Towergate London Marketing v Harris
The law says that employees are entitled to an extension of time for lodging an unfair dismissal claim if they reasonably believe their employer is following some sort of disciplinary or dismissal procedure. In Towergate London Marketing v Harris, the Court of Appeal said that courts should not get over-technical as to what that “procedure” might involve.
Basic facts
Mrs Harris, who worked for Towergate as an insurance broker, was given three months’ notice on 31 October 2005 that she was being made redundant. She did not appeal against her dismissal.
However, after being told at a leaving party that she had been “stitched up” she consulted her union and had a meeting with her employer in December. She was given the information that had been used to select her for redundancy in early January and she submitted a grievance on 25 January 2006.
At this point, she thought that raising a grievance would automatically extend the usual three month deadline for lodging a tribunal claim by a further three months.
However, her employer wrote back on 31 January saying that they were not obliged by law to deal with her grievance as it was about her dismissal (see below).
Mrs Harris lodged a tribunal claim for unfair dismissal on 29 April 2006, more than two months after the normal time limit.
Relevant law
Regulation 6(5) of the Employment Act 2002 (Dispute) Resolution Regulations 2004 states that employees do not have to lodge a grievance if it concerns a disciplinary matter or dismissal. Instead, the employer is required to follow a three-stage procedure, ending with an appeal.
Regulation 15(2) of the regulations allows for a three month extension to the usual three month limit for lodging an unfair dismissal claim if the employee “had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise … was being followed”.
Tribunal and EAT decisions
The tribunal focused on the issue of whether Mrs Harris thought that she was appealing against her dismissal, as opposed to lodging a grievance. It concluded that her grievance letter of 25 January was just that – a grievance, not an appeal against dismissal. She was not entitled to an extension and so her claim was therefore out of time.
But the Employment Appeal Tribunal (EAT) disagreed. It said that the tribunal had been wrong to focus on whether her grievance was an appeal or not. Section 15(2) just required her to show that she had reasonable grounds for believing a dismissal or disciplinary procedure “whether statutory or otherwise” was ongoing. As her employer had provided her with further information and she had asked for a further meeting within 28 days, she clearly believed there was an ongoing process and the automatic extension provision was triggered.
Court of Appeal
And a majority of the Court of Appeal agreed. It said that although employment lawyers understood the difference between a “grievance” and an “appeal”, courts could not “expect an employee to have a ready grasp of these arcane mysteries … and it is very important that the courts in this area of law avoid an unduly technical approach.”
The question, therefore, was not whether there was a "grievance" or an "appeal” but “whether Mrs Harris reasonably believed that a dismissal procedure of some kind was being followed in respect of her redundancy and dismissal.".
It concluded that because she had a grievance about her dismissal and had said that she was entitled to a meeting to resolve it, it was obvious that “she believed that some sort of procedure relating to her dismissal was being followed.”
The procedure did not have to be a statutory one as the words "or otherwise" in regulation 15(2) “indicate that a belief in other forms of procedure will suffice. Clearly the so-called grievance related to her dismissal, as did the meeting to which she believed herself to be entitled. She was, in reality, seeking to challenge that dismissal through the company's internal procedures.”
Her claim was not, therefore, out of time
Comment
The statutory dispute resolution procedures were supposed to help resolve workplace disputes but even the Court of Appeal was split in this case on the correct approach. Key to its decision that a disciplinary procedure was in play was the fact that the employer had responded to Mrs. Harris' grievance, had sent her documents and had promised to explain themselves. Regrettably, some employers may now take the view that it is better to avoid dialogue altogether in these circumstances. The bill repealing these provisions got its first reading in the Commons at the beginning of June, which is universally considered not a moment too soon.