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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lothian Buses Plc v Nelson [2005] UKEAT 0059_05_2112 (21 December 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0059_05_2112.html Cite as: [2005] UKEAT 59_5_2112, [2005] UKEAT 0059_05_2112

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APPEARANCES

 

For the Appellant	Ms Allen Solicitor Messrs Brodies LLP Solicitors 15 Atholl Crescent Edinburgh EH3 8HA
For the Respondents	Mr Swan Solicitor Messrs Miller Samuel Solicitors RWF House 5 Renfield Street Glasgow G2 5EZ

SUMMARY

A claim was lodged with the Employment Tribunal one day beyond the three month time limit provided for in s.111 of the Employment Rights Act 1996. The claim was in respect of unfair dismissal and disability discrimination. The respondents challenged the unfair dismissal claim at a pre hearing review, on grounds of lateness. The tribunal held that it was timeous in respect that a stage one grievance procedure had been instigated within the three month time limit. The Employment Appeal Tribunal held that the tribunal had erred in respect that the automatic extension of time provided for where a grievance procedure is being followed (Employment Act 2002 (Dispute Resolution) Regulations 2004, reg.15) did not apply in the context of a claim for unfair dismissal. Otherwise, the claimant had, on the facts of the case, no reasonable grounds for believing that a dismissal procedure was still being followed. The claim for unfair dismissal was, accordingly, struck out.


 


THE HONOURABLE LADY SMITH

PRELIMINARIES

1. This case concerns the outcome of a pre – hearing review by the Employment Tribunal in respect of a claim for unfair dismissal and disability discrimination.
2. I will refer to the parties as claimant and respondents.

Introduction

3. This is an appeal by the respondents in those proceedings against a Decision of an Employment Tribunal, sitting at Edinburgh, Chairman Mr D R Anderson, registered with Extended Reasons on 1 June 2005. The claimant was represented there and before this tribunal by Mr R Swan , solicitor and the respondents were represented there by Mr G. P. J Burden, Employment Adviser and before this tribunal by Ms Allen , solicitor.
4. The decision of the Employment Tribunal was that the claim had been presented in time, that it therefore had jurisdiction to hear it and that a full hearing on the merits should, accordingly, be fixed.

The issues

5. The sole issue for the tribunal was that of whether, where the claimant presented his claim one day beyond the period of three months from the date of his dismissal, it had been presented in time or not.

The Judgment

6. The tribunal held that the claim had been timeously presented because within the three month period the claimant had sent a statement of grievance to the respondents and that that meant that, in terms of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 the time limit within which the claimant had to present his claim to the Employment Tribunal had been automatically extended by a further period of three months.

The appeal

7. The respondents appeal against that decision.

The legislation

8. The relevant statutory provisions are as follows.

" Employment Rights Act 1996 :

s. 111 Complaints to [employment tribunal]

(1) A complaint may be presented to an [employment tribunal] against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to subsection (3), an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination, or

Employment Act 2002:

s. 32 Complaints about grievances

(1) This section applies to the jurisdictions listed in Schedule 4.

(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if –

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

Schedule 2

STATUTORY DISPUTE RESOLUTION PROCEDURES

3.___(1) If the employee does wish to appeal he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision.

6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

9. The employee must –

(a) set out in writing –

(i) the grievance, and

(ii) the basis for it, and

(b) send the statement or a copy of it to the employer.

SCHEDULE 3

TRIBUNAL JURISDICTIONS TO WHICH SECTION 31 APPLIES

Section 111of that Act (unfair dismissal)

Section 163 of that Act (redundancy payments)

Section 24 of the National Minimum Wage Act 1998 (c 39) (detriment in relation to national minimum wage)

The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (S1 1994/1623) (breach of employment contract and termination)

The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (S1 1994/1624) (corresponding provision for Scotland)

Regulation 30 of the Working Time Regulations 1998 (S1 1998/1833) breach of regulations)

Regulation 32 of the Transitional Information and Consultation of Employees Regulations 1999 (S1 1999/3323) (detriment relating to European Works Councils)

[Regulation 28 of the Employment Equality (Sexual Orientation) Regulations 2003 (discrimination in the employment field)]

[Regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003 (discrimination in the employment field)].

SCHEDULE 4

TRIBUNAL JURISDICTIONS TO WHICH SECTION 32 APPLIES

Section 111 of that Act (unfair dismissal)

Section 163 of that Act (redundancy payments)

Section 24 of the National Minimum Wage Act 1998 (c 39) (detriment in relation to national minimum wage)

Regulation 30 of the Working Time Regulations 1998 (S1 1998/1833) (breach of regulations)

Regulation 32 of the Transitional Information and Consultation of Employees Regulation 1999 (S1 1999/3323) (detriment relating to European Works Councils)

[Regulation 28 of the Employment Equality (Sexual Orientation) Regulations 2003 (discrimination in the employment field)]

[Regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003 (discrimination in the employment field)].

Employment Act 2002 (Dispute Regulation) Regulations 2004:

2 Interpretation

"the 2002 Act" means the Employment Act 2002;

"action" means any act or omission;

"applicable statutory procedure" means the statutory procedure that applies in relation to a particular case by virtue of these Regulations;

"collective agreement" has the meaning given to it by section 178(1) of the 1992 Act;

"dismissal and disciplinary procedures" means the statutory procedures set out in Part 1 of Schedule 2;

"grievance" means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him;

"grievance procedures" means the statutory procedures set out in Part 2 of Schedule 2;"

6 Application of the grievance procedures

(5) Neither of the grievance procedures applies where the grievance is that the employer has taken or is contemplating dismissing the employee.

9. Extension of time limits

(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and –

(a) either of the dismissal and disciplinary procedures in the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day on which it would otherwise have expired.

(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

(3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal –

(a) within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit."

The facts

10. The relevant facts can be shortly stated. The claimant was dismissed from his employment as a bus driver on 9^th November 2004 on grounds of continuing incapacity. He lodged an appeal with his employers, the respondents, and it was rejected at first stage on 3^rd December 2004. He received confirmation in writing of that oral rejection on 9^th December 2004. He submitted a further appeal and a hearing eventually took place on 12^th January 2005, after having been rescheduled at the claimant's request. At that hearing, the claimant rejected alternative posts that been discussed and indicated that he was awaiting his up to date medical results. The hearing was continued to 3^rd February 2005 when it was reconvened and the outcome was that he was advised orally that the termination of his employment was confirmed and there were no other procedures to be followed. That intimation was confirmed in writing by the respondents in a letter dated 4^th February 2005. The tribunal made no finding in fact as to when that letter was received by the claimant. The claimant presented a claim to the Employment Tribunal in respect of allegations of unfair dismissal and breaches of the Disability Discrimination Act 1995 on 9^th February 2005, three months and one day after the date of his dismissal.

The respondents accepted that the claim under the Disability Discrimination Act was timeously presented but challenged the unfair dismissal claim as being out of time.

Respondents' case

11. In a clear and cogent presentation, Ms Allan submitted that the tribunal had misapplied and misconstrued the statutory test. Under reference to the statutory provisions, she drew attention to the distinction between the tests set out in paragraphs 15(1) (a) and 15 (1) (b) of the 2004 regulations. The tribunal had erred in placing any reliance on the automatic extension provided for by paragraph 15(1) (b) insofar as the claimant's unfair dismissal claim was concerned, since that was not a claim to which the statutory grievance procedures applied. So far as paragraph 15(1) (a) was concerned , the case could not , on the tribunal's findings in fact, come within those provisions because the claimant could not have had any reasonable grounds for believing , as at 8^th February 2005 , that a dismissal procedure was still being followed. He had been told, on 3^rd February, that his appeal had been rejected, his dismissal was confirmed and that there no other procedures to be followed. In these circumstances, the unfair dismissal claim was out of time and ought to have been struck out by the tribunal.

Claimant's Case:

12. Mr Swan very properly conceded that the statutory grievance procedures had no application to the claimant's claim for unfair dismissal. It was evident that, that having been done, he recognised that the claimant's case was in some difficulty.
13. However, Mr Swan nonetheless made a submission firstly that there was sufficient in the tribunal's findings to justify an extension of time being allowed under reference to paragraph 15(1) (a) which failing that the case should be remitted to the tribunal to make a further finding in fact as to when it was the claimant received the letter of 4^th February 2005 confirming his dismissal. As regards the first submission, he referred to the tribunal's comment in paragraph 3 of the reasons that:

"During the period between 9^th November 2004 and 9^th February 2005 the claimant had gone through an appeal process with the respondents."

and suggested that that was enough to satisfy the requirements of the paragraph. As regards his fallback position, he submitted , under reference to 'Step 3' of Part I of Schedule 2 to the 2002 Act paragraph 5 , that since the obligation on the employer was to inform the employee of his final decision after the appeal meeting , the advice given to the claimant on 3^rd February 2005 ought to be ignored . That was advice given at the meeting and should not, accordingly, be relied on .

The legal principles

14. The legal principles to be applied appear to be as follows.
15. Firstly, a claim for unfair dismissal requires to be presented to an Employment Tribunal before the end of the three month period beginning with the date of termination (s.111 Employment Rights Act 1996).
16. Secondly, it is plain from the terms of paragraph 6(5) of the 2004 regulations that

where an employee's grievance is that he has been dismissed, the statutory grievance procedures do not apply. That is not to say that they cannot be applicable where an employee claims compensation for unfair constructive dismissal: the grievance in such a case will often, if not invariably, be a complaint regarding the actual or apprehended conduct of the employer towards the employee thus falling within the statutory scheme. Hence, no doubt, the reference, in the jurisdictions lists contained in schedules 3 and 4 to the 2002 Act to claims under s.111 of Employment Rights Act 1996. But the wording of paragraph 6(5) is clear and the inappropriateness of the imposition of the grievance procedure in addition to the statutory dismissal procedure in a case where the employee's complaint consists simply of an objection to the fact of dismissal, is obvious.

17. Thirdly, a claimant may be afforded the benefit of an extension of the period within which a claim for unfair dismissal may be presented to an Employment Tribunal, by a further three months. However, such an extension only arises if , at the time that the original three month expired , he had reasonable grounds for believing that a dismissal or disciplinary procedure of any sort in relation to a matter or matters included in his tribunal complaint was still being followed .

Conclusions

18. I have no hesitation in upholding the submissions of on behalf of the Respondents and allowing the appeal, the effect of which will be that the claimant's claim for unfair dismissal will be struck out.
19. From a reading of the tribunal's reasons it is evident from what is set out in paragraph 5 that an error of law has occurred. Having noted that an appeal was being pursued:

'during the three month period'

and holding that:

'a statutory procedure was therefore applicable in relation to the claim'

the tribunal continued:

'However what amounted to a step one statement of grievance had been sent to the employer within the normal time limit for lodging a Tribunal claim. In these circumstances, the normal time limit for presenting the claim is automatically extended by three months.'

20. So, what the tribunal appears to have done is to have begun by considering the applicability of paragraph 15(1)(a) but not reached any conclusion as to whether or not an extension arose under its provisions because it took the view that this was a case that fell within paragraph 15(1) (b) thus giving rise to an automatic extension.
21. As I have already indicated, the claimant's claim for unfair dismissal could not fall within paragraph 15(1) (b) because the statutory grievance procedures do not apply to such a claim. As regards paragraph 15(1)(a), on the findings of fact made, it could not, on any view be concluded that the claimant had, on 8^th February 2005, when the original time limit expired, reasonable grounds for believing that a dismissal procedure was being followed (no question of disciplinary proceedings arose in this case). He had been told on 3^rd February 2005, which was at the end of a series of appeal meetings, that his appeal had been unsuccessful and that there were no other procedures still to be followed. He could not, thereafter, have entertained any reasonable belief that all dismissal procedures were other than at an end.
22. I have considered the submissions made under reference to provisions of Step 3 of Part I to Schedule 2 of the 2002 Act but feel bound to reject them. Firstly, I do not see that the verbal intimation of a decision at the place where an appeal has been heard, after the hearing necessarily fails to satisfy the requirements of paragraph 5 of those provisions. In any event, even if it could be seen as failing to do so, the fact, in this case, was still that the claimant knew what the decision was and there is no finding in fact that he had any reason to be in doubt about it thereafter.

Disposal

23. This appeal is accordingly allowed. I will quash the tribunal's decision insofar as it relates to the claimant's unfair dismissal claim and substitute for it a judgment that that part of his claim is struck out.