Lipscombe v The Forestry Commission

This is an appeal from a decision of the Employment Appeal Tribunal (the EAT) dated 28 September 2006 by the Forestry Commission (FC). The EAT allowed Mr Lipscombe’s appeal from a decision of an ET dated 22 November 2005. The Chairman of the Employment Tribunal (the ET) had ruled initially that because Mr Lipscombe had not set out his grievance in writing and sent the same to the FC, it had no jurisdiction to entertain Mr Lipscombe's claim for unfair constructive dismissal. Mr Lipscombe challenged the ruling but on the basis that he came within the exceptions requiring his grievance to be set out in writing, and the ET ruled that Mr Lipscombe had not brought himself within the exceptions. The EAT allowed the appeal on a basis, not relied on before the ET, that by his resignation letter he had set out his grievance in writing. The EAT held thus that the ET did have jurisdiction. Permission to appeal to the Court of Appeal was given by Sir Henry Brooke. The Forestry Commission through Mr Napier argue that the EAT misdirected itself in its application of those authorities dealing with the taking of new points on appeal and argue that the decision of the ET should be restored.

For a proper understanding of the point that arises it is necessary to refer to the relevant parts of the legislation which provide that unless a complainant has complied with step 1 (a written document setting out his or her grievance) or has brought him or herself within an exception an ET has no jurisdiction to hear a constructive dismissal complaint.

Section 32(2) Employment Act 2002 provides that:

Section 32(6) provides that:

Paragraph 6 of Schedule 2 relates to standard grievance procedures which require that an employee at Step 1 must set out the grievance in writing and send the statement or a copy of it to the employer.

Section 32 applies, amongst other things, to complaints of unfair constructive dismissal and complaints of unlawful deduction from wages.

Regulation 11 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that a party is not required to commence the procedure or to complete the procedure, once commenced, if

Some history of the facts is necessary to provide the relevant context. Mr Lipscombe started work with the FC in November 1978, rising to the position of Forest Officer during 1985. Problems seem to have commenced in 2003 when, in March of that year, Mr Lipscombe was given a favourable year end report, but he learned in May that the report had been reversed to an unfavourable NFE (not fully effective).

On 4^th June 2003 Mr Lipscombe began a period of sickness absence, diagnosed as stress and depression. On 25^th September 2003 Mr Lipscombe attended a consultation with the British Medical Institute (BMI). A report from the specialist physician indicated that Mr Lipscombe was clearly aggrieved by the way that he perceived that he had been treated by his employers and it stated that it would be important to ensure the issues he had raised were addressed in some manner that was acceptable to both the FC and Mr Lipscombe.

The FC then conducted an investigation into Mr Lipscombe’s complaints and prepared an executive summary of that investigation, dated 30^th January 2004. The report concluded that it found no corroborated evidence to suggest bullying or harassment by Mr Lipscombe’s managers. Mr Lipscombe was concerned that the report contained no detail of the evidence upon which its conclusions had been reached. Mr Lipscombe sent a copy of that report to his trade union representative, who was of the view that the report was very subjective and described it as “an appalling document”. The trade union representative advised Mr Lipscombe in the following terms:-

Mr Lipscombe returned to work in December 2003 and remained available until he was signed off by his GP as suffering from work-related stress on 3^rd May 2004.

Mr Lipscombe was referred again to the BMI on 12^th July 2004 and a Doctor Stukey concluded that Mr Lipscombe was not, at that stage, currently fit for work. His conclusion was:-

On 30^th August 2004 Mr Lipscombe was offered flexible early retirement but that offer was subsequently withdrawn. Mr Lipscombe asserted that he had accepted that offer before it was withdrawn. The claimant treated that withdrawal of the offer as the final straw in his relationship with the FC and resigned by email dated 15^th October 2004, with effect from 30^th November 2004.

In response to that email of resignation Mr David Taylor, Personnel Services Manager, wrote to Mr Lipscombe on 28^th October 2004, acknowledging receipt of the resignation but stating:-

Mr Lipscombe’s response, by email, included the following:-

The judgment of the ET contains references to the FC grievance procedure and indicates that they too had in mind that what was required from Mr Lipscombe, if the ET were to have jurisdiction, was a written document setting out his grievance so as to bring into play the FC’s grievance procedure. It was their view that the claimant had raised no grievance in writing.

Proceedings for unfair constructive dismissal were then commenced before the ET on 17 February 2005. Mr Lipscombe was at this stage advised by solicitors and in filling in the claim form answered the question whether he had put his complaint in writing to the FC that he had not. In answer to the question why he had not put his complaint in writing he referred to the “attached sheet” and in that document he set out in some detail the history on which he relied going back to 2002. As far as I can tell he did not in that account refer to any written complaint being made at any stage, but could be understood to be saying that he came within one of the exceptions.

On 22^nd February 2005 without any intervention by the FC the ET Chairman ruled that Mr Lipscombe had not put his grievance in writing and that thus the ET had no jurisdiction.

The chairman having rejected the claim, Mr Lipscombe obtained further advice from his solicitors. The point was then taken on his behalf that he was excused from complying in reliance on section 11(3) (b) of the Regulations. The chairman ruled that that question should be decided by the ET. About ten days before the hearing before the ET the solicitors came off the record and Mr Lipscombe conducted the hearing himself. That hearing commenced on 14 November 2005 and lasted for a day, with a further hour on the next sitting day.

Mr Lipscombe (it seems) sought to make a point, by reference to the period in 2003, that he had sought to invoke a grievance procedure. He did not however suggest that his resignation letter was a compliance with the requirement to put his grievance in writing. He also argued that he came within the exceptions to that requirement. The ET, one can see from the terms of their judgment, accepted the submission of the FC that for there to be a written document setting out a grievance complying with step 1, the formal grievance had to be during the employment and invoking the FC’s own procedure. Such a document did not exist. The ET ruled that Mr Lipscombe had not brought himself within any of the exceptions and held that they did not therefore have jurisdiction to hear his claim for unfair constructive dismissal.

Mr Lipscombe sought to challenge the decision of the ET before the EAT. His grounds sought to argue, amongst other points, that he had invoked the grievance procedure. The grounds relied on an email dated 21 August 2003 which, if it is the same document as with our papers, does not appear to be a complaint to the FC, although it may have been copied to a senior person. He suggested that a statutory grievance procedure was followed but prevented by the FC. On 6 January 2006 he obtained permission to amend, seeking again to suggest that he had pursued a grievance procedure and he relied on various paragraphs in the statement attached to his claim. None of the grounds or the paragraphs referred to his written resignation letter as constituting a grievance in writing.

By the time the matter came before the EAT the decision of the EAT in Shergold v Fieldway Medical Centre [2006] IRLR 76 had been promulgated, the judgment being delivered on 5 December 2005. That judgment noted that the question of what constituted a grievance in writing had been troubling employment tribunals. The concerns (it seems) were as to whether the requirement was to invoke the employer’s grievance procedure and what degree of detail it was necessary to put in a written document in order to comply with the statutory requirement.

It referred to two decisions of the EAT which had given guidance which were in fact promulgated prior to the hearing before the ET but only very shortly before. The first Thorpe v Poat and Lake EAT 0503/05/SM where the judgment was given by His Honour Judge Peter Clark on 18 October 2005 suggested that any contractual grievance procedure was not to the point. The second Galaxy Showers Ltd v Wilson EAT 0525/05/CK where the judgment was given by Langstaff J on 10 November 2005 upheld the view of an ET that a resignation letter giving notice of termination was a sufficient compliance with the requirement to set out the grievance in writing.

These decisions were followed in Shergold, where emphasis was placed on the statutory requirements being “minimal in terms of what is required”. Shergold was a case in which an ET had held that a resignation letter did not fulfil the requirement because (a) it was a resignation letter; (b) it did not give details of two incidents which had led the claimant to believe she had been constructively dismissed; and (c) the respondent was never given the opportunity to respond to those allegations. That decision was reversed by the EAT, Burton J explaining that the purpose of the legislation was to encourage conciliation rather like the pre-action protocols in the High Court, but he said “what must be guarded against…is that it can create its own hostage to fortune and, in fact, introduce an entirely and, we are satisfied, unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides.”

It was in the context of these decisions, and particularly Shergold, that the EAT in this case at the hearing before them put to Mr Paterson, who was representing the FC, the question whether the resignation letter was not, in fact, in compliance with paragraph 6 of Schedule 2, a grievance in writing. Mr Paterson accepted that it was but he argued that it was too late for Mr Lipscombe to take the point on appeal when he had not taken it before the ET.

He referred to certain of the authorities as Mr Napier did before us relating to the taking of new points at the appeal stage. The EAT allowed Mr Lipscombe to rely on his letter of resignation and allowed this appeal.

He submitted that the authorities indicated that it should only be in exceptional circumstances that a new point should be allowed to be taken on appeal. He submitted that was particularly so if the taking of the point would entail a matter going back to the ET to find further facts, but that it was so even if further finding of facts was not entailed. He further submitted that even where a point went to jurisdiction the principle was the same.

For the general point he cited Robert Walker LJ in Charles Jones v Burdett Coutts School [1999] ICR 38 Transcript 2 April 1998 where having referred to a number of authorities he said this at p 47:-

Charles Jones was, as Mr Napier submitted, a striking example of the principle being applied. The point taken at the EAT level was in fact a good point, and the EAT had remitted the matter to a fresh ET but Robert Walker LJ said this:-

As regards the point being taken where the issue was jurisdiction he relied on Mummery LJ in Yasmin Khan v Royal Mail Plc Transcript 17 January 2006 where he said this:-

It was his submission that the reasons given by the EAT simply did not support their decision to depart from the general rule about the taking of new points at the appeal stage. The EAT reasoned the matter this way:-

Mr Napier accepted that the EAT were not concerned (as was the position in Charles Gray) with the taking of a point which would need fresh evidence and more investigation before an ET. But, he submitted, the principle remains that persons should take the points they wish to take at any hearing at first instance and, since he submitted thus, that it is only in exceptional circumstances that leave should be given to take some different point at the EAT level, it was necessary for the EAT to have identified “exceptional circumstances” before they could allow the new point to be taken.

He submitted that in so far as the EAT appeared to reason that the point was not a new point, it was simply wrong. He then submitted that if one examined the reasons given by the EAT they did not amount to findings of exceptional circumstances. He submitted that the fact that Mr Lipscombe was a litigant in person could not amount to an exceptional circumstance, particularly because when he put in his claim and ticked the box acknowledging that no written complaint had been made, Mr Lipscombe was advised by lawyers. Furthermore, when he challenged the initial finding of the Chairman, he was also advised by lawyers to take the point simply that the exceptions to having to put in a grievance in writing did not apply.

As regards the EAT’s reliance on the fact that he was suffering from a mildly severe stress disorder, Mr Napier submitted that there was no evidence to support any finding that Mr Lipscombe was suffering any illness which impaired his ability to take the appropriate points at the relevant times i.e. in February 2005 (when the claim form was completed); or later that year once his claim had been rejected and a decision had to be taken as to the basis on which that decision should be challenged; or when he appeared to argue his points before the ET.

Mr Napier was also critical of the reliance placed by the EAT on Mr Paterson’s concession that the resignation letter did comply with the requirement that the grievance be put in writing.

Mr Lipscombe began by taking a point as to the way in which the documents for the appeal had been prepared. His criticism that a document had been partially covered up was correct, but his suggestion that it had been done for an improper motive was simply misconceived. As to his other points he was succinct and to the point, and I can deal with his points when considering each of Mr Napier’s criticisms.

I shall take the points made by Mr Napier in reverse order. First as to the reliance on Mr Paterson’s concession, I accept that the general principle that points must be taken at the first hearing and not for the first time on appeal, applies to points good or bad, and thus in one sense Mr Paterson’s concession can be said not to damage the argument of Mr Napier but, that said, if there is ever to be an exception to that general rule, it is most likely to be in a case where the effect of allowing a new point to be taken will not be to lead to a further round of fact finding litigation. Mr Paterson’s concession means no further hearing would be necessary so far as jurisdiction is concerned.

As regards Mr Lipscombe’s medical condition, there is force in the point that there was no medical evidence to support a finding that Mr Lipscombe was affected by “a mildly severe stress disorder” in deciding what points to argue and what not to argue. Mr Lipscombe’s answer was that there was medical evidence before the EAT as to his condition while he was still employed and the EAT were entitled to infer that the condition continued. I am not persuaded that his medical condition had any significant materiality to the problem before the EAT. First, as regards the points in time when the claim form was put in, and the challenge to the rejection, he was advised by lawyers. Second (and this particularly applies to the point in time when he began to represent himself), there is little to suggest that he was not as competent as any litigant in person to take decisions as to which points to run. But the point remains that by the time of the hearing before the ET he was a litigant in person. I emphasise this last point because, although the fact that someone is a litigant in person will not of its own mean that the case is exceptional, together with other circumstances it can make it so.

The feature of this case which must be added to the point that Mr Lipscombe was a litigant in person is the following, and this seems to me to be a point which the EAT had in mind, albeit I may express it in slightly fuller terms. When the FC responded to Mr Lipscombe’s letter of resignation they took the point that paragraph 6 of the second schedule required the setting out of a grievance in writing, but they did so by reference to some internal FC grievance procedure. That was an understandable interpretation of paragraph 6, indeed as Shergold would indicate, an interpretation being adopted by some ETs and even being accepted by the ET in this case.

Accordingly it is understandable that it may have been the opinion of those advising Mr Lipscombe when completing his claim form that the resignation letter was not a grievance in writing. Indeed it may still have been their opinion when they advised a challenge to the rejection of the claim on the basis that one of the exceptions applied.

By the time the hearing before the ET took place the decisions of HH Peter Clark and Langstaff J had been promulgated, but so shortly before, that even a lawyer representing Mr Lipscombe might not have picked up the relevance of those decisions, and in particular the view of Langstaff J that a resignation letter could be a grievance in writing. Shergold itself had not been decided.

Mr Napier very properly accepted that if Shergold had been decided before the hearing before the ET, and the ET had suggested that Mr Lipscombe argue that the resignation letter should be his grievance in writing, the FC would not have been able to resist the point being taken at that stage.

When we put to Mr Napier that it might seem harsh that Mr Lipscombe, a litigant in person, should be defeated, on a jurisdiction point wrongly decided as it now turned out, his response was to direct our attention to the passage in Robert Walker LJ’s judgment cited in paragraph 29 above.

It is interesting that Robert Walker LJ also said this about points going to jurisdiction. “If a new point of law goes to jurisdiction that may be a good reason (Barber) but I cannot accept Mr Kibling’s submission that any issue of jurisdiction arose in this case.”

That might seem at first sight to be in conflict with what Mummery LJ said in Yasmin Khan (see paragraph 30 above) but actually it is not. What Mummery LJ was saying is that the EAT may in its discretion refuse to allow a new point to be argued even where it goes to jurisdiction. That the authorities show is so. But Robert Walker LJ was recognising that the EAT might take a slightly less vigorous approach when applying the general principle where the point in issue was jurisdiction. That also seems to be supported by the authorities.

If one takes, for example, one of the decisions relied on by Mummery LJ, Glennie v Independent Magazines. This was a case where the Court of Appeal held that even though the point went to jurisdiction, the EAT should not have allowed the new point to be taken. In that case Brooke LJ reviewed certain of the decisions dealing with the general principle that points will not be allowed to be taken on appeal for the first time. In that review he considered authorities which took a less restricted view when the point sought to be taken related to jurisdiction.

The review shows that at one stage it was thought that new points as to jurisdiction could be taken without restriction at the appellant stage, whether they were points demonstrating that the tribunal did not have jurisdiction, as well as points demonstrating that in fact it did. But gradually a more restrictive view was taken. For the purposes of this case it is of interest to quote a passage in Barber v Thames Television quoted by Brooke LJ:-

In relation to that passage Brooke LJ made this comment:-

Laws LJ said this in the same case:-

Laws LJ, by his language, may have had more in mind facts demonstrating that the ET did not have jurisdiction, but his language recognises the public interest in a tribunal exercising “the whole of . . .” its jurisdiction. I would add in any event that in holding the scales fairly what goes for one side should equally go for the other.

It seems to me quite difficult to say that Mr Lipscombe was not taking a new point on appeal but it was a point which related to jurisdiction, and not a point which needed fresh evidence. Furthermore it would not be fair to say that he was conceding that the letter did not comply with step 1. What it seems to me the EAT are saying in paragraph 14 and 15 is that Mr Lipscombe was arguing that he had fulfilled the test of putting his grievance to his employers and indeed he may have been suggesting that it was in writing because of his reference to emails. They were saying that the letter of resignation was in evidence before the ET so that, albeit the point may have been new, it was not fresh evidence being put in before the EAT. The inference from their reference to Shergold seems to me to suggest that it was their view that if Shergold had been decided by the time of the hearing, the ET would or should have drawn it to Mr Lipscombe’s attention and decided in the light of Mr Paterson’s concession that they had jurisdiction. It was understandable that that had not happened because Shergold had not been decided but, on that basis, the correct decision for the ET was that they had jurisdiction.

The EAT’s conclusion was that this was an exceptional case in which the general rule in relation to taking new points in the EAT should not be applied because Mr Lipscombe, as a litigant in person, could not be blamed for not taking the point which he ought to have taken before the ET.

Since this was an exercise of discretion by the EAT Mr Napier must show that the EAT have misdirected themselves or have reached a decision outside the generous ambit of reasonable disagreement. The reasoning which I have spelt out, perhaps in a little fuller way than the EAT, supports the view that this was an exceptional case. The EAT were entitled not to apply the general principle and in my view the appeal should be dismissed.