Parsons v Burworth Estates
Before claimants can lodge a tribunal complaint of constructive unfair dismissal that is subject to the 2004 statutory grievance procedure, they must first raise a grievance about it with their employer. But what happens if they have a whole list of complaints? The Employment Appeal Tribunal (EAT) has just said in Parsons v Burworth Estates that tribunals can still hear the claim even if not all of the employee's complaints had been the subject of a grievance.
Thompsons was instructed to act on behalf of the claimant.
Basic facts
Mr Parsons worked as a caretaker for a block of flats owned by a partnership trading as Burworth Estates. He lodged a grievance on 23 October 2006, covering a wide range of complaints against the company.
He had a meeting with them in November 2006 but this did not resolve matters and a further meeting was set up for February 2007. Prior to that meeting, Mr Parsons sent a letter detailing ten issues for discussion which were very similar (although not identical) to the list in his original grievance.
On 11 April 2007 Mr Parsons received a written response to his grievance, as well as a notice of intention to retire under the 2006 age regulations. Mr Parsons wrote more letters to the company complaining about a lack of support (this time about mattresses being dumped in the rubbish shed) on 10 and 17 July 2007. He then handed in his notice on 25 July, but gave no specific reasons. In December 2007 he claimed unfair constructive dismissal.
The company asked for more information about his dismissal claim and Mr Parsons replied with a list of 14 incidents, many of which had been rehearsed in his previous letters.
The company said the tribunal could not hear his claim because he had not submitted a previous step one grievance letter in respect of at least six of the 14 issues he was relying on.
Tribunal decision
And the tribunal agreed. It said that only one of the 14 incidents (about the dumping of mattresses) set out in Mr Parsons’ response to the company’s request for further information had been the subject of a prior complaint.
Relying on the decision in Cyprus Airways Ltd. v Lambrou, it held that it was not possible to "sever" that single incident from the thirteen others in respect of which no grievance had been lodged and that it therefore had no jurisdiction to hear the claim.
EAT decision
The EAT, however, disagreed. It held that Cyprus Airways did “not enunciate any general principle about "severance". In a case where the claimant relies for the purpose of his constructive dismissal claim on a series of quite discrete breaches, but has failed to lodge a grievance in respect of some of them, we can see no reason in principle why he should not pursue his claim insofar as it is based on the remainder”.
The only problem it could envisage was if claimants could not establish that the breaches they relied on for their tribunal claim were the same as those “in response to which [they] resigned”.
It distinguished Cyprus Airways on the basis that the claim in that case was dismissed because the claimant could not show any evidence that he had resigned in response to the one breach on which he could rely.
“But if, for example, we had found in the present case that the Claimant was entitled to rely on all of the incidents pleaded save item I, we very much doubt whether the inhibition on his relying on the missing one would have made any difference to the outcome of the case”.
It therefore allowed the appeal and remitted the case to another tribunal to hear Mr Parsons’ entire case.