The EAT has handed down a decision dealing with an interesting little problem arising from the statutory grievance procedures.
The Claimant brought three discrimination claims to which the statutory grievance procedure applied. In respect of claim 1, she had waited the mandatory 28 days after submitting a step 1 grievance letter before presenting her claim. In respect of claims 2 and 3, the employer had completed its internal grievance procedure and she therefore presented her claims before the 28 day window had elapsed.
The tribunal heard all three claims, stating it would reach a decision on its jurisdiction to hear claims 2 and 3 as part of its substantive decision. It told the parties that if it found it lacked jurisdiction, it would simply express preliminary conclusions on claims 2 and 3. The Claimant would then be able to re-present those claims, as she was still within the extended limitation period.
In the event, the tribunal found in her favour but found it lacked jurisdiction. She presented fresh claims. By agreement, the evidence at the first hearing was allowed to stand as evidence at the second hearing. However, the tribunal refused to allow the employer to adduce further evidence at the second hearing, on the basis that the overriding objective meant the employer should not have a second bite at the cherry. Unsurprisingly, it found in favour of the employee.
The EAT (Elias P. presiding) held that the tribunal was wrong to refuse to allow the employer to adduce further evidence. It held (para. 30) that the employer is entitled to adduce evidence before a tribunal which has jurisdiction to hear the claim.
Interestingly, the EAT was critical of the existence of the 28-day period when an employee cannot present a tribunal claim - particularly in circumstances such as this where the parties had been through the internal grievance procedure within that period, where the bar on an employee bringing a claim was said to be "most unsatisfactory" (para. 29).Exel Management Ltd v Lumb