Sheffield City Council v Dolby

Under the repealed statutory grievance regime, a complaint must be identified by construing the relevant documents in their factual context. The question is whether a reasonable employer could understand that the particular complaint was being raised. A new Public Interest Disclosure Act complaint first introduced at a step 3 appeal does not retrospectively become a step 1 grievance, nor does it satisfy the step 2 requirement to provide sufficient information and an opportunity to respond. Earlier grievances which contain no protected-disclosure complaint cannot be incorporated by general references in later correspondence. Ordinary constructive unfair dismissal and automatic unfair dismissal for making a protected disclosure remain distinct causes of complaint and must be addressed separately.

The Claimant, an Education Welfare Officer employed by the Respondent, pursued complaints of detriment and constructive unfair dismissal arising from alleged protected disclosures concerning a child-protection referral. The Employment Tribunal allowed the detriment complaints and the PIDA-based constructive dismissal complaint to proceed, while the ordinary constructive dismissal claim remained distinct.

The Respondent appealed on the jurisdictional issue whether the Claimant had complied with the Employment Act 2002 grievance requirements. The PIDA complaint was first expressly raised in grounds of appeal against the rejection of a second grievance. Later solicitors’ letters referred to earlier grievances and asserted a formal grievance. The central issue was whether those documents constituted a qualifying statutory grievance for the PIDA complaints.

1. Appeal allowed. The PIDA-based detriment complaints and the PIDA-based constructive unfair dismissal complaint could not proceed because the statutory grievance gateway had not been satisfied.
2. Whether a grievance had been lodged was a matter of construction of the documents and their context. The question was whether the employer could reasonably understand that the relevant complaint was being presented. The approach in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 was applied.
3. The Claimant’s first and second grievances concerned the substance and handling of her earlier complaints. Neither identified a protected disclosure or detriment because of one. Raising the PIDA complaint for the first time in an appeal against the second grievance did not constitute a fresh step 1 grievance. It also failed to provide the information required at step 2, including a reasonable opportunity for the employer to consider its response.
4. The solicitors’ letters did not cure the defect. Their references to the Claimant’s longstanding or earlier grievances could not incorporate a PIDA complaint which had not appeared in those grievances. The correspondence was therefore insufficient, in context, to make the PIDA complaint clear to the Respondent.
5. The ordinary constructive unfair dismissal claim and the automatic unfair dismissal claim under section 103A of the Employment Rights Act 1996 were legally distinct. The letters did not make clear that the Claimant resigned because of her protected-disclosure complaint. The ordinary constructive unfair dismissal case could nevertheless proceed. The stay was to be lifted, subject to any conciliated resolution.

• Employment Appeal Tribunal: allowed the Respondent’s appeal from the Employment Tribunal’s interlocutory jurisdictional decision and held that the PIDA-based claims could not proceed.
• Employment Tribunal: allowed the relevant detriment and PIDA-based constructive dismissal complaints to proceed to a full hearing. The judgment was sent to the parties on 11 March 2011.