Employment Update: Statutory procedures

18 June 2008

The statutory procedures may apply to extend the time limit for bringing a tribunal claim where a grievance is raised post-termination about a dismissal that was not challenged at the time.

The Dispute Resolution Regulations (DRR) continue to cause problems.

The Court of Appeal, in the case of Harris v Towergate London Market, has upheld the EAT (which itself reversed the original tribunal decision) but only by a majority of 2:1.

The claimant was made redundant. Under her employer's dismissal procedures she had 7 days to appeal against dismissal. She did not do so.

Later was told that she had been 'stitched up'. She asked for information about the redundancy selection process which the employer supplied. She wrote a letter in which she stated that she was raising a grievance about her selection for redundancy. The ordinary three month limit for filing an unfair dismissal claim then expired. She then received a letter from her employer saying that they were not obliged to deal with the grievance, as their contractual grievance procedure did not apply when the person was no longer employed. She then tried to file a tribunal claim.

She could only extend time for filing a claim if she could show (under Reg 15 of the DRR) that, when the ordinary time limit expired, she ‘had reasonable grounds for believing . . . that a dismissal or disciplinary procedure, whether statutory or otherwise, . . . was being followed’.

The employment tribunal considered that she had not taken up the opportunity to appeal against her dismissal at the appropriate time and the DRR are clear that the statutory grievance procedures do not apply 'where the grievance is that the employer has dismissed or is contemplating dismissing the employee' (Reg 6(5)), so time could not be extended under Reg 15 and her claim could not proceed.

The EAT allowed her appeal. The key question was not a formal one about whether she was appealing or raising a grievance, or even whether the statutory procedures applied or whether a process was being followed. The issue was whether, at the precise time when the ordinary time limit expired, she reasonably believed (having been given information and then written her grievance letter) that she was engaged in an ongoing process to enable her to challenge her dismissal.

The majority of the Court of Appeal agrees with the EAT.

One judge thought that the wording of the DRR meant that the claimant could not raise a statutory grievance post-termination about the way in which she was dismissed.

However, the other two judges agreed with the EAT that to be so strict would deprive claimants like Ms Harris, who only found out after the event that their dismissal might have been unfair, of the right to challenge it. The DRR should be interpreted less formally.

Points to note –

  • This decision makes life very difficult for employers. They could now be more likely to face unfair dismissal claims up to 6 months after the relevant termination. In deciding whether the ordinary time limit should be extended, the emphasis is on whether the claimant 'reasonably believes' that a procedure is being followed, not whether any procedure, statutory or contractual, is actually being followed. It seems that any communication from an employee post-termination may initiate a ‘procedure’.

  • It also seems that Ms Harris’ claim would have failed if her ex-employers had reponded to her so-called ‘grievance’ letter a few days earlier. If she had got their letter (telling her that, as an ex-employee, she was not entitled to use the contractual grievance procedure) before the date on which the ordinary time limit for bringing a tribunal claim expired, she surely could not have ‘reasonably believed’ on that date that such a procedure was ‘being followed’.

  • Would the employer in this case have been better advised not to have given the claimant any infomation at all? Probably not. The claimant would have been advised to file her claim immediately and the employer would probably have been criticised later in tribunal for failing to follow ‘procedure’.

  • The Employment Bill currently on its way through parliament includes a complete repeal of the DRR. We understand that they are to be replaced by a new ACAS Code on dispute resolution in the workplace. The Employment Bill is set to become law in April 2009, but it seems that the DRR will be with us for a little longer. We shall keep you informed.

Authors