Goodman & Ors v. Members of The Executive Committee Of Shropshire Unison & Ors

A written grievance must be read in its factual and procedural context. Where an employee makes a protected disclosure by grievance and later alleges detriment arising from that disclosure, a further grievance is not necessarily required if the substance of the complaint has already been articulated. A grievance may disclose more than one statutory complaint, and the presence of other possible claims does not exclude a whistleblowing complaint. The correlation requirement under the Employment Act 2002 is therefore satisfied where the grievance and tribunal claim relate to the same underlying complaint and alleged detriment.

The claimants appealed from a preliminary hearing decision of Employment Judge Prichard, recorded on 29 October 2009, refusing an amendment to introduce whistleblowing detriment claims. They had submitted a joint grievance in April 2008 alleging bullying, harassment and detrimental treatment. They later submitted grievances concerning delay in resolving the complaint, alleged interference with the process and loss of pay. The Employment Judge held that those grievances did not correlate with the proposed claims. The central issue was whether the October grievances, read in context, constituted a written grievance about detriment for making the April protected disclosure, or whether a further grievance was required.

1. Appeal allowed. The Employment Judge misdirected himself by treating the written grievances and their purposes as separate matters and by failing to assess the October grievances in the context of the April grievance, the investigation and the subsequent correspondence.

2. The April grievance was capable of constituting a qualifying and protected disclosure under section 43B of the Employment Rights Act 1996. The later complaints that the grievance process had been delayed or interfered with, and that the claimants had suffered financial detriment, were capable of alleging detriment because they had made that disclosure.

3. Regulation 2(2) of the 2004 Regulations assists the claimants. A written communication may fulfil the grievance requirement even though it also deals with other matters. Potential alternative complaints, including discrimination, health and safety or trade union detriment, do not prevent the same grievance from also raising whistleblowing detriment.

4. Alternatively, applying the approach in Evershed and Shergold, an employee who has lodged a valid grievance about unreasonable conduct is not necessarily required to lodge a further grievance about each subsequent instance or changing form of the alleged conduct. The continuing allegations of bullying and harassment and the asserted detriments could therefore be treated as falling within the original grievance.

5. The amendment application had been considered under the wrong jurisdictional premise. It was remitted to Employment Judge Prichard for reconsideration under the Selkent principles. Permission to appeal was refused.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Judge’s decision recorded on 29 October 2009 and remitted the amendment issue for reconsideration.