United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant

MR MARTYN WEST Representative Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PD

For the Respondent

MS HELEN KENNEDY Representative

SUMMARY

EAT held that the statutory extension of time under Regulation 15(1) Employment Act (Dispute Resolution) Regulation 2004 means 3 months and not 3 months less a day.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the Judgment of an Employment Tribunal in Birmingham on 10 February 2006. The hearing was a pre-hearing review and conducted by a Chairman sitting alone. The Chairman was Ms Pauline Hughes. The Judgment of the Tribunal was that the claim form was submitted in time and the case could proceed to a full hearing.

The material facts

2. The material facts are short and succinctly stated in paragraphs 1-4 of the Judgment:

"1 This case was listed for a Pre-Hearing Review to determine whether the claimant's Claim Form had been submitted out of time. The point raised in the case was an interesting one. It was common ground between the parties that the Claim Form was received by the Employment Tribunal on 20 December 2005. It was also common ground that the claimant resigned from employment in circumstances which he claimed amounted to a constructive unfair dismissal on 20 June 2005. The claimant lodged a grievance and the parties were in agreement that, as a consequence of him having done so, the extension of the time limit provided for by Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the Dispute Resolution Regulations") applied in respect of his claim for constructive unfair dismissal.

2 The claimant had also made a claim for breach of contract in respect of failure to pay notice pay. The parties were in agreement that this should not be dealt with as a separate complaint but should instead be dealt with as part of the claimant's constructive unfair dismissal claim.

3 The parties were in dispute as to the effect of Regulation 15 of the Dispute Resolution Regulations. The claimant's representative contended that the effect of Regulation 15 was to extend time to 20 December 2005 and that the complaint was lodged in time. The respondent's representative argued that the effect of Regulation 15 was to extend time to 19 December 2005 and that the complaint was lodged out of time.

4 I asked the claimant's representative if the claimant was intending to argue that, in the event that I decided his claim was out of time, it was not reasonably practicable for it to have been lodged in time. She clarified that this was not an argument which the claimant was seeking to advance."

Employment Tribunal decision

3. The Chairman summarized the submissions for the Claimant: Judgment paragraphs 6-7, the submissions for the Respondent: Judgment paragraph 8, set out the law: Judgment paragraph 9, and reached her conclusions in paragraphs 10-12 of the Judgment:

"10 Having considered the submissions for both parties and the statutory wording, I concluded that Regulation 15 is differently worded to section 111. Section 111 identifies the primary limitation period (i.e. "the normal time limit" for the purposes of regulation 15) as "being before the end of the period of three months beginning with the effective date of termination". The method of calculating the last day of the period as outlined in the extract from Harvey i.e. to start from the day before the effective date of termination and go forward three months. However, Regulation 15 states: "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". It thus specifically identifies the starting point to be the day after the expiry of the normal limitation period and then extends for three months beginning with that date. In my judgment, the effect of that provision is to extend the period for three months from the day after the expiry of the normal time limit. The normal time limit in this case expired on 19 September 2005 and the day after that was 20 September 2005. Going forward three months from that date gives an extension of time to 20 December 2005. There is no requirement in Regulation 15 for a claim to be lodged before that date. Consequently, the claim was submitted in time.

11 I have considered the respondent's representative's submission that regulation 15 of the Dispute Resolution Regulations must be interpreted in the light of section 111 of the 1996 Act, and that consequently the extension of time to six months should be calculated as a period of six months starting with the day before the effective date of termination. I considered that the way regulation 15 was worded did not suggest this was the approach to take.

12 Finally, I was mindful of the overriding objective (Regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, which requires tribunals to deal with cases justly, and of recent Employment Appeal Tribunal authorities which remind tribunals that the new dispute resolution mechanisms should not be applied mechanistically, thus debarring parties from bringing legitimate complaints, and should instead be viewed as having the objective of fostering informal resolution of disputes. I was mindful that this claimant had attempted to do just that, before lodging his Claim Form. Bearing those principles in mind, I considered that any ambiguity that may have arisen as a consequence of the wording of Regulation 15, should be resolved in favour of this claimant proceeding with his complaint. Consequently, for the above reasons, I decided that the claim was submitted in time and should proceed to a full Hearing. Directions concerning that Hearing are contained at the end of this Judgment in the appended Order."

The Notice of Appeal

4. The Notice of Appeal is succinct and avers that the Chairman erred in holding that the claim was presented within time. In other words the Chairman's construction of section 111 of the Employment Rights Act 1996 coupled with Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 was erroneous. The correct construction of a statutory provision is of course a question of law within the Employment Appeal Tribunal jurisdiction.
5. The Appellant was represented by Mr Martyn West and the Respondent by Ms Helen Kennedy. I am grateful to both of them for their succinct submissions and Skeleton Arguments.

The law

6. Section 111 of the Employment Rights Act 1996 provides as follows:

"(1) (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer   

(2) Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal-

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such 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."

(3) (Not relevant)

(4) (Not relevant)

7. Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 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 3 months beginning with the day after the day on which it would otherwise have expired.

(2) The circumstances referred to in paragraphs (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.

(3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal -

(a) within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraphs 6 or 9 Schedule 2 in relation to his grievance within the normal time limit.

(4) (Not relevant)

(5) In this Regulation "the normal time limit" means -

(a) subject to sub-paragraph (b), the period within which a complaint under the relevant jurisdiction must be presented if there is no need for the tribunal, in order to be entitled to consider it to-

(i) exercise any discretion, or

(ii) make any determination as to whether it is required to consider the complaint, that the tribunal would have to exercise or make in order to consider a complaint presented outside that period;

(b) in relation to claims brought under the Equal Pay Act 1970, the period ending on the date on or before which proceedings must be instituted in accordance with Section 2(4) of that Act."

The Employment Appeal Tribunal decision

8. Mr West argued that prior to the introduction of the new dispute resolution provisions the law was settled and section 111 of the Employment Rights Act 1996 applies. The three month period commenced with the effective date of termination. The day of dismissal was the first day of that period and therefore a dismissal effective on 20 June 2005 (as in this case) makes the last day for presentation of a complaint of unfair dismissal 19 September 2005: Hammond v Haig Castle [1973] IRLR 91. The Employment Tribunal found that the time limit under section 111 expired on 19 September 2005 but was extended by a period of 3 months plus one day by the construction adopted for Regulation 15(1) of the 2004 Regulations. Mr West submitted that following the approach of the Court of Session in Pacitti Jones v O'Brien [2005] IRLR 888 at paragraph 15, the correct interpretation of Regulation 15(1) of the 2004 Regulations was to add a period of 3 months to the 19 September 2005 which meant that the last date on which the Respondent could lodge a claim for unfair dismissal was 19 December 2005 and not 20 December 2005 which was the date on which the claim for unfair dismissal was actually lodged.
9. Ms Kennedy argued to the contrary. In her submission the phrase in section 15(1) that:

"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"

means that, on the facts of this case, the extension of the three month period under section 15(1) begins on 20 September 2005 which means the last day for lodging a complaint for unfair dismissal was 20 December 2005, which was in fact the day on which the claim was lodged.

10. In my judgment, Pacitti Jones v O'Brien can be distinguished on the basis that that case was concerned with the proper construction of section 108(1) of the Employment Rights Act 1996 which provides:

"(1) (1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year beginning with the effective date of termination."

In construing the meaning of "one year" for the purposes of calculating continuous employment to claim unfair dismissal, the Court of Session looked at section 111(1) which makes it clear that the day on which the employee started work is to be included in the reckoning.


11. It is important to remember that the present case involves the construction of Regulation 15(1) of the 2004 Regulations, and not section 108(1) or section 211(1) of the Employment Rights Act 1996. There is a clear difference of statutory language. Section 211(1) (a) states that:

"An employee's period of continuous employment for the purpose of any provision of this Act–

(a) Subject to sub-sections (2) and (3) begins with the day on which the employee starts work and …"

12. In other words, there is a clear statutory provision which states that in order to calculate the period of continuous employment, the period "begins with the day on which the employee starts work…". That is quite clearly different language from Regulation 15(1) which states that

"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." (my emphasis)

13. As the Chairman correctly pointed out, Regulation 15(1) specifically identifies the starting point to be the day after the expiry of the normal limitation period and then extends it for three months beginning with that date. I agree with her that the effect of that provision is to extend the period for three months from the day after the expiry of the normal time limit. It is agreed in this case that the normal time limit expired on 19 September 2005 and the day after that was 20 September 2005. Three months from that date gives an extension of time to 20 December 2005. There is no requirement in Regulation 15 for a claim to lodged before that date. If it is lodged by that date, it is sufficient. The Claim in this case was lodged on 20 December 2005. It was in time.

Conclusion

14. For these reasons I agree with the Judgment of the Employment Tribunal Chairman and reject the Appellant's submission on the true construction of Regulation 15(1) of the 2004 Regulations. The appeal is dismissed.