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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Swindell v Lisburn Golf Club [2008] NIIT 458_08IT (30 May 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/458_08IT.html Cite as: [2008] NIIT 458_8IT, [2008] NIIT 458_08IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 458/08
CLAIMANT: Laura Swindell
RESPONDENT: Lisburn Golf Club
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant's letter to the respondent dated 4/10 January 2008 and headed Ref: My Dismissal October 2007 sets out in writing the claimant's grievance and the basis for her grievance. Her claim presented to the tribunal on 14 January 2008 and represented to the tribunal on 7 March 2008 alleging unlawful discrimination on the grounds of sex and pregnancy should be accepted.
Constitution of Tribunal:
Chairman (Sitting Alone): Mrs M Davey
Appearances:
The claimant was represented by Mr T Broome.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Worthingtons, Solicitors.
THE FACTS
The claimant posted two letters in separate envelopes to the respondent which both arrived on 12 January 2008. One of these letters contained a document headed Questionnaire which was enclosed with a blank statutory questionnaire. The other letter dated 4/10 January 2008 was headed Ref: My Dismissal October 2007. On 14 January 2008 the claimant presented a claim form to the industrial tribunal complaining that she had been unlawfully discriminated against on the grounds of her sex. This claim form was subsequently re-submitted after the 28 day period required for the grievance procedure had passed.
Mr Broome accepted that the document headed Questionnaire could not be considered as a letter of grievance but he maintained that the letter headed My Dismissal did in fact comply with the requirements for presenting a grievance although presented in an unusual form.
Mr Mulqueen maintained that the letter headed My Dismissal was simply a different form of questions from a statutory questionnaire and in this regard he pointed out that most of the information sought was sought by way of questions and did not set out the grievance in such a way as to allow it to be understood by her employer. Mr Mulqueen relied on the decisions in Holc-Gale -v- Makers UK Ltd [2006] IRLR 178 and Canary Wharf Management Ltd -v- Edebi [2006] IRLR 419. He maintained that the letter headed My Dismissal did not satisfy the requirements laid down in those cases because the matters set out in the letter which purported to be a grievance letter did not mirror the claims actually set out in the claim form. He also pointed out that on the second page of this letter under documents it said "please forward copies of the following documents with your replies to this Questionnaire" (my emphasis).
Mr Broome maintained that the letter headed My Dismissal was intended to be a grievance letter. He pointed out that the content of the letter made it clear that the claimant was raising issues in relation to her pregnancy and sex. He maintained that the letter and questions showed that she was complaining that her job had been changed, that she was offering to do less strenuous work on account of her pregnancy and that the respondent in replying to the letter headed My Dismissal said "I refer to your letter of grievance" and offered the claimant the choice of dealing with the matter under either the standard or modified Grievance Procedure.
Mr Mulqueen also referred to a recent decision of the Employment Appeal Tribunal Clyde Valley Housing Association Ltd -v- Ms M MacAulay and maintained that the letter headed My Dismissal did not satisfy the criteria set down in this case of who? what? where? when? why? and that the complaint as subsequently presented did not mirror the matters set out in My Dismissal letter.
Mr Broome maintained that the letter did set out both the grievance and the basis for it and that on a fair reading the employer would have been able to understand the general nature of the complaint which was being made. He pointed out that the letter refers to pregnancy and sex that her complaint related to her requirement for less strenuous work and her dismissal by David Perry and that there was sufficient information there to allow the respondent to know the basis of the claimant's complaint.
REASONS
I have considered carefully the representations made by both parties. I accept that the letter headed My Dismissal is framed in an unusual form in that it appears to be a request for Discovery and Additional Information with the items for Additional Information put in question form. However applying the who, where, what, when and why test it appears to me that the basis of the claimant's grievance is set out in that letter. She has named the person she is complaining about; she has set out that she is complaining about discrimination on the grounds of her pregnancy and the respondent's failure to reduce her hours and provide her with less strenuous work and she is making it clear why she believes this treatment was unlawful. In the circumstances therefore I accept that this letter constituted a valid grievance for the purposes of paragraph 9 of Schedule 1 of the Employment (Northern Ireland) Order 2003.
A Case Management Discussion will now be arranged to deal with preparing this case for hearing and also to deal with the question of consolidating case reference numbers 199/08 and 458/08.
Chairman:
Date and place of hearing: 14 May 2008, Belfast.
Date decision recorded in register and issued to parties:
