"All cases are unique, and very similar to others" [1]

May 28, 2024

Nigel Pitchford looks at the lessons for workplace resolution from a timely review of local authority cases before the Employment Appeal Tribunal.

In this article I will advance a framework of workplace procedural principles from Employment Appeal Tribunal (EAT) decisions which had local authorities as parties.

Introduction

The aim here is to provide commentary and analysis on key findings from the EAT’s decisions (from a timeframe of April 2019 to July 2022) that support a useful set of underlying principles for practitioners when dealing with individual workplace grievances: how procedures should be used by anyone involved in grievance resolution.

The purpose of this review was:

to select cases that had a local authority as a party, usually as a ‘respondent’ (typically the ‘claimant’ was a former employee); it was readily apparent from the preliminary review undertaken that so-called ‘limb (b) workers’ rarely appeared, if at all, as parties, despite some employment protection being available to them;
to reveal EAT commentary on grievance resolution and other employment processes, such as dismissal, that intersect procedural law and practice.

Preliminary findings of the EAT’s decisions

This stage, which involved two phases, commenced the inquiry. The initial EAT online case and judgment review, in effect, became a feasibility study to refine and hone the second, the more substantive preliminary phase.

Originally, the intention was to solely focus on constructive (unfair) dismissal decisions involving councils as named parties to the appeals, in particular their narratives, as it was anticipated, in so doing, a rich vein of information from case law would result. However, it was soon found that such dismissal appeals involving councils rarely appeared before the EAT, and when grievance processes were revealed, they crossed into the other (54) jurisdiction codes. Moreover, a sole focus on unfair dismissal appeals, and therefore employees, would exclude those employed as workers. The decision was taken, therefore, to sift through all the published cases, and to focus on any case that had a council as a party to it (‘council’ became the search term).

As a result, a total of 600 decisions became part of this sifting process,[2] and 49 council cases became the sample for analysis. This scrutiny of the EAT’s decision-making sought to identify how the initial claims and their subsequent appeals had progressed, in particular:

were grievance procedures available for use?
if available, were they used fully or partially?
if procedures were used, were they misapplied or misunderstood, by either party?[3]

Through this early trawl of decisions, the EAT subscription service was activated that would provide weekly email alerts to the publication of cases throughout the rest of the research timeframe (2019-2022).

Of the 49 cases, 14 involved school staff who were initially outside of the original scope of this research as each school, within their respective local authority area, would have their own procedure. Of the remaining 35 cases that were reviewed, no discernible grievance process could be found within 33 of them. Therefore, only two cases were subject to further analysis. Of the two, Metcalf,[4] was the most fruitful as it involved whistleblowing and a complaint under the ‘Ending Harassment Bullying and Discrimination Policy’ where the employee’s request for a formal investigation was rejected. The employer had decided that ‘informal facilitation’ was preferable, and the EAT also agreed ‘that it was appropriate to seek to persuade the parties to have mediation (…) in accordance with the culture of dealing with matters in an informal way in the first instance before progressing to a formal process’. [4A]

Such a lack of procedural commentary has the potential to either arise from the underuse of the grievance process, or the use of workplace procedures which raised no arguable issues, by either party, before the EAT. However, as the judgments would often provide an expansive factual narrative of each case, underuse became apparent.

An analysis of the EAT’s judgments: 2019-2022

The research question that steered this review of the EAT’s decision-making was:

what are the judicial impressions of local government grievance procedures?

Following an analysis of the preliminary findings (particularly the initial 600 decisions) it was decided to broaden, and yet, at the same time, simplify the criteria for the longer-term review of local authority cases (again using ‘council’ as the search term). This time the selection criteria was broadened to include school staff, whilst the discussion criteria was simplified to cases where there had been no reference to the grievance procedure, or only superficially, in contrast to those cases where procedures were integral to the decisions. More generally, EAT decisions that provided useful additional judicial insights into other relevant procedures, typically dismissal, were also considered. Therefore, the parameters took on a broader scope in response to the earlier findings.

Of the 500 cases that were emailed as alerts over the 38-month period, from April 2019 to July 2022, only 30 local authority cases could be classified according to this typology. Of these, only eight, which included an appeal from the EAT to the Court of Appeal, provided some meaningful commentary either in terms of grievance resolution, or the use of process more generally. And, for the sake of completeness, only one decision, Nwakwu,[5] involved a worker, and this decision had no grievance commentary even though the focus of the appeal was parity between agency and directly employed workers. Interestingly, however, the agency worker, Mr Nwakwu, had brought his claim against his host of nearly four years (Westminister City Council).

In Evans,[6] a complex case involving a teacher, the EAT emphasised that procedural unfairness must be adjudicated upon even if there was no prospect of compensation.[7] Whilst in Herry,[8] although the case involved a teacher with ‘a formal grievance’,[9] the precedent is much more relevant for procedural failures and provides significant latitude for employers: ‘deciding the [dismissal] appeal without permitting the Claimant a hearing’ was ‘one that fell within the band of reasonable responses’.[10] In contrast, Barratt considered,[11] whether the ET ‘erred in law in concluding that the Claimants, who were both teachers (…) were unfairly dismissed by reason of redundancy following the closure of that school’.[12] Although the judgment revealed no discussion on a grievance procedure as such, Choudhury J’s key dicta on following due process is noteworthy: ‘The [Employment] Tribunal found that this case was “an instance where the breach of a proper process was fundament [sic] and profound” and ‘was a conclusion that the Tribunal was entitled to reach’.[13]

Surely deciding an appeal without permitting a hearing, as in Herry, is particularly ‘fundamental and profound’? Indeed, at first instance, Tobin EJ in Barratt thought so: ‘An appeal is ingrained in principles of natural justice and, although I do not say that the absence of an appeal would render every decision unfair, I do determine that it requires truly exceptional circumstances to refuse an employee the right to appeal against their dismissal’.[14] However, on a further appeal, the Court of Appeal,[15] noting that the ET case was ‘unusually’ heard ‘on the basis of a statement of agreed facts’,[16] seemingly retreated from the ‘truly exceptional circumstances’ test to include it within the ‘conclusions on overall fairness’.[17]

In Keable,[18] ‘a Public Protection and Safety Officer’[19] was dismissed, and ‘the operative reason on the relevant decision maker’s mind for the dismissal was that “the Claimant had made statements which were considered to be offensive and which they considered had brought the Respondent into disrepute”’.[20] The EAT’s commentary on procedural design and practice is insightful:

A fair and open procedure, where there is cooperation, genuine and effective communication regarding a disciplinary charge, is far more likely to engender reflection, perhaps regret or expressions of remorse which may in turn lead to better performance in the future, than a hostile, unduly adversarial or closed procedure, particularly where one party does not know or understand properly the position of the other.[21]

In Hamilton,[22] which involved a teacher who ‘initiated the first of several grievances’, and although the grievance procedure was not discussed, the application of the collective agreement was considered:[23] ‘Collectively agreed terms which regulate matters such as pay, holiday entitlement and hours of work are all capable, if they have been incorporated into individual contracts, of giving rise to enforceable individual rights on the part of employees’.[24] The case decided, based on the words used, that enforceable individual rights had not been created: ‘The vagueness of [the words] lead inevitably to the conclusion that it was not intended to confer an individual right of the kind contended for by the Appellant’.[25]

In Thompson,[26] a teacher claimed ‘unfair dismissal and disability discrimination (including discrimination by failing to make “reasonable adjustments”)’.[27] Although a grievance procedure was not initiated prior to litigation, Shanks J observed that ‘continuing this dispute’ within the ET ‘will not do anyone any good in the end’, and ‘we would urge the parties in this case (even more than most) to do all they can to reach some kind of settlement as soon as possible and we would strongly recommend an attempt at mediation’.[28]

In Swansea,[29] the claimant, ‘an Equality Engagement Officer (…) went off sick to avoid contact with one of the managers with whom she had been in conflict’.[30] The EAT emphasised impartiality any process: ‘Mr Rewbridge had not previously been involved in managing the claimant (…) An appeal hearing was held before Lee Wenham (…) who had no knowledge of the claimant prior to hearing the appeal’.[31]

Medrysa,[32] involved a claim of race discrimination, and inter alia, the failings of an employer’s grievance procedure.[33] Evidence from other employees was discussed for the purposes of comparison. However, the appeal was unsuccessful as, despite the many ‘failures’, they applied ‘to all staff regardless of race’ meaning discrimination could not therefore be inferred.[34]

In conclusion, and rather surprisingly, only one case, Medrysa, could be found from the 30 cases closely analysed, offered direct judicial insights on the grievance process. Indeed, this was underscored by the lack of any commentary on the Acas Code with its penalties for ‘unreasonable failure’ to follow a process; nonetheless, the other cases were able to provide key themes for workplace processes.

Themes arising

Despite these cases appearing diverse, they shared similar themes to paint a picture for contemporary workplace resolution. Firstly, there was an overarching judicial endorsement of informal methods to resolve differences ‘in accordance with the culture of dealing with matters in an informal way in the first instance before progressing to a formal process’.[35] Secondly, there was an emphasis on ‘due process’,[36] that includes impartiality,[37] within a ‘fair and open procedure, where there is cooperation, genuine and effective communication’.[38] Indeed, there was a clear signal to tribunals to decide on ‘procedural unfairness’ regardless of any prospect of compensation.[39] Finally, the call went out for practitioners to adopt an active role, ‘to case manage and hold managers to account’, and to avoid the ‘dilatory progression of complaints and the lack of actions’.[40] These themes serve as a reminder of procedural justice and provide, in essence, a benchmark endorsed by the EAT with which to gauge workplace practice.

Dr Nigel Pitchford is a Lecturer in Law at Leeds Trinity University.

^[1] TS Eliot, ‘The Complete Plays of TS Eliot’, Houghton Mifflin Harcourt (2014) 175.

^[2] GOV.UK, ‘Employment Appeal Tribunal Decisions’ <Employment appeal tribunal decisions - GOV.UK (www.gov.uk)>.

^[3] These questions were adapted from earlier research; Jill Earnshaw, Mick Marchington, and John Goodman, ‘Industrial Tribunals, Workplace Disciplinary Procedures and Employment Practice’ (1998) DTI Employment Relations Research Series No 2, 9.

^[4] Metcalf v Surrey CC [2018] UKEAT 0179/16/LA (Slade J) (Metcalf).

[4A] ibid [17] [56] (emphasis added).

^[5] Nwakwu v Westminster CC [2019] UKEAT 0102/18/JO (Stacey J) (Nwakwu).

^[6] Evans v LB of Brent [2020] UKEAT 0290/19/RN (Eady J) (Evans).

^[7] ibid [54].

^[8] Herry v Dudley MC [2019] UKEAT 0069/19/LA (Eady J) (Herry) (emphasis added).

^[9] ibid [10].

^[10] ibid [54].

^[11] Gwynedd C v Barratt [2020] UKEAT 0206/18/VP (Choudhury J, President) (Barratt) (emphasis added).

^[12] ibid [1].

^[13] ibid [77].

^[14] Barratt [16-36].