England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE McMULLEN QC
UK EAT/0090/07/DM

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 /4 /2008

Lord Justice Ward:

Introduction

1. Mrs Ann Harris was employed by Towergate London Market Limited ("Towergate") as an insurance broker. Towergate decided that she and two others were redundant and she was dismissed on 31st October 2005 by reason of that redundancy. Section 111(2)(a) of the Employment Rights Act 1996 sets a time limit for bringing a complaint against the employer of unfair dismissal and prescribes that the employment tribunal shall not consider that complaint unless it is presented to the tribunal "before the end of the period of three months beginning with the effective date of termination". Mrs Harris did not bring her claim for unfair dismissal until 21st April 2006 which is long after the limitation period had expired on 30 January 2006.
2. This period can, however, be extended in two cases. The first is provided by section 111(2)(b) of the 1996 Act which permits the Tribunal to allow "such a further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months." The second indulgence is afforded by regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the regulations") which extends time for a further three months in circumstances where, provided the threshold conditions prescribed in regulation 15(1) are met, 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 in respect of matters that consisted of or included the substance of the tribunal complaint".
3. Sitting alone, Mr Brian Walton, the Chairman of the Stratford East Employment Tribunal, decided on 6th December 2006 that Mrs Harris did not satisfy either ground and he dismissed her claim. She appealed, but only on the Regulation 15(2) ground and that appeal was allowed by His Honour Judge McMullen Q.C. (sitting alone) on 21st March 2007. Towergate now appeals with permission granted by Laws L.J. who considered the matter to be arguable.

The basic facts

4. Let me elaborate on the facts to a little extent, observing as I do, first, that as this was a hearing in limine no evidence was led in respect of the events leading to the employee's dismissal and, secondly, that although evidence was given to the Chairman by Mrs Harris to explain her delay and she was cross-examined upon it, no notes of that evidence have ever been produced and so the appellate tribunal and this court are at a disadvantage. This much, however, appears to be beyond controversy. The decision to make Mrs Harris redundant followed an assessment of the performance of a pool of brokers upon three of whom the axe of redundancy would fall. They were assessed according to predetermined criteria and those with the lowest scores were selected for redundancy. The detail of how this selection process was conducted was not put in evidence but it is common ground that Towergate informed Mrs Harris that the company was contemplating dismissing her and that she was invited to attend a meeting with her manager, Ms Thomas, to discuss the matter. That meeting was held on 12th October. On 24th October Ms Thomas wrote to Mrs Harris "further to our consultation meeting on 12th October 2005" and said:

"I am sorry that we have to go through this procedure, but as stated previously during our consultation on redundancy we have tried to mitigate this situation but have not been able to source any suitable or alternative positions and it is therefore with regret that we issue you with a Notice of Redundancy.

You will be paid up to and including 31 October your date of termination of employment. …

You are entitled to three months' notice of termination together with payment in lieu of any benefits during this period.

You have the right to appeal this decision in writing to myself within seven calendar days."

On 26 October Mrs Harris signed an acknowledgement of the letter and confirmed acceptance of its terms but she did not appeal the decision to dismiss her. As Judge McMullen noted in paragraph 11 of his judgment, notice was given in accordance with the company's procedures and no point was taken that the time for appeal was too short. We have not seen those procedures and can only assume – for no suggestion is made to the contrary – that there were, as Ms Thomas wrote, at least procedures for consultation about possible redundancy, some selection process, and a right of appeal against the dismissal.

5. The Chairman found these "primary facts":

"3. … She did not immediately appeal despite being told on 28th October at a leaving party that she had been, as she put it, "stitched up".

4. She had three months from 31 October to bring her claim. She consulted her union on 3 November. She could not say precisely when but she was aware that there was a three month limitation period for tribunal proceedings. It is likely that she was advised by her Union but in any event she knew of the existence of the Employment Tribunal and the existence of a time limit.

5. There was a meeting with the respondents on 16 December which she attended with her Union representative. There was a discussion of how the Respondents had reached their decision to select her for redundancy.

6. She was promised more information [the assessment forms, the timescales and the guidance given to managers as to the assessment process] and that was sent to her [on 5th January 2006]. There was no reference to appealing by her or by anyone else. Her view was that she was heading for a claim in the Employment Tribunal.

7. The expiry of three months time limit was on 30th January and I accept that there was probably some delay over Christmas. More advice followed in January and she was told to put in a grievance. She did that by writing a letter. There are three versions: the original, a fax and an e-mail in much the same terms. I quote the letter of 25th, the fax was on 26th.

'I wish to raise a formal grievance in respect of ['my redundancy'] on the grounds that I believe the assessment criteria used to make me redundant was [sic] unfair and inaccurate. I am entitled to a meeting to resolve this issue and to be accompanied by my Trade Union representative. I would appreciate this issue being resolved within the next 28 days and await your comments.'

8. That, on any basis, does not look like an appeal letter but does look like a grievance letter. It says so. She had been advised by her union to put in a grievance and that is what she did.

9. I have not heard from her Union but it is likely that the Union official expected that by putting in a grievance before the expiry of the time limit there would be a three month extension in time. That, in respect of some claims, but not all, does extend the time for a further three months.

10. On 31 January the respondents replied that they were not going to deal with the grievance because she had left their employment.

11. She then presented her Employment Tribunal application on 29 April well outside the normal three months period but it would be within three months of 31 January and in time if bringing a grievance had given her an extension of time.

12. Those are the primary facts."

6. There are gaps in the story, only some of which I can fill. Perhaps of greatest significance is the absence of detail about the company's policy and procedures for dealing with redundancies and the consequent dismissals. They undoubtedly do exist. Mrs Harris acknowledges as much in her witness statement where she refers to the advice from Mr Brian Harris, the Union representative, that she "needed to challenge the dismissal using the internal procedures." She also refers to the "consultation meeting" which must be the same "consultation meeting" to which Ms Thomas made reference in her letter of 24 October set out at [4] above. In that letter Ms Thomas apologises for having "to go through this procedure". So it is clear that there were at least procedures for consultation about possible redundancy, some selection process and a right of appeal against the decision to dismiss.
7. It is a pity if we are left in the dark because whilst we know that that consultation meeting was held, we do not know how it was arranged and whether or not Towergate had initiated the process pursuant to the company's internal procedures and/or pursuant to step 1 of the statutory dismissal and disciplinary procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, to which I must shortly refer fully. It is enough for present purposes to point out that step 1 requires that:-

" The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing … the employee."

Step 2 requires that a meeting be held and that the employee be informed of the employer's decision and of her right to appeal it.

8. It is clear that the decision was taken to dismiss Mrs Harris and she was so informed on 24 October and at the same time notified of her right of appeal. In her witness statement she says:-

"… at the time I had no reason to doubt that my selection for redundancy was genuine and all was above board. As such I did not appeal the decision at the time."

It is, however, to be observed that during that period of seven days she did learn at her leaving party held on 28th October that "the rumours going around were that I had been stitched up". Yet she did not consult her Union until 3rd November and a meeting was then held on 16 December as noted in paragraph 5 of the Employment Tribunal's judgment. Judge McMullen expanded on what happened saying:-

"12. The Claimant never did appeal but she was concerned at the comments made at her leaving party and contacted her Union, Amicus. She had the advantage to be represented by Mr Brian Harris (no relation), a Regional Officer, who applied to Ms Thomas for a meeting. The meeting was held on 16 December 2005 where the three of them attended. The notes of Ms Thomas written in the first person singular, were available to the Tribunal. It is plain that Mr Harris was raising criticisms of the method of assessment and of the pool for selection and he made a telling point for he said this:-

'AH stated categorically that she had never had a formal assessment. JT also advised that a manager could make an assessment based on his/her judgment of that person's work performance and behaviour. BH agreed but said that unless there were defining guidelines for completing the assessment even small consistencies [sic] could make the difference between being made redundant and being retained.'

It is noted that the Claimant had not asked for an appeal when the opportunity had been given and that the Claimant was in possession of certain information, At this stage Mr Harris asked for three pieces of information: the Claimant's assessment forms, the time scales and guidance given to managers as to the assessment process. He was critical that there had been subjective criteria in the calculation and the assessment of only one manager. To this end therefore he sought that information,

13. What followed is important. He said this according to the note taken by Ms Thomas:-

'I said that I would have to ask about Anne's form, as normally this would be viewed during the appeal process, but I saw no problem in getting this information to them next week. I asked BH what the next steps would be. He said that somebody in the Union (better qualified than him) would review the forms to determine whether it had been a fair process, if it had of been he would inform me, if it had not he would take the matter further.'"

9. The requested information was sent on 5th January. Mrs Harris's response was to deliver her letters regarding "my redundancy" quoted in paragraph 7 of the Employment Tribunal's judgment, see [5] above. Towergate replied on 31st January:-

"Contrary to your assertion that you are entitled to a meeting to resolve this issue I am afraid I have to advise you that under the Employment Act 2002 (Dispute Resolution) Regulations 2004 Regulation 6(5) we are not obliged to deal with a grievance as the grievance procedure does not apply when the person is no longer employed by the company.

In line with our redundancy policy we did offer you the opportunity to appeal in our Notice of Redundancy (dated 24 October 2005) which you did not take." (The emphasis is added by me to point to another reference to the company's policy).

10. Mrs Harris then bought her claim giving this explanation for why she thought her dismissal was unfair:-

"Unfair selection for redundancy.

This was due to unfair matrix selection that I believed chose me by design and not by result."

11. On 5 June 2006 the employment tribunal gave directions for the claimant to explain why her claim should not be struck out as having no reasonable prospect of success in view of Section 111 of the Employment Rights Act. She was directed to give particulars of:-

"The facts relied upon in asserting that the Tribunal has jurisdiction to entertain the claim, when it was not commenced within three months from the effective date of termination."

12. On 4 July 2006 Mr Harris responded on the claimant's behalf as follows:-

"I attach for your attention the following documents:

E-mail dated 7th December 2005 (Appendix 1) from Brian Harris, Amicus Regional Officer confirming meeting with Jean Thomas, Towergate HR Manager [I observe that this is another document not disclosed to us.]

E-mail from Ann Harris (Claimant) dated 26th January 2006 Registering a Grievance (Appendix 2).

Letter from Jean Thomas, Towergate HR dated 31st January 2006 refusing to hear the Grievance or to discuss resolution of the issue (Appendix 3).

These documents show that the claimant had entered into a process that began in December 2005 to try and resolve this issue informally with the Respondent. Appendix 1 shows that the claimant and her Union representative met with Jean Thomas HR manager from Towergate on 7th December [sic – he may mean 16 December] in order to resolve the issue.

As no resolution was possible informally the claimant raised a Grievance (see Appendix 2) with the respondent in order to try and resolve the issue formally. This grievance allowed 28 days for the respondent to deal with the issue. The respondent's reply (see Appendix 3) refused to accept the grievance (see Appendix 3).

It is our belief that as a grievance was registered with the respondent then an automatic three month extension should apply and that as result the Tribunal application was submitted correctly and the Tribunal therefore has jurisdiction to hear the case." (The emphasis is added by me to show that Mr Harris, and by inference Mrs Harris, shared a belief that this was a grievance procedure.)

13. In her witness statement Mrs Harris said this:-

"4. I was shocked to learn that my selection and dismissal had been a stitch up and made an appointment to see my Union representative, to find out what I could do about it. I saw my Union representative the following Thursday, 3 November 2005. I discussed the matter with Brian Harris, my Union representative who explained to me that I needed to challenge the dismissal using the internal procedures, and then if it could not be resolved I could pursue the matter in an Employment Tribunal. He told me the way to challenge the decision was to lodge a grievance.

5. I therefore sent three letters to David Green, challenging the dismissal as I felt that the assessment criteria used to make me redundant were unfair and inaccurate. My intention was to challenge the dismissal, and although my letters state I am lodging a grievance, I suppose in reality it is an appea,l as I am challenging my dismissal. I only called it a grievance because of that is what I was told it was. (Emphasis added by me).

…

8. I understand that in circumstances where, at the date of the expiry of the normal time limit, the Claimant had reasonable grounds for believing that a dismissal procedure was being followed the normal time limit will be extended for three months.

9. The normal time limit for lodging a claim in respect of unfair dismissal was 30 January 2006. I had not yet heard back from Towergate at that date and therefore if the Tribunal accept that the letters of 26th January 2006 are, except in name, appeal letters, then on 30 January 2006 I was waiting to hear back in respect of my complaint under the reasonable assumption that I had instigated a complaints procedure and that my complaint would be dealt with by way of a hearing. As I held such a belief on the date of the expiry of the normal time limit, an automatic three month extension should apply, meaning that the time limit for commencing my unfair dismissal claim was 30 April 2006."

The chairman of the Employment Tribunal had the advantage of hearing Mrs Harris being cross-examined on that statement.

The judgments of the Employment Tribunal and the Employment Appeal Tribunal

14. Having found the "primary facts" as set out in [5] above the chairman dealt with the extension of time in this way:-

"13. In cases where the grievance procedure is a pre-requisite to bringing a tribunal claim, provided that a grievance is brought within the three month limitation period there is an automatic extension for another three months. Rule 15(1) al the Employment Act 2002 (Dispute Resolution) Regulations 2004.

14. The difficulty the applicant has is by Rule 6(5) there is no requirement for a grievance to be entered where the claim is that the employer has dismissed the employee.

15. This is such a claim and so there is no automatic extension. That is now conceded by her Counsel.

16. He has another ground, however. If the letter of 26 January amounts to an appeal and if the Claimant was reasonably waiting for the result of the disciplinary or dismissal procedure, and that would include an appeal, she has an extension of time if the result of that or the final step in the procedure falls outside the initial three month period, which it did on 31 January. In that event the claim brought on 29 April would actually be in time. Rule 15(2),

17. That pre-supposes that the document is not a grievance but an appeal. I do accept that I have a certain amount of latitude if it merely a matter of putting the wrong label on the letter.

18. I do not accept that this is the wrong label. It is quite clear that she has been advised to put in a grievance, it is by no means any sort of slip of the pen. There are three similar versions. She has obviously been advised by her Union, possibly on a mistaken view of the law, but I have not heard from the official.

19. In those circumstances can she have an extension if it was not reasonably practicable for her to bring the claim within the three month period - Section 111 of the Employment Rights Act 1996? …

20. She knew herself that there was a three month period and she could have acted during that period on her own or she could have reminded the Union, The time limit was within her knowledge. Even if I took the view that she was entitled to leave the matter to her Union, she did so leaving it to what has been referred to as a skilled advisor. This was no lowly member of the Union it was a Regional Officer.

22. … For those reasons she cannot proceed on the ground that it was not reasonably practicable for [her] to have acted in time. Her case was brought out of time and I am not in a position to extend the time for her. There is no automatic extension and her case has to be dismissed on that ground today."

15. Judge McMullen allowed Mrs Harris's appeal and remitted the case to a tribunal to hear the claim. He detected these errors of law in the approach taken in the Employment Tribunal:-

"24. It seems to me that the approach in this case was flawed by the necessity in the Chairman's mind to find that there was an appeal. This departed from the statutory test which is to examine the ground on which the Claimant believed that a dismissal procedure was being followed. Several things must be noted. The grounds must be reasonable. The procedure is a dismissal or disciplinary procedure. In this case it obviously related to a dismissal. It is either a statutory procedure, 'or otherwise'. The distinction drawn in Regulation 15(1) between, on the one hand, dismissal and disciplinary procedures and, on the other, grievance procedures, is not fully carried into effect in Regulation 15(2), for 15(2) includes the words "or otherwise". It seems, therefore, that a wider view is to be taken but it is not so wide as to include any procedure, it must be a dismissal procedure, that is a procedure capable of being utilised by a person who is or is about to be dismissed. It requires some sort of formality, because the statute requires that the procedure is believed to be followed. Logically, a step in a procedure following a dismissal is an appeal against the dismissal and that of course is the way in which the statutory treatment is given to it. But it does not exclude a more general procedure between the parties aimed at resolving a dispute over a dismissal. In this case the only reason the Claimant consulted her union and the union acted on her behalf at the meeting, and Ms Thomas sent the information to the union, was because, as the Claimant said, she was challenging her dismissal. Analytically, the challenge is based on grounds familiar to those engaged in employment relations, that is to attack a redundancy on the grounds that the assessment had been badly or inaccurately made or that the pool for selection was incorrect.

25. … So the question is not 'Was this a formal appeal?' but 'Did the Claimant believe on reasonable grounds that there was an ongoing procedure to enable her to challenge her dismissal?' In my judgment the focus on the word appeal was misplaced in this case. On the material presented to the Chairman, the correct view both as a matter of construction of the letter, and of the witness statement, is that she did believe that there was a procedure that she could attach herself to. It was not suggested that her belief was untrue. As the Chairman found, she did as she did because the Union advised her to do so. This should have been treated as evidence of a reasonable belief by the Claimant such as to enable her to take advantage of the extension in time."

The Employment Act 2002 (Dispute Resolution) Regulations 2004

16. These regulations were enacted pursuant to the Employment Act 2002 and it is necessary to spend a moment considering the Act so that one can understand the purpose of the Regulations. Part 3 of the Act deals with "Dispute Resolution etc". Section 29 deals with "Statutory dispute resolution procedures" and provides:-

"(1) Schedule 2 (which sets out the statutory dispute resolution procedures) shall have effect. "

Section 30 provides that every contract of employment shall have effect to require the employer and employee to comply with the requirements of the statutory procedure where applicable, notwithstanding any agreement to the contrary though that does not disentitle the parties agreeing requirements additional to but not inconsistent with the requirements of this statutory procedure. Section 31 imposes sanctions for non-completion of the statutory procedure in that awards can be adjusted up or down dependent upon whether it is the employer or the employee who had failed to comply with the requirement. Section 32 precludes an employee bringing a claim in certain circumstances, for example, if he has not fully complied with the necessary requirements. Section 33 is important because it provides for "consequential adjustment of time limits" and is the source of regulation 15. It provides:-

"(1) The Secretary of State may, in relation to a jurisdiction listed in Schedule 3 or 4, by regulations make provision about the time limit for beginning proceedings in respect of a claim concerning a matter to which a statutory procedure applies."

Claims for unfair dismissal are within the jurisdiction listed in Schedule 3 and 4. "A statutory procedure" is defined in Section 40 as being a procedure set out in Schedule 2.

17. That definition of statutory procedure takes us to Schedule 2 and to that I must turn. The schedule deals with "Statutory Dispute Resolution Procedures", Part I dealing with "Dismissal and Discipline Procedures" and Part 2 with "Grievance Procedures". They are, therefore, quite separate, recognisably different procedures. Each has a standard procedure and a modified procedure. The standard dismissal and disciplinary procedure sets out three steps to be taken as follows:-

"Step 1: Statement of grounds for action and invitation to meeting

1 - (1) The employer must set out in writing the employees alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee", (emphasis added by me).

"(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: Meeting

2 – (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension." (Emphasis is added by me).

"(2) The meeting must not take place unless – [neither of these two conditions applies].

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right of appeal against the decision if he is not satisfied with it." (Again the emphasis is added by me).

"Step 3: Appeal

3. – (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision."

18. The modified dismissal and disciplinary procedure requires as step 1, a statement of grounds for action as follows:-

"4. The employer must-

(a) set out in writing-

(i) the employee's alleged misconduct which has led to the dismissal," (emphasis added by me).

(ii) what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and

(iii) the employees right to appeal against dismissal, and

(b) send the statement or a copy of it to the employee."

Step 2 provides for an appeal in terms broadly similar to that required for the standard procedure.

19. The standard grievance procedure must follow these steps:-

"Step 1: statement of grievance

6. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

Step 2: meeting

7. – (1) The employer must invite the employee to attend a meeting to discuss the grievance.

(2) – (4) [The procedure is similar to that for the standard disciplinary procedure].

Step 3: appeal

[Then follows a not dissimilar procedure for the appeal but I need not set out the details]."

20. As for the regulations themselves, regulation 2 gives the following relevant definitions:-

"'applicable statutory procedure' means the statutory procedure that applies in relation to a particular case by virtue of these Regulations;

'dismissal and disciplinary procedures' means the statutory procedures set out in Part I of Schedule 2; …

'grievance' means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him;

'grievance procedures' means the statutory procedures set out in Part 2 of Schedule 2."

Regulation 3 deals with the "Application of dismissal and disciplinary procedures" and contains important definitions as follows:-

"(1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

(2) … the modified dismissal procedure applies in relation to a dismissal where-

(a) the employer dismissed the employee by reason of his conduct without notice … (Emphasis added by me.)"

Regulation 6(5) provides:-

"Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

Now to Regulation 15 providing for "Extension of time limits". It is as follows:-

"(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; or

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) 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 … was being followed in respect of matters that consisted of or included the substance of the tribunal complaint."

An analysis of Regulation 15

21. Regulation 15(1) prescribes three conditions which must be satisfied before time can be extended. Each one must be established. They are: (1) the complaint must be presented under a jurisdiction listed under Schedule 3 or 4; (2) either of the dismissal and disciplinary procedures must be the applicable statutory procedure; (3) as per regulation 15(2), the complaint must be presented after the normal time limit has expired but the employee must have had the reasonable belief there described.
22. The first requirement is satisfied because a claim for unfair dismissal is within the listed jurisdictions. As for the second condition, one must find that either the standard or the modified dismissal and disciplinary procedure as set out in Part 1 of Schedule 2 is the applicable statutory procedure. I remind myself that "applicable statutory procedure" was defined in regulation 2(1) to mean "the statutory procedure that applies in relation to a particular case by virtue of these Regulations". So the question is whether either the modified or the standard procedure applies in this case. Here it cannot be the modified procedure because that applies only where the employer dismissed the employee by reason of his conduct without notice - see the definition in regulation 3(2) at [20] above. This is not a misconduct case. Is the standard procedure applicable? That throws us back to Regulation 3(1): the standard procedure only applies when an employer contemplates dismissing an employee. I have been adding the emphasis to make the point that the standard procedure applies where dismissal is contemplated, not where dismissal has already taken place. This is wholly consistent with the purpose which these "Dispute Resolution" regulations are intended to serve, namely to give the opportunity for conciliation before final action is taken. If that analysis is correct, and I do not see how it can be refuted, then step 1 of the standard procedure should have been taken at or about the time Towergate were conducting or had concluded their review of the employees in the pool who were the candidates likely to be made redundant. It was then that the employer should have acted in accordance with step 1 of the standard procedure and set out in writing the circumstances, i.e. redundancy, which led the employer to contemplate dismissing the employee. Whether or not that was done, we simply do not know. Something like step 2 does seem to have taken place because there was a meeting before action was taken, namely the meeting on 12 October. Step 2(4) was certainly taken because Mrs Harris was informed of Towergate's decision and notified of her right to appeal. Mrs Harris failed to take step 3 so there was no further obligation on Towergate's part to invite her to a further meeting. Even allowing for the need to give a benign construction to the regulations and the relevant schedules and mindful of the desirability of avoiding undue technicality, nevertheless, for my part I cannot see how it can be said that any request for a meeting which may have been made by Mr Harris in his e-mail of 7th December 2005 referred to in the Statement of Case, but not shown to us, or the meeting which followed it on 16th December, or the flurry of letters sent on 25th January can constitute any part of the application of the standard procedure set out in Chapter 1 of Part 1 of Schedule 2 to the Act. It was all too late: she had already been dismissed. For my part I simply do not see how Mrs Harris can establish, as she has to establish, that either of the dismissal procedures is the applicable statutory procedure. In that case, we do not get to regulation 15(2) at all. Her state of mind is utterly irrelevant.
23. This point does not appear to have been taken at all. When Judge McMullen defined a dismissal procedure as "a procedure capable of being utilised by a person who is or is about to be dismissed", with my emphasis added, he was, with all respect to him, plainly wrong. The procedure is one which is capable of being utilised only where the employer contemplates dismissal regulation 3(1) and so applies only in respect of a person about to be dismissed. Since the construction of Regulation 15 is a point of pure law, I would hold that the Employment Appeal Tribunal got it wrong, and even if the Employment Tribunal did not direct its mind to the question at all, there would be simply no point in sending the matter back for rehearing because the result is inevitable: time cannot be extended. I would allow the appeal on that ground alone. But since that was not the way in which the matter was presented, I turn to those arguments that were addressed to us.

A précis of the arguments addressed to us

24. Mr Daniel Matovu who appeared in both tribunals emphasised the shift in Mrs Harris's case from the assertion in her written statement that she believed that she had raised a grievance procedure (a case which it was conceded by her counsel had to fail by virtue of Regulation 6(5)) to a case suggested by her witness statement that her letters were "in reality … an appeal". So it was Mrs Harris who raised this issue and invited the tribunal to accept that the letters were, "except in name appeal letters." She had to assert that to bring her case within Regulation 15(1) and so again access to Regulation 15(2). Mr Matovu submitted that her whole argument that she had reasonable grounds for believing, when the normal time limit expired, that a dismissal procedure was being followed rested on her inviting the tribunal to accept that her grievance should in effect be viewed as amounting to an appeal that formed part of an ongoing dismissal, not a grievance, procedure. He submitted that the employment tribunal was perfectly entitled to find as it did on the evidence that the claimant's grievance letter was just that and was not to be viewed as an appeal letter. The belief held by Mrs Harris was a matter of fact for the Tribunal to determine and it was wrong of Judge McMullen to substitute his own view of the evidence for that of the chairman below, thereby usurping the role of the fact finding tribunal without even hearing any oral evidence himself and without having available any transcript or full note of the evidence that was given to the tribunal below.
25. Mr Andrew Short, who now appears for Mrs Harris, supported the reasoning of the Employment Appeal Tribunal. He submitted that the relevant words requiring construction (which is a matter of law) are those in Regulation 15(2) namely: "a dismissal or disciplinary procedure, whether statutory or otherwise". He submitted the Employment Tribunal's error was to limit that wide meaning by confining the question to whether or not there was an appeal. Whilst his primary case is that it was not necessary to determine whether the claimant's challenge to the decision was an appeal, he submits in the alternative that it is exactly what it was because she was challenging the decision to dismiss her.

Discussion

26. The claimant's case was that she had engaged the dismissal procedure by her letters of 25th January and that the procedure was still being followed when time expired. The first task is, therefore, to construe those letters. They were clearly written with the benefit of advice from a knowledgeable union representative. She must be assumed to know the law. She wished to raise "a formal grievance". Her grievance was that the assessment criteria used to make her redundant were unfair and inaccurate. That is a complaint by an employee about action which his employer has taken in relation to him, the definition of grievance in Regulation 2. It is the first step of both the standard as well as the modified grievance procedure, steps 6 and 9 both requiring the employee to set out the grievance in writing and send the statement or a copy of it to the employer. That she so understood it is confirmed by the written particulars of her case explicitly referring to "rais[ing] a Grievance … in order to try and resolve the issue formally". Their belief was that a grievance was registered. She simply could not reasonably have believed as at 30 January that she was giving notice of appeal against her dismissal because, as she said in her witness statement:-

"The reason for my dismissal was redundancy, and at the time I had no reason to doubt that my selection for redundancy was genuine and all above board. As such I did not appeal the decision at that time."

It follows, therefore, that she knew she had a right of appeal, she knew she had seven days to appeal, she chose not to appeal, and her dismissal took effect. I do not understand how she could assert that she believed that her letter of 25th January could be an appeal. Neither could the Chairman. He heard her, he saw her cross-examined, he was the best placed to form an assessment of her belief and his findings of fact are not open to challenge on the appeal.

27. The challenge to his decision which found favour with Judge McMullen was that it was flawed by the necessity to find that there was an appeal. I do not see that he can be criticised for that for that was the way the case was presented to him. That was the only way the grievance letter could be construed in some way or another as part of the applicable statutory procedure, namely, a dismissal procedure. Judge McMullen considered that that departed from the statutory test which was to examine the grounds which the claimant reasonably believed that a dismissal procedure, statutory or otherwise, was being followed. I have already pointed out that before one gets to that consideration, she has to surmount the hurdle of Regulation 15(1) that requires that either of the dismissal procedures was the applicable statutory procedure. For this purpose one is confined to the statutory procedure and it is only when that hurdle is overcome that the question turns to whether she had reasonable grounds for believing that a wider sort of dismissal procedure, namely, one which is "statutory or otherwise" was still being followed. I take that to include the kind of extra-statutory procedure which, pursuant to section 30 of the Act, could impose requirements additional to but not inconsistent with the requirements of the statutory procedure. The company's internal procedures may at that stage govern the process.
28. The Chairman held that Mrs Harris did not believe on 30 January when the normal time limit expired, 5 days after she wrote her "formal grievance", that any disciplinary procedure was being followed. If and insofar as the construction of the letter gave rise to a question of law, he was correct in its construction. Looking at the matter objectively, a reasonable employer would construe the letter to mean what it clearly and plainly said. There was no slip of the pen. It was a complaint about action the employer had taken. It was too late to complain because she had already been dismissed. It was also too late to complain of her dismissal, even if the unfair loss of her employment lay at the heart of what she really and truly was complaining about. She should have exercised her right of appeal to do that. The Chairman made no error of law in his construction of her letter as a grievance letter, not an appeal letter.
29. Insofar as he took the background matters into account so as to place the letter in its context, the facts he found were for him, not for the Appeal Tribunal nor for us. We are not entitled on an appeal to go behind his findings of fact. Absent a charge of perversity, which is and could not be alleged, the Chairman made no error of law and his conclusion is not susceptible to challenge on appeal.

Conclusion

30. I would therefore allow this appeal, restore the decision of the Chairman of the Employment Appeal Tribunal and dismiss Mrs Harris's claim.

Lord Justice Keene:

31. The principal facts in this case have been set out in the judgment of Ward LJ, and I can therefore be relatively brief myself and concentrate on the legal issues arising. The background of those issues is to be found in the parent statute to the 2004 Regulations, the Employment Act 2002 ("the 2002 Act"). Part 3 of that Act deals with Dispute Resolution and undoubtedly was aimed at encouraging the resolution of employment disputes and avoiding unnecessary or premature presentation of complaints to employment tribunals. As the then President of the Employment Appeal Tribunal, Burton J., said in Shergold v. Fieldway Medical Centre [2006] 1CR 304 at paragraph 26:

"It is quite plain that the purpose of this legislation was to encourage conciliation, agreement, compromise and settlement rather than the precipitate issue of proceedings. It is not unlike the system of pre-action protocols in relation to High Court and county court litigation, although hopefully it is even more likely to succeed because of the relationship, or the immediately preceding relationship, between the parties in an employment dispute."

32. Consequently the 2002 Act provides for the adjustment of awards in Schedule 3 cases ( which include unfair dismissal claims) if the employee or employer has not complied with the dispute resolution procedures applicable: section 31. But correspondingly the Secretary of State is empowered by section 33 to make provision by regulations extending the time limits for beginning proceedings in respect of, amongst other things, Schedule 3 jurisdictions. Clearly therefore he had power to make such regulations where the employee's complaint is of unfair dismissal.
33. Unhappily the resulting Regulations made (inter alia) under section 33 are not drafted with the clarity for which one would hope. They are, as was said in Department for Constitutional Affairs v. Jones UKEAT/0333/06/DM at paragraph 47, "convoluted". That is particularly to be regretted in an area of the law dealing with employment relationships, where it is highly desirable that employees (and no doubt some employers) without ready access to legal advice should be able to understand what the law provides.
34. Regulation 15 has been set out in the judgment of Ward LJ, but because it is central to the issues in this case I set out the relevant parts of it again. I confine myself to paragraphs (1) and (2) of it, since most of the remaining paragraphs relate to grievance procedures and, as the EAT rightly said, in this case one is not concerned with those. This case concerns a dismissal. Regulation 15 provides:

"(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; or

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) 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."

35. The first matter with which I must deal is the effect of paragraph (1), because it has been suggested by Ward LJ that the requirements of that paragraph are not satisfied in the present case and so one does not get to the issue of "reasonable grounds for believing" referred to in paragraph (2). The contention is that none of the dismissal and disciplinary procedures is "applicable" in this case, because the standard dismissal procedure only applies "when an employer contemplates dismissing" an employee (Regulation 3(1)). Thus it is reasoned (paragraphs 22 and 23 herein) that that requirement in Regulation 15(1) is not met, because the employee here had already been dismissed by the time the complaint came to be presented to the employment tribunal outside the normal three month period.
36. I can see how that conclusion could be reached on the wording of the Regulations, but for my part I am quite satisfied that it misinterprets these provisions. If it were right, it would produce absurd results. A complaint of unfair dismissal cannot be presented to an employment tribunal until after dismissal and indeed after the effective date of termination: see section 111(2) of the Employment Rights Act 1996. By definition, therefore, such complaints will be presented and the issue of time limit extensions will arise in such cases after dismissal has taken place. Yet unfair dismissal claims are amongst the jurisdictions listed in Schedule 3 to the Regulations, and so one can conclude that Regulation 15(1) can be satisfied when a claim is presented more than three months after the effective date of termination. By then, of course, the employer cannot be said to be "contemplating" dismissal. It follows that if this line of argument were right, one could never satisfy Regulation 15(1) in unfair dismissal cases. That cannot be what was intended.
37. What is the answer? I find myself in some difficulty here, because we have not had the benefit of argument by counsel on this point. As Ward LJ notes at paragraph 23, this point has not been taken. That is true of the proceedings below; it is not canvassed in the written skeleton arguments in this court; and no real attention was paid to it in the course of counsel's oral submissions.
38. Doing the best I can in those circumstances, I suggest that the explanation is that "applicable" in Regulation 15(1) means the procedure which as a matter of law was applicable in the circumstances of the case in question. Regulation 3(1) is telling the employer when he should be operating the standard procedure in dismissal cases, i.e., when he is contemplating dismissing an employee. That is appropriate because the procedure begins before dismissal: he has to send a written statement to the employee explaining why he is contemplating dismissal: see Schedule 2, paragraph 1 of the Regulations. But the procedure may continue after dismissal has taken place. Paragraph 3 of that Schedule makes that clear, since it provides that the appeal meeting part of the procedure "need not take place before the dismissal … takes effect." When Regulation 15(1) talks of the dismissal procedure being applicable, it is simply making a reference to the case being one where those procedures should have been followed. I therefore do not regard the terms of Regulation 15(1) as presenting any obstacle to time limits being extended where dismissal has already taken place.
39. I turn to the issue which was argued before us. This turns on whether the circumstances described in Regulation 15(2) existed in the present case and in particular whether the respondent, Mrs Harris, had on 30 January 2006

"reasonable grounds for believing … that a dismissal or disciplinary procedure, whether statutory or otherwise … was being followed in respect of matters that consisted of or included the substance of the tribunal complaint."

There can be no doubt that that requires an employment tribunal to ask itself two questions: first, did the complainant have such a belief? Secondly, were there reasonable grounds for that belief? What is patently not the test is whether, as a matter of fact, such a procedure was being followed.

40. Did the employment tribunal chairman here adopt the correct approach? I cannot see that he did. He appears to have focussed his attention primarily on whether Mrs Harris' letter of 25 January 2006 was an appeal or a grievance, saying at paragraph 8 of his decisions:

"That on any basis does not look like an appeal letter but does look like a grievance letter. It says so. She had been advised by her Union to put in a grievance and that is what she did."

He then added at paragraph 9:

"I have not heard from her Union but it is likely that the Union official expected that by putting in a grievance before the expiry of the limitation period there would be a three month extension in time. That, in respect of some claims but not all, does extend the time for a further three months."

41. The Chairman then returned to this topic in the crucial paragraph on this part of this case, saying as follows:

"16. If the letter of 26 January amounts to an appeal and if the Claimant was reasonably waiting for the result of a disciplinary or dismissal procedure, and that would include an appeal, she has an extension of time if the result of that or the final step in the procedure, falls outside the initial three month period, which it did on 31 January. In that event the claim brought on 29 April would actually be in time. Rule 15(2).

17. That pre-supposes that the document is not a grievance but an appeal. I do accept that I have a certain amount of latitude if it is merely an issue of putting the wrong label on the letter.

18. I do not accept this is the wrong label. It is quite clear that she has been advised to put in a grievance, it is by no means any sort of slip of the pen. There are three similar versions. She has obviously been advised by her Union, possibly on a mistaken view of the law, but I have not heard from the official."

42. That simply is not the right approach. Whether it was a grievance or an appeal is not the issue. The issue, in summary form, was whether Mrs Harris reasonably believed that a dismissal procedure of some kind was being followed in respect of her redundancy and dismissal. At no stage does the Chairman address that issue. I entirely agree with Judge McMullen, Q.C., in the EAT when he said at page 10 of his judgment:

"So the question is not 'was this a formal appeal?' but 'did the claimant believe on reasonable grounds that there was an ongoing procedure to enable her to challenge her dismissal?' In my judgment the focus on the word appeal was misplaced in this case."

43. One quite understands that to an employment lawyer there is a distinction between a grievance and an appeal. The former is generally regarded as a complaint by an employee to his employer during the continuation of the employment relationship, though it is nowhere clearly defined. The closest one gets to it is in section 13(5) of the Employment Relations Act 1999 which defines a "grievance hearing" as being a hearing.

"which concerns the performance of a duty by an employer in relation to a worker."

But the waters are muddied by the fact that where an employee is dissatisfied with his employer's decision on his grievance, he may appeal against it through the employer's internal machinery: see the 2002 Act, Schedule 2, paragraphs 7(4) and 8. Grievances are not necessarily unrelated to dismissal: if an employee claims to have been constructively dismissed, he must lodge a grievance against his employer before bringing a claim in an employment tribunal: section 32 of the 2002 Act.

44. But one does not expect an employee to have a ready grasp of these arcane mysteries. Many employees will not have ready access to skilled legal advice and it is very important that the courts in this area of law avoid an unduly technical approach. I would warmly endorse the words of Elias J, President of the EAT, in Canary Wharf Management Ltd v. Edebi [2006] 1RLR 416, paragraph 24:

"The law in this area is directed at employees who in many cases - perhaps most - will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner."

Shergold (ante) contains similar warnings against undue technicality and "over sophistication": see paragraphs 27 and 33. There is a well-developed jurisprudence to this effect established by this specialist appeal tribunal, to which considerable respect must be paid.

45. In my judgment the employment tribunal chairman went wrong in asking himself whether the letter of 25 January 2006 was an appeal or not. That and the failure to apply the right test under Regulation 15(2) amount to an error of law, as the EAT held.
46. Was the EAT entitled to decide that the requirements of Regulation 15(2) were met and to order, as it did, that the matter be remitted to a tribunal for a hearing of the respondent's unfair dismissal claim? By virtue of section 35(1) of the Employment Tribunals Act, 1996, the EAT enjoys all the powers of the body from whom the appeal was brought. It could have remitted the issue of whether an extension of time had been achieved under Regulation 15(2) to an employment tribunal to determine, but it also had the power to determine that issue itself, so long as it did not err in law.
47. It had before it the documentary material presented to the employment tribunal, including the letter of 25 January 2006 and the respondent's witness statement, as well as the Chairman's summary of the oral evidence given. The EAT took the view that these demonstrated a belief that there was an ongoing procedure putting in issue her dismissal. It is quite true that in her letter she described what she was doing as raising a grievance, but her complaint was patently about her redundancy and consequent dismissal. In common parlance, she had a grievance about her dismissal, and she stated that she was entitled to a meeting to resolve this issue. That is an indication that she believed that some sort of procedure relating to her dismissal was being followed. It will be borne in mind that the belief does not have to be that a statutory procedure is being followed: 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.
48. The history of events since her dismissal on 31 October 2005 and the expiry of the seven days for appeal would have encouraged a belief that internal procedures challenging her dismissal were still under way. There was a meeting between company representatives and herself and her union representative on 16 December. Certain information was sought from the company. On 5 January 2007 information was supplied, that then being followed by her letter of 25 January. It is difficult to see that the belief manifested by that letter could be described as being without reasonable grounds.
49. In those circumstances I have concluded that it was open to the EAT to reach the conclusion which it did and to hold that Regulation 15 had been satisfied on the evidence. That means that the complaint of unfair dismissal was presented in time and that the order made by the EAT was an appropriate one. It follows that, for my part, I would dismiss this appeal.

Lord Justice Wilson:

50. I agree with the judgment of Keene L.J. and consider that Towergate's appeal should be dismissed. The unedifying preliminary skirmishes reflected by these proceedings have now continued for almost two years; in my view the contention advanced in them by Towergate lacks legal validity, let alone merit.
51. It has never been in issue in the proceedings that the standard dismissal and disciplinary procedure, set out in Chapter 1 of Part 1 of Schedule 2 to the Act of 2002, is "applicable" to the dismissal of Mrs Harris for the purpose of paragraph 1(a) of regulation 15 of the Regulations of 2004. Indeed, in answer to a question by my Lord, Ward L.J., during the hearing, Mr Matovu on behalf of Towergate expressly conceded that the procedure was "applicable" for that purpose. In my view his concession was rightly made. To the case of a dismissal other than for misconduct, the procedure is properly described as being "applicable" – and, after the dismissal, as remaining "applicable" –notwithstanding that the first two of its three steps are required to have been taken prior to the dismissal. Notwithstanding my great respect for Ward L.J., I do not share his view, expressed at [22] above, that light is thrown on the applicability of the procedure by enquiry into whether the communications in December 2005 and January 2006 "can constitute any part of the application" of the procedure.
52. In paragraph 16 of his Reasons, set out by Ward L.J. at [14] above, the Chairman of the Employment Tribunal purported to address the entitlement of Mrs Harris to rely on paragraph (2) of regulation 15 of the Regulations of 2004. Had he set out the relevant words of the paragraph (namely, "reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise … was being followed in respect of matters that consisted of or included the substance of the tribunal complaint"), no doubt he would not have fallen into error. Instead, however, the Chairman offered a demonstrably erroneous paraphrase, beginning with the words "If the letter of 26 January amounts to an appeal …" The error led the Chairman to conduct a misconceived enquiry into whether the letter amounted to an appeal or instead, as in the event he concluded, to a grievance.
53. In my view the Chairman's conclusion in that regard happens to have been wrong as well as irrelevant. Within the meaning of the legislation, as in common parlance, an employee can have a "grievance" that an employer has dismissed him or is contemplating dismissing him. But, notwithstanding that such is a grievance, neither of the grievance procedures applies to it. Both the above propositions are established by the terms of regulation 6(5) of the Regulations of 2004, which provides as follows:

"Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

So as it happens, Mrs Harris said nothing objectionable nor misconceived when, in her letter dated 25 January 2006, she stated that she wished "to raise a formal grievance in respect of [her redundancy]".

54. In that the Chairman was searching in the evidence for an answer to the wrong question, such advantage over the E.A.T. as he would normally derive from his receipt of oral evidence from Mrs Harris, much vaunted by Mr Matovu in argument, falls away.
55. H.H. Judge McMullen, by contrast, asked himself the right question. In my view the answer which he gave to it was inevitable.
56. (a) Take the meeting on 16 December 2005 and Towergate's promise there made to provide Mrs Harris with documents which would explain why she had been selected for redundancy. Both parties must then have believed that they were following a non-statutory procedure in respect of a looming issue in relation to the fairness of her dismissal.

(b) Take Towergate's provision of the documents to Mrs Harris on 5 January 2006. What did it expect her to do with them? It expected her, with the help of her union representative, to analyse them and in the light of them either to accept that her dismissal was fair or formally to contend that it was unfair. Thus the non-statutory procedure was still being followed.

(c) Finally, take Mrs Harris' letter dated 26 January 2006. In it she formally contended that her dismissal was unfair; asked for a meeting; said, rightly or wrongly, that she was entitled to the meeting; indicated that she wished her union representative to accompany her to it; articulated an aspiration that the issue be resolved by 23 February 2006; and said that she awaited Towergate's comments.

(d) By 30 January 2006, being the date of expiry of the normal limit for her presentation of a complaint to the tribunal, Mrs Harris had not received a response to her letter. In my view the only inference reasonably to be drawn from the sequence and content of the communications set out in (a) to (c) above is that on that date Mrs Harris had reasonable grounds for believing that, with the active cooperation of Towergate up to that point, she was following a non-statutory dismissal procedure with a view to resolving the issue of the fairness or otherwise of her dismissal without resort to the tribunal.