Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

Regulation 15(2) Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the ordinary three month time limit will be extended by three months if, at the time of expiry, the employee reasonably believed that “a dismissal or disciplinary procedure, whether statutory or otherwise,… was being followed in respect of matters that constituted of or included the substance of the tribunal complaint” .  Last year in Towergate London Market Ltd v Harris, the Court of Appeal found that when the ordinary three month time limit for bringing an unfair dismissal claim expired, the Claimant reasonably believed that a dismissal procedure was being followed. Consequently the time limit was extended for another three months pursuant to regulation 15(2).   In Towergate, the Claimant was dismissed for redundancy but raised a formal grievance six days before the ordinary time limit was due to expire. The Claimant complained that the assessment criteria used to make her redundant were unfair and inaccurate. She brought her unfair dismissal claim three months later. The Tribunal held that the claim was out of time because she had not ‘appealed’ her dismissal, rather she had raised a “grievance” and so regulation 15 (2) did not apply. 

The case eventually made its way to the Court of Appeal where it was held that a Tribunal should ask itself two questions: first, when the ordinary time limit for extending a claim expired, did the employee have a reasonable belief that “a dismissal or disciplinary procedure, whether statutory or otherwise” was being followed. Secondly, if so, were there reasonable grounds for that belief? The Tribunal should avoid an overly technical approach; the test is not whether, as a matter of fact, such a procedure was being followed. It was clear from the wording of regulation 15(2) that the Claimant's belief did not have to be that a statutory procedure was being followed, merely that a procedure was being followed.

This decision has now been followed in Eagles v Rugged Systems where the EAT held that a “procedure” is not limited to an appeal procedure and that negotiations for a Compromise Agreement are also capable of extending time under regulation 15(2). In Eagles, the EAT said that the Tribunal had failed to have regard to the wide connotation of “or otherwise” in regulation 15(2). The offer by the employer of a written compromise, taking a draft away and showing it to a solicitor, the solicitor engaging in negotiations with the employer or its lawyers over a period of time, were all part of a procedure designed to avoid a dispute before the Tribunal. If the Claimant believed that there was some process dealing with the dismissal ongoing, and that belief was formed on reasonable grounds, then she would be entitled to the extension.

What these decisions mean for employers

On 6^th April this year the statutory dispute resolution procedures were repealed, along with the Tribunal’s discretion to extend time limits by three months under regulation 15(2). These decisions will therefore have limited relevance to employers making dismissals in the future. Nevertheless, the issues which arose in these cases are still relevant to claims which may still be brought in the Tribunal and to which the statutory procedures apply. For example, if an employee is dismissed for redundancy on 1 April 2009, the statutory procedures would have applied to that dismissal and ongoing negotiations for a compromise agreement or an appeal could have the effect of extending the time limit for bringing a Tribunal claim to 30^th September this year. Employers should not forget the transitional provisions (see our blog on these regulations) which apply to dismissals which straddle 6^th April this year. Hence, where before 6 April, a step 1 letter was sent or the employer met with the employee to inform them about the possibility of a dismissal, the statutory procedures could apply and time limit could be extended in accordance with regulation 15(2).

What did the Court decide?

Mrs Harris’ employment was terminated for redundancy. She decided not to appeal under her employer’s internal procedures as she believed the selection process had been properly applied. After her dismissal took effect however, she learnt she had been targeted for redundancy in advance of any assessment under that process. She therefore met the HR manager who agreed to provide her with a copy of the assessment form and other information used in the selection process. The HR manager’s notes recorded that the trade union would review the forms to decide if the process had been fair and they would inform the employer if the matter was going to be taken further. Three months after her dismissal, Mrs Harris wrote to her ex-employer raising a "formal grievance" challenging the dismissal and requested a further meeting. The employer said that the grievance procedure did not apply (as she had already been dismissed) and it did not have to deal with her grievance.

Mrs Harris commenced unfair dismissal proceedings more than two months after expiry of the time limit. Under Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 the time to commence unfair dismissal proceedings can be extended if an employee has reasonable grounds for believing a dismissal or disciplinary procedure was being followed at the time the normal time limit expired. The Tribunal concluded that Mrs Harris' letter raising a 'grievance' did not read as a request for an appeal under the dismissal procedure, and thus that the procedure had come to an end. Accordingly, the claim was dismissed as out of time.

The Employment Appeal Tribunal (EAT) disagreed, holding that the Tribunal had focused too much on the question of whether Mrs Harris had raised an internal appeal. Instead it should have considered whether Mrs Harris reasonably believed that there was a dismissal procedure which was ongoing. The EAT held that she did, bearing in mind how her employer followed up her concerns, and so should therefore be able to take advantage of the statutory time extension.

The Court of Appeal, by a majority, agreed with the EAT. It said the Tribunal should ask itself first whether the claimant had a belief that a dismissal or disciplinary procedure (whether statutory or otherwise) was being followed, and second were there reasonable grounds for that belief? In this case, the fact that post-dismissal the employer conceded to Mrs Harris’ request for a meeting, revived an otherwise closed procedure. As a result, Regulation 15(2) could be used to extend time, and her unfair dismissal claim could progress. Keen LJ commented that most employees do not have ready access to skilled legal advice; it is, therefore, important that the Courts avoid an unduly technical approach. He felt that from the wording of the Regulation it was clear that the claimant's belief did not have to be that a statutory procedure was being followed, merely that a procedure was being followed.

What this decision means for employers

The case confirms that provided that an employee believes that a process is being followed, this need not be the employer's internal procedure. It further confirms that the statutory procedures should not be applied too restrictively or interpreted in an excessively technical manner and demonstrates the low threshold that employees are required to meet to comply with the statutory dispute resolution procedures. Employers should consider the purpose and substance of a "grievance" concerning a dismissal to assess whether it is actually an "appeal" against dismissal, and deal with it accordingly.

The question this case raises is whether you should therefore treat any form of written challenge against dismissal as an appeal so as to avoid the dismissal being unfair? The cautious approach would be to treat as an appeal any written challenge received within 3 months of termination of employment (even though it might be out of time under your company’s appeals procedure). Alternatively, the more robust, yet still correct, approach would be to send a clear message in response to any such communication advising the individual that the statutory grievance procedures do not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee. Provided that a reasonable time period has elapsed after the individual had failed to appeal under the company procedures, you should inform the individual that the time period for appealing the decision has expired and ensure he or she understands that the decision is final. It is important to note, however, that any agreement to meet the employee to consider the “grievance” could be interpreted as considering an appeal or otherwise continuing with the dismissal procedure which could have the effect of extending the time limit to bring a claim and expose you to a finding of automatic unfair dismissal. The Employment Bill will of course repeal the statutory dispute resolution procedures but until then, employers must continue to deal with them as best they can.