Caroline Jennings addresses the recent case of Jane Dolby v Sheffield City Council  EWCA Civ 1474 and, specifically, what amounts to compliance under paragraph 6, part 2, schedule 2 of the old statutory grievance process.
The provisions of schedule 2 of the Employment Act 2002 are unlikely to be at the fore of many readers' minds but there do remain a handful of cases in which claimants still have to surmount a number of hurdles before being allowed to present a claim to the employment tribunal. For those few, the recent case of Dolby v Sheffield City Council is of assistance.
Chapter 1 of schedule 2 is headed "Standard Procedure" and sets out a number of requirements which if not complied with results in the Tribunal having no jurisdiction to hear a subsequent complaint. In Dolby, the Claimant appealed a decision that she could not bring her claim as she had not raised a grievance that satisfied the requirements of paragraph 6. It was alleged that she had not set out in writing and sent to her employer the grievance which she was seeking the tribunal to consider.
Miss Dolby had raised a written grievance with her employer in which she made a formal complaint against four of her colleagues regarding their treatment of her following her making a child protection referral to Social Services . Her complaints included a reference to harassment. A meeting followed and a subsequent appeal. At the appeal stage, Miss Dolby stated that she had been subjected to detriments as a result of protected disclosures. Miss Dolby subsequently resigned and claimed constructive unfair dismissal.
The Respondent argued that Miss Dolby had not complied with paragraph 6 as her original complaint did not reference her poor treatment being a result of a protected disclosure. It further argued that the timing of this grievance disqualified it from consideration as a step 1 statement. The tribunal held that she had complied with paragraph 6 and allowed her claim, but the EAT found that the issue of protected disclosure was a new matter and therefore did not constitute a grievance under the statutory regime.
The matter progressed to the Court of Appeal where Pill LJ held that Miss Dolby had complied with paragraph 6 in respect of the protected disclosure complaint. He noted that the Act does not impose restrictions on the time at which a written grievance is sent to the employer. Providing a grievance in writing was sent to the employer under paragraph 6, there is no prohibition on sending it while an earlier grievance is following the chapter 1 procedure. He held that to infer any such prohibition would "introduce technicalities and uncertainties of a kind the courts have foresworn".
Accordingly, the provisions of schedule 2 do not require all admissible complaints to have been made before the paragraph 6 procedure reaches stage 2 (meeting) or stage 3 (appeal).