Madhewoo -v- NHS Direct
To facilitate the smooth implementation of the dispute resolution rules in October 2004, the Government introduced transitional provisions to deal with cases that had already started by that date, or cases in which the employer had already “contemplated dismissal.”
In Madhewoo -v- NHS Direct, the employment appeal tribunal (EAT) said that the test for the word “contemplates” was a subjective one, and meant something that was in the employer’s mind.
It did not have to have been communicated to the employee.
What were the basic facts?
Mr Madhewoo had worked for the NHS for 30 years when he got a job at the Southall call centre of NHS Direct in November 1998.
There was some concern about advice he gave to a member of the public in 2003, but he was not disciplined. In June 2004, a GP made a formal complaint about him after he gave incorrect advice to a patient.
He was suspended in July and was finally told by letter on 24 September that he would have to attend a disciplinary meeting. He received another letter on 25 October, giving him the date of the hearing in November and telling him that the ultimate penalty could be dismissal.
That was the outcome and he then claimed, among other things, that he had been unfairly dismissed.
What is the relevant legislation?
The time limit for an unfair dismissal claim under Section 111(2) of the Employment Rights Act 1996 is three months. Tribunals can only extend that if the claimant can show it was not “reasonably practicable” to lodge the claim earlier. In this case the tribunal chair was not convinced by Mr Madhewoo’s arguments.
Mr Madhewoo did not appeal against that decision, but argued instead that he was entitled to a three-month extension of time under the dispute resolution rules that had come into force on 1 October 2004.
These, however, were subject to transitional provisions. Regulation 18(a) said that the new rules would only apply in relation to dismissal claims “where the employer first contemplates dismissing…the employee after these regulations come into force".
What is the meaning of “contemplate dismissal”?
The tribunal chair decided that the test for the word “contemplates” is a subjective one. In other words, that it is an “interior thought process and does not, of itself, imply any communication of the subject matter of that thought process to any other person.”
That meant that, in this case, the investigating manager (the employer for the purposes of the regulations) had “contemplated dismissal” as early as 24 September. It was just that Mr Madhewoo was not aware of that possibility until he received the letter dated 25 October.
He could not, therefore, rely on the regulations to extend the time for lodging his claim. Mr Madhewoo appealed.
What did the EAT decide?
Unfortunately, the EAT disagreed with him. It confirmed the view of the tribunal, saying that “what is contemplated by the employer is what is in his mind” and does not have to involve any communication to the employee about when they first “contemplate dismissal”.
It therefore rejected Mr Madhewoo’s argument that the relevant date was the date on which he received the letter of 25 October.
It also rejected the argument that it could be the date “when a reasonable employee would have concluded that the employer had first contemplated dismissal …. To find otherwise would, in my judgment, be a bridge too far in the so-called purposive approach to this legislation.”
The EAT’s interpretation of the word “contemplates” is helpful. It means that as soon as an employer thinks that disciplinary action might result in dismissal, they must trigger the procedures, if they have not already done so.