Afolabi v London Borough Of Barking And Dagenham

A respondent may raise a statutory grievance-procedure jurisdictional objection without formally amending its response, provided the objection is raised before the tribunal begins considering the substantive issues. The decisive question is fairness. The claimant must have a proper opportunity to consider and answer the point.

Although such an objection should normally be included in the response, the ordinary principles governing amendments to add a new claim do not govern a late jurisdictional bar. An adjournment and adequate opportunity for submissions may cure the lateness.

The claimant brought claims including protected-disclosure detriment against the respondent council. The respondent did not plead a statutory grievance-procedure objection in its ET3 or at an earlier case-management discussion.

At the start of the substantive Employment Tribunal hearing, the respondent raised an objection that no compliant grievance had been presented in respect of the whistleblowing complaint. The Tribunal adjourned to enable the claimant's counsel to respond, heard argument over two days, upheld the objection and dismissed that complaint.

The claimant appealed, contending that the respondent required formal permission to amend its ET3 before the Tribunal could entertain the late objection. The central issue was whether, and on what conditions, a late statutory grievance-procedure jurisdictional point could be taken.

1. Appeal dismissed. The Employment Tribunal was entitled to entertain the respondent's statutory grievance-procedure jurisdictional objection although it was first raised at the opening of the substantive hearing.

2. The EAT normally follows the most recent relevant decision where apparently conflicting earlier EAT decisions have considered the earlier authorities, unless that later decision is plainly wrong. Fraser approved Glasgow, and neither decision was plainly wrong.

3. A statutory grievance-procedure objection should normally be pleaded in the ET3. However, it may be raised at any time before the Tribunal commences consideration of the substantive issues. Formal amendment of the ET3 is not a prerequisite to the Tribunal considering the objection.

4. The proper safeguard is fairness between the parties. The ordinary Selkent principles concerning an amendment to introduce a wholly new claim do not apply to a respondent raising a jurisdictional bar. The Tribunal must instead ensure that the claimant has a proper opportunity to consider and address the objection.

5. That condition was met. The Tribunal adjourned after the objection was raised and allowed the claimant's representative time to prepare; it then heard argument over the following two days. The Tribunal also permissibly found that the claimant had not complied with step 1 of the statutory grievance procedure in relation to the whistleblowing complaint.

6. The respondent's application for appeal costs was dismissed. The appeal raised an arguable point and the claimant's refusal to withdraw it after the respondent's conditional offer did not amount to unreasonable conduct.

• Employment Appeal Tribunal: dismissed the claimant's appeal and dismissed the respondent's costs application.
• Employment Tribunal (East London): in reasons promulgated on 4 April 2013, permitted the respondent to take a late statutory grievance-procedure jurisdictional point and dismissed the protected-disclosure complaint for non-compliance with step 1.