Appeal No. UKEATS/0007/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 17 June 2009

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

GLASGOW CITY COUNCIL	APPELLANT

(1)  STEFAN CROSS CLAIMANTS	RESPONDENTS
(2)  UNISON CLAIMANTS 
(3)  GMB CLAIMANTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
	MR S MILLER
(Solicitor)
Messrs MacRoberts Solicitors
152 Bath Street
Glasgow
G2 4TB

For the First Respondents

For the Second and Third Respondents	MS C FOX
(Solicitor)
Messrs Stefan Cross Solicitors
Buddle House
Buddle Road
Newcastle upon Tyne
NE4 8AW

MR S GORTON
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Berkeley House
285 Bath Street
Glasgow
G2 4HQ
&
Messrs Digby Brown Solicitors
The Savoy Tower
77 Renfrew Street
Glasgow
G2 3BZ	

SUMMARY

EQUAL PAY ACT:  Case Management
JURISDICTIONAL POINTS:  2002 Act and pre-action requirements

Equal pay claims.  Statutory grievance procedures.  Claimants conceding that respondents did not require to raise the issue of their compliance with section 32(2) to (4) of the Employment Act 2002 in their form ET3 at the stage of entering appearance but contending that they did require leave to amend their forms EAT to raise the issue thereafter.  Employment Tribunal agreed with claimants and held that the respondents, not having raised the issue in their forms ET3 at the stage of entering appearance, would require leave to amend their ET3’s to do so.  On appeal, determination of the Tribunal reversed.  On a proper interpretation of s.32(6), whilst indicating in the ET3 that they were raising the issue was one method whereby a respondent could do so, it was not the only method.

THE HONOURABLE LADY SMITH

INTRODUCTION 
1.	This is an employer’s appeal against a judgment of the Employment Tribunal sitting at Glasgow, Employment Judge, Frances Eccles (sitting alone), registered on 4 November 2008.  The judgment included the following terms:

“The respondents require leave to amend the ET3 to raise the issue of the claimants compliance with section 32(2) to (4) of the Employment Act 2002 in terms of section 32(6)(b) of the Employment Act 2002 after entering appearance”.

and the only issue in this appeal was whether or not the Tribunal had erred in so holding. 

2.	The appeal relates to a group of some 2,000 claims in which the claimants are represented by Stefan Cross, solicitors, UNISON and the GMB Union.  

3.	For convenience the claimants are, in the instance to this judgment referred to by reference to their representatives.  However, the identities of the individual claimants are set out in a schedule docquetted by the Employment Judge and forming appendix 1 to her judgment.  That appendix formed document 6 of the supplementary inventory to the core bundle for the appeal.  

4.	Before the Tribunal, the Stefan Cross claimants were represented by Mr R Downey, of counsel and by Mrs Carol Fox before me.  The UNISON and GMB claimants were represented by Mr F Gorton, of counsel before the Tribunal and before me.  The respondents were represented by Mr S Miller, solicitor, before the Tribunal and before me.

BACKGROUND
5.	The claimants have all brought proceedings under section 2 of the Equal Pay Act 1970, their claims being presented to the Employment Tribunal over a period between September 2005 and May 2008.  By Order dated 1 October 2008, the Employment Tribunal combined the claims for the purpose of a pre-hearing review to address the question of whether the respondents had raised the issue of compliance with the statutory grievance procedures as provided for under and in terms of s.32 of the Employment Act 2002.  The pre-hearing review took place on 6 and 7 October 2008.  

6.	The issues addressed at the pre-hearing review were as follows:
(1)  Are the respondents required to raise the issue of compliance in the ET3 at the stage of entering appearance?
(2)  If not, do they require leave to amend their ET3 in order to raise the issue of compliance after entering appearance?

7.	The Employment Tribunal answer the first question in the negative and that part of their judgment is not challenged by the claimants in this appeal.  The Employment Tribunal answered the second question in the affirmative.  The issue in this appeal was whether or not they erred in law in so concluding.

8.	The Tribunal also considered and determined a third issue which was not the subject of appeal.

RELEVANT LAW
9.	The relevant statutory provisions are those relating to the statutory grievance procedures provided for under the Employment Act 2002, the recent demise of which is far from lamented.  Insofar as relevant, those provisions are as follows:

“(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if- 

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and 

(b) the requirement has not been complied with
…
(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if- 

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 (c.17) (employment tribunal procedure regulations).

10.	The Employment TribunalsAct 1996 s.7 insofar as relevant provides:

“(1)  The Secretary of State may by regulations ("employment tribunal procedure regulations") make such provision as appears to him to be necessary or expedient with respect to proceedings before employment tribunals.

(2) Proceedings before employment tribunals shall be instituted in accordance with employment tribunal procedure regulations.

(3) Employment tribunal procedure regulations may, in particular, include provision:-

…

(f) for prescribing the procedure to be followed in any proceedings before an employment tribunal, …

…

(3ZA) Employment tribunal procedure regulations may- 

(a) authorise the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of instituting, or entering an appearance to, proceedings before employment tribunals, 

…”

11.	Regulation 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, in so far as relevant, provides:

“14(1)  The Secretary of State may prescribe –
(a) …

(b) one or more versions of a form, one of which shall be used by all respondents to a claim for the purpose of responding to a claim before an employment tribunal ("response form") except respondents to a claim or proceedings listed in paragraph (3)

…”

12.	The present proceedings do not fall within paragraph 3 to regulation 14.

13.	Schedule 1 to the 2004 Regulations contains the Employment Tribunals Rules of Procedure.  Rule 4 makes provision for responding to the claim:

“4(1)  If the respondent wishes to respond to the claim against him he must present his response to the Employment Tribunal Office within 28 days of the date on which he was sent a copy of the claim.  The response must include all the relevant required information.
…
(3)  The required information in relation to the response is –
(a)  the respondent’s full name;
(b)  the respondent’s address;
(c)  whether or not the respondent wishes to resist the claim in whole or in part;
(d)  if the respondent wishes to so resist, on what grounds.”

14.	Rule 10 of schedule 1 to the 2004 Regulations provides that an Employment Tribunal has a general power to manage proceedings –

“10(1) Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of "hearing").

(2) Examples of orders which may be made under paragraph (1) are orders  - 
…
(b) that a party provide additional information;
…
(f) requiring the provision of written answers to questions put by the tribunal or chairman;
…

(i) that part of the proceedings be dealt with separately;
…
(o) giving notice to the parties of a pre-hearing review …
…
(q) giving leave to amend a claim or response;
…”

15.	Rule 14 of schedule 1 to the 2004 Rules provides –
“14(1)  A chairman or a tribunal (depending on the relevant rule) may hold the following types of hearing  - 
(a) a case management discussion under rule 17;
 (b) a pre-hearing review under rule 18;
 (c) a hearing under rule 26; or
 (d) a review hearing under rule 33 or 36.”

16.	Rule 18 of schedule 1 to the 2004 rules provides for pre-hearing reviews.  Its provisions include –
“18
(1)  Pre-hearing reviews are interim hearings … 
(2) At a pre-hearing review the chairman may carry out a preliminary consideration of the proceedings and he may  - 
(a) determine any interim or preliminary matter relating to the proceedings;

(b) issue any order in accordance with rule 10 or do anything else which may be done at a case management discussion;
…
(5) Notwithstanding the preliminary or interim nature of a pre-hearing review, at a pre-hearing review the chairman may give judgment on any preliminary issue of substance relating to the proceedings. Judgments or orders made at a pre-hearing review may result in the proceedings being struck out or dismissed or otherwise determined with the result that a Hearing is no longer necessary in those proceedings.
(6) Before a judgment or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. 
(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order -
…
(b) striking out or amending all or part of any claim or response on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success;
… ”

17.	Paragraphs 6 to 9 of schedule 2 to the 2002 Act sets out a grievance procedure to be used where the employee’s complaint was in respect of one of the jurisdictions listed in schedule 3 to the 2002 Act which includes complaints under the Equal Pay Act 1970.  Such a grievance requires to be raised with the employer in accordance with the procedures set out in the schedule.  Further, as is evident from the above quoted statutory provisions, if an employee has failed to raise a grievance via the statutory procedure, section 32(2) provides that he cannot present a complaint to a tribunal raising that matter as a claim.  However, when it comes to the tribunal’s jurisdiction to consider such a complaint, namely a complaint in respect of which the employee has not complied with the statutory grievance procedures, the tribunal’s jurisdiction is ousted only in one of two circumstances.  The first is where the tribunal has itself observed from information supplied to it by the employee that there has been a failure to comply.  The other is that, as a result of the employer having raised the issue with the tribunal, it is satisfied that there has been a failure to comply (section 32(6)).  The sequence of events envisaged by the statute in the latter case is that, firstly, the employer raises with the tribunal “the issue of compliance” and, secondly, the tribunal, having considered all the information before it, decides whether it is satisfied that there has been a failure to comply.  If it is so satisfied, it has no jurisdiction to consider the complaint.

18.	The sharp question that arises in this appeal is that of whether the only way in which an employer can raise the issue of compliance is by stating that he is doing so in the form ET3 or whether that is but one of the ways in which it is open to him to do so.  

19.	A number of authorities were referred to in the course of the hearing.  Mr Miller relied on them as being supportive of the respondents’ argument that whilst an employer could raise the issue by amending the form ET3, it did not require to do so and, in this case, by raising it at the case management discussion which preceded the pre-hearing review on 6 and 7 October 2008, the respondents had complied with the requirements of section 32(6)(b).  Mr Gorton and Mrs Fox on the other hand, relied on the same authorities as support for the view that the respondents had not yet effectively raised the issue of compliance because their forms ET3 were silent on the matter.  In particular, they relied on these authorities as supporting the argument that the respondents needed to amend.  I require, accordingly, to examine them and determine to what extent, if any, they direct me as to the resolution of the issue in this appeal.  

20.	Taking those authorities chronologically, the first is the case of Holc-Gale v Makers UK Limited (ET: 12000/2005;  EAT: 2006. IRLR 178).  There, the claimant presented a claim under the Equal Pay Act 1970.  In her form ET1 she answered the question whether she had put her complaint in writing to the respondent in the affirmative.  The respondent also, in the ET3, answered the question whether the substance of the claim had been raised in writing under a grievance procedure in the affirmative.  In fact, the only intimation by the claimant of her complaint in writing had been by way of serving the usual statutory equal pay questionnaire.  The effect of regulation 14 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 is, however, that such a questionnaire cannot constitute a statement of grievance for the purposes of the statutory grievance procedure.  That point was missed by the respondents’ solicitor, when he completed the ET3.  A case management discussion took place at which the respondents’ solicitor raised the issue of compliance with the statutory grievance procedure and a pre-hearing review was fixed to determine whether the claimant had complied with it or not.  

21.	At paragraph 24 of its judgment, the Employment Tribunal stated:
“The respondent for the first time raised the potential issue of the Tribunal’s ability to consider the claim at the Case Management Discussion.  We do not find that there is any restriction on the respondent so doing.  Rather we find that the respondent in doing so was acting in accordance with the over-riding objective, as at that stage, it would have been possible for the claimant to have made a grievance and for a claim to be considered.”

22.	In its judgment, the Tribunal determined that it was prevented from considering the claimant’s complaint as she had not complied with the statutory grievance procedure.  The claimant appealed.  The claimant’s solicitor submitted that the respondent had, by answering the relevant question in form ET3, in the affirmative, conceded the point;  section 32(6)(b) of the 2002 Act provided that the claimant’s alleged failure to follow the statutory grievance procedure required to be stated in the response form.  In paragraph 18 in the judgment of this Tribunal, HHJ Peter Clark stated:-
“We cannot accept that submission.  The question as to whether the claimant complied with the requirements of s.32 goes to the ET’s jurisdiction to entertain the claim.  Mr Over candidly accepts that he overlooked reg.14 when completing the response.  His agent then saw the point and raised it at the CMD.  Subject to any prejudice to the claimant it was then open to the respondents to apply for leave to amend the response.  No point is taken that no formal application to amend was made.  However, the point having been raised it was then opened to the claimant to restart proceedings after putting in a written grievance.  We do not believe that any question of estoppel would then have arisen.  In any event that was the proper course for the claimant, given our ruling on the meaning and effect of reg.14, to take.  In these circumstances we can see no error of law in the Employment Tribunal’s approach expressed at paragraphs 20 – 24 of their reasons.”

23.	Thus, in Holc-Gale, the issue of the claimant’s compliance with the procedure had not been raised in the ET3 but was raised, on the respondents’ behalf, at the case management discussion.  No motion to amend the ET3 was made and the ET3 was never amended.  However, the Tribunal proceeded to consider and determine the issue.  They determined it in favour of the respondents, holding that the claimant had failed to comply with the procedure and that they were, accordingly, prevented from considering her complaint.  The Tribunal specifically observed, in their paragraph 24, that the issue was raised for the first time at the case management discussion and it is evident from the terms of paragraph 24, that they considered it competent for the respondents to do so.  In his judgment, HHJ Peter Clark stated that this Tribunal saw no error of law in the Tribunal’s approach as expressed at, inter alia, paragraph 24.  Whilst no point was taken about no formal application to amend having been made, it is difficult to see how HHJ Peter Clark could have considered it appropriate to approve the Tribunal’s reasoning in paragraph 24, if there had been concerns regarding the competence of considering the issue of compliance absent amendment.  Indeed, since the issue would have been one of competency, this Tribunal could have been expected to raise it if it had been in any doubt about the matter.  I agree that Holc-Gale supports Mr Miller’s arguments.

24.	I turn next to the case of DMC Business Machines PLC v Mr T Plummer UKEAT/0381/06/MAA.  The procedural history of the case is complex.  Shortly put, however, the claimant clearly complained in writing to his employers regarding the conduct of a fellow employee but not about the way they had handled his disciplinary proceedings.  At one point in the history of the case the claimant was allowed to amend his claim to include such a complaint but the employers were successful in their application to review the decision to allow the amendment and it was disallowed.  However, subsequently the tribunal found in favour of the claimant on the basis of the allegation which he had failed to make in his original case which was not the subject of express reference in his grievance letter, and in respect of which he had not been allowed to amend;  the Tribunal, in determining in favour of the claimant, found that the complaint raised by his letter and the complaint in his claim before the Tribunal were essentially the same, a result which, as Underhill J comments in his judgment, was an odd one.  However, the point of interest for the purposes of the present appeal, in circumstances where the issue of compliance of section 32 had not been raised in the ET3 at the outset nor was the ET3 ever amended to raise it, was that the argument was advanced that the Tribunal was prevented from considering the claim because the claimant was in breach of the section 32 requirement to comply with the statutory grievance procedure.  In paragraph 25, Underhill J notes that counsel for the employers submitted that the claimant’s complaint about the disciplinary procedures should have been pleaded by amendment to his ET1 at which point the employers could have amended their ET3 to raise the issue of non-compliance;  that, however, had never occurred because the Tribunal had refused leave to amend.  He continues:

“That analysis seems to us correct as far as it goes:  we agree that the requirement that the issue of non-compliance be raised “in accordance with the Rules of Procedure.” can in principle be met by the employer raising the issue in an amendment (since the Rules provide for amendment).  But the problem for Mr. Reade is that, as he accepted, the hearing proceeded, rightly or wrongly, on the basis that the matters in question were properly pleaded by Mr. Plummer irrespective of the rejected amendment: see para. 14 above.  Once that became clear, even if not before, the onus was indeed on the employers, if they wished to invoke s-s. (6), to seek to amend to raise the issue of non-compliance with s-s. (2); and they did not do so.  It is true that they did raise a question about time limits, and that if the Tribunal had accepted their submission on reg. 15 it would have followed as a matter of logic that there had been non-compliance with s. 32 (2); but the phrase in s-s. (6) (b) is “as a result of the employer raising the issue of compliance with those provisions”, and it seems to us that the requirement on the employer is to plead explicitly that there has been non-compliance with s. 32.”

25.	DMC is plainly authority for the proposition that it is open to an employer to raise the issue of compliance with s.32 by amending his ET3.  Mr Miller urged me to read the judgment as going no further than that whilst Mr Gorton and Mrs Fox sought to persuade that Underhill J had held that the only way of raising the issue where it had not been raised in the ET3 at the outset was by subsequent amendment of the ET3.  In support of their argument, Mr Gorton and Mrs Fox prayed in aid the comments of Elias J (as he then was) in Suffolk Mental Health Partnership NHS Trust v Hurst and Others, Mid Staffordshire NHS Foundation Trust v Kaur and Others, and Arnold & Others v Sandwell Metropolitan Bourgh Council [2009] IRLR 12(“Sandwell”).  The decision of the EAT was that there had in fact been compliance with the statutory grievance procedure in the Sandwell case and, accordingly, it did not need to determine the question of whether the employer required to raise the issue of compliance by way of amendment to the response (it not having been pleaded in the ET3 at the outset).  The opportunity was, however, taken to issue guidance on the matter.  Paragraphs 82 – 84 were in the following terms:
“82.
The procedural issues
	I turn to consider the procedural issue that arises in the ‘Mid Staffordshire’ case.  I shall deal with this very briefly since it follows that given my conclusion that the only proper finding is that there had been compliance with paragraph 6, this aspect of the appeal falls away.
 83.
	The issues arising on this aspect of the case are these.  Did the employer have to raise the jurisdiction issue by way of amendment to the response?  If so, was the Employment Judge entitled to exercise his discretion in the way he did or ought he to have given a fuller opportunity to enable the employers to make representations on the matter?  Finally, was the exercise of discretion one which the Employment Judge could properly make?  
 84.
	My conclusions are, in summary form, as follows:-
(1)  It is common ground that an employer is required to raise the issue of jurisdiction – or rather lack of it because of non-compliance with the statutory procedures – in accordance with the Tribunal Procedural Rules.  
(2)  In my judgment, since it is a defence to the action, it should in the normal way be raised in the response form;  see Rule 4(3) which requires an employer to identify all the grounds on which he wishes to rely to defend the claim.  If it has not been raised in that way, then in my judgment any later attempt to raise it ought to be by way of an amendment to the response.  I note that some observations of Underhill J, Plumber v DMC Business Machines PLC 2006. All ER (D) 347 Dec) support that view.  
(3)  Even if that is not so, and the point can also be raised by way of an application under Rules 10 and 11, as Ms Ellenbogen submits, there would still – as Ms Ellenbogen accepts – be a discretion conferred on the Tribunal whether or not to allow the application.  In my judgment, any such discretion would have to be exercised in precisely the same manner as it would with respect to a proposed amendment of the response.  It would make no sense to adopt different principles for regulating what is essentially the same discretion depending on which procedural route was adopted.  Accordingly, nothing turns on the first question in any event.
(4)  However, on the particular facts of the case, it does appear that the solicitor acting for the employers had made it plain that he was not in a position to argue the question of amendment, and indeed his application was for the issue to be postponed and be considered at a later stage.  In the circumstances, and given the way in which the issue had arisen, I think that the Employment Judge ought to have adjourned that aspect of the case to ensure that principles of natural justice were properly complied with.  The Judge may have thought that the argument was weak, but there were points genuinely in issue and the employers should have been entitled to advance them.  In truth, Mr Epstein Q.C. did not in any serious way seek to contend otherwise with respect to this part of the case.
(5)  In principle the decision was one open to the Employment Judge, but the procedural failing vitiated his decision.  It matters not, however, since only one answer to the question was open to the Tribunal.”

26.	I do not read anything said by Elias J in that passage as identifying that section 32(6)(b) provides that the only way in which a respondent can raise the issue of compliance with the statutory grievance procedure at a stage subsequent to the lodging of the initial ET3 is by way of amendment of it.  On the contrary, the conclusions read as guidance which is, in the circumstances, obiter and the second paragraph of them whilst expressing what, no doubt, the President understandably considered to be the best way to raise the issue, does not state that amendment is the only way.  His use of the word “ought” indicates that that was not his intention.  Further, the third paragraph clearly indicates that the President allows for the possibility of the issue being raised other than via an amendment and, as he puts it “by way of an application under Rules 10 and 11” of the Tribunal rules, namely application at a case management discussion or at any other stage of the proceedings for an order to be issued or for a case management discussion or pre-hearing review to be held.  For reasons which I explain later, for my part, I am not convinced that the issue can be raised at any stage of the proceedings (see paragraph 41.)

27.	Finally, I turn to the case of South Kent College v Hall UK EAT/0087/07/LA, another case where employers contended that the employee had failed to comply with the statutory grievance procedure.  In the ET3, the employers had ticked the relevant box indicating that the substance of the complaint had not been raised by the claimant in writing.  They did not spell out in terms that it was their case that the Tribunal did not have jurisdiction to hear the case because of that.  At paragraphs 43 and 44, the EAT (Elias J, President), explain:

“43.
Did the College raise the issue of compliance in accordance with the procedural regulations when they identified, as part of the standard response, that the employee had not lodged a grievance?  We are unanimously of the view that it did.
 44.  
	The factual material provided which employers are requested to provide in the response alerts the Tribunal to the issue.  Indeed, we would have thought that the purpose of incorporating a section headed “Action before a claim” in the response form is precisely to ensure that the employer has the opportunity to provide this information.  If, for example, the employer ticks the box which asks whether he has dismissed the employee and indicates that he has not, he surely does not have to add in terms that one of his defences to an unfair dismissal claim is that there is no dismissal.   Similarly here; the College was asserting that no written grievance raising the substance of the claim has been lodged with him, and they provided that information in accordance with the regulations.”

28.	So, where a respondent does raise the issue in his original form ET3, all he needs to do is tick the box indicating “no” against the question asking him whether the substance of the complaint has been raised in writing with him by the claimant.  He does not, on the authority of South Kent College, need to explain anything more.  If that is correct, (and I can see no reason for disagreeing with the President’s proposition), it runs contrary to one of the submissions which was made on behalf of the claimants in this appeal, namely that where the issue is raised not in the original ET3 but later, detailed specification requires to be given by the respondents of how and why it is that they say the statutory grievance procedure has not been complied with.  

29.	In summary, what I take from these authorities is that it is desirable but not mandatory to raise the compliance issue in the ET3.  

THE TRIBUNAL’S JUDGMENT
30.	The Tribunal found that to raise the issue of compliance with section 32 the respondents required leave to amend their forms ET3.  It did not accept that they had already raised the issue in accordance with the rules of procedure by responding to the Tribunal’s standard orders, raising the issue at case management discussions and agreeing to a pre-hearing review involving separate proceedings being treated as a test case to consider the issue of compliance.  The Tribunal referred to rule 4(3)(d) of the 2004 Rules and determined that its effect was so as to require the issue of compliance to be raised in the ET3 from the stage that the respondents sought to challenge the Tribunal’s jurisdiction to consider the claim.  Since the raising of the issue of compliance had the potential to oust the Tribunal’s jurisdiction, it did not consider that it would be appropriate to expect a claimant to respond to such a fundamental point by reference to correspondence or discussions in a case management discussion.  It referred to paragraph 18 of the EAT’s judgement in Holc-Gale and commented, at paragraph 78, that it:
“clearly indicates that the EAT anticipates that raising the issue of compliance after entering an appearance requires amendment of the ET3.  Likewise in the case of D M C Business Machines PLC ….”

31.	The Tribunal’s approach to the issue is also that without amendment of the ET3, the claimant will not be given fair notice of the respondent’s grounds for resisting the claim.  It is evident from the subsequent part of the Tribunal’s judgment which deals with a matter which was not the subject of appeal that, to its mind, the requisite fair notice has to go beyond a one word answer to the relevant question as to whether the claimant has raised the substance of the claim in writing in the ET3.  Indeed, the Tribunal evidently has in mind that fair notice requires saying more than that the respondent’s position is that the Tribunal has no jurisdiction to consider such aspects of the claimant’s claim as are materially different from the claimant’s written grievance.  The Tribunal does not attempt to reconcile that view with the decision in the South Kent College case.  

THE APPEAL
32.	Mr Miller submitted that whilst amendment of the ET3 was one way of raising the issue of compliance with section 32, it was not the only way.  The wording of section 32(6)(b) was broad.  It was his submission that the respondents had raised the issue.  They had done so in their response to formal orders issued by the Employment Tribunal, addressed at case management discussions.  Further, the issue had been made the subject of a pre-hearing review in relation to claims against another local authority which the respondents, on the invitation of the Employment Tribunal’s secretary, had agreed to accept as a test case.  Mr Miller referred to the cases of Holc-Gale and DMC Business Machines PLC.  It was evident, he submitted, that had it not been the view of the EAT that it was competent to raise the issue other than by way of amendment of the ET3, it could not have decided that case as it did.  It was, he submitted, plain from paragraph 18, that HHJ Peter Clark was not saying that the only way to raise the issue was by way of amendment.  Turning to the case of DMC Business Machines PLC, Mr Miller observed that Holc-Gale was not cited which was, he said, surprising.  However, properly understood, Underhill J had not found that the only way to raise the issue was by way of amendment.  The Tribunal had approached both cases as though the EAT had determined that to raise the issue of compliance with section 32, the ET3 required to be amended, but even DMC Business Machines PLC, the stronger case for the claimant’s argument, was not as definitive as the Tribunal suggested.

33.	So far as paragraphs 82 to 84 of Sandwell were concerned, Mr Miller submitted that they contained guidance which was obiter, that the President did not state that there required to be an amendment of the ET3 and, moreover, he did not, in the end of the day, require to determine the point whereas I was being asked to do so.  

34.	As to the procedural history of the case, Mr Miller explained that the question raised in this appeal was one of the preliminary issues identified and case managed by the Tribunal.  The Employment Judge had erred in law.  I should pronounce an order reversing her finding.

35.	For the claimants, Mr Gorton submitted that the Tribunal had not fallen into error.  He argued that the employer was seeking to raise the point so as to invite the Tribunal to find the proceedings were barred.  There was more than a pleading issue at stake.  The issue was whether the employer could take the point at all.  Was the Tribunal powerless to prevent such an argument or, as the claimant submitted, was it a matter for the Tribunal and was the Tribunal the proper form for deciding what were the pleadings and what should be amendment of the pleadings?  He submitted that it would be surprising if a complete defence did not need to be pleaded at all.  He submitted that as a matter of statutory construction, the respondents were obliged to take the point in their pleadings.  Section 36(6)(b) could only be interpreted as meaning, where it said “Raising the issue of compliance with those provisions” that they be raised in a pleaded document.  

36.	Mr Gorton submitted that the issue in the appeal had in fact been determined by this Tribunal in Sandwell.  He did not accept that the President’s comments were obiter and they were to be read as indicating that there required to be amendment of the ET3.  Separately, Mr Gorton warned against the possibility of determining what was, in reality, a hypothetical question.  If the respondent’s argument was acceded to, he said, the claims would be no further down the line.  If the respondents were saying each of the claimant’s claims were barred, then they should say so.  It would be much better for the Tribunal to get to grips with the issue via the ET3.  Points of importance should always be seen as a matter of amendment.  He submitted that Holc-Gale ought to be read in the light of the Sandwell case and there was an obvious reason why it was not cited in either Sandwell or DMC Business Machines.  That was because it did not say what the respondents said it did.  It was a decision that was confined to the interplay of regulation 14 and the grievance procedures.  It did not, he submitted, in any way, support the proposition the respondents advanced.  Amendment was not an issue there.  

37.	In response to my raising with Mr Gorton why there should be a difference between the method of raising the issue of compliance of section 32 and the method for raising the issue of whether the claim should be struck out as having no reasonable prospect of success (Rule 18 (7)(b)), another form of “complete deference”, he submitted that there was no comparability between the two sets of circumstances but really made no submission beyond that.  Rule 18(7)(b) was an entirely different matter.  One was a question of jurisdiction and procedure (section 32(6)) and the other was not. 

38.	Mrs Fox adopted Mr Gorton’s submissions.  There was a need for the claimants to get clarity and know where they stood.  It was fair and logical that it was not sufficient for the respondents to raise the issue other than by amending the ET3.  The Tribunal had issued a reasoned judgment.  She saw no error of law in it.  The litigation had been ongoing for nearly four years and there came a point in which the respondent required to comply with the statutory requirements.  

DISCUSSION
39.	Section 32(6)(b) of the 2002 Act provides that an Employment Tribunal’s jurisdiction is ousted if it is satisfied that the claimant has not complied with the statutory grievance procedures as a result of  the employer raising the issue of compliance with those provisions.  The statute, accordingly, envisages two stages.  Firstly, the employer raises the issue.  Secondly, as a result of the employer raising the issue, the Tribunal takes account of the relevant facts and any submissions on behalf of parties and determines whether or not there has been compliance with the statutory grievance procedure. 

40.	If there has, the Tribunal can go ahead and consider the complaint.  If there has not, it cannot.  

41.	I do not interpret the statutory provisions as requiring that the employer raise the issue of compliance in writing, in the ET3.  Nor does it seem to me that, in principle, an employer should be required to do so.  Whilst the result of the issue being raised may be devastating for a claimant, that is no different for a claimant from where claim is struck out under rule 18(7)(b) as having no reasonable prospects of success yet the employer does not require to raise such a strike-out issue in the ET3.  It can be raised orally.  The 2004 rules do not, accordingly, require that every argument that a respondent seeks to advance be written into the ET3.  That is not to say that a Tribunal will not ensure that the claimant has fair notice of the basis on which the point is taken before it is argued, but the ET3 need not be the only vehicle for that notice and the terms of section 32(6)(b) are so broad as to indicate that it is not seen by the legislature as being the only place that the issue of compliance can be raised.  It would have been a simple matter so to specify if that was what was intended.  I would suggest that the structure of section 32(6)(b) also indicates that the time at which the issue must be raised is before the Tribunal starts considering the merits of the complaint;  once it has started “considering the complaint” it is too late to prevent it from doing so.  The time for raising the issue is then past.  Thus, there need be no concern that an employer could raise the issue later in the day, long after the merits hearing has begun, as was apprehended by Mr Gorton.  It would be too late to do so by then.

42.	In what way can the employer raise the issue?  The answer to that question is to be found in the phrase in brackets.  He can competently raise it so long as he does so, in accordance with some provision of the Employment Tribunals (Constitution and Rules of Procedure) Regulations.  Those regulations allow for issues being raised by a respondent in a number of ways.  The first and most obvious way is to raise it in the ET3.  As explained in the South Kent College case an employer can raise the issue of compliance with section 32 simply by ticking “no” against the relevant question in the form.  However, the rules provide for more than that.  An employer could apply to amend his form ET3 at a case management discussion (Rule 10).  He could raise the issue orally at the CMD.  If, for instance, the claimant then conceded the point, the tribunal could not proceed to consider the claim.  If, at that point, the tribunal, on considering such information as has, by that stage, been provided by the employee, found that there had been a failure to comply, it would be obliged to recognise it could not proceed to consider the claim (section 32(6)(a)).  Equally, an employer could apply at the case management discussion for an order fixing a pre-hearing review to consider the question of whether or not the claimant had complied with the statutory grievance procedure.  In making such an application, he would, plainly, be raising the issue of compliance with those provisions.  It would then be open to the tribunal to make any order that appeared appropriate to it for the respondent to provide specification of the basis on which the issue is raised.

43.	It seems to me that it is important to distinguish between raising an issue which means, literally, posing a question and stating the grounds for the submission that the question should be answered in a particular way.  

44.	The Tribunal lost sight of that distinction in finding that the respondents had not already raised the issue and requiring them to amend.  With the greatest of respect to the past and present Presidents of this Tribunal I wonder whether some of their comments in Sandwell and DMC blur it.  The Tribunal seems to have confused the matter of the statutory requirement that the issue be raised with the laudable objective of, once an issue is raised, seeking to have the party raising it give fair notice to the other party of the basis on which he does so, something which can be done in a number of ways.  

45.	I have given careful consideration to all the authorities to which I was referred but I cannot conclude that any of them have determined that the compliance issue must be raised in the ET3, either at the outset or by way of subsequent amendment.  I can readily accept that that is one way of doing so, and that it can properly be regarded as a desirable means of doing so.  That is not, however, to say that the statute requires it for the reasons I have sought to explain.  I cannot be satisfied that it does.  

DISPOSAL
46.	In these circumstances, I will pronounce an order upholding the appeal and deleting part “(2)” of the Tribunal’s judgment.