HM PRISON SERVICE v DR U BARUA [2006] UKEAT 0387_06_1511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0387_06_1511Case No Appeal No. UKEAT/0387/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HM PRISON SERVICEAPPELLANTDR U BARUARESPONDENT
Before
Mr Justice UnderhillDate 15 November 2006
[1]APPEARANCES For the Applicant MR D JONES (Of Counsel) Instructed by: The Treasury Solicitor Employment Team One Kemble Street London WC2B 4TS For the Respondent MS S BELGROVE (Of Counsel) Instructed by: Messrs Irwin Mitchell Solicitors 150 Holborn London EC1N 2NS 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 yet another appeal depending on the construction of the rebarbative provisions of Part 3 of the Employment Act 2002 ("the 2002 Act") and the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the 2004 Regulations"). Reg. 15 of the 2004 Regulations in certain circumstances extends by three months the normal time limit for commencing Employment Tribunal proceedings in favour of an employee who has raised a grievance in respect of the subject-matter of the proceedings. The principal question in this appeal is whether that extension is available where the grievance was raised at a date prior to that on which the time for bringing the proceedings started to run.[2]The Respondent to the appeal, Dr. Barua, was employed by the Appellant (who should, strictly, be identified as the Secretary of State for the Home Department, not "HM Prison Service") as a part-time medical officer at Ramby prison in Nottinghamshire. In February 2005 the Appellant effected a unilateral reduction in the level of Dr. Barua's remuneration. Dr. Barua protested, but without success; and on 25 th April 2005 he wrote to the Governor giving notice of his resignation with effect from 31 st July 2005. His employment duly terminated on that date, which was accordingly the effective date of termination for the purpose of the Employment Rights Act 1996 (see s. 97(1)(a)). Dr. Barua did not in his resignation letter allude to the reasons for his resignation (though they were no doubt understood); but on 27 th June 2005, i.e. during the currency of the notice period, he lodged a formal grievance about the reduction in his remuneration. After some correspondence into which I need not go, a meeting took place on 12 th August 2005, which was followed by a letter from the Appellant dated 19 th August acknowledging that the grievance was valid and offering Dr. Barua (albeit on what was described as a without prejudice basis) an apology and reimbursement of moneys due. For reasons which are unclear, Dr. Barua did not respond to that letter, despite a reminder from the Appellant, and accordingly the proffered payment has not been made; but he has taken no further steps to pursue the grievance.[3]On 27 th January 2006 Dr. Barua presented a claim to the Employment Tribunal complaining of(1) (constructive) unfair dismissal;(2) unauthorised deductions from wages; and(3) breach of contract. The latter two claims relate to the underpayments which were the subject-matter of the grievance.[4]At a pre-hearing review on 21 st April 2006 before a Tribunal (consisting of a Chairman sitting alone) in Sheffield the Appellant submitted that all three of the claims – being presented almost six months after the end of Dr. Barua's employment - were out of time. Dr. Barua's contention in response was that the lodging of his grievance on 27 th June 2005 entitled him to the three-month extension provided for by reg. 15. The Chairman accepted that contention and ruled that the claims were in time. He also held, in the alternative, that it was not reasonably practicable for the Appellant to bring the claims within the normal time limit. This is an appeal against that decision. The Appellant has been represented before me by Mr. David Jones and Dr. Barua by Ms. Sophie Belgrove: their submissions have been very clear and helpful.[5]Reg. 15 of the 2004 Regulations is headed "Extension of Time Limits" and 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 2002 Act] 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." [1][6]The operative provision of reg. 15 is para. (1). Considering the conditions there set out, it is common ground:(1) that each of Dr. Barua's complaints is brought under a jurisdiction listed in Schedule 3 or 4 to the 2002 Act; and(2) that his complaints relate to matters to which the statutory grievance procedure is "the applicable statutory procedure" within the meaning of para. (1) (b): that is so even as regards the unfair dismissal claim, because the relevant procedures in a claim for constructive dismissal are those relating to the acts or omissions of the employer which are relied on as entitling the employee to resign (see Shergold v. Fieldway Medical Centre [2006] ICR 304 ), and it is not suggested that the statutory grievance procedures were not applicable to the acts and omissions relied on in this case.[7]The remaining question under para. (1) is thus whether the circumstances specified in para. (3) (b) apply. That depends on whether Dr. Barua "complied with paragraph 6 … of Schedule 2 [to the 2002 Act]" – that is, whether he sent a written statement of his grievance to the Appellant (to which I will refer as "lodging a grievance") – "within … [the normal time limit for presenting the complaint]".[8]What Mr. Jones submits, in relation to all three claims, is that the "normal time limit" refers to a period with not only a defined end but a defined beginning, and that in the case of each of his three claims Dr. Barua is not entitled to the benefit of the extension provided for by reg. 15 because he lodged his grievance before the beginning of that period. Taking each of the claims in turn: (1) Unfair dismissal. S. 111 of the 1996 Act provides (so far as relevant) as follows:
"(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) Where a dismissal is with notice, an employment tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination. (4) … ."
Mr. Jones submits that, by reason of s-s. (2), the normal time limit applying to Mr. Barua's claim of unfair dismissal is the period of three months beginning with the effective date of termination, i.e. 31 st July 2005, and ending three months thereafter. (There is a particular difficulty about this submission, by reason of s-s. (3), which I consider in para. 14 below; but for present purposes that can be ignored.) Since Dr. Barua lodged his grievance on 27 th June, i.e. over a month before the effective date of termination, he did not do so "within" that period. (2) Unlawful deductions. S. 23 of the 1996 Act provides (so far as relevant) as follows:
"(1) A worker may present a complaint to an employment tribunal— (a) that his employer has made a deduction from his wages in contravention of section 13 … (b)-(d) … (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) …. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) … the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (5) … ."
Mr. Jones submits, in line with his case as regards the unfair dismissal claim, that by reason of s-ss. (2) (a) and (3) (a) the normal time limit within which Dr. Barua had to bring any claim for deductions is the period beginning with the date of the last deduction in the series, which will have been around the date of the termination of his employment, and ending three months thereafter. Again, since Dr. Barua's grievance was lodged before that period began, reg. 15 does not operate. (3) Breach of contract. The time limits as regards "breach of contract" claims, i.e. claims brought by virtue of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 ("the 1994 Order"), are set out in art. 7 of the Order, as follows: "An employment tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented— (a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or (b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of [the 2004 Regulations], the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b), or (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable." [2] Subject to the effect of para. (ba), the present case would plainly fall under para. (a), so that the time limit is calculated by reference to the effective date of termination: accordingly, Mr. Jones would submit, the normal time limit is the same three-month period as in relation to the unfair dismissal claim and Dr. Barua's grievance was lodged outside that period. As to para. (ba), I am bound to say that I have been unable to see exactly how it is meant to work, but fortunately that does not have to be decided for present purposes, since even if – as seems likely – it is applicable in the present case the language is substantially identical, so far as concerns Mr. Jones's point, to that of para. (a).[9]It has been necessary to set out the case in relation to each claim in turn because the way that the point arises is slightly different for each; but it will be seen that the fundamental point being made by Mr. Jones in each case is the same, namely that the "normal time limit" referred to by reg. 15 is in the case of each claim a period for which the statute prescribes the beginning as well as the end – with the result that the date of lodging of the grievance falls outside that period.[10]I do not accept that submission. In my judgment, when reg. 15 of the 2004 Regulations refers to a grievance being lodged "within" the normal time limit for the jurisdiction - or (picking up the definition of "normal time limit" in para. (5)) to "the period within which a complaint under the relevant jurisdiction must be presented" - the only limit being referred to is the end of the period in question. While I accept that as a matter of language the words of the regulation can be read as referring to both the beginning and the end of the period, they do not necessarily do so (cf. R v Inland Revenue Commissioners, ex p. Knight [1973] 2 All E.R. 721, at pp 727-8, per Russell LJ); and I do not think that that is the natural reading in this context. The various statutory "time limits" to which the regulation refers are provisions concerned with setting a date after which proceedings may not be brought: they are not as such concerned with prescribing a start-date. Of course in every case there is a date before which the proceedings cannot be brought, namely the date at which the cause of action accrues, and any proceedings brought before that date will be liable to be struck out as premature; but that is an inherent consequence of the fact that the Tribunal will have no jurisdiction unless a relevant act or omission is said to have occurred – it does not derive from the terms of a limitation provision. This is in my view the general understanding of the effect of "time limit" provisions, and I believe that the statutory provisions specifically relevant to Dr. Barua's claims, which I have set out above, conform to that model. Although Mr. Jones relied heavily on the fact that each of them identifies a period with a defined start-date – whether it be the effective date of termination or the date of the payment (or non-payment) complained of – those start-dates are in my view prescribed simply as part of the drafting mechanism for calculating the end-date of the period, which is what these provisions are directed to: they are not concerned with specifying a "window". I believe that the draftsman of reg. 15 proceeded on that understanding. His eyes were fixed, so to speak, on the end-dates (which, after all, it was the primary purpose of reg. 15 to extend), and I can see no sign that even when he had to provide for something that was required to happen before that end-date (namely the lodging of the grievance) he had any intention of prescribing a start-date. In my judgment, therefore, the requirement of reg. 15 that the claimant shall have lodged a grievance "within" the normal time limits is most naturally read as meaning only that the grievance must have been lodged before the end of that period.[11]Mr. Jones sought to persuade me that his construction was to be preferred on policy grounds. He submitted that the policy behind reg. 15 was that every employee should have a minimum of three months in which to pursue a statutory grievance procedure before having to decide whether to bring Tribunal proceedings; and that employees who had initiated the procedure before the normal time period started to run were already in that position and did not need the extension offered by the regulation. I do not think that that submission correctly reflects the thinking behind reg. 15. As best I can understand it, the intention was that, in effect, every employee should have not three months but six - an initial three-month period in which the employee should be entitled to pursue his grievance without even having to consider the possibility of tribunal proceedings, with the three months which he would have enjoyed under the previous regime starting to run only after the end of that period: the first period of three months is akin to a moratorium (albeit one which the employee can abridge if he initiates the statutory procedures promptly). That seems to me to accord with the purpose of Part 3 of the 2002 Act, which is to insert a required "internal procedures" stage which employers and employees are obliged to use before resorting, if they still have to, to the potentially expensive and deleterious process of tribunal proceedings. If that is the right approach, the policy considerations weigh in favour not of the Appellant's construction but of Dr. Barua's: if the Appellant's construction were right, an employee who lodged a grievance shortly before time started to run would be deprived of the benefit of the full six-month period which it was intended that he should have. It would be arbitrary and unsatisfactory that an employee who lodged a grievance the day after time started to run should be entitled to six months in which to bring tribunal proceedings, while the employee who lodged his grievance the day before time started to run had only three months (and a day). That would indeed, as Ms. Belgrove submitted, penalise employees who had acted promptly to raise a grievance – which is conduct which the tribunals should seek to encourage rather than deter. And, as she also submitted, distinctions of this kind would increase the number of cases in which it was necessary for the tribunal to have to determine satellite limitation issues.[12]It is true that there will be some cases in which claimants may bring proceedings a very long time after they first raised a grievance about the matter which is the subject of their complaint. The facts of the present case illustrate that to a modest degree (and are accentuated by the puzzle of why Dr. Barua chose to wait till January when the grievance procedure had apparently run its course by the autumn); and more extreme cases will no doubt sometimes occur. The fact is that, although the paradigm case attracting the operation of reg. 15 is one where the cause of action arises – and time therefore starts to run - at the same time as the "cause of grievance", there will be many cases where that is not so. Grievances can be lodged about contemplated action by the employer as well as about action already taken (see the definition of "grievance" in reg. 2), so that they pre-date the accrual of a cause of action; and in constructive dismissal cases in particular there may well be a mismatch between the date of the accrual of the cause of action for unfair dismissal and the date of the employer's conduct which is said to have caused the dismissal (to which, according to the reasoning in Shergold , it is necessary to look when considering what are the applicable statutory procedures). Thus the extended six-month time limit may apply in circumstances where the events complained of have occurred, and the claimant has complained of them, weeks or months before time even started to run. But most of that delay is inherent in the scheme of the legislation: the difference made by adopting Dr. Barua's construction of reg. 15 rather than the Appellant's will never be more than three months.[13]I would accordingly hold that the Chairman reached the right conclusion in this case and would dismiss the appeal. There are however three other points which were argued before me and with which I should briefly deal.[14]First , even if I had accepted Mr. Jones's primary submission I would have dismissed the appeal as regards Dr. Barua's unfair dismissal claim. As noted in para. 8 above, Mr. Jones's argument depended on the "normal time limit" being that prescribed by s. 111 (2) of the 1996 Act. But in fact Mr. Barua's case falls within the terms of s. 111 (3), since he gave notice of termination: s. 111 (3) applies to cases where the employee gives notice but claims constructive dismissal just as much as to cases of notice given by the employer – see Presley v Llanelli Borough Council [1979] ICR 419. That means that he could have brought proceedings at any time after 25 th April 2005, and thus that, even if - contrary to my decision above - the grievance had to be lodged after the start-date of the period, that requirement was met. Mr. Jones contended that a case governed by s 111(3) fell outside the definition of "normal time limit" in reg. 15 (5) because it required a "determination" by the tribunal of whether the complaint had been presented after notice had been given. I do not accept that. The reference to "determination" in para. (5) (a) (ii) is plainly to a determination of the kind which a tribunal has to make in order to bring an otherwise excluded claim within its jurisdiction: the obvious example is a determination under s.111(2)(b) of whether it was reasonably practicable for the employee to bring his claim in time.[15]Secondly , Ms. Belgrove submitted that even if Mr. Jones's submissions were otherwise correct, they ought not to preclude the effect of reg. 15 as regards the deductions prior to 27 th June 2005. A cause of action under s. 23 arose in relation to each such deduction as it occurred, and time would accordingly have started to run before the lodging of the grievance. On the basis that Mr. Jones's argument is correct, I do not think that that can be right: if the "normal time limit" has a beginning as well as an end, the effect of s-s. (3) (a) is to postpone its beginning. But I agree with Ms. Belgrove that it would be arbitrary and unsatisfactory for only part (oddly, the earlier part) of a series of deductions to attract the benefit of reg. 15, and the very fact that the Appellant's argument produces such a result is an additional reason for rejecting it.[16]Thirdly , if the appeal had turned on the Chairman's alternative ground I should have had to allow it. His reasoning was based on an inference, no evidence having been adduced, that the reason for Dr. Barua's delay in commencing the proceedings was as a result of his advisers' understanding – ex hypothesi a misunderstanding – of the effect of these new and very complex provisions. I am far from sure that that was a legitimate inference to draw in the absence of any evidence; but, even if it was, a misunderstanding of the law does not in ordinary circumstances mean that it was not reasonably practicable for a claimant to bring his claim in time – see Biggs v. Somerset County Council [1996] ICR 364. Note 1 I should say that in reproducing the text of the regulation I have altered the lineation in para. 5(a) from what appears in the “Queen’s Printer’s copy” (and which is faithfully reproduced in the versions on the official OPSI website and in Butterworths Employment Law Handbook). Counsel submitted, and I agree, that the words “that the tribunal would have … etc.” must be intended to govern both sub-para. (i) and sub-para. (ii), rather than only sub-para. (ii) as suggested by the lineation as printed: that appears not just from the overall sense but from the phrase “would have to exercise or make”, where “exercise” plainly goes with “discretion” in sub-para. (i) and “make” plainly goes with “determination” in sub-para. (ii). Note 2 I have reproduced this as it appears in Butterworths Employment Law Handbook, but it is in fact unclear whether the “or” at the end of para. (ba) should not appear at the end of para.(b) instead: reg. 17(c) of the 2004 Regulations, which inserts para. (ba) into the 1994 Order, is arguably ambiguous on this point. Either way, however, although the lay-out is clumsy it is clear that para. (ba) is intended as a qualification to paras. (a) and (b).