LONDON BOROUGH OF LEWISHAM v MR J D COLBOURNE [2006] UKEAT 0339_06_1511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0339_06_1511

Case No Appeal No. UKEAT/0339/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

LONDON BOROUGH OF LEWISHAMAPPELLANT

MR J D COLBOURNERESPONDENT

Before

Mr Justice Underhill Mr C Edwards Mr S Yeboah

Date 15 November 2006

[1]APPEARANCES For the Applicant MR J CORNWELL (Of Counsel) Instructed by: London Borough of Lewisham Legal Services Lewisham Town Hall London SE6 4RU For the Respondent MR P LINSTEAD (Of Counsel) Instructed by: Messrs Thackray Williams Solicitors Kings House 32-40 Widmore Road Bromley BR1 1RY SUMMARY Time Limits Practice and Procedure – 2002 Act and pre-action requirements Unfair Dismissal – Constructive dismissal For the purpose of the extension of the time afforded by reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 , an employee's grievance is to be treated as lodged 'within the normal time limit' even if it is lodged before the effective date of termination or other date from which time starts to run. THE HONOURABLE MR JUSTICE UNDERHILL This is an appeal from the decision of an Employment Tribunal holding that it had jurisdiction to determine a claim by the Respondent, Mr. Colbourne, for (constructive) unfair dismissal and rejecting the contention of the Appellant, the London Borough of Lewisham ("the Council"), that the claim was out of time. In the Tribunal Mr. Colbourne was unrepresented, but he has been represented before us by Mr. Peter Linstead. Mr. James Cornwell appeared for the Council both before us and in the Tribunal.

[2]The circumstances of the alleged dismissal can be summarised as follows:(1) Mr. Colbourne was employed by the Council as an Environmental Enforcement Officer. In the course of October 2004 a dispute appears to have arisen between himself and a manager called Helen Sheen: the details are immaterial but in subsequent months disciplinary investigations were started into several matters involving him. In June 2005, while the disciplinary investigations were still unresolved, he was suspended on medical grounds. Mr. Colbourne believes that both the initiation of the disciplinary proceedings and the medical suspension were unjustified.

(2) On 12 th September 2005 Mr. Colbourne attended work for the purpose of a return-to-work meeting with another manager, Colin Waldron. He was however aggrieved at the fact that his desk had been taken over by Mr. Waldron and he believed that papers and cash belonging to him had been taken from it. He also believed that in the course of the meeting he was accused of further misconduct. No agreement was reached for his return to work.

(3) On 15 th September 2005 Mr. Colbourne wrote to the Council complaining of what had occurred and invoking "the Statutory Grievance Procedure". The letter was in fairly general terms but it was certainly sufficient to identify the nature of the grievance. In any event, it is now common ground that by no later than 3 rd October Mr. Colbourne had submitted a detailed document headed "Case Chronology", which set out the entirety of his complaints from September 2004 up to and including the events of 12 th September 2005.

(4) A meeting between Mr. Colbourne and Lesley Lee, the Council's Head of Performance and Strategy, was duly arranged for 5 th October 2005 to discuss the grievance; but at the start of the meeting, at which he was accompanied by his union representative, Mr. Colbourne handed Ms. Lee a letter in which he tendered his immediate resignation "due to continued victimisation" and because "my position has been made untenable due to continued actions … since my return to work on the 12 th September 2005". The letter contained no other details, though it may be that on the same occasion Mr. Colbourne or his representative handed in a further copy or version of his "Case Chronology".

(5) Mr. Colbourne's letter of resignation was accepted, and it is common ground that his employment terminated on 5 th October. There was further correspondence about how the grievance should proceed, but we need not go into that for the purposes of this appeal.

[3]On 4 th January 2006 Mr. Colbourne presented a form of ET1 to the Employment Tribunal, but it is accepted that it was fundamentally defective because although it was headed "unfair dismissal or constructive dismissal" section 5.1 of the form was left blank, so that there were no particulars whatever of the acts relied on by him. On 6 th January 2006 he sent to the Tribunal a version of his "Case Chronology" which was either identical or very similar to that which he had previously given the Council (see para. 2 (3) above). This document plainly gives a reasonable indication of the matters said by Mr. Colbourne to constitute breaches by the Council entitling him to terminate the contract, and it is common ground that he is to be treated as having presented his complaint on that date. However, 6 th January 2006 is more than three months from the effective date of termination, with the result that Mr. Colbourne's claim was prima facie out-of-time.

[4]The issue whether the Tribunal had jurisdiction to entertain Mr. Colbourne's claim was heard on 11 th April 2006 at London South by a Chairman (Mr. Zuke) sitting alone. He held that the Tribunal had jurisdiction, notwithstanding that the claim was presented more than three months after the effective date of termination, by reason of the provisions of reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the 2004 Regulations"). It is clear that the point is one which the Chairman raised of his own motion, though Mr. Cornwell was given the opportunity to make submissions on it.

[5]Reg. 15 is in (so far as relevant) the following terms:

"(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 [to the Employment Act 2002] 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) … (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 paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit. (4) … (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 to be 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; and (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."

[6]The Chairman held that the present case fell within reg. 15 (1), so that the normal time limit fell to be extended by a further three months. His reasoning is only very briefly stated, but – spelling out those parts which are only implicit – it was as follows:(a) Mr. Colbourne's complaint was of unfair dismissal, which is one of the jurisdictions listed in Schedules 3 and 4 to the 2002 Act.

(b) By virtue of reg. 6 of the 2004 Regulations, the "statutory grievance procedures" applied to that complaint, so that the case fell within reg. 15 (1) (b). The Chairman no doubt had in mind the decisions of this Tribunal in Shergold v Fieldway Medical Centre

[2006] ICR 304

and the other cases there referred to, in which for the purpose of s. 32 of the 2002 Act an employee presenting a claim of constructive unfair dismissal is treated as complaining not about the dismissal but about the conduct of the employer which he relies on as justifying the termination of the contract; and he applied the same approach for the purpose of reg. 15.

(c) Mr. Colbourne had "complied with paragraph 6 … of Schedule 2 in relation to his grievance" – i.e. had lodged a written statement of his complaints – "within the normal time limit", so as to fall within the terms of reg. 15 (3) (b). Mr. Cornwell had submitted to him that para. (3) (b) was not satisfied because the grievance had been submitted prior to the effective date of termination – namely on 15 th September – and was accordingly not "within" the time limit; but Mr. Zuke rejected that submission on the basis that Mr. Colbourne was entitled to rely on the letter of 5 th October as a further statement of his grievance, and one which had been lodged within the period. Ergo all the requirements of reg. 15 (1) were satisfied.

[7]In his Notice of Appeal Mr. Cornwell focused entirely on "step (c)" above and contended that the Chairman was wrong to treat the letter of 5 th October as satisfying the requirements of reg. 15 (3) (b). We are inclined to agree that the Chairman was wrong in his reasoning on that point: if the regulation on its true construction does not apply to a complaint where the grievance had been raised before the effective date of termination, we doubt if it would be possible for a claimant to circumvent that difficulty simply by purporting to "re-present" his grievance. But we need not elaborate on that point, since in the event the main battleground shifted. In his Respondents' Answer Mr. Linstead, while defending the Chairman's actual reasoning, also sought to support the decision on a different basis, namely that para. (3) (b) was satisfied by Mr. Colbourne having written the letter of 15 th September (supplemented, if that were necessary, by the "Case Chronology" handed in subsequently): it did not matter that that pre-dated the effective date of termination, since the requirement that the grievance should have been lodged "within [the normal time limits]" meant only that the grievance should not have been lodged after the expiry of the time limit and was not concerned to specify a start-date of any kind. Mr. Cornwell observed in his skeleton argument that this was not the way that the matter had been put below, but – very properly, in circumstances where Mr. Colbourne had been unrepresented and it was the Chairman who was making the running – he did not press any objection, and the point was fully argued before us. Since the hearing of this appeal, the Chairman of this Tribunal (sitting alone) has heard another appeal raising the same point – Barua v. H.M. Prison Service . For the reasons which he sets out in the judgment in that case, which is handed down simultaneously with this judgment, we believe that Mr. Linstead's submission is well-founded. It follows that the Chairman reached the right conclusion on "step (c)", albeit for the wrong reason, and since steps (a) and (b) were not challenged this appeal must be dismissed.