Appeal No. UKEAT/0095/06/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HS.

	At the Tribunal
	On 7 June 2007

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)

ARNOLD CLARK AUTOMOBILES LTD	APPELLANT 

MR J GLASS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS PAMELA KEYS
Solicitor
Messrs McGrigors LLP MNP,
Solicitors,
Pacific House,
70 Wellington Street,
Glasgow.
G2 6SB	
For the Respondent	NO APPEARANCE OR REPRESENTATIONBY OR ON BEHALF OF THE RESPONDENT	

SUMMARY

PRACTICE AND PROCEDURE

Preliminary issues

2002 Act and Pre-action Requirements

The employee lodged a claim for unfair dismissal outside the statutory three month time limit.  The Chairman held that when the normal time limit expired, the employee had reasonable grounds to believe that a dismissal procedure was being followed and therefore the claim was in time pursuant to reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.  The EAT held that in reaching that conclusion she had misdirected herself.  Case remitted to a fresh tribunal.

  

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This case raises a question whether a claim for unfair dismissal was lodged in time. 

2.	The claimant before the Tribunal, Mr Glass, was an apprentice mechanic. He was engaged initially on 19 May 2003 and dismissed with effect from 8 March 2006.  The reason was poor workmanship on certain vehicles he was employed to repair. 

3.	There was before the Tribunal some dispute about the date of dismissal but the Tribunal heard evidence from the claimant. They found that he was a reliable and honest witness and they had accepted that he did not receive the notice of dismissal until 8 March, thus fixing his dismissal at that date. In that notice he was notified that he had five days to appeal but he did not do so at that stage.

4.	In the normal way, for the claim to be lodged within the three months statutory period for lodging claims, it had to be received by the Tribunal Office on 7 June 2006. Although the claim form was signed on that day it was not in fact lodged until two days later.

5.	In the period between dismissal and the lodging of the  claim, the following events occurred:
(1)	Towards the end of March the claimant applied for Job Seekers’ Allowance.
(2)	Because of a delay in payment he sought advice from the Citizens’ Advice Bureau. They told him that he may have a claim for unfair dismissal against his employers but said that he needed to send a ‘letter of grievance’. He sent a letter on 1 June to Mr Rice, a manager within the company. The material part of the letter was as follows:
“With reference to my recent dismissal.
I am appealing the decision to dismiss me on 8.3.06 and request a review of the decision as I believe I was sacked for reasons relating to performance and not gross misconduct. This decision may result in a DWP decision to sanction my JSA. I have sought advice and I intend to raise an action for unfair dismissal should this appeal be unsuccessful. ”
It appears that he was sent a response from Mr Rice dated 7 June but the Tribunal accepted that he had never in fact received it.
6.	The Tribunal recognised that there were in principle two ways in which time might be extended in order to bring this claim in time. First, it may be extended where it was not reasonably practicable to lodge the claim in time: see s111(2)(b) of the Employment Rights Act 1996. Second, time may also be extended pursuant to Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Regulations”). This extends the time limit otherwise applicable to the presentation of certain claims. It applies only to particular complaints listed in Schedule 3 or 4 of the Employment Act 2002, but it is not disputed that unfair dismissal falls within those Schedules. Reg. 15, in so far as is material, is as follows:
“15 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 is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; …
the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after 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.”

7.	The crucial feature here is that when the time limit expired i.e. in this case 7 June, the employee must have a reasonable belief that a dismissal or disciplinary procedure is being followed. It is important to note that it is not a question whether there are reasonable grounds for belief that the statutory procedure is being followed but whether any dismissal or disciplinary procedure is being followed. 

8.	Before the Tribunal, the employers contended that the claimant could not reasonably consider that his appeal would be heard because under the statutory procedures (which it is not necessary to set out in detail) because it is provided that the steps in the procedure must be taken without unreasonable delay. The employers also contended that in the circumstances, given the delay before lodging the internal appeal on 1 June, well beyond the five days that were given for lodging the appeal in the notice of dismissal, the employee could not conceivably have reasonably believed that the disciplinary procedure was still being followed.

9.	The Tribunal dealt with this in the following way in its decision at paragraphs 37-38:
“Where the matter to be resolved by a Tribunal is a question of reasonableness that is essentially a matter of the exercise of discretion by that Tribunal. In the present case I consider I should exercise that discretion in the favour of the claimant. It is plain from the documents presented to me that there was significant confusion about the date of termination of the claimant’s employment, albeit that it was caused by the respondents in their response to the Benefits Agency correspondence. It was not until the claimant became aware that his former employers were making statements about his conduct which resulted in the suspension of his Job Seekers Allowance that it could be said that he realised that he had to challenge them about the circumstances surrounding his dismissal. He sought advice from the Citizens Advice Bureau shortly thereafter and, with their assistance, wrote to the respondents. In all of the circumstances of this case I consider that there was no unreasonable delay in his part in so doing. He acted within a reasonable time of discovering that the respondents were causing difficulties for him.
Accordingly, having regard to the provisions of Regulation 15(1) and (2), I find that although the claimant presented the claim after the expiry of the normal time limit (i.e 7 June) `he did so at a time when he had reasonable grounds for believing that when the time limit expired that a dismissal or disciplinary procedure was being followed in respect of the matters about which he complained to the tribunal.”
10.	The employers contend that in its analysis the Tribunal is not addressing the question whether the employee had a reasonable belief that the procedure was still extant; rather it is focusing on whether he acted with reasonable diligence in presenting his claim. That could potentially go to the question whether time should be extended under s111(2)(b), but as the Tribunal made plain in paragraph 41 of its decision, it was not seeking to make a determination under that provision.  Accordingly, it is submitted that the tribunal misdirected itself and failed to ask the proper question.

11.	I accept that submission. The issue is whether the claimant reasonably held the belief at the date when the time limit expired, namely 7 June, that his case was still subject to the dismissal procedures. Whether he had pursued his claim reasonably and diligently is irrelevant to that question.  However, I reject the additional submission, advanced in the skeleton argument but realistically not pursued orally before me today, that the only conceivable answer the tribunal could have reached, had it properly directed itself, is that the employee had no reasonable grounds for holding such a belief. It may be that there was undue delay so as to relieve the employer from complying with the statutory procedure, but even if that were so, that does not determine the matter. The question is whether he had a reasonable belief that the appeal was being considered pursuant to a dismissal procedure.   He had been given advice to write a letter which he had done, and he had not received a response.  In my view it is at least arguable that he had a reasonable belief.  However, I say no more about the issue because it must be for a fresh tribunal, considering the matter again in the light of all the evidence, to focus on this question of reasonable grounds for belief. If they find that he had no such reasonable grounds, then they will have to go on to consider whether time should be extended pursuant to s111(2)(b) of the Employment Rights Act 1996.

12.	I should add that the Tribunal as an alternative concluded that the letter sent on 1 June could also amount to a grievance. The Chairman then held that time would be extended by virtue of the reasonable belief that the grievance was being considered. However, time is only extended where the grievance procedure is the applicable statutory procedure: see reg 15(1)(b). As Ms Keys, who appeared for the employers, correctly points out, it is not the appropriate procedure where the grievance relates to a dismissal or contemplated dismissal: see reg 6(5) of the Regulations. This part of the Tribunal’s analysis, therefore, is erroneous in law.
Conclusion
13.	The appeal succeeds.  I accept that the Tribunal did err in the way in which it approached the question of whether the employee had reasonable grounds for believing, when the time limit expired, that his case was still being considered pursuant to a dismissal procedure. That matter needs to be considered afresh by a different employment tribunal chairman.  Depending on the resolution of that question, he or she may also have to consider whether time should be extended under s111 of the 1996 Act.