STRICT DISCIPLINARIAN

Weare v HBOS plc

The statutory dispute regulations extend the usual time limit of three months for lodging a tribunal complaint to six months in certain circumstances. In Weare v HBOS plc, the Employment Appeal Tribunal (EAT) said that if the grievance is about a disciplinary process, tribunals can hear a claim presented more than six months after the grievance was lodged because disciplinary action is a continuing act.

Basic facts

Mr Weare resigned from HBOS at the end of November 2007, after giving one month’s notice on 30 October. He then lodged a tribunal claim in December, saying his constructive dismissal was automatically unfair because he had made a number of protected disclosures under the whistleblowing legislation.

His employers argued that the tribunal did not have jurisdiction to hear his claim as he had not lodged a formal grievance beforehand stating that he had suffered a detriment as a result of making protected disclosures. Mr Weare, on the other hand, said he had put his concerns in writing to his employer on 11 May 2007 and subsequently in his resignation letter of 30 October.

Tribunal decision

The employment judge decided that the letter of 30 October did not set out allegations of detriment that Mr Weare had suffered as a result of having made protected disclosures. Instead, it had just contained references to complaints that he had made.

Although the letter of 11 May clearly raised a grievance that he had been subjected to various detriments (including disciplinary proceedings leading to a formal warning), the judge decided he could still not hear Mr Weare’s case. This was because he had lodged his claim more than six months after he had raised the grievance and could not rely on any incidents after that date.

Mr Weare appealed on two grounds. First of all, he argued that the October letter had raised the issue of a protected disclosure; and secondly, that once he had lodged a valid grievance, he did not need to lodge another “where the allegation is one of a continuing complaint”.

EAT decision

The EAT disagreed with him in relation to the first ground of appeal. It held that just repeating details of his earlier grievance in the October letter did not help him because “if the claim is not lodged within six months of the acts taking place, then it matters not how often the grievance is reiterated”.

As for the second ground, however, the EAT held that once Mr Weare had lodged a grievance alleging that that he was being disciplined because he had made protected disclosures, then that allegation applied to all stages of the disciplinary process. He did not, therefore, have to lodge a grievance at every stage of the process. This was part of a continuing complaint which could cover acts that occurred after he had lodged his original grievance.

The EAT reasoned that Mr Weare’s complaint was that “but for the protected disclosures, this process would not have been set in train. In my view, each stage of the process is in turn logically referable to those protected disclosures. Accordingly, I see no reason why there should have been a separate and distinct grievance raised with respect to each stage of the disciplinary procedure: all the stages in the disciplinary process are equally tainted - if tainted they be - by the original decision to initiate the process”.

To that extent, therefore, the appeal succeeded and the case was remitted back to the tribunal.