United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Miss S Pinkus (The Appellant in Person) Mrs E Pinkus (Representative)
For the Respondent	Written Submissions


 


SUMMARY

Practice and Procedure – 2002 Act and Pre-action Requirements

The grievance procedures set out in Part 2 of Schedule 2 to the Dispute Resolution Regulations 2004 apply to claims of constructive unfair dismissal. Where C raised a grievance 2 months after her resignation and lodged an ET1 6 months after her resignation, her claim was in time.


 


THE HONOURABLE MR JUSTICE BEAN

1. This is an appeal from the decision of Mr R Peters, Chairman, sitting alone in the Employment Tribunal at Brighton. He decided on a preliminary issue that Ms Pinkus's claim for unfair dismissal against Crime Reduction Initiative had not been presented to the Tribunal within the period specified in section 111(2) of the Employment Rights Act 1996 despite it having being reasonably practicable for the claim to have been presented within that period, and further that such period was not extended by the operation of regulation 15 of the Employment Act 2002 Dispute Resolution Regulations 2004. I have come to the conclusion that while he was undoubtedly right on the first point, he was unfortunately wrong on the second. As a consequence, in my view, the Tribunal did have jurisdiction to consider the unfair dismissal claim.
2. Ms Pinkus was not dismissed in the sense of being sacked. Her complaint was that her employers were in breach of contract to such an extent as to force her to resign. In other words the claim was one of constructive dismissal. It was agreed before the Tribunal that the effective date of termination was 14 April 2005. Her form ET1 gives the date as 15 April but nothing turns on that.
3. By letter of 17 June to the head of Human Resources at CRI the Appellant wrote:-

"This letter is to inform you that I should be taking out a formal grievance against the management of CRI. The grievance concerns the manner in which I was victimised and forced to resign. I would be obliged if you could forward a copy of the minutes of the disciplinary hearing of 13 April 2005…I have written this letter on the advice of legal counsel and I would be grateful for your prompt response."

There was a response from the then head of Human Relations on 21 June which is not in my bundle and by letter of 3 July Ms Pinkus wrote:-

"I would like to request a standard grievance procedure. I am alleging unfair constructive dismissal."

She went on to give some particulars of what was relied on.

4. The Chairman found in paragraph 19.6 of his decision that "the Respondent has been going through its grievance procedure but [this has] not concluded". Ms Pinkus instructed solicitors on 30 September 2005. They submitted the claim form that very day. It was received at the Tribunal office on 3 October 2005. It is therefore clear that the primary time limit under section 111 expired 3 months from the date of termination, that is 13 July 2005, and if that was the appropriate time limit there could be no quarrel with the Chairman's conclusion that it would have been reasonably practicable for the complaint to have been presented within that time. The difficulty, as in so many cases before the EAT recently, arises under the regulations.
5. The Chairman cited section 111 and Regulations 2, 6(5) and 15 of the 2004 Regulations. He formed the opinion that the Claimant had resigned rather than be dismissed and that her grievance was that the Respondent had been contemplating dismissing her. Having so found, he concluded that neither of the two statutory grievance procedures applies. That was on the basis of Regulation 6(5) which states:-

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

But this wording cannot be read in isolation from Regulation 2 which states, so far as relevant, that:-

""dismissed" has the meaning given to it in Section 95(1)(a) and (b) of the 1996 Act"

6. Section 95(1)(a) relates to direct unfair dismissal, that is termination by the employer. Section 95(1)(b) is a special provision to do with limited term contracts with which we are not concerned here. Section 95(1)(c) is the statutory basis for the jurisdiction of Employment Tribunals in constructive dismissal cases- that is where the employee terminates the contract with or without notice in circumstances in which he or she is entitled to terminate it without notice by reason of the employer's conduct. That is what Ms Pinkus was alleging as her letter of 17 June makes clear and as the Chairman found. But it is not a dismissal for the purposes of the 2004 Regulations.
7. Accordingly, while the dismissal procedure under Regulation 3 did not apply, nor did the exclusion contained in Regulation 6(5), namely the provision that neither of the grievance procedures applies where the grievance is that the employer "has dismissed or is contemplating dismissing the employer". It therefore seems to me that the grievance of 17 June was indeed a grievance to which one of the grievance procedures within regulation 6 applied.
8. Turning then to Regulation 15, that grants an extension of time of three months from the last day which would otherwise be available for presenting a complaint, in this case 13 July, where either of the grievance procedures is the applicable statutory procedure and the circumstances in paragraph 3 apply. That provides for the presentation of the complaint after the expiry of the normal time limit but having complied with paragraph 6 or 9 of Schedule 2 in relation to the grievance within that normal time limit. Ms Pinkus had complied with the requirements of Schedule 2 by her letters of 17 June and 3 July.
9. It follows therefore that I consider that the Chairman was in error; that the Tribunal did have jurisdiction; and that the case should be remitted to the Employment Tribunal at Brighton to be listed for hearing on its merits.