Background
Claims for unfair dismissal must be presented to an employment tribunal within three months of the effective date of termination. The statutory dismissal procedure must have been followed.
To allow sufficient time for parties to resolve disputes internally, Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the ordinary three-month time limit for presenting a claim may be extended by three months if:-
1) the statutory dismissal procedures apply, and
2) at the time that the ordinary time limit for presenting a claim expired, the employee reasonably believed that a "dismissal or disciplinary procedure, whether statutory or otherwise… was being followed in respect of matters that constituted or included the substance of the tribunal complaint".
Facts
In October 2005, Towergate wrote to Mrs Harris advising that it was contemplating dismissing her for redundancy, invited her to a meeting and subsequently gave notice that her employment would terminate on 31st October 2005. She was given 7 days to appeal, but she chose not to.
On 25th January 2006 Mrs Harris raised a formal grievance on the grounds that the redundancy assessment criteria were unfair. The ordinary three-month time limit for Mrs Harris to present a claim expired on 30th January 2006. On 31st January 2006 Towergate replied stating that they would not deal with Mrs Harris's grievance as she was no longer an employee. Mrs Harris presented an unfair dismissal claim on 29th April 2006.
At a preliminary hearing to decide whether her claim had been presented in time, Mrs Harris argued that her formal grievance was in reality an appeal from her dismissal. However, the tribunal held that Mrs Harris had not appealed (she had raised a grievance) and therefore Regulation 15 did not apply. Mrs Harris' claim was therefore out of time.
Mrs Harris appealed to the EAT who overturned the decision on the grounds that, pursuant to Regulation 15, Mrs Harris had believed that a dismissal procedure, whether statutory or otherwise, was being followed. The time limit for presenting her claim was extended by three months and it was therefore in time.
Towergate appealed to the Court of Appeal on the grounds that the grievance was not an appeal and therefore not part of an ongoing dismissal process. They focused on Mrs Harris' grievance letter of the 25th January 2006 and alleged that on the 30th January 2006 (time limit expiry date) Mrs Harris did not believe that a dismissal process was being followed.
Decision
Appeal dismissed.
It was held that Regulation 15 required a tribunal to ask itself two questions:-
1) Did the employee have a reasonable belief that "a dismissal or disciplinary procedure, whether statutory or otherwise" was being followed?
2) If so, were there reasonable grounds for that belief?
The employment judge had erred in law in focusing on whether Mrs Harris had raised an appeal or grievance and by not asking the questions required by Regulation 15. Whilst employment lawyers understand the distinction between an appeal and grievance, employees do not have a "ready grasp of these arcane mysteries".
Had the employment judge asked himself the two questions under Regulation 15, he would have concluded:-
- At a meeting on 16th December 2005, Towergate had promised to send Mrs Harris the selection criteria for redundancy. They must have assumed Mrs Harris would consider the selection criteria and either accept her dismissal was fair or argue it was not. Therefore a non-statutory procedure in respect of the fairness of the dismissal was being followed.
- Mrs Harris's letter of 25th January 2006 was contending her dismissal was unfair.
- On 30th January 2006 (time limit expiry date), Mrs Harris had not received a response and so had reasonable grounds for believing a non-statutory dismissal procedure was still being followed.
Comment
The current statutory dispute resolution procedures are expected to be abolished by April 2009. They will probably be replaced by a broad "principles-based" regime based on a new ACAS Code of Practice. A draft of the Code has been issued by ACAS for consultation.
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