Dolby v Sheffield City Council

For the former statutory grievance procedure, a statement satisfies paragraph 6 of Schedule 2 to the Employment Act 2002 if, read fairly and in context, it gives the employer sufficient information to appreciate the complaint. It need not use legalistic or technical language. Separate written communications may be read together. The statutory scheme imposed no prohibition on presenting a further grievance while an earlier grievance was progressing. Subject to the 28-day requirement in section 32(3), timing alone did not defeat the Employment Tribunal’s jurisdiction.

Ms Dolby appealed after the Employment Appeal Tribunal allowed Sheffield City Council’s appeal against an Employment Tribunal decision dated 10 March 2011. The Employment Tribunal had held that it had jurisdiction to hear her complaint of unfair dismissal and detriments for making protected disclosures.

The dispute concerned two communications. A letter dated 8 May 2008 referred to detriments resulting from protected disclosures. Solicitors’ letters dated 8 August 2008 referred to constructive dismissal and stated that the letter should be treated as a formal grievance under the Employment Act 2002. The EAT held that the protected-disclosure complaint was a new matter outside the earlier grievance appeal and that the later letters were insufficient. The central issues were whether the communications, read together, satisfied paragraph 6 of Schedule 2 and whether the timing of the grievance deprived the Tribunal of jurisdiction.

Lord Justice Pill gave the judgment, with Lord Justice Toulson and Lord Justice Munby agreeing. The appeal was allowed and the Employment Tribunal’s finding of jurisdiction was restored.

1. Sufficiency of the grievance. A grievance under paragraph 6 of Schedule 2 to the Employment Act 2002 need not be expressed in legalistic or technical terms. The communication must be read fairly and in its particular context. The relevant question is whether the employer could reasonably be expected to appreciate that the complaint was being raised. The court applied the guidance in Canary Wharf Management Ltd v Edebi [2006] ICR 719.
2. Application to the communications. The May letter identified detriments resulting from protected disclosures and specified the context of case R. The additional allegation that the Council had forbidden reporting the matter did not supersede or weaken that grievance. The August letter identified constructive dismissal, referred to the Public Interest Disclosure Act and was expressly presented as a formal grievance. The two communications could be read together, and the reference to longstanding grievances did not exclude the May complaint.
3. Timing. Section 32(2) of the Act imposed the jurisdictional sanction for failure to comply with paragraph 6. Neither section 32 nor Chapter 1 of Schedule 2 restricted when a written grievance could be sent. A further grievance could be submitted while an earlier grievance was proceeding. No such prohibition could be inferred without an express statutory requirement. Section 32(3) required 28 days to pass after compliance, and that requirement had been met.
4. The EAT therefore erred in treating the protected-disclosure complaint as outside the statutory procedure. The Tribunal was entitled to consider the complaint.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1474, allowed Ms Dolby’s appeal from the EAT and restored the Employment Tribunal’s finding that it had jurisdiction.
2. Employment Appeal Tribunal: On 8 December 2011, allowed the Council’s appeal against the Employment Tribunal’s decision.
3. Employment Tribunal: On 10 March 2011, held that it had jurisdiction to hear the complaint.