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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Maley v. Royal Mail Group Limited [2008] UKEAT 0232_08_0207 (2 July 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0232_08_0207.html Cite as: [2008] UKEAT 0232_08_0207, [2008] UKEAT 232_8_207

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APPEARANCES

 

For the Appellant	MR RICHARD REES (Representative) Milton Keynes Citizens Advice Bureau Employment Law Unit Acorn House 361 Midsummer Boulevard Central Milton Keynes MK9 3HP
For the Respondent	MR TIMOTHY ADKIN (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors Holland Court The Close Norwich Norfolk NR1 4DX


 


SUMMARY

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES

Whether applicable

The statutory grievance procedures are inapplicable where the dispute results in the employee's dismissal.

THE HONOURABLE MR JUSTICE BEAN

1. The Appellant, Mr Maley, was employed by the Royal Mail Group Ltd until 15 October 2007. His employment was terminated on the grounds of excessive absences from work. His case was that the reason for his absences or most of them was that he suffered from chronic dermatitis and linked conditions.
2. There was some evidence that it was being suggested that the dermatitis could have been alleviated by the provision of cotton uniforms. A report from the Respondent's Occupational Health Advisor, Ms Canzio, on 28 May 2007 said this:

"Further to previous reports, Mr Maley continues to suffer from a severe skin disorder and is asthmatic. The condition is often triggered by stress and allergies. He is receiving appropriate treatment and is under the care of specialists. It is likely that the condition, in my view, would amount to a disability within the realm of the Disability Discrimination Act.

Mr Maley is fit for his work role. It is recommended that he be provided with cotton uniform for work to help his skin condition. … Due to the severity of his skin condition, recurrence is likely and a higher absence rate might be expected."

3. On 7 June 2007 an Occupational Physician, Dr Ian Lindsay, having been asked by the Respondent's decision makers to provide advice, endorsed the Occupational Health Advisor's suggestion as to the supply of cotton uniform and continued:

"The advice I offered at his last Stage 3 remains virtually the same, except that, if you cannot tolerate his continuing poor attendance and were considering dismissal, he would probably meet the criteria for ill health retirement. You would clearly consider the need to be reasonable under the terms of the Disability Discrimination Act."

6. This letter was addressed to a Mrs Haley Harding, Delivery Office Manager. She wrote to the Claimant on 11 July 2007 as follows:

"I interviewed you on 27/6/07 to hear your reasons why you should not be dismissed because of your unsatisfactory attendance. [She then sets out the number of absences.] Having carefully considered your attendance record and the points made by you at the interview, I have concluded your current attendance record is unacceptable and, taking everything in to account, is unlikely to improve in the foreseeable future. Moreover, there are no mitigating circumstances that would make it unreasonable to dismiss you.

My decision, therefore, is that you will be dismissed on the grounds of unsatisfactory attendance. The reason(s) for my decision are as follows:

I believe that Phil has been afforded ample opportunity to improve on his sick attendance, the evidence would suggest that he has not grasped these opportunities to meet the business standards, he admitted at interview that he is fully aware of, and having re checked Mr Maley's RTW forms he has indicated at every one that he understands the attendance procedure. I have considered Phil's DDA and have seeked [sic] further clarification from EHS this was to investigate the possibilities of Ill Health Retirement. The report from Dr Tony Williams dated 10/7/07 stated that Phil does not meet the criteria for Ill-health retirement. I have now come to the conclusion that due to his continuing poor attendance it leaves me no option but to dismiss."

The letter proceeded to give 12 weeks' notice. Mr Maley's last day of service was therefore 15 October 2007.

7. On 25 October 2007, acting in person, he lodged a form ET1 with the Tribunal. Section 5 headed "Unfair Dismissal or Constructive Dismissal" contains at paragraph 5.1 a fairly lengthy account by Mr Maley of the history and in particular his chronic dermatitis. At the top of the second page it states:

"The Delivery Office Manager Hayley Harding ignored all of Atos Origin's advice and did not do anything to improve my conditions at work to help me elevate my condition."

8. Section 6 of form ETI, dealing with discrimination claims, was left blank, as were sections 9 and 10 dealing with other complaints and other information. At section 11 headed "Disability" and containing the printed words, "Please tick this box if you consider yourself to have a disability, yes or no," the Claimant ticked "yes" and stated that his disability was skin disease.
9. The Respondent filed grounds of resistance in the usual way and submitted that there was a fair reason for dismissal, either capability or some other substantial reason of the kind as to justify the dismissal of the Claimant.
10. By letter of 19 April 2008 the Claimant sought leave to amend the ET1, in particular by ticking the word "disability" under section 6 and adding in section 6.2 the following:

"In accordance with the facts stated at Section 5.1 of this form, I believe that I am 'disabled' within the relevant legal definition and that the Respondent's failure to make reasonable adjustments resulted in my dismissal. [He added this note in brackets] (As the grievance is dismissal I understand that the Statutory Grievance Procedure would not apply).

The Respondent's solicitors, Eversheds, who have, of course enormous experience in acting in cases of this kind, replied by letter of 25 April to the Regional Secretary, objecting to the amendment on the grounds that it was a new claim brought out of time. That is a matter which may fall to be dealt with subsequently but it is noticeable that the letter says nothing about failure to implement the statutory grievance procedure.

11. However, the Tribunal, by letter of 6 May 2008, to both parties wrote to say that the case had been referred to Employment Judge Adamson, who had directed that:

"The Claimant is to inform the Tribunal if he has sent a grievance in writing to the Respondent about the alleged failure to make reasonable adjustments, if so when."

12. By 9 May the Claimant replied:

"In answer to the question, I am not sure whether I wrote to the Respondent about reasonable adjustments. However, please note that my Application to amend is on the basis that 'failure to make reasonable adjustments resulted in my dismissal'. In other words, my case and grievance is dismissal and I understand that the Statutory Grievance Procedure does not apply (Regulation 6(5) Employment Act 2002 (Dispute Resolution) Regulations 2004)."

He then goes on to deal with points about the time limit.

13. By letter of 20 May from the Regional Office the Tribunal wrote:

"Your case has been referred to Employment Judge Moore who has directed the following: The Claimant has been unable to confirm that he complied with the statutory procedures (i.e. written grievance prior to action) in respect of a claim of failure to make reasonable adjustments and accordingly the application is refused."

The learned judge came to no decision about the time limit point. If he was right to refuse the amendment on the grievance procedure ground, it was unnecessary to do so.

14. However, with respect to him, in my judgment his decision that the Grievance Procedure applied was plainly wrong. As Mr Maley had stated in his letter, Regulation 6.5 of the Dispute Resolution Regulations states that neither of the statutory grievance procedures applies where the grievance is that the employer had dismissed or is contemplating dismissing the employee.
15. As Mr Rees, who has appeared for the Appellant before me today, put it, there was no freestanding grievance which did not have dismissal at the heart of the complaint. Putting it another way, Mr Maley's proposed course of action under the Disability Discrimination Act is under section 4(2)(d), unlawful discrimination by dismissing the disabled person. Mr Rees argues that this followed a failure to make what the Claimant says would be reasonable adjustments by the provision of a cotton uniform. But it is the fact that, according to the Claimant, the failure to make reasonable adjustments resulted in dismissal, which brings him to the Tribunal. There is not a separate compensation claim, as I understand it, for failure to provide a cotton uniform. Had the Claimant not been dismissed, there would have been no Tribunal claim at all.
16. In Lawrence v HM Prison Service [2002] IRLR 468, this Appeal Tribunal held that Regulation 6(5) should not be narrowly construed. Elias J said that the essential point is that where the complaint is about the dismissal or matters pertaining to that dismissal, including the reason why it is said to be unfair or unlawful, these issues can be aired and considered through the dismissal process. That is, in my view, plainly applicable in this case. It is apparent from the correspondence that Royal Mail, in accordance with their tried and tested procedure, held an interview with Mr Maley at which, no doubt, he put his case, but following which Mrs Harding decided, rightly or wrongly, that he should be dismissed. This is exactly the sort of case that the draftsman of Regulation 6(5) had in mind. There was no separate need to raise the grievance about failure to provide a cotton uniform or for that somehow to be separately considered by Mrs Harding or anybody else.
17. In a further case, Otaiku v Rotherham Primary Care NHS Trust UKEAT/0253/07/JOJ, the President, Elias J, confirmed that Regulation 6(5) should be construed broadly, even where it is possible the issue will not have been raised in the course of the dismissal procedures. Here it had been raised, both by the Occupational Health Advisor and by the dismissing officer herself, who, in the letter I have already read out, used the words: "I have considered Phil's DDA". It is for these reasons that Mr Adkin, quite rightly in my view, did not address detailed argument to me in support of the decision of the Employment Judge on the grievance issue. The decision was clearly wrong.

(Short adjournment)

18. I have already given a judgment in this case, holding that Employment Judge Moore was wrong to refuse Mr Maley's application to amend his form ET1 on the grounds of failure to follow the statutory grievance procedure. I now come to the issue of whether the application for leave to amend should fail on a second ground, which the learned judge below did not consider, namely, that it was time-barred. It was this point, it will be recalled, that was raised in a letter written by Eversheds on behalf of the Respondent on 25 April.
19. The Claimant had set out the facts of which he complained, making reference to his chronic dermatitis and the alleged failure of the Delivery Office Manager who took the decision to dismiss him to do anything to improve his conditions at work to help him alleviate his chronic dermatitis. But section 6 of the form ET1 relating to discrimination was left blank. Mr Maley, acting in person, wrongly believed that it dealt only with discrimination claims not involving a dismissal.
20. In Grounds of Resistance served on 31 December 2007, the Respondent's solicitors had seen this point coming because in paragraphs 17 and 18, perhaps out of an abundance of caution, they wrote:

"17. The Respondent does not accept that the Claimant's claim includes a claim for Disability Discrimination. The Respondent, in any event, does not admit that the Claimant is or was a disabled person within the meaning of the Disability Discrimination Act 1995 ('DDA').

18. If, which the Respondent does not admit, the Claimant is disabled within the meaning of the DDA, the Respondent denies that it has discriminated against the Claimant as alleged or at all."

23. The proposed amendment is to add at paragraph 6.2:

"In accordance with the facts stated at Section 5.1 of this form, I believe that I am 'disabled' within the relevant legal definition and that the Respondent's failure to make reasonable adjustments resulted in my dismissal."

In Harvey on Industrial Relations and Employment Law section T paragraph 311.03, the learned editors write: "A distinction may be drawn between (i) amendments which are merely designed to alter the basis of an existing claim but without purporting to raise a new distinct head of complaint, (ii) amendments which add or substitute a new course of action but one which is linked to or arises out of the same facts as the original claim, and (iii) amendments which add or substitute a wholly new claim or course of action which is not connected to the original claim at all."

24. Mr Rees, for the Appellant, submits that the present case is in category (i). I do not agree with him about that. Mr Adkin, however, for the Respondent, realistically accepts, that this is a category (ii) case rather than category (iii). The amendments do add a new course of action, which is one which is linked to and arises out of the same facts as the original claim. This is reflected by the way in which the proposed amendment is put. As to category (ii) cases, the learned editors write at paragraph 312.01:

"Tribunals and Courts have always shown a willingness to permit a Claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new label on facts already pleaded."

They go on to refer to part of the voluminous case law on this subject, much of it dating from the 1970s, and say at paragraph 312.02:

"The position is, therefore, that if the new claim arises out of facts that have already been pleaded in relation to the original claim, the proposed amendment will not be subject to scrutiny in respect of the time limits but will be considered under the general principles applicable to amendments as summarised in Selkent Bus Company Ltd (t/a Stagecoach Selkent) v Moore [1996] ICR 836, where Mummery J, as he then was, said that applications to amend involve a discretion to be exercised: '… in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.' "

25. Sometimes the balance to be weighed is described as the balance of justice and hardship. Sometimes it is described as a question of what is just and equitable. Waller LJ in Ali v Office of National Statistics [2005] IRLR 201 found it difficult to distinguish between those two phrases. In any event, as I have said, this is clearly, in my judgment, a category (ii) case. It would plainly be a considerable hardship to the Claimant to deny him the opportunity to argue the disability discrimination claim on its merits before the Tribunal. The hardship to the Respondent, in my judgment, is minimal, particularly since it is apparent that they have been aware from the start that the form ET1 on one construction, was alleging disability discrimination; indeed, as shown in the passage from the letter of dismissal which I read out in my first judgment in this case today, they were aware even before the Claimant's employment was ended that there was a potential issue under the Disability Discrimination Act.
26. I therefore allow the appeal against Employment Judge Moore's refusal of leave to amend, grant Mr Maley leave to amend in the terms which he sought in his letter of 19 April 2008 and remit the case to the Employment Tribunal for hearing on the merits.