Lipscombe v The Forestry Commission

The requirement for an employee to set out a grievance in writing is statutory and need not involve formal invocation of an employer’s internal grievance procedure. A resignation letter may satisfy that requirement if it identifies the employee’s grievance. An appellate tribunal may permit a new jurisdictional point to be raised for the first time where it requires no further factual inquiry and exceptional circumstances make that course just. Relevant considerations include the party’s status as a litigant in person, the availability of the material before the tribunal, recent authority and the absence of any need for a further hearing.

The Forestry Commission appealed from the Employment Appeal Tribunal’s decision of 28 September 2006, which had allowed Mr Lipscombe’s appeal from the Employment Tribunal’s decision of 22 November 2005. The Employment Tribunal held that it lacked jurisdiction to hear his complaint of unfair constructive dismissal because he had not complied with the statutory grievance procedure and did not fall within an exception.

The Employment Appeal Tribunal accepted, on a point not argued below, that Mr Lipscombe’s resignation letter constituted a grievance in writing. The central issues were whether that point could be taken for the first time on appeal and whether the material before the tribunals established compliance with the statutory requirement.

1. Appeal dismissed. The Employment Appeal Tribunal had exercised its discretion to permit the new point. The Forestry Commission failed to show any misdirection or a decision outside the generous ambit of reasonable disagreement.
2. The general rule is that a party should bring forward the whole of its case at first instance. A new point will ordinarily be allowed on appeal only in exceptional circumstances, particularly where it would require further factual investigation. The principle applies to points that are good or bad and may apply even where the point concerns jurisdiction.
3. Jurisdiction may justify a less restrictive approach where the issue is discrete and one of pure or hard-edged law requiring no further factual inquiry. The appellate tribunal retains a discretion to refuse a new jurisdictional point, but may allow it where the interests of justice require.
4. The resignation letter was already before the Employment Tribunal. The Commission’s response had drawn attention to the statutory written-grievance requirement, although it referred to the Commission’s internal procedure. The relevant authorities were developing and unsettled. Mr Lipscombe was a litigant in person by the Employment Tribunal hearing, and the Commission’s concession before the Employment Appeal Tribunal meant that no further hearing or fact-finding was required.
5. Those circumstances entitled the Employment Appeal Tribunal to treat the case as exceptional. The resignation letter satisfied the statutory requirement, so the Employment Tribunal had jurisdiction to hear the constructive-dismissal complaint.

• Court of Appeal (Civil Division): Appeal by the Forestry Commission dismissed. The court upheld the Employment Appeal Tribunal’s decision that the resignation letter constituted a grievance in writing and that the Employment Tribunal had jurisdiction.
• Employment Appeal Tribunal: On 28 September 2006, appeal from the Employment Tribunal allowed on the basis that the resignation letter constituted a grievance in writing. Citation: UKEAT019106DA.
• Employment Tribunal: On 22 November 2005, held that the statutory requirement had not been met and that it lacked jurisdiction to hear the unfair constructive-dismissal complaint.