October 30 2006 Employment Law Enews

Welcome to the latest edition of employment law enews.

Raising a grievance

In the recent case of Lipscombe v Forestry Commission UKEAT/0191/06/DA, it was ruled that a resignation letter making a passing reference to an employee's past grievance was sufficient to comply with step one of the statutory grievance procedure under the Employment Act 2002 and that where a claim is brought by a litigant in person, tribunals should look at what the Claimant's case actually is rather than simply relying on the claim form.

When Mr Lipscombe resigned from his job at the Forestry Commission he included in his resignation letter that he had a grievance with certain other employees. However, when Mr Lipscombe claimed constructive unfair dismissal, an employment tribunal dismissed his claim on the basis that he had not submitted a grievance to his employer before lodging his claim as required by statute. He appealed to the EAT arguing that his resignation letter constituted compliance with the Statutory Grievance Procedure and this document had been before the tribunal at the hearing. Allowing the appeal, the EAT said that although the letter had not been drawn to the attention of the tribunal, the letter had been in the bundle of documents before the tribunal and was not therefore new material. The EAT went on to say that the letter did comply with the Statutory Grievance Procedure.

This case is yet another reminder to employers of the minimal requirements for a step one Statutory Grievance Procedure letter. No formality is required which makes life potentially tricky for employers, particularly where their own procedures provide for an initial attempt to resolve grievances informally. Therefore where there is any scope for doubt, the employee should be asked to clarify whether their issue is to be treated as a formal grievance. Employers should also be alert to how this case shows how tribunals approach cases involving a litigant in person. It will not be enough for a tribunal to take at face value a statement on the claim form that no grievance has been submitted; it will need to look carefully at any evidence which may contradict what is in the claim form.

Grievance hearings and "without prejudice" discussions

The general rule is that parties to disputes can have "without prejudice" discussions to enable them to attempt to agree settlement without the fear that what they have proposed will be held against them in the event that the dispute finishes up in court as they are inadmissible in evidence. The without prejudice principle can be set aside where it would operate as a cloak for perjury, blackmail or any other impropriety. In the case of Brunel University another v Vaseghi & another UKEAT 0307/06/1610, the EAT held that in discrimination cases the need to get to the truth may tip the scales against the privilege afforded to "without prejudice" communications.

Professor Vaseghi and Mrs Webster brought race discrimination claims against their employer Brunel University. No agreement was able to be reached even though settlement terms were discussed at a meeting. Both claimants then proceeded to lose their cases at tribunal. When the Vice-Chancellor of the University wrote in a widely circulated newsletter that there had been "unwarranted demands for money" by the claimants, both claimants submitted grievances on the grounds that this amounted to victimisation. The University's grievance panel heard oral evidence about the settlement discussions that had taken place, and concluded that both claimants had turned down the offers of settlement in the hope of obtaining greater financial awards and therefore that the grievance should be rejected.

Both claimants issued employment tribunal claims for victimisation. The case went through to the EAT, where it was held that the University had placed the issue of settlement discussions in the public arena and, furthermore, had not sought to "hide behind the cloak of privilege" when seeking to justify its position before the grievance panel. Therefore the EAT held that to deny the claimants the opportunity of referring to the "without prejudice" discussions would severely hinder their ability to bring a victimisation claim and would be an abuse of the without prejudice rule. As a result the "without prejudice" discussions were allowed as evidence.

Employers should bear in mind that protection given to the without prejudice discussions is not absolute, but can give way to other public policy considerations.

Judicial discretion and compliance with Employment Tribunal Rules

In Hamling v Coxlease School Ltd UKEAT/0181/06/LA, the Employment Appeal Tribunal (EAT) held that where a Claimant fails to include her address in her claim form as required by the Employment Tribunal Rules, this will not be a fatal omission and the claimant may proceed with her claim.

Under the Employment Tribunal Rules, all claim forms must contain certain information or they will not be accepted by the Tribunal. The Claimant's address is amongst the information required. In this case the Regional Secretary to the Tribunal Service noted that the claim form submitted by Ms Hamling did not include her address. However, although Ms Hamling entered her claim form without entering details of her address, she did enter the name and contact details of her solicitors. The matter was then referred to a chairman who determined that the tribunal could not accept the claim as the form did not strictly comply with rule 1(4).

Following an appeal to the EAT, it was held that in fact the Claimant's address was not a material omission. The EAT said that a chairman must first consider whether the omission is "relevant". As Ms Hamling's claim form had been submitted by her solicitor and her representatives address had been given, her personal details were held not to be "relevant". Even if a personal address is relevant, the EAT went on to say that the chairman should have considered whether the failure to provide such information was material or immaterial. In this case the EAT ruled the error to be neither "relevant" nor "material" and ordered that the claim form be accepted.

Employers should be aware that the approach taken in this case is an example of how the EAT has consistently taken the line that tribunals should be careful wherever possible to interpret tribunal rules in a non-legalistic way, which is consistent with the overriding objective of seeing that justice is done. However, tribunals are at times still being overly inflexible and therefore cases may proceed to the EAT where a more relaxed approach is taken preventing technical points obstructing justice.

This article copyright © 2006 Steeles Law llp. All rights reserved.