MR D SMITH AND CLAIMANT v EDMUNDSON ELECTRICAL LTD [2006] UKEAT 0017_06_1309

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0017_06_1309Case No Appeal No. UKEATS/0017/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MR D SMITH AND CLAIMANTAPPELLANTEDMUNDSON ELECTRICAL LTDRESPONDENT
Before
Lady SmithDate 13 September 2006
[1]APPEARANCES For the Appellant (Claimant) Mr W McMichael, Solicitor Messrs Muir Myles Laverty Legal Services Meadowplace Building Bell Street Dundee DD1 EJ For the Respondents Mr M Carroll, Consultant Messrs Collinson Grant Ltd Ryecroft Aviary Road Worsley Manchester M28 2WF SUMMARY Claim for unfair dismissal presented to tribunal outwith the three month time limit. The tribunal held that it was time barred, rejecting an argument recorded as being to the effect that the grievance provisions of the 2004 Regulations applied. On appeal, where it was submitted that the tribunal should have considered whether or not the dismissal procedure provisions of paragraph 15 of the 2004 Regulations should have applied so as to extend the time limit, the EAT held that it was not incumbent on the tribunal to have considered them but even if it had been, the outcome would have been the same since there were no reasonable grounds on which the claimant could have believed that a dismissal procedure was still being followed when the three months expired. THE HONOURABLE LADY SMITH Introduction In a judgment registered on 18 November 2005, the Employment Tribunal sitting at Dundee, Chairman Miss FCC Carmichael, sitting alone, determined that the claimant's claim of unfair dismissal was time barred and dismissed it with an award of expenses against the claimant's representative in the sum of £450 plus VAT in respect that his conduct of the proceedings was unreasonable.[2]The claimant was represented both before the tribunal and before me by Mr McMichael, solicitor. The respondents were represented both before the tribunal and before me by Mr Carroll, Consultant. Background[3]The claimant was dismissed on conduct grounds on 18 May 2005. The three month time limit for presenting a claim to the Employment Tribunal was, accordingly, due to expire on 17 August 2005. He was advised of his right to appeal and exercised that right on 23 May 2005. His appeal was heard and refused on 20 June 2005. His solicitor wrote by letter dated 27 July 2005 stating that:
"We note from the Employment Handbook that our client has a further right of appeal, to the Company Managing Director. Our client wishes to exercise that right of appeal."
That assertion represented, however, a misreading of the handbook. No such right of appeal existed in respect of the respondents' disciplinary procedures albeit that it was a part of their grievance procedures. In the same letter the claimant's solicitor stated:
"… as a courtesy, we must advise you that we are making application to the Employment Tribunal, claiming unfair dismissal, to preserve our client's position – you will appreciate there are strict time limits which apply to applications to be made to the Employment Tribunal. Those time limits must be met whether or not an Appeal process is underway."
That letter was sent to the respondents' Managing Director. A letter in similar terms was sent on the same day to the respondents' Regional Director, who had been responsible for hearing and rejecting the claimant's appeal.[4]The respondents' Managing Director replied by letter dated 2 August 2005, in the following terms:
"Re: Derrick John Thomas Smith I refer to your letter of 27 th July regarding Mr Smith who, I understand, tendered his resignation last May. It is, therefore, unclear why Mr Smith wishes to appeal against an alleged dismissal. I would, however, wish to fully investigate this matter and will arrange for our Chief Operating Officer, Mr Gordon Love, to meet with Mr Smith. Mr Love will be on holiday until 15 th August but, in the meantime, a meeting can be arranged via his secretary, Mrs Gill Collins, who can be contacted at this office." 5. By letter dated 3 August 2005, the respondents' Regional Director replied to the claimant's solicitor. His letter included the following: "
We think that you may have interpreted the Employment Handbook incorrectly. Your client has exhausted the Edmundson Electrical Limited disciplinary procedure and there is no further right of appeal. These details can be found on page 10 of the Employment Handbook." It is clear from page 10 of the handbook that there is no right of appeal to the Managing Director in respect of a disciplinary matter. The Regional Director's assertion that there was no further right of appeal would thus appear to be correct.[5]By letter dated 23 August 2005, the claimant's solicitor wrote to the respondents' Managing Director asking him when he would have it in mind to meet the claimant. The Case before the Tribunal[6]According to the judgment of the tribunal, it was contended for the claimant that the letter of 27 July 2005 was a grievance letter and that he could thus claim the benefit of the three month extension provided for in regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the 2004 Regulations"). That was in the context of, it seems, reliance having also been placed on the claimant having believed that there was a further appeal to the Managing Director available to him. It was accepted on behalf of the claimant that there was nothing which made it not reasonably practicable for his claim to have been presented within three months of his dismissal. It would have been difficult for his agent to do otherwise, given the clear terms of his letter of 27 July 2005.[7]The claimant's argument that he was entitled to the benefit of the three month extension provided for by regulation 15 of the 2004 Regulations was resisted on behalf of the respondents. The Tribunal's Decision[8]The tribunal sets out its decision clearly and cogently in paragraphs 6-8 of its judgment:
"6. The contention on behalf of the claimant was that as he believed he had a further right of appeal against his dismissal which had not been afforded to him, the letter of 27 July to the respondents' managing director (C14) constituted a statement of grievance which entitled him to benefit from the provisions of the DR Regulations extending the time limit. Confirmation that he had no such further right was expressed by letter of 3 August, still well within the 3 month time limit (C16). 7. In any event, section 32 of the 2002 Act – Complaints about Grievances – although applying to jurisdictions listed in Schedule 4, provides at section 33 for the Secretary of State to make provision about the time limit for claims involving the procedures set out in Part 2 of Schedule 2. The DR Regulations include at Regulation 6 a provision headed 'Application of the Grievance Procedures', which at paragraph (5) expressly disapplies the grievance procedures to the following types of action by the employer, by stating: ' Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.' In the circumstances of an express dismissal by the employer, the statutory dismissal and disciplinary procedures are the applicable measures for the employer to take. Accordingly, when the terms of Regulation 15 – Extension of Time-limits – come to be construed, the wording at paragraph (1)(b) that 'either of the grievance procedures is the applicable statutory procedure', Regulation 6 has already ruled out the application of paragraph (1) to circumstances in which the employer has dismissed the employee. This complaint related only to unfair dismissal. Whatever belief the employee may have about his rights of appeal was irrelevant for the purposes of the statutory grievance procedure; it related, rather, to the issue of the employer's adherence to the dismissal and disciplinary procedures and applying a fair procedure, which would be relevant to consideration of the merits of the unfair dismissal complaint. 8. For the foregoing reasons I determined that the claim had been presented outwith the statutory time limit, and accordingly I dismissed it."
The Law[9]The provisions of paragraph 15 of the 2004 Regulations lie at the heart of this case:
"15(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."
Submissions on Appeal[10]Mr McMichael opened his argument by stating that the claimant's position was that he had been still undergoing an appeals procedure. He had had reasonable grounds for believing that was the case. Hence regulation 15(2) of the 2004 Regulations applied. The Chairman had failed to understand the submission, had applied the wrong law and had failed to take account of a relevant consideration, namely the claimant's reasonable belief.[11]Mr McMichael explained further that he had begun his address to the tribunal by referring to the part of the respondents' handbook that referred to "Grievance and appeals procedure" because it was the basis for the claimant's reasonable belief. He had indicated that a letter of appeal was required because the claimant thought he had a further right of appeal that was still to be disposed of. The Chairman had, he said, gone off the rails in respect that he was not arguing that the grievance procedures referred to in regulation 15 applied. However, as Mr McMichael's submission developed, it seemed that his criticism of the tribunal decision was that the Chairman knew or ought to have known that the claimant was arguing what he referred to interchangeably as "genuine belief" and "reasonable belief". He submitted that the Chairman ought to have considered the documents lodged which showed, he said, that the claimant genuinely believed that he had a further right of appeal. She knew that what was being considered was the claimant's belief.[12]In response to being asked whether he was seeking to argue that paragraph 15(2) of the 2004 Regulations envisaged a subjective test, that being the apparent import of much of what he was advancing in his submissions, Mr McMichael indicated that he was not saying that it was enough for the claimant to say that he had a genuine belief; the Chairman had to look objectively at the whole circumstances, including that factor, and decide whether the belief was reasonable.[13]Mr McMichael did not suggest that he had expressly submitted to the tribunal that paragraph 15(2) of the 2004 Regulations applied.[14]Ultimately, Mr McMichael's submission was that the Chairman knew or ought to have known that the claimant wanted to appeal against his dismissal and that "reasonable belief" was, accordingly, something to which she should have had regard. Putting his argument at its highest, he seemed to be saying that the implication of those matters to which he drew the Chairman's attention was that he was seeking to rely on regulation 15(2) and she should have realised that.[15]As regards disposal, Mr McMichael's initial position was that there should be a remit to the tribunal at Dundee for the issue to be reconsidered, possibly with evidence being led. He then conceded that, since the claimant had not sought to lead evidence at the original hearing on this issue, it would not be open to him to do so now. He then suggested that it would be open to this tribunal to determine that it would be just and equitable to allow the claim to proceed, though time barred. It seemed, however, that he recognised that he was in difficulty in advancing such a submission given his concession to the tribunal that it would have been reasonably practicable for the claimant's application to have been lodged with the tribunal timeously. His final position was that there should be a remit to the same tribunal with a direction to consider the "reasonable belief" test.[16]Whilst, in the notice of appeal, the tribunal's award of expenses was challenged, no submissions were advanced in support of that part of the notice. Submissions for the Respondents[17]For the respondents, Mr Carroll began by inviting me to disregard Mr McMichael's references to the claimant's genuine belief since no oral evidence had been given at the tribunal hearing.[18]He referred to there being a series of facts which were not in dispute, namely that the appellant was dismissed on 18 May 2005 and advised of his right of appeal, that he exercised that right on 23 May 2005, that his appeal was heard and refused on 20 June 2005, that the three month time limit for presenting a complaint to the tribunal expired on 17 August 2005 and that the claimant's solicitor had conceded that it would have been reasonably practicable for a complaint to have been presented prior to that.[19]In these circumstances, the tribunal had, he submitted, made findings of fact that were open to it. It had also applied the correct law. The claimant's solicitor had argued that the claimant believed he had a further right of appeal (without the claimant having given evidence about that) and in doing so, relied on the letter of 27 July 2005 to the respondents' Managing Director. He had contended, before the tribunal, that that letter was a grievance letter and that, accordingly, the three month extension provided for in regulation 15(1) of the regulations applied. That argument was, however, flawed. The tribunal had recognised that it was and decided the case correctly.[20]Insofar as the claimant now sought to argue that it should have been determined that the claimant had reasonable grounds in terms of regulation 15(2), the documentation made it clear that he could not have had any such grounds. Thus, even if the tribunal should have considered whether regulation 15(2) applied, the result would have been the same. Discussion and Conclusions[21]I am not persuaded that this appeal should succeed.[22]At the outset, I observe that it is clear from the tribunal's judgment that the Chairman considered and disposed of only a submission that the claimant was entitled to an extension of time under the grievance provisions of paragraph 15 of the 2004 Regulations. Those are contained in paragraph 15(1)(b) and (3). I do not read the judgment as having determined any submission that paragraph 15(2) applied.[23]I will deal with the claimant's case in two parts: firstly, the submission that the Chairman should have considered whether or not paragraph 15(2) of the 2004 Regulations applied, and secondly, the consequential issue of what the tribunal should or could have concluded if it had done so. Although the latter was not addressed by Mr McMichael, it was addressed by Mr Carroll and it arises, inevitably, from the first issue.[24]I cannot conclude, on the basis of what was submitted and having read the tribunal's judgment, that the Chairman should have realised that the claimant was in fact advancing a case under paragraph 15(2) of the 2004 Regulations. If that was what Mr McMichael meant to do, then it is plain that he failed to communicate that to the Chairman. At its highest, his submission was that when she came to consider the matter, she should have realised that the claimant was asserting that he believed he had a further right of appeal and in those circumstances, she should have turned her mind to whether paragraph 15(2) applied. That will not do. It is clear that what the Chairman (and, incidentally, Mr Carroll) thought that the claimant was seeking to argue was that the grievance procedure provisions applied. No express reliance having been placed on paragraph 15(2), the Chairman was under no obligation to consider whether it should have been and what would have been the outcome in that event.[25]However, even if it could be said that the Chairman should have considered whether or not paragraph 15(2) of the 2004 Regulations applied, the only determination that could have reasonably been reached on the evidence before her was that it did not. The available evidence on the matter was all contained in the documents. There was no oral evidence as to the claimant's beliefs or understanding. Those documents comprised two pages from the respondents' "Employment Handbook" and the letters to which I have referred. What they indicated was as follows: firstly that, in terms of the provisions of the handbook, in the case of a dismissal, there was no right of appeal beyond that which had already been exercised in the claimant's case, namely an appeal to the Regional (or Head Office) Director. Secondly, that the claimant's solicitor had been provided with a copy of the handbook and he thought (erroneously) that the claimant did have a further right of appeal, to the Managing Director. Thirdly, that the Managing Director queried why the claimant was seeking to exercise a right of appeal at all since he understood he had tendered his resignation. Fourthly, that the Managing Director whilst indicating that he would arrange for the respondents' Chief Operating Officer to meet with the claimant, left it to the claimant/his solicitor to get in touch to arrange a meeting. Fifthly, that no steps were taken to arrange any such meeting prior to the expiry of the three month time limit on 17 August 2005. Sixthly, the respondents' Regional Director clearly advised, in a later letter, that the claimant had no further right of appeal.[26]The task for the Chairman would have been to consider whether, on the basis of the foregoing, the claimant had:
"reasonable grounds for believing, when (the) time limit expired, that a dismissal … procedure … was being followed …"
. I cannot see that she could properly have concluded that he had such a belief as at 17 August 2005. It may well be that he thought that there was a further level of appeal open to him – his solicitor certainly thought that there was when he wrote the letter of 27 July and seems, despite the clear terms of the letter of 3 August 2005, to have persisted in that belief. The genuineness of any such belief is not, however, the point. The question which, with all due respect to Mr McMichael, seems to have been missed is whether, as at 17 August 2005, testing the matter objectively, there were reasonable grounds for the claimant entertaining a belief that a dismissal procedure was still actually being followed. The documents show no evidence of the institution of any further appeal procedure. Even if the Managing Director's statement of his preparedness to have the Chief Operating Officer meet with the claimant could be viewed as an indication that the dismissal procedure was still being followed (and I do not accept that it can), the claimant's failure to take any steps to fix the meeting that he is invited, in the letter of 2 August, to fix, negates any continuation of that position. Further and importantly, the last word from the respondents on the matter, in their letter of 3 August 2005, was that there was no further appeal open to the claimant. That letter referred the claimant to the relevant part of the handbook. It did so some two weeks prior to 17 August 2005. It is plain from the section referred to that there was no further right of appeal open to the claimant. The claimant's solicitor did not respond to the letter of 3 August questioning its accuracy and there was no further correspondence with the respondents prior to 17 August 2005. Nothing in the documentation, in my view, afforded the claimant reasonable grounds for believing, as at 17 August, that a dismissal procedure was still being followed.[27]In these circumstances, even if I had been satisfied that the Chairman had failed to consider a part of the 2004 Regulations that should have been considered, it being evident that the outcome could only have been the same, I would not have been prepared to remit the case as Mr McMichael invited me to do. Disposal[28]I will, in all these circumstances, pronounce an order dismissing the appeal.