Appeal No.UKEAT/0352/08/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 2008

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE) 

MRS D TOMLINSON	APPELLANT

1) COMPUTER SOFTWARE GROUP LIMITED
2) MR N ROBERTS
3) IRIS SOFTWARE GROUP LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR CYRIL ADJEI
(of Counsel)
	
For the Respondent	MS ADRIENNE BROWN
(Solicitor)
Messrs Doyle Clayton Solicitors
33 Blagrave Street
Reading RG1 1PW	

SUMMARY
JURISDICTIONAL POINTS
Claim in time and effective date of termination
2002 Act and pre-action requirements

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed

EDT – Step 1 Grievance – Continuing act (limitation)

HIS HONOUR JUDGE PETER CLARK
1.	This appeal was first before HHJ Burke QC for full hearing on 20 October 2008 and was then adjourned for want of time.  This is the restored hearing.  The parties before the London South Employment Tribunal were Mrs Tomlinson, Claimant, and (1) Computer Software Group Ltd (CSG), (2) Mr Neal Roberts and (3) IRIS Software Group Ltd (IRIS), the Respondents.  I shall so describe them.

2.	The appeal is brought by the Claimant against orders made by Employment Judge Carol Taylor following a Pre-Hearing Review (PHR), held on 9 May 2008.  That PHR judgment with reasons was promulgated on 27 June.

Background
3.	The Claimant was first employed by CSG as an in-house solicitor on 2 January 2007.  Following a merger between CSG and IRIS in July 2007 the Claimant’s employment was to be transferred to IRIS on 1 October 2007.  IRIS then undertook a restructuring exercise.  Following the merger there were now two in-house lawyers, the Claimant and Sara Challinger, the former in-house lawyer at IRIS.

4.	On 17 August 2007 both the Claimant and Ms Challinger were invited to apply for the post of Head of Legal in the new merged business.  The Claimant declined to do so.  She contended that the whole exercise was a sham because from the outset Ms Challinger was deemed by all to be the de facto Head of Legal.  On 24 August she emailed Mr Roberts, the Chief Financial Officer.  That email began:

“Thank you for your e-mails regarding the Group Legal Counsel position.
I have decided not to apply for this position as I consider the entire process to be unfairly tainted by sex discrimination (the “Unfairness”).  Had I been a man I do not believe that a recruitment exercise would have been undertaken in order to bring about a change to my reporting line.  I believe this whole recruitment exercise is a sham being run in an attempt to conceal the Unfairness.”

5.	She takes as her comparator for this purpose not Ms Challinger, a woman, but a Mr Hughes, a man on a similar level to the Claimant at CSG who she contends was not required to compete for a similar status job in the merged business.

6.	On 31 August the Group Recruitment Manager responded explaining why the company regarded the recruitment exercise to be necessary and asking the Claimant whether she wished to raise a formal grievance of sex discrimination.  On 13 September she replied stating she did not wish to pursue a grievance under the IRIS grievance procedure and that the matter was at an end.

7.	Subsequently the Claimant raised a complaint about the number of shares allocated to her being lower than those allocated to a comparator, alleging that this was due to her having made a public interest disclosure and her allegation that her treatment had been discriminatory on the grounds of her sex.

8.	Ultimately on 29 November 2007 she was called to a meeting with Ms Challinger at which she was handed a letter of dismissal which read, so far as is material:

“Dear Denise, 
Further to today’s conversation I write to confirm that I am giving you 4 weeks’ notice of termination of your employment with the Company.
I understand that you have annual leave booked for the week commencing 17 December so I am proposing that your last day in the office will be 14 December.  You will of course be paid for the full 4 weeks, with the last 9 days being in lieu.  This payment will be paid to you on 24 December 2007 and will be subject to the normal deductions for tax and national insurance.  
I will check the position in relation to your holiday and if you have any that has accrued that remains untaken, then a payment will be made to you in lieu of this time.”

The Claims
9.	By her first Form ET1 (the first claim) presented to the Tribunal on 15 February 2008 she identified her email dated 24 August as her written complaint, I infer for the purposes of the Statutory Grievance Procedure (SGP).  She did not complete paragraph 5, Unfair Dismissal, and at Box 6 she ticked only Sex Discrimination as being her complaint, not age or any other form of discrimination.  In particulars given at paragraph 6.2 she alleged that the recruitment exercise for Head of Legal was a sham and tainted by sex discrimination, by reference to Mr Hughes or a hypothetical comparator.  Further that her complaint of sex discrimination amounted to a Public Interest Disclosure and later added:

“I was later subject to further discriminatory and detrimental treatment.  I was, amongst others, victimised, harassed and eventually unfairly dismissed.”

10.	She also attached, referred to at paragraph 6.2, a separate letter of complaint which she had written to the two Corporate Respondents on 13 February 2008.  Ms Brown, on behalf of the Respondents, submits that that letter did not form a part of her Form ET1.  I reject that submission.  I agree with Mr Adjei that it did.  That letter began:

“Dear Sirs,
I write to complain about my dismissal which was unfair, sex discrimination and/or victimisation and/or harassment, and the detriments I have suffered having made public interest disclosures.  All of these matters are in some way linked.  Furthermore, my P45, final wage slip, final salary and holiday pay were all incorrect.  This letter also contains other complaints as you will see.
I cannot help but wonder whether my age has been a factor at some or all stages.  I am older than Neal Roberts and Sara Challinger as well as other members of the senior management team.  Accordingly, I also complain that the instances of discrimination above were alternatively and/or additionally discriminatory on the grounds of age.”

11.	She then sets out a number of matters of complaint that she alleged amounted to discriminatory behaviour, harassment and/or victimisation and/or a detriment, and/or victimisation and/or a detriment for having made a protected disclosure.  I also note this passage:

“The letter handed to me at the dismissal meeting included a proposal that my last day in the office would be 14 December and after that I would be on holiday and then garden leave (expressed to be a payment in lieu).”

She added:

“I received a P45 which indicated that my last day of employment was 14 December 2007.  That was wrong as that day was my last day in the office and not my last day of service, which service stretched into January 2008.  The calculation of my final pay, holiday entitlement (contractual and statutory) payment to my pension and wage slip were based on the false date of 14 December 2007 which made all of those items incorrect.  Therefore I have suffered unauthorised deductions.”

12.	By a second Form ET1 presented on 25 March 2008 she referred to her letter of 13 February as a written complaint, referred to her attached Grounds of Claim at paragraph 5 (Unfair Dismissal) and at paragraph 6 ticked both sex and age as being her complaints of discrimination.  She then gave particulars of her claim, reflecting matters raised in her first claim, particularly in her letter of 13 February, a copy of which was attached to that claim.

The PHR Issues
13.	The Respondents entered separate Notices of Appearance to each claim resisting both.  The claims have since been consolidated.  By an Order dated 16 April 2008, Employment Judge Hall‑Smith directed that a PHR be held on 9 May at which the issues raised at paragraphs 12 to14 of the Respondents’ response to the first claim would be considered, adding, by a further Order dated 22 April those issues raised at paragraph 28.1.1 ‑ 28.1.05 in the Respondents’ second response.  Those issues were as follows:  

First Response
paragraph 12.  That no grievance was raised in accordance with s32 Employment Act 2002 and the claims should be struck out.
Paragraph 13.  No cause of action was disclosed against the Second Respondent, Mr Roberts.  

Second Response
Paragraph 28 reads:

“28.1  Strike out of the Claimant’s claim for:

28.1.1	Unfair Dismissal - the Claimant does not have one year’s service as required by Section 108(1) of the Employment Rights Act 1996 (“ERA”) and as such does not have the right under Section 94 of the ERA not to be unfairly dismissed.

28.1.2	Sex Discrimination including (victimisation and harassment) - the only alleged incidents the Claimant has claimed in her ET1 as possibly being discriminatory are:
a)	change of reporting line, specifically the procedure used to effect that change - this took place on 24 August 2007 (which is the subject of the Claimant’s earlier claim; the first claim).  The Claimant is out of time to claim discrimination having only raised her grievance on 13 February 2008;
b)	the allocation of shares - this took place on 1 October 2007 and the Claimant did not raise a grievance until 13 February 2008, almost 4 months after the allocation and at no time did she complain prior to that date;
c)		the use of compromise agreements.  This cannot be grounds for discrimination
The Claimant has not particularised any further allegations of discrimination.

28.1.3	Age discrimination - the Claimant’s claim discloses no details of discrimination on the grounds of age.

28.1.4	Public Interest Disclosure - the Claimant’s claim discloses no details of any disclosures made.

28.1.5	Breach of Contract and Working Time Regulations - the Claimant worked her notice period and was paid to the termination date.  In her final salary payment she was then paid in lieu of 9 days, being the balance of her notice period, and 5 days’ accrued but untaken holiday pay.  This is clearly shown on her final pay statement.  Accordingly there are no further sums outstanding and there was no breach of contract or the Working Time Regulations.”

The Tribunal’s Rulings and Orders
14.	Having considered the parties’ submissions but in the absence of any oral evidence being called, Judge Taylor made the following Orders for the reasons which then followed,

“1. 	Pursuant to section 108 of the Employment Rights Act 1996, the Claimant’s complaint of unfair dismissal be struck out on the ground that she had insufficient continuity of employment to present such claim,
  2. 	The Claimant’s complaint that her dismissal was an awful act of sex discrimination can proceed to a Hearing,
  3. 	The Claimant’s complaints of unlawful deductions from her wages can proceed to a Hearing,
  4. 	The Claimant has not raised a grievance in compliance with the statutory grievance procedure in relation to complaints of unlawful sex discrimination, victimisation, harassment, age discrimination and that she was subjected to a detriment for having made a protected disclosure against the first and third Respondents.  Accordingly, the tribunal does not have jurisdiction to consider these complaints.
  5. 	The Claimant’s complaints of unlawful sex discrimination, victimisation and harassment and age discrimination, being based on events which occurred more than three months before the claim in which they are contained are out of time.  It would not be just and equitable for a tribunal to consider them.  Accordingly, the Tribunal does not have jurisdiction to determine them.
  6. 	The Claimant’s complaint that she was dismissed for having made a protected disclosure, made against the first and third Respondents, was presented outside of the applicable time limit and the Tribunal does not have jurisdiction to determine it.
  7. 	On the application of the Claimant, the Tribunal orders that the second Respondent, Mr Neal Roberts, be dismissed from these proceedings.”

The Appeal
15.	There is no challenge to the order dismissing Mr Roberts from the proceedings and that direction stands. 

16.	Having been served with a Notice of Appeal lodged on 15 August 2008, the Respondents’ solicitors wrote to the EAT on 11 September.  That letter has been treated as the Respondents’ answer.  It states that having consulted with Counsel,

“Whilst the Respondent believes that the Employment Tribunal came to the correct result, we agree that a number of technical failures occurred which make many aspects of the judgment of the Employment Tribunal unsustainable to the extent that it is appealed.
We agree that this matter should be remitted for a new PHR to a differently constituted employment tribunal for determination and ask the Employment Appeal Tribunal to make an order in these terms.  The Employment Tribunal has the Claimant’s existing claim listed for full hearing on 4  ‑ 6 November 2008.  We therefore suggest that, if possible, one of those dates could be used for the PHR.”

I am told in fact that date has been vacated pending determination of this appeal.

17.	The Claimant then wrote to the EAT on 18 September asserting that it was common ground that the appeal be upheld; however there was no agreement as to how the appeal should be disposed of.  She wanted the EAT to decide that her complaints of unfair dismissal, sex discrimination (victimisation and harassment), age discrimination and having suffered detriment and dismissal by reason of having made a protected disclosure should be permitted to proceed to a final hearing before the Employment Tribunal.  She did not consent to the matter being remitted to a fresh tribunal.

18.	I would make two comments on this state of affairs.  The first is that the EAT procedure in relation to allowing appeals by consent has been well settled since the judgment delivered by Mummery P in J Sainsbury Plc v Moger [1994] ICR 800 (see now the current Practice Direction issued by Elias P on 22 May 2008 paragraph 15.3).  Where it is agreed between the parties that an order made by the Employment Tribunal should be reversed or varied or the matter remitted, it is usually necessary for the Employment Appeal Tribunal to hear the matter to determine whether there is a good reason for making the proposed order.  Thus, regardless of any concession made by the Respondents and accepted by the Claimant, or the true extent of agreement reached between the parties, I shall independently consider the merits or otherwise of the Grounds of Appeal advanced by the Claimant.  Secondly, under section 35(1) of the Employment Tribunals Act 1996 I have power, in disposing of an appeal, to exercise the powers of the Employment Tribunal or to remit the matter to that Tribunal.

The Grounds of Appeal
19.	Having had particularly helpful submissions both from Mr Adjei and Ms Brown, the issues between them have been narrowed in the course of discussion.  I deal first with two live issues between them.

Effective Date of Termination (EDT)
Mr Adjei advances the argument here which was recorded by Judge Taylor at paragraph 15 of her reasons and rejected for the reasons given at paragraphs 29 to 33, resulting in the claim of ordinary unfair dismissal being struck out on the basis that the Claimant had not completed one year’s continuous service.  Two points arise: was the EDT the 14 December 2007, as the Respondents contended and the Judge found, or was it 4 January 2008 as the Claimant asserted?  If the former, then she had not completed the necessary qualifying period for ordinary unfair dismissal;  if the latter, she had.  Alternatively, a matter which I raised with the parties today, was it some other date other than the dates contended for by the parties?

20.	I return to the letter of dismissal.  I accept, as Mr Adjei submits, that it should be construed in the light of the facts known to the employee in a non-technical way.  See Chapman v Letherby & Christopher Ltd [1981] IRLR 440, paragraph 13 per Browne‑Wilkinson P.  In particular the employee should be able to ascertain from the letter the start and end dates of the notice of termination.

21.	The facts are that the letter, dated 29 November, was handed to the Claimant by Ms Challinger at the meeting held on that day.  It gave her four weeks’ notice of termination of her employment.  She had booked leave for the week commencing Monday, 17 December.  Her last day in the office would be Friday, 14 December.  She would receive the full four weeks’ notice with the last nine days being in lieu.  Any untaken holiday would be dealt with by a payment in lieu.

22.	The argument advanced by Mr Adjei involved extending the period for a period of what is described as ‘garden leave’, taking the date up to 4 January 2008 including Christmas and Boxing Day treated as public holidays.  I agree with Ms Brown that this construction of the letter of dismissal is wholly unrealistic and is not a view that a reasonable employee would take on it.  On the other hand I reject Ms Brown’s submission that it was plain to the Claimant that not only was 14 December her last day of work it was also her last day of employment.  I am satisfied on the authorities that where an ambiguity exists it should be construed against the employer giving the notice.  The cases also show that a payment in lieu of notice is equivocal as to whether or not it is to be paid following termination or whether it represents pay due during the remainder of the employment contract, albeit whilst notice is running.

23.	In my judgment the plain and obvious construction of the letter of dismissal is that the Notice begins on 29 November, the date on the letter and the date on which it was handed to the Claimant at the dismissal meeting.  She was given four weeks’ notice of termination.  Four weeks takes the Claimant to 27 December.  It is also clear what the reference to nine days in the letter is.  The last day in the office was Friday, 14 December.  There was then five days’ leave booked between 17 and 21 December.  The nine days in lieu refers to the Saturday and the Sunday between the last day in the office and the first day of leave together with the final week of the four weeks’ notice period.

24.	In my judgment the Effective Date of Termination in this case was 27 December 2007.  The effect of that finding is that the claim for ordinary unfair dismissal fails because the Claimant did not complete one year’s continuous service.  On the other hand the claim of unfair dismissal, based on the automatically unfair reason that she made a protected disclosure, will proceed, it having been brought within time in the first claim form, dated 15 February.

25.	I reject the submission made by Ms Brown that that first claim form did not included that particular claim.  True it is that the box in the standard form dealing with unfair dismissal was not completed and also that at paragraph 3.3 it was indicated that it was not a claim about dismissal.  However the whole of the pleading must be read together and it is clear in my judgment, both in the body of the complaint and particularly the letter of 15 February which, as I have indicated I regard as being part of that claim form, that she was complaining of unfair dismissal, among other things, on the grounds that she had made a protected disclosure.

26.	The second issue concerns the question as to whether or not the email sent by the Claimant on 24 August 2007 constituted a step one grievance for the purposes of the discrete sex discrimination complaint arising out of the competition which the Respondents proposed for the post of Head of Legal.

27.	As to that, Ms Brown submits that in circumstances where the Claimant made it absolutely clear that she did not wish to pursue the Respondents’ internal grievance procedure, that the Claimant had not raised a complaint for the purposes of the standard grievance procedure under paragraph 6 of the schedule to the Act.  She has referred me to the judgment of Lady Smith in the Highland Council v TGWU & Others UKEATS/0048/07/MT at paragraph 76 where in turn Lady Smith refers to Burton P’s judgment in Shergold v  Fieldway Medical Centre [2006] IRLR 76.  Mr Adjei has referred me to the helpful summary of the principles at paragraph 13 of the judgment of HHJ McMullen QC in Ward v University of Essex UKEAT/0391/07/LA 3 December 2007.  

28.	I am quite satisfied, first, that the email of 24 August raised a complaint of sex discrimination in writing.  I am not persuaded, however, that in determining whether or not that is a complaint, for the purposes of paragraph 6 of the schedule, that the Claimant indicated that she did not wish to pursue the matter by way of an internal grievance.  It has been said many times that the statutory grievance procedure provides minimum standards of procedural fairness.  The words ‘set out a grievance in writing’ mean just that, set out the complaint.

29.	The fact that the Claimant does not wish to pursue a separately constituted internal grievance process may very well be relevant if an issue arises in due course as to whether or not the employer is in breach of step two of the procedure, that is the requirement that he invite the employee to attend a meeting.  However, that question, it seems to me, is quite irrelevant to the step one question.  Accordingly I reject Ms Brown’s submissions in relation to this matter and allow the Claimant’s appeal against the ruling by Judge Taylor to the contrary.

30.	Those are the two contentious issues between the parties in this appeal and I can deal shortly with the remaining matters.  It is common ground that the complaints of action short of dismissal amounting to age discrimination and protected disclosure detriment were the subject of a submission below by Mr Adjei that there had been a series of continuing acts which meant that those complaints were presented in the second claim in time.  That issue was not resolved by the Judge at the PHR and it is common ground between the parties, and I agree, that the proper course is for the continuing act issue to go before the Employment Tribunal hearing the substantive claims in this matter.  It is not in my view appropriate for determination at a preliminary hearing.

31.	In these circumstances it is unnecessary for me to remit any matters for a Pre-Hearing Review;  however, again, it is common ground between the parties that it will be appropriate at this stage in the light of this judgment for there to be a case management discussion at the Employment Tribunal.  It will then be possible for directions to be given for the further conduct of the case, including the final hearing and its dates and at the same time the Employment Judge will, no doubt with the assistance of the parties, wish to identify clearly and closely the issues for determination at that full hearing.