Odukwe v The Partners of Hoare Lea Consulting Engineers

An employee’s grievance need only indicate the nature of the complaint and need not reproduce the later tribunal pleading. Whether a document raises a grievance is a question of mixed fact and law, allowing the appellate tribunal to construe it for itself. The grievance and subsequent claim must nevertheless concern substantially the same complaint.

For limitation, the statutory extensions for dismissal complaints and non-dismissal complaints operate through distinct regimes. A claimant cannot rely on a dismissal, over which the tribunal has no jurisdiction, as the final act in a continuing act for the purpose of extending time for non-dismissal complaints under regulation 15.

The claimant appealed against a preliminary decision that the Employment Tribunal lacked jurisdiction over his race-discrimination claims. The claims arose from alleged bullying and humiliating treatment by supervisors, together with an alleged discriminatory dismissal following redundancy.

The Employment Judge held that the claimant had not raised a sufficiently corresponding grievance and that the claims were out of time. The appeal concerned the construction of the claimant’s grievance letters, the application of the statutory grievance procedure, and whether regulation 15 extended time for the dismissal and non-dismissal complaints.

1. Grievance requirement. The question whether a document constitutes a grievance is one of mixed fact and law, rather than pure fact. The appellate tribunal was therefore entitled to construe the letters for itself, applying a fair, common-sense and non-technical approach (paras [14]-[15]).
2. The letters raised a grievance about treatment by Mr Cornwell and a general complaint of racial discrimination. Step 1 required the claimant to indicate the nature of the complaint; it did not require the detail later supplied in the claim form. The omission of particular complaints about Mr Billington did not prevent the grievance and pleaded claim from corresponding substantially. Section 32(2) therefore did not remove jurisdiction over the non-dismissal complaints (paras [13]-[16]).
3. Dismissal complaint. Regulation 15(1)(a) and (2) required reasonable grounds, at the expiry of the primary time limit, for believing that a dismissal procedure was being followed. The Employment Judge was entitled to find that a purported appeal lodged about ten weeks after dismissal, despite a five-day appeal period, did not provide such grounds. That conclusion was neither perverse nor irrational (paras [20]-[24]).
4. Non-dismissal complaints. Regulation 15(1)(b) and (3) establish a separate regime for complaints subject to the grievance procedure. Even if the dismissal could otherwise form part of an act continuing over a period, limb (b) permits account to be taken only of acts other than dismissal. The claimant could not use a dismissal over which the Tribunal had no jurisdiction to extend time for the non-dismissal complaints. Nor was any continuing state of affairs pleaded after 5 January 2009 (paras [25]-[30]).
5. The appeal was dismissed because the claims remained out of time (para [31]).

• Employment Tribunal: Employment Judge Green held that the Tribunal had no jurisdiction to determine the race-discrimination claim; reasons were sent on 12 August 2010.
• Employment Appeal Tribunal: The appeal was dismissed. The EAT held that section 32(2) did not bar the non-dismissal complaints, but the claims were nevertheless out of time.