the point then, let alone an employment consultant whose expertise is more likely to be in industrial relations than in employment law.  

31.	Of course, in order to enable the new point to be taken, the notice of appeal had to be amended.  That also applies to the argument based on reg. 18 of the Regulations, though the contention that the Regulations did not apply to Ms Odoemelam’s complaints at all had been deployed in the Tribunal.  I propose to grant permission to amend.  The points are not simply ones which have a reasonable prospect of success.  For the reasons I have given, the points if allowed to be taken must succeed.  The Trust did not ask for the hearing of the appeal to be adjourned on the basis that more time was needed to consider the points.  The overriding objective of the Employment Appeal Tribunal’s own rules is to enable it to deal with cases justly.  The Trust would not experience relevant prejudice if the notice of appeal was amended, and justice would not be done if Ms Odoemelam was not permitted to have the points taken on her behalf simply because they did not occur to her previous advisers.  And as soon as the need to apply for permission to amend the notice of appeal was appreciated – admittedly only shortly before the hearing of the appeal – both the Employment Appeal Tribunal and the Trust’s solicitors were notified of the proposal to apply for permission to amend.  

The revised ET1
32.	A revised ET1 was filed in the Tribunal on 11 October 2005, 3 days before the hearing before the Chairman.  This version of the ET1 was drafted by the employment consultants and was much more detailed than the one prepared by Ms Odoemelam.  The Chairman was asked to give permission for the original ET1 to be amended in accordance with the revised version of it, but the Chairman said that he would deal first with the Trust’s argument that the Regulations had not been complied with and that therefore the Tribunal could not consider Ms Odoemelam’s claim. He did not return to the revised ET1, because no-one appreciated at the time that the revised ET1 could be relevant to whether the Regulations had been complied with.

33.	The significance of the revised ET1 is that its filing is claimed by Mr Camp to have resulted in the requirement in para. 6 of Schedule 2 to the Act having been complied with.  The argument runs as follows:

•	The filing of the revised ET1 amounted to the presentation of a new claim.  That is the effect of the decision of the Employment Appeal Tribunal (Judge Serota QC presiding) in Prakash v Wolverhampton City Council (UKEAT/0140/06, 6 September 2006) at [63].  

•	By the time when that new complaint had been presented, the requirement in para. 6 of Schedule 2 to the Act had been complied with in that a letter dated 20 July 2005 which Ms Odoemelam had sent to the Trust’s Head of Nursing making a formal complaint against Ms Adams and Mr Harrison constituted a written grievance relating at least to some of the matters to which the new complaint related.

34.	It is not appropriate for the correctness of this argument to be addressed because it proceeds on the assumption that permission to amend the original ET1 in accordance with the revised version of it should be granted.  That is a matter for the Employment Tribunal’s discretion, to be exercised in accordance with the principles laid down in Selkent Bus Co. Ltd v Moore [1996] ICR 836.  It would not be appropriate for me to decide that issue myself, since it involves a host of considerations which it would be more appropriate for the Employment Tribunal to decide.  In his skeleton argument, Mr Camp acknowledged that the Employment Appeal Tribunal might well take that view.  Indeed, that was the course taken in Prakash. 

35.	Having said all that, I do not think that it would be right to saddle the Employment Tribunal with that issue.  The argument on which it is based is a completely new one.  The revised ET1, as I have said, was not thought to be relevant to whether the Regulations applied to the case, and if so whether they had been complied with.  I have not been persuaded that exceptional circumstances or compelling reasons exist for allowing this new argument to be deployed.  The argument is dependant on permission to amend the ET1 being granted, and that will require new considerations being explored by the Employment Tribunal.  Moreover, the new argument does not raise an important point of principle which needs to be resolved in order to aid  the development of the law, or to consider a previous decision of the Employment Appeal Tribunal whose correctness was subsequently called into question.  

The Chairman’s order for costs
36.	The Chairman ordered Ms Odoemelam to pay the Trust’s costs of the hearing before him, which he assessed £633.33 because he took the view that, by failing to raise a grievance alleging racial discrimination, her claim was misconceived.  I have said enough to explain why her claim was not misconceived, since I have concluded that (a) her claim against the Trust in respect of the action complained of against Ms Adams and (b) her claims against Ms Adams and Mr Harrison may proceed.  

Conclusion
37.	For these reasons, I grant Ms Odoemelam permission to amend her notice of appeal in accordance with the draft of paras. 6.14(a) and (b) of the notice of appeal included in the application for permission to amend the notice of appeal dated 27 November 2006.  The appeal will be allowed, and the orders of the Employment Tribunal declaring that it was prevented by section 32(6) of the Act from considering Ms Odoemelam’s claims and ordering her to pay the Trust’s costs of attending the hearing must be set aside.  The claims against Ms Adams and Mr Harrison may proceed, as may the claim against the Trust in respect of the action complained of against Ms Adams.  None of this means that Ms Odoemelam’s claims must proceed to a full hearing.  There is still a real issue as to whether her claim was presented in time, and if not whether it would be just and equitable for it to be considered out of time.  Nothing which I have said in this judgment is intended to suggest that her claim is in time or out of time, or that her time either should or should not be extended.  That is for the Employment Tribunal to decide in due course.   

The costs of the appeal
38.	One final issue remains.  The hearing before me on 28 November 2006 was not the first time the appeal was listed for hearing.  It was listed for hearing on 15 September 2006 when it was adjourned because counsel who appeared for Ms Odoemelam on that occasion discovered either that she had been instructed by the employment consultants and not by solicitors, or had not realised that she could not have accepted instructions from them.  Either way, she was professionally embarrassed and felt unable to continue to represent Ms Odoemelam without the intervention of solicitors.  Mr Islam-Choudhury was content for the hearing to be adjourned, because he had discovered only the evening before that the copy of the Elliot letter in his possession had had a passage missing, and he wanted to investigate (a) whether the Chairman had been provided with a similar copy, and (b) whether the Chairman had been provided with a copy of the Ireland letter as well.  The costs of the hearing were reserved.  The Trust now seeks an order that Ms Odoemelam pays it its legal costs of the hearing.  They are put at £923.10 plus VAT. 

39.	But that is not all.  The costs of writing to the Chairman to find out what version of the Elliot letter had been placed before him, and whether he had been provided with the Ireland letter as well, and considering his response, are put at £1,127.50 plus VAT.  In addition, Ms Odoemelam’s advisers applied for a review of the Chairman’s decision once he had said that the only letter which had been shown to him was the Elliot letter with the passage missing, and the Trust incurred legal costs in connection with that application.  They are put at £1,354.00 plus VAT.  The Trust is asking for an order that Ms Odoemelam pays it these costs as well, together with the costs of preparing the schedule of costs which is put at £286.00 plus VAT.

40.	Since Mr Islam-Choudhury was content for the hearing of 15 September 2006 to be adjourned because of the inquiries which he wanted to make, I can ignore the fact that the hearing had to be adjourned because of the professional difficulties of Ms Odoemelam’s counsel.  The critical question is whether any fault lay with Ms Odoemelam’s advisers which made it necessary for the further inquiries about the nature of the letter produced to the Chairman to be made.  Only then could Ms Odoemelam or her advisers have unreasonably conducted the proceedings within the meaning of rule 34A(1) of the Employment Appeal Tribunal Rules so as to justify an award of costs being made against her.  

41.	Ironically, if fault lies anywhere, it is more likely to lie with the Trust’s advisers than with Ms Odoemelam’s.  That is because it is plain that the copy of the Elliot letter which the Chairman was provided with came from the Trust: see Mr Islam-Choudhury’s letter to the Chairman of 21 September 2006.  If, as seems likely, what was actually handed to the Chairman were the first two pages of the Elliot letter and the last page of the Ireland letter, two things must have happened.  First, the Ireland letter was received by the Trust despite its claim that it had not been.  Secondly, it was the Trust or its legal advisers who had mixed up the pages of the Ireland letter with the pages of the Elliot letter.  If that is what happened – and there is no way that that can be discounted on the limited information I was given – the only mistake which Ms Odoemelam’s advisers made was in not noticing that error, but that was a mistake which the Trust’s advisers had made as well.  In the circumstances, I have not been persuaded that Ms Odoemelam or her advisers conducted the proceedings unreasonably, and the Trust’s application for an order for costs must be refused.   I should add that had I made an order for costs, I would have assessed them summarily at a sum far less than the amount claimed, which was totally disproportionate to the size of the claim and the issue which was being addressed.