MS E M NGO MBOG v WHITBREAD GROUP PLC [2010] UKEAT 0510_09_0505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0510_09_0505Case No Appeal No. UKEAT/0510/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS E M NGO MBOGAPPELLANTWHITBREAD GROUP PLCRESPONDENT
Before
His Honour Judge HandDate 5 May 2010
[1]APPEARANCES For the Appellant MR AYOADE ELESINNLA (of Counsel) Instructed by: Messrs J R Jones Solicitors 58 Uxbridge Road Ealing London W5 2ST For the Respondent MRS KIM ABBOTT (Solicitor) Messrs Weightmans LLP Peat House 1 Waterloo Way Leicester LE1 6LP SUMMARY JURISDICTION: 2002 Act and pre-action requirements The "substance of the tribunal complaint" in Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 should be broadly construed; such an interpretation is consistent with the judgment of the Court of Appeal in Harris v Towergate London Market Limited [2008] IRLR 537 and the judgments of the Employment Appeal Tribunal in Remploy Ltd v Shaw [2009] ICR 1159 , Eagles v Rugged Systems Ltd UKEAT/0018/09/ZT and Mockett v Credit Suisse Securities (Europe) Limited UKEAT/0299/09/CEA. The " substance of the tribunal complaint " refers not to the cause of action but to the factual matrix from which the cause of action derives. Consequently, where, as here, a disciplinary procedure had concluded before an allegation of dismissal by reason of race discrimination was made by raising a grievance, the procedure still being followed pursuant to the grievance on 30 April when the primary limitation period in respect of a complaint of unfair dismissal otherwise expired included the substance of the complaint of unfair dismissal. HIS HONOUR JUDGE HAND QC This is an appeal from the decision of an Employment Tribunal comprising Employment Judge Milner QC sitting alone at Stratford Employment Tribunal on 28 August 2009, the Judgment having been sent to the parties and entered in the register on 8 September 2009. By that Judgment the Employment Judge decided that the Appellant's ET1 form, which had been lodged on 30 April 2008, had not been lodged within three months of her dismissal, with the result that the Employment Tribunal had no jurisdiction to consider her complaint of unfair dismissal.[2]The Appellant was represented by counsel at that hearing and today has been represented by a different counsel, Mr Elesinnla. The Respondent was represented by Mrs Abbott, who has appeared at both the Employment Tribunal and here today.[3]The Appellant claims that she had been unfairly dismissed and dismissed by reason of race discrimination. The latter claim has been accepted by the Employment Judge as being in time and in that sense I am not directly concerned with it today, although, as will be seen as this Judgment develops, it is very difficult to disentangle the two aspects of the case.[4]The Appellant was dismissed for alleged gross misconduct. There was some controversy as to when precisely her employment terminated, but the Appellant seems to have agreed at the hearing that it had ended on 30 January 2008 and that seems to have been the date of termination accepted by the Employment Judge, as to which see paragraph 2 of the judgment at page 9 of the bundle.[5]Accordingly, the time limited for presenting a complaint for unfair dismissal to the Employment Tribunal expired on 29 April 2008, unless some different time was applicable as a result of the regime provided for by the Employment Act 2002 and the extension provisions to be found in Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 , which the relevant provisions of which were quoted by the Employment Judge at paragraph 4 of his judgment (see paragraph 13 below).[6]As I say, the ET1 form was not presented until 30 April 2008 and, if time started running on 30 January 2008, it was one day out of time. The ET1 form that was first presented to the Employment Tribunal appears in the bundle starting at page 13. The factual detail upon which the claim was to be based appears in an annexed document entitled "CLAIM" which runs from pages 21 to 24 of the bundle. It ends in paragraph 14 under the heading "Unfair Dismissal" with an assertion in paragraph 14.3 that:
"In all the circumstances the dismissal was unfair."
It did not raise any allegations of race discrimination.[7]Later, on 27 June 2008, the Appellant presented a further ET1 form alleging race discrimination. That form starts at page 25 of the bundle and the substantial factual matrix is again contained in an annex, again entitled "CLAIM" and starting at page 33 of the bundle. In many of its paragraphs it is very similar to, if not identical to, the earlier iteration. One immediate difference occurs at the new paragraph 6 where it is stated that:
"The Claimant is female of black African ethnicity."
[8]Up until paragraph 21 the rest of it is largely, if not completely, in the same terms as the previous iteration. Paragraph 21 is entitled "Race Discrimination" and reads:
"The Claimant contends that as compared to her comparators she was treated less favourable (sic) in respect of: 21.1 training; and access to job vacancies, opportunities for promotion; and 21.2 the amount she was paid."
[9]There is also a new paragraph 22 under a new heading "Victimisation". This reads:
"The Claimant contends that: 22.1 having raised a grievance in good faith by reference to the Race Relations Act 1976, she was victimised in that allegations of theft were made against her resulting (sic) disciplinary action; and 22.2 she suffered the detriment of dismissal."
[10]On 20 January 2008, and on any view before her employment had ended, the Appellant raised a written grievance, the full terms of which appear at pages 59 and 60 of the bundle. It is in fact expressed in these terms in the first line of the text:
"I want to appeal against my dismissal on the following grounds"
. There is then set out a variety of matters dealing with complaints that Mr van der Hulst, her Manager, had acted contrary to her interests because of her race. This was, she said, something that she had complained of verbally on many occasions and in a letter of 30 August 2008. She also complained that her dismissal was because of her race. There then follow a series of specific matters in numbered paragraphs from paragraph 2 to paragraph 7 and paragraphs 8 and 9 also deal with perhaps somewhat less specific matters but are also relative to her dismissal.[11]A second letter of grievance was written by the Appellant on 8 March 2008 to a Mr Brown. That appears at pages 76 to 78 of the bundle. It raises again questions about her relationship with her manager under the heading "Racism". There are a series of complaints made about lack of training and about internal vacancies and about equal pay.[12]On 26 February 2008 an operations manager acting on behalf of the Respondent wrote to say that she concluded that the grievance was not upheld. She did, however, offer a second stage of the grievance procedure. My understanding is that the Appellant took up that offer and took the grievance to a second stage, being told, on 30 April 2008 by a letter, that her grievance at that second stage was also dismissed. As the Employment Judge found, that letter could not have reached the Appellant until after the first ET1 form had been presented to the Tribunal on 30 April 2008.[13]In its Judgment the Employment Tribunal referred itself to Regulation 15 of the Employment Act 2002 Dispute Resolution Regulations 2004 and, having done so, then considered the Court of Appeal authority of Harris v Towergate London Market Limited [2008] IRLR 537. Parts of the Regulation were quoted by the Employment

Judge at paragraph 4 of his Judgment at page 9 of the bundle:

" Harris v Towergate was principally concerned with the interpretation and application of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which has the effect of extending the time limit of three months in certain circumstances. I should set out the material parts of this Regulation: (1) Where a complaint is present to an Employment Tribunal under a jurisdiction listed in schedule 3 or 4 and - (a) either of the dismissal or disciplinary procedures is the applicable statutory procedure in the circumstances as specific in paragraph (2) apply or - (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specific in paragraph (3) apply; the normal time limit for presenting the complaint is extended for a period of 3 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 expired that a dismissal or disciplinary procedure whether statutory or otherwise including an appropriate procedure for the purposes or Regulation 5(2) 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) …. (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 the normal time limit."
[14]It will be noted that the quotation covers both subparagraphs 2 and (the relevant parts of) 3 of the Regulation. The Judge, however, dealt with this case on the basis that Regulation 15(2) of the Regulation applied and did not devote any part of the Judgment to Regulation 15(3). I have been puzzled as to why a case that turns on the terms of a grievance raised on 20 January 2008 and reiterated in February 2008, should be confined to, or looked at only under, paragraph 15(2). Speaking for myself I cannot understand why this is not a case that falls for consideration under paragraph 15(3).[15]Having thought about the matter, however, I have come to the conclusion that at this stage I should not introduce into this case a different statutory perspective and should confine myself to consideration as to whether or not the Judgment in relation to Regulation 15(2) and the interpretation of the judgment of the Court of Appeal in Harris v Towergate is correctly decided. It may be that it makes little difference as to whether or not the case is looked at under 15(2) or 15(3), although, I am bound to observe that the approach under Regulation 15(3)(b) would seem to be much more straightforward than that under Regulation 15(2).[16]Nevertheless, the matter has proceeded under Regulation 15(2) and it is to that I now turn. The Respondent submitted to the Employment Tribunal that the first ET1 form had not complained of race discrimination and that, because the Appellant had exhausted her internal remedies of appeal as to her dismissal, she was not following any procedure that related to her unfair dismissal claim after the effective date of termination of her employment.[17]Mrs Abbott points out to me that Regulation 15(2) requires consideration as to whether a disciplinary procedure was being followed in respect of matters that consisted of or included " the substance of the Tribunal complaint ". She submits that the disciplinary procedure that was being followed did not include any substance relating to race discrimination. The complaint that had been dealt with in the disciplinary hearing had been one of gross misconduct and that had also been debated on appeal. That appeal had been dismissed and so there was no complaint of unfair dismissal that was part of any ongoing internal procedure.[18]The Employment Tribunal, to an extent, did not accept that argument. That was because of the terms of the findings in the investigation report of 25 February 2008, which made reference to a belief on the part of the Appellant that her dismissal was on the grounds of race. This reference was quoted in the Judgment at paragraph 8:
"In relation to the Claimant's belief that her dismissal is because of race, this is a matter that will be dealt with at the appeal process, which I believe the Claimant is completing."
[19]It is difficult to ascertain what appeal process is being referred to. The Employment

Judge made sense of it in the following way:

"That in my view is sufficient to communicate that some process was still being pursued in relation to her grievance of racially discriminatory dismissal. It also puts in context the statement relied upon by the Respondent in paragraph 1(6) of the Claimant's appeal against the Findings which, in my view, should not be construed as an acceptance that the appeal process in relation to dismissal on grounds of race was complete, but as a protest about the inconsistency between the statements contained in the Findings and the statements contained in the letter dated 15 January 2008."
[20]This reasoning is carried though into paragraph 9 where the learned

Judge says the following:

"Other points can be put forward to support the contention that Regulation 15 (and in particular 15(2)) cannot possibly apply in the circumstances of this case: that the Claimant's grievance is not a "dismissal or disciplinary procedure"; and, in any event there was no requirement to raise a grievance about a dismissal whether discriminatory or otherwise. In my view both contentions are in conflict with the decision in Harris v Towergate in which the process which had the effect of extending the time limit was described as a grievance, and the action of the employer complained about were the procedures involved in the dismissal."
[21]He goes on then in paragraph 10 to say this:
"I consider that the Claimant could have reasonably believed that her complaint of dismissal on grounds of race was still being considered or was still an unresolved element of the grievance that she had raised and which she was seeking to pursue, the final outcome of which was not communicated to her until after 30 April 2008."
[22]Notwithstanding that, he reached what he himself described at paragraph 11 of the Judgment as an unusual conclusion. By application of what he considered was the reasoning of the Court of Appeal in Towergate to the facts of the instant case, he concluded that unfair dismissal is a separate complaint from dismissal by reason of race discrimination, although he recognised that there was some overlap between the two. This thinking led him to:
"Conclude that the Claimant did not have, and could not have had, a reasonable belief that a dismissal procedure of any kind was being followed in relation to her complaint of unfair dismissal under Section 98 of the Employment Rights Act 1996."
[23]On the other hand, in paragraph 11 he also concluded that the Appellant did have:
"[…] a reasonable belief that a dismissal procedure of some kind was being followed in respect of her complaint of discriminatory dismissal under Section 4(2)(c) of the Race Relations Act 1976."
[24]Therefore, he concluded that the Tribunal had jurisdiction in relation to race discrimination but not in relation to the issues listed under the heading "Unfair Dismissal". He added:
"That does not mean that these matters will become irrelevant because it will be open to the Claimant, for the purpose of establishing directly or by inference a racial motive for her dismissal to contend that there was no potentially fair reason for her dismissal and/or that it was unreasonable and unfair."
[25]It is difficult, in my judgment, to think of circumstances in which a dismissal by reason of race discrimination would be a fair dismissal. It seems to me that the comfort the Employment Judge derived from the last sentence of paragraph 12 of the Judgment, which I have just quoted, is to be qualified, as he indeed qualified it himself, by reminding oneself that certain remedies would not be available to the Appellant if the case were to proceed simply on race discrimination and not on unfair dismissal.[26]Mr Elesinnla, in his submissions, has reminded me that, as well as there being no basic award and no award for loss of statutory rights expressly provided for in terms of compensation under the Race Relations Act 1976 , there is no express remedy of reinstatement. Whilst it is true that recommendations can be made, that may not be the same thing. Moreover, it is axiomatic that the Appellant would be deprived of a declaration that she had been unfairly dismissed if the only case that she could pursue was one of unfair dismissal.[27]Finally, moving away from remedy, Mr Elesinnla submits that it is more difficult to prove race discrimination than to prove unfair dismissal. By contrast, Mrs Abbott submits that there really is scarcely and difference. Some of the matters, such as loss of basic award and loss of statutory rights, might well be recoverable under the broader heading of compensation under discrimination and it might be difficult to see any real distinction, so far as difficulty is concerned, as between the two.[28]The Appellant has submitted that the Employment Tribunal has erred by adding a gloss to paragraph 42 of the Judgment of Keene LJ in Towergate . I ought perhaps to read paragraph 41:
"The Employment Tribunal Chairman, as he was in those days, had said the following in the Employment Tribunal's Judgment: 'If the letter of 26 January amounts to an appeal and if the Claimant was reasonably waiting for the result of a disciplinary of dismissal procedure, and that would include an appeal, she has an extension of time if the result of that, or the final step in the procedure, falls outside the initial three-month period, which it did on 31 January. In that event the claim brought on 29 April would actually be in time; Rule 15(2). That presupposes that a document is not a grievance but an appeal. I do accept that I have a certain amount of latitude if it is merely an issue of putting the wrong label on the letter. I do not accept this is the wrong label. It is quite clear that she has been advised to put it in a grievance. It is by no means any sort of slip of the pen. There are three similar versions. She has obviously been advised by her union, possibly on a mistaken view of the law, but I have not heard from the official.'"
[29]With that in mind, Keene LJ says at paragraph 42:
"That simply is not the right approach. Whether it was a grievance or an appeal is not the issue. The issue, in summary form, was whether Mrs Harris reasonably believed that a dismissal procedure of some kind was being followed in respect of her redundancy and dismissal. At no stage does the Chairman address that issue. I entirely agree with Judge McMullen QC, in the EAT when he said at page 10 of his Judgment: 'So, the question is not 'was this a formal appeal?' but 'did the Claimant believe on reasonable grounds that there was an ongoing procedure to enable her to challenge her dismissal?' In my judgment the focus on the word appeal was misplaced in this case.'"
[30]Then at paragraph 43 he goes on:
"One quite understands that to an employment lawyer there is a distinction between a grievance and an appeal. The former is generally regarded as a complaint by an employee to his employer during the continuation of the employment relationship, though it is nowhere clearly defined. The closest one gets to it is in Section 13(5) of the Employment Rights Act 1999 which defines a grievance hearing as being a hearing "which concerns the performance of a duty by an employer in relation to a worker", but the waters are muddied by the fact that when an employee is dissatisfied with his employer's decision on his grievance he may appeal against it through the employer's internal machinery (see the 2002 Act, Schedule 2, paragraphs 7, 4 and 8). Grievances are not necessarily unrelated to dismissal. If an employee claims to have been constructively dismissed he must lodge a grievance against his employer before bringing a claim in an Employment Tribunal (Section 32 of the 2002 Act)."
[31]Paragraph 44 reads:
"But one does not expect an employee to have a ready grasp of these arcane mysteries. Many employees will not have ready access to skilled legal advice and it is very important the courts in this area of law avoid an unduly technical approach. I would warmly endorse the words of Mr Justice Elias President of the Employment Appeal Tribunal in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 paragraph 24: 'The law in this area is directed at employees who, in many cases - perhaps most - will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner' Shergold v Fieldway Mecical Centre [2006] ICR 304 contains similar warnings against undue technicality and over-sophistication (see paragraphs 27 and 33). There is a well-developed jurisprudence to this effect established by the Specialist Appeal Tribunal, to which considerable respect must be paid."
[32]Paragraph 45 is also worth quoting:
"In my judgment the Employment Tribunal Chairman went wrong in asking himself whether the letter of 25 January 2006 was an appeal or not. That, and the failure to apply the right test under Regulation 15(2), amount to an error of law as the EAT held."
[33]It is that part of the judgment of the Court of Appeal that the Employment Judge relied upon in this case; it is also relied upon by Mr Elesinnla in support of his submissions. When different propositions are being derived from the same passage in a Judgment of the Court of Appeal, it is possible that something is amiss. What Mr Elesinnla submits is that the Employment Judge has misunderstood Towergate and he submitted that three cases decided by this Tribunal support the contention that the Employment Judge misapplied Towergate . He has referred me to Remploy Ltd v Shaw [2009] ICR 1159 in his skeleton argument. He relies upon paragraph 34 of that case which is also a Judgment of this Tribunal by HHJ McMullen QC. Paragraph 34 reads:
"Regulation 15 encourages that to happen but it is of utility only once. It provides an extension of time from three to six months in an unfair dismissal case. It does nothing more. It does not depend upon there being a procedure actually in place but only upon the reasonable belief that it is in the mind of the employee (see Towergate ). The Court of Appeal by a majority, upholding my Judgment, reversing the Employment Tribunal in that appeal."
[34]Mr Elesinnla also relied upon another judgment of HHJ McMullen QC in the case of Eagles v Rugged Systems Ltd EAT/0018/09/ZT. At paragraph 31 the following appears:
"I take the view that the regulations and the 2002 Act are there to resolve disputes. A dispute about a dismissal can include disputes about compensation for it. Confining myself to the facts of this case, the Respondent was anxious that there should be a compromise agreement for it was prepared to pay more money into the Claimant's compensation in exchange for a compromised agreement. It was also prepared to pay legal costs to achieve that in order to achieve finality of the dismissal process, viewed neutrally in this case, a compromise agreement was sought by the Respondent. The Claimant was correct to seek legal advice as she did from at least 10 March 2008 but terms could not be agreed. If she was acting in the belief that a procedure was going on for resolving all the outstanding issues on her dismissal, and if she had that on reasonable grounds she would be entitled to the extension under Regulation 15."
[35]Finally, in, another Decision of HHJ McMullen QC, Mockett v Credit Suisse Securities (Europe) Limited UKEAT/0299/09/CEA, the learned Judge returned to his theme at paragraph 28. I think I need not take up more time by recitation of the paragraph. It is to the same effect that undue formalism in this area is to be avoided. What is at issue is whether there is a reasonable belief that a procedure relating to the dismissal is ongoing.[36]So, submits Mr Elesinnla, the finding made by the Tribunal that there was a reasonable belief on the part of the Appellant that at the time the first ET1 form was submitted, issues were still outstanding in relation to her dismissal and the matter was still in procedure, is sufficient to trigger an extension of time under Regulation 15(1). The division by the Employment Judge of this matter into unfair dismissal, on the one hand, and race discrimination, on the other, was unduly technical and unduly formalistic and that constituted an error.[37]Mrs Abbott submits that the substance of the Tribunal complaint being referred to in Regulation 15(2) must be the substance of the complaint that was made on 30 April 2008. That was in substance a complaint of unfair dismissal. It was not then the Appellant's belief there was anything ongoing in relation to unfair dismissal. All that had been exhausted by the end of the appeal process against her dismissal. That had ended by a letter written on 24 January 2008 - wrongly dated 15 February 2008; it stated quite clearly that there was no further right of appeal. The Appellant had accepted that the appeal process had ended and, therefore, could not have had any belief, let alone a reasonable belief, that the procedure that she engaged in after that was being followed in respect of matters that consisted of, or included, the substance of the Tribunal complaint.[38]In my judgment Mrs Abbott's interpretation of Regulation 15(2) takes too narrow a view of the statutory wording and, in particular, it takes too narrow a view of the substance of the Tribunal complaint. Consequently, it seems to me that the learned Employment Judge was in error by taking the view that the substance of complaint is the actual cause of action that is being relied upon in each particular ET1 form. As I think the authorities have established, this view of substance is a very formalistic division of something that should really be regarded in a unitary way.[39]The substance of the complaint in my judgment is the substantial factual matrix of the complaint. That was quite clearly, more or less, the same in the form ET1 that was lodged on 30 April 2008, as it was in relation to the form ET1 that was lodged in June 2008. The substance of the complaint was the way that she was being treated by her Manager in certain circumstances. That she derived a cause of action of unfair dismissal from it, on the one hand, and, later, a cause of action of both unfair dismissal and race discrimination and victimisation, on the other, is not, in my judgment, the substance of the complaint. That is the form of the cause of action derived from the substance of the complaint.[40]That, in my view, is what the Court of Appeal is articulating in the Towergate case and HHJ McMullen QC is repeating in different ways in the other authorities. Accordingly, I take the view that this was too narrow an approach by the Employment Judge. What he should have done was to have come to the conclusion that on 29 April 2008, when the normal time limit for presenting complaints was expiring, the Appellant had reasonable grounds for believing that a disciplinary procedure was being followed in respect of matters that consisted of the substance of her complaint, which was that she had been dealt with unfairly by her Manager, a matter that she articulated in the grievances that she submitted in terms of race discrimination as well as procedural unfairness.[41]In those circumstances, it seems to me, that there existed at that time under Regulation 15(2) the circumstances that would have justified the application of Regulation 15(1) and that the time limit for extending the unfair dismissal complaint should have been extended by a further three months from 30 April 2008. Therefore, the appeal will be allowed and I shall substitute a finding that the time should be extended for a period of three months from 29 April 2008 with the consequence that the unfair dismissal application is in time and there should be a declaration that the Tribunal has jurisdiction.