Employment Law – The end of section 32?

Christopher Camp considers Prakash v Wolverhampton City Council and suggests that the latter can be used to emasculate section 32 of the Employment Act 2002

This article looks at two things:

• claims where there are multiple complaints, to some of which the grievance procedures contained in part 2 of schedule 2 to the Employment Act 2002 (“the grievance procedures” and “EA”) apply and to some of which they do not (“multiple complaints claims”);
• dealing with claims presented in breach of EA, section 32 (“section 32”).

Multiple complaints claims

 
Potential problems are presented by a multiple complaints claim. In relation to the complaints to which the grievance procedures apply, the employee must – section 32 – raise a grievance and wait 28 days before presenting his claim. However, so long as he has ‘grieved’ within the normal time limit for bringing claims, he has three extra months within which to present it: Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Regulations”), regulation 15 (“regulation 15”). In relation to the employee’s other complaints, there is no need to raise a grievance or to wait, but there is no extra time within which to bring a claim.

Tactics for claimants

 
An employee client: has complaints to which the grievance procedures apply but has not brought a grievance; has other complaints to which they do not apply that will very shortly to be time-barred. 
 
In my experience, what most people are advised to do in this situation is:

• raise a grievance in respect of the complaints to which the grievance procedures apply ASAP; 
• at the same time, present an ET1 in respect of the complaints to which the grievance procedures do not apply; 
• wait 28 days then present a second ET1 dealing with the complaints raised in the grievance; 
• apply to the Tribunal to have the two claims consolidated.       

 
However, the September 2006 decision in Prakash v Wolverhampton City Council suggests that doing all this may no longer be the only or even the best way forward.
 
Prakash v Wolverhampton City Council
 
Prakash was not a case on section 32 or the Regulations, but at the end of their decision, the EAT stated this: 
 
          “We see no reason in principle why a cause of action that has accrued, so as to speak, after the presentation of the original claim form should not be added by amendment if appropriate. The claim form can still serve as a vehicle for the amendment even if the original cause of action is bad. …
 
          “We see no reason why the term ‘present’ should be given any technical meaning. In our opinion, a claim can be ‘presented’ as well by amendment as by the issue of a separate originating application. If this were not so, in very many cases amendments adding new causes of action would require to be initiated by the presentation of a fresh originating application rather than by amendment. In our opinion, such is neither current practice nor in accordance with common sense as we understand it.” (paragraphs 62-3)

Regulation 15(3)(a)

 
To appreciate the full significance of Prakash, regulation 15, in particular regulation 15(3)(a), needs to be examined. By regulation 15(1)(b), the time for presenting an ET1 is extended by three months, in relation to complaints to which the grievance procedures apply, if regulation 15(3) applies. One of the sets of circumstances in which that regulation applies is where:
 
“the employee presents a complaint to the tribunal within the normal time limit for presenting the complaint but in circumstances in which [section 32 does] not permit him to do so”.
 
In other words, the time limit is extended where a claimant presents an ET1 about something to which the grievance procedures apply without first bringing a grievance. This is a curious state of affairs as it effectively rewards the employee for doing something that section 32 states he “shall not” do, namely present a tribunal complaint without having first raised a grievance.
 
What this means in practice is that a claim presented at the very end of the three month time limit in breach of section 32 – i.e. brought without first having brought a grievance and waited 28 days – is not doomed. By regulation 15(3)(a), simply presenting the claim extends time. The claimant has a further three months within which he can bring a grievance, wait 28 days (to comply with section 32) and present a new claim, identical to the old one.
 
The difficulty that then arises is, what happens to the old claim: the one brought at the end of the (un-extended) three month time limit in breach of section 32? It is this problem that Prakash solves. Prakash suggests that the new claim can be brought simply by amending the old one, i.e. there is no need to present a completely new ET1 and issue a completely new claim, nor to withdraw the old one. One can simply write to the ET asking that the old ET1 be amended by adding a paragraph along these lines:
 
“The original ET1 in this matter was defective because the Claimant failed to bring a grievance and wait 28 days before presenting it. By this paragraph, the Claimant re-presents his claim, having now raised a grievance with the Respondent not less than 28 days ago.”
 
A similar approach can, post-Prakash,be taken by a claimant in the position described in the ‘Tactics for Claimants’ section, above. Instead of presenting two ET1s at least 28 days apart and having the two claims consolidated, the claimant can present one, raise her grievance, wait 28 days and then simply write a letter to the ET asking for appropriate paragraphs to be added to the ET1 as an amendment to it.
 
The only potential downside to amending the existing ET1 rather than presenting a new one is that the ET has a discretion over whether or not to allow amendments and no such discretion in relation to accepting or rejecting a properly presented new claim. However, assuming ETs are going to use the “common sense” referred to by the EAT in Prakash, this potential downside should be more theoretical than real. An ET has no good reason to reject an application to amend of this kind in circumstances where the claimant could, instead of applying to amend, simply have presented a new ET1.

A flaw?

 
Relying on regulation 15(3)(a) and amending to get around section 32 is all very well if the claimant acts quickly.   Often, though, the claimant won’t seek legal advice until it is ‘too late’. How should the claimant be advised in this fairly common kind of situation:

• a claim, brought in breach of section 32, is accepted by the ET, because the breach is not clear from the face of the ET1;  

• the respondent raises the section 32 point in its ET3;  

• the ET decides to hold a PHR to deal with the point;  

• the claimant takes legal advice for the first time a couple of days before the PHR; 

• between presenting the ET1 and taking legal advice, the claimant has done nothing about raising a grievance. 

 
 The first thing to realise in this situation is that the claimant has by now raised a grievance. He did this by presenting his original claim. The EAT has emphasised how easy it is to bring a grievance: Shergold v Fieldway Medical Centre; Canary Wharf Management Ltd v Edebi. All the claimant had to do was “set out the grievance in writing and send the statement [of grievance] in writing or a copy of it to the employer” (EA schedule 2, paragraph 6). There is nothing preventing his ET1 constituting a statement of grievance: it is in writing; it has been sent by him to his employer (albeit indirectly, via the ET).   So there is no need to worry about raising a grievance and waiting 28 days. That requirement has already been complied with.
 
The second thing to consider is time. As above, regulation 15(3)(a) has extended time, giving the claimant an extra three months. If the PHR is taking place within this extended time period, there is no difficulty.   An application to amend to re-present the claim of the kind described in the previous part of this article can be made, to be determined at the PHR. 
 
But what if the PHR takes place, or the section 32 point is not raised, until well after even the extended time period has passed?

A section 32 discretion

 
There is little to be done if the claimant’s claim is about something to which a time limit with no general discretion to extend applies, e.g. constructive unfair dismissal. In such a case, one will only be permitted to amend to re-present the claim if one can satisfy the ET at the PHR that it was not reasonably practicable to present the claim before. Such an argument would be very unlikely to succeed, except before the most pro-claimant ET. 
 
However, it should be borne in mind that in this discussion, we are only concerned with complaints about matters to which the grievance procedures apply and that they do not apply to ‘normal’ (i.e. not constructive) dismissal cases: regulations 2(1) and 6(5) of the Regulations. Many if not most of the complaints with which we are concerned will be of discrimination. In discrimination cases, the ET has a very broad discretion as to whether or not to extend time.
 
The main focus of criticism levelled at section 32 is that it acts as a complete bar to claims. The ET, it is said, has no discretion to allow a claim to continue, no matter how meritorious it is and how unfair it would be to the claimant to dismiss it on purely technical grounds. 
 
It can now be seen that such criticism is misplaced, in relation to discrimination claims at least.  Even where the six month time limit – extended from three by regulation 15(3)(a) – has elapsed, the ET can be given a broad, just and equitable discretion to allow a discrimination claim presented in breach of section 32 to continue. It can be given that discretion by making a simple application to amend to re-present the claim. The application can be made at any time. If the ET is persuaded that it would be unjust for the claim to be blocked by section 32, it can circumvent that section by allowing the amendment in accordance with Selkent Bus Co Ltd v Moore.
 
In summary, then:

• bringing a claim in breach of section 32 extends time by three months; 

• by presenting a claim in breach of section 32, the claimant is raising a grievance; 

• claims that are defective because they have been presented in breach of 32 can be ‘cured’ by being amended; 

• so long as an application to amend is made, the ET does have a discretion to permit a claim brought in breach of section 32 to continue – it has the same discretion that it has to allow amendments generally.    

For respondents

In light of the above, an employer presented with a claim liable to be struck out under section 32 faces at least two dilemmas:

• should the claimant’s defective claim be treated as a grievance, i.e. should the employer invite the claimant to a meeting to discuss it? 

• should the ET3 refer to the fact that the claim is defective and liable to be struck out under section 32? 

 
If the defective claim is not treated as a grievance and the claimant then follows my suggested course of action and eventually wins his claim, the employer will have to pay an uplift on the compensation awarded pursuant to EA section 31(3). Treating it as a grievance might, however, alert an otherwise ignorant claimant to the possibility of following that course of action. On balance, I think the employer should normally write to the claimant, at the same time as filing its ET3, inviting the claimant to a meeting to “discuss his claim”. Most unrepresented claimants will probably ignore such an invitation, resulting (if they eventually win their case) in their award being reduced, pursuant to EA section 31(2).
 
If the ET3 refers to section 32, the risk is of the claimant obtaining legal advice, before his claim is time-barred, about the possibility of amending or of re-issuing. Clearly the employer will have to mention the fact that the claim is defective sooner or later but, all other things being equal, it is surely better to wait until the six month time limit (extended from three months, as above, by regulation 15) has expired.   So my feeling is that it is usually going to be better for the ET3 to be silent on the section 32 point and for that point to be raised subsequently, perhaps when discussing the issues at a CMD.
 
[Since this article was first published, the EAT gave judgment in Plummer v DMC Business Machines Plc [2006] All ER (D) 347 (Dec), which suggests that the section 32 point should be taken in the ET3, either at the outset or by amendment. In light of this decision, following the advice given in the previous paragraph is a very high risk strategy and in most cases I would now advise taking the point in the ET3.]

Conclusion

On the back of Prakash, it should be possible, with a little ingenuity, for many claimants who have failed to bring grievances before presenting their claims to avoid their claims being struck out. Those acting for employers should be alive to the fact that section 32 of the Employment Act 2002 does not necessarily deliver the killer blow to defective claims that many believe it does.
 
A version of this article was first published in the November 2006 ELA briefing magazine.

Cases referred to:

 
Prakash v Wolverhampton City Council EAT 6/9/06
http://www.employmentappeals.gov.uk/Public/Upload/06_0140ResfhAMMAA.doc
Shergold v Fieldway Medical Centre [2006] ICR 304
Canary Wharf Management Ltd v Edebi [2006] ICR 719
Selkent Bus Co Ltd v Moore [1996] ICR 836