Allen v The Secretary of State for Work and Pensions (Jobcentre Plus)

For the statutory grievance procedure to confer jurisdiction, the grievance must remain extant when the tribunal claim is presented. A grievance which has been satisfactorily dealt with, or which the employee has ceased actively to pursue, cannot ordinarily support jurisdiction; the complaint must be raised again in writing.

A later grievance is unnecessary for the same specific allegation of a continuing discriminatory act. Different subsequent allegations require separate identification in the grievance. An employment judge may determine a continuing-act issue at a pre-hearing review where that issue is relevant to an extension-of-time decision. At that stage the claimant must show at least a prima facie or good arguable case that the allegations form one continuing act.

The claimant brought disability discrimination claims alleging continuing failures by her employer to make reasonable adjustments for bipolar disorder. An Employment Judge, at a pre-hearing review, examined the grievances relied upon for compliance with the statutory grievance procedure and the alleged continuing acts.

The judge concluded that grievances raised before March 2007 were either not grievances or were no longer extant. He allowed the claims based on grievances from 30 March 2007 onwards to proceed and extended time where necessary.

The claimant appealed, arguing that an extant grievance was not required, that the continuing-act issue should have been left to a full hearing, and that the reasoning was inadequate.

1. Appeal dismissed. The Employment Judge was entitled to limit the claim to matters covered by extant grievances from 30 March 2007 onwards and to extend time for those complaints.
2. Section 32(2) of the Employment Act 2002, Schedule 2 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 had to be read together. The guidance in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 was not an impermissible gloss on the statute. A grievance which has been satisfied, settled or no longer pursued is no longer extant.
3. Where a grievance was raised years before the tribunal claim, jurisdiction will generally be lacking if it was satisfactorily dealt with or was not actively pursued. The claimant must then submit the same Step 1 grievance again in writing. A further grievance is unnecessary for precisely the same specific allegation of a continuing act, but different later allegations must be specified. On a fair reading, the grievance must alert the employer to the complaints which remain live.
4. The Employment Appeal Tribunal should be slow to interfere with an employment judge’s factual finding as to whether a grievance remains extant. The findings here were open to the judge on the material before him.
5. The issue whether alleged discrimination constituted a continuing act was ancillary to the just-and-equitable extension-of-time issue. It was therefore open to the Employment Judge to decide it at a pre-hearing review, having regard to the overriding objective in regulation 4 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.
6. On a preliminary investigation, the claimant had to establish at least a prima facie or good arguable case that the allegations formed an act extending over a period, rather than a succession of unconnected acts. The judge gave cogent reasons for finding that no such case had been shown. His reasoning also satisfied Meek v City of Birmingham District Council [1987] IRLR 250.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Judge’s decision of 22 May 2008, entered in the register on 14 August 2008.
• Employment Tribunal: directed that only complaints identified as substantive and covered by grievances from 30 March 2007 onwards proceed, and extended time for those complaints.