MR A BROCKLEBANK v TILE DEPOT TRADING LTD [2007] UKEAT 0012_07_1904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0012_07_1904Case No Appeal No. UKEAT/0012/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A BROCKLEBANKAPPELLANTTILE DEPOT TRADING LTDRESPONDENT
Before
His Honour Judge Peter ClarkDate 19 April 2007
[1]APPEARANCES For the Appellant Mr A Midgley (of Counsel) Instructed by: Messrs Wills Chandler Solicitors 76 Bounty Road Basingstoke Hampshire RG21 3BZ For the Respondent Mr D Meredith (Representative) Peninsula Business Services Ltd Litigation Department Riverside New Bailey Street Manchester Lancashire M3 5PB SUMMARY Practice and procedure – 2002 Act and pre-action requirements / Amendment Whether SGP applies to claim of unfair dismissal for purposes of extending time under Regulation 15 of the Employment Act (Dispute Resolutions) Regulations 2004 . It does not (Regulation 6(5)). Consideration of Regulation 7(1)(b) read with Regulation 6(6). New point on appeal not permitted by way of amendment. HIS HONOUR JUDGE PETER CLARK This is an appeal by Mr Brocklebank, the Claimant, before the Southampton Employment Tribunal, against a judgment of a Chairman Mr R H Trickey, sitting alone at a Pre-hearing review held on 9 August 2006, dismissing his various claims brought against the Respondent, his former employer Tile Depot Trading Ltd, for want of jurisdiction. Reasons for that judgment were promulgated on 18 October 2006. The appeal is limited to the Chairman's decision to dismiss the claim of unfair dismissal. Background[2]The Claimant was employed by the Respondent from August 2002 until his summary dismissal effective on 24 November 2005. He was assistant manager of the Respondent's Basingstoke branch and at the relevant time was acting manager of the branch.[3]On 8 November 2005 the Claimant was required to attend a disciplinary meeting on 14 November concerning alleged stock irregularities. Following that meeting with a Mr Hill he was given a first and final written warning by letter dated 18 November.[4]On 22 November solicitors instructed by the Claimant wrote two letters to the Respondent. In the first they raised an appeal against the disciplinary sanction imposed by Mr Hill and raised a grievance concerning his working conditions and other matters. The second letter raised a grievance about a further disciplinary hearing to be held to consider his absence from work on 21 November. That hearing took place on 24 November, resulting in his summary dismissal. He did not appeal that decision internally.[5]No steps were taken to commence proceedings in the Employment Tribunal during the 3 month period following the effective date of termination that is expiring on 23 February 2006, although on 12 January the Claimant's solicitors wrote to the Respondent with a request for information under the Data Protection Act . His form ET1 was presented to the Tribunal on 24 April 2006 The Tribunal's decision[6]It was accepted on behalf of the Claimant that the form ET1 was presented outside the ordinary 3 month time limit and no argument was advanced that it was not reasonably practicable to present the claim within time: see Employment Rights Act 1996 ("ERA") section 111(2).[7]The argument advanced on behalf of the Claimant by Counsel then appearing, Mr Asteris, was that time for bringing the claim of unfair dismissal was extended by virtue of the provisions of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the Regulations).[8]The scheme of Regulation 15, headed extension of time limits, is as follows:
"15 Extension of time limits (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…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 paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit."
[9]Thus there are 2 routes to the 3 month extension of time under Regulation 15(1) being engaged. Either the standard or modified Dismissal and Disciplinary Procedures ("DDP") apply and the Claimant had reasonable grounds for believing that when the primary 3 month time limit expired a DDP, whether statutory or otherwise, was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint (the DDP route: see Regulation 15(1)(a) read with Regulation 15(2)): alternatively the standard or modified statutory grievance procedure applied and the Claimant had complied with the requirements of Regulation 15(3) (the SGP route).[10]Before the Chairman the Claimant pursued the SGP route only. Faced with Regulation 6(5), which provides: "Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee" and dismissal includes actual dismissal, as in the present case, as opposed to constructive dismissal (see the definition of dismissal in Regulation 2(1)); the argument advanced on behalf of the Claimant relied on the provisions of Regulation 7(1)(b).[11]To provide the proper context, Regulation 6(6) provides:
"(6) Neither of the grievance procedures applies where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee unless one of the reasons for the grievance is a reason mentioned in regulation 7(1)."
Regulation 7(1) provides:
"7 Circumstances in which parties are treated as complying with the grievance procedures (1) Where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee and one of the reasons for the grievance is- (a) that the relevant disciplinary action amounted to or, if it took place, would amount to unlawful discrimination, or (b) that the grounds on which the employer took the action or is contemplating taking it were or are unrelated to the grounds on which he asserted that he took the action or is asserting that he is contemplating taking it, the standard grievance procedure or, as the case may be, modified grievance procedure shall apply but the parties shall be treated as having complied with the applicable procedure if the employee complies with the requirement in paragraph (2)."
[12]The Chairman held that the provisions of Regulation 7(1)(b) did not assist the Claimant because the SGP did not apply where the grievance related to dismissal. The relevant complaint for present purposes is one of actual unfair dismissal.[13]He further held that the solicitor's letters of 22 November 2005 did not raise an allegation falling within the ambit of Regulation 7(1)(b). The appeal[14]The original Notice of Appeal, settled by Mr Midgley and dated 22 November 2006, contained two grounds. Permission to proceed to a full hearing on those grounds was granted by Langstaff J by an order dated 3 January 2007.[15]By an amended skeleton argument, lodged at the EAT on 17 April 2007, the original skeleton argument having been lodged on 5 April, Mr Midgley gave notice for the first time that he wished to add a third ground of appeal raising a new point, not taken below; in effect now seeking to pursue the DDP route to an extension of time under Regulation 15. Unsurprisingly, Mr Meredith promptly took objection to the amendment upon being served with the amended skeleton argument. The original grounds[16]First it is said that the Chairman was wrong in law in finding that the letter of 22 November 2005 did not constitute a grievance within the hearing of Regulation 7(1)(b): secondly, that he was wrong to find that a grievance raised in relation to Regulation 7(1)(b) does not have the effect of extending the primary time limit under s111(2) ERA in respect of a claim for unfair dismissal.[17]An extension of time under Regulation 15 by the SGP route can only arise where the SGP applies to the Tribunal complaint and Regulation 6(5) makes it clear that the SGP does not apply where the employer has dismissed the employee or is contemplating dismissal. In those circumstances, in my judgment, the DDP applies by virtue of Regulation 3.[18]Regulation 6(6) is concerned with relevant disciplinary action, that is action short of dismissal based on the employee's conduct or capability, other than suspension on full pay or the issue of warnings (Regulation 2(1)). The relevant complaint to the Tribunal was one of unfair dismissal; that is not a complaint about action short of dismissal; thus, in my view, Regulation 15 is not engaged. It necessarily follows that the provisions of Regulation 7, which deem compliance with the SGP for the purposes of Regulation 6(6), are immaterial to the present case, which is concerned with dismissal and not action short of dismissal. There has been discussion before me as to the purpose of Regulation 7(1). I interpret it in this way. First, it relates to a cause of action relying upon action short of dismissal (Regulation 6(6)). Regulation 7(1)(a) deals with unlawful discrimination claims; an exhaustive list of which appears in Regulation 7(3). Regulation 7(1)(b), it seems to me, deals with cases of quasi-discrimination, for example, action short of dismissal amounting to a detriment taken against an employee on the grounds of his Trade Union activities or "whistleblowing" activities. In these circumstances, where the employer gives a legitimate reason for the action complained of, but the employee contends that it was for an unlawful reason, then s7(1)(b) is engaged. That is not this case, where the only relevant complaint to Tribunal is one of unfair dismissal.[19]I therefore reject the original grounds of appeal. The new point[20]Contrary to the original grounds of appeal, which relate to the SGP route to an extension of time under Regulation 15, argued below, the new point which Mr Midgley now seeks to take at a late stage relies on the DDP route to an extension. I am quite satisfied that the scheme of Regulation 15(1) requires, in the specified circumstances, either that the SGP route or the DDP route be followed, but not both in relation to the same Tribunal complaint.[21]The question as to when a new point will be considered on appeal has been the subject of much judicial consideration. The principal Court of Appeal authorities to which I have been referred are Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 and Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 .[22]In order to consider the new point in this case it would be necessary for a finding to be made as to whether, for the purposes of Regulation 15(2), the Claimant had reasonable grounds for believing that a dismissal or disciplinary procedure was being followed at the time when the primary 3 month limitation period expired on 23 February 2006 in respect of matters that consisted of or included the substance of the relevant Tribunal complaint, namely unfair dismissal. True it is that the Claimant sought to appeal against the final warning administered on 18 November 2005 by his solicitor's letter of 22 November. On the face of it no action was taken by the Respondent on that request for an appeal because on 24 November the Claimant was summarily dismissed and he did not appeal that decision, which formed the substance of his unfair dismissal complaint. In these circumstances it is difficult to see how he could be said to have reasonable grounds for the necessary belief, even if he were to give evidence that he in fact held that belief. At all events these are matters which would require further investigation by the fact-finding Employment Tribunal.[23]Applying the well established principles I am satisfied that there are no exceptional circumstances which would justify my exercise of discretion in allowing the new point now to be taken for the first time on appeal. Accordingly I refuse the Claimant's application for permission to amend his Notice of Appeal to add the proposed third ground of appeal. Conclusion[24]Despite the attractive and elegant way in which the appeal is put by Mr Midgley, I am wholly unpersuaded that any error of law in the Chairman's approach is made out. Consequently the appeal fails and is dismissed.