Appeal No. UKEAT/0299/09/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 November 2009

Before
HIS HONOUR JUDGE McMULLEN QC
MS J L P DRAKE CBE
MRS J  M MATTHIAS

MR A MOCKETT	APPELLANT

CREDIT SUISSE SECURITIES (EUROPE) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M SHERIDAN
(of Counsel)
Instructed by:
Messrs Wollastons LLP
Brierly Place
New London Road
Chelmsford
Essex
CM2 OAP
	
For the Respondent	MISS S BELGROVE
(of Counsel)
Instructed by:
Messrs Credit Suisse Securities (Europe) Ltd
1 Cabot Square
London  E14 4QJ	

SUMMARY
JURISDICTIONAL POINTS:  2002 Act and pre-action requirements
The Employment Tribunal failed correctly to apply regulation 15(2) of the Employment Act 2002 Regulations 2004. Had it done so, it would have given the Claimant the benefit of the three-month extension and found the claim was presented in time. Full hearing at the Employment Tribunal ordered.

HIS HONOUR JUDGE MCMULLEN
1.	This case examines the law relating to the extension of time for presenting a claim to an Employment Tribunal under regulation 15(2) of the Employment Act 2002 Regulations 2004.  This is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed.  We make that point because, unusually, the cases which have arisen during the five-year reign of these regulations have been dealt with by a judge alone at an Employment Tribunal and a judge alone here.  But this case was tried by a three-person Tribunal as a preliminary point in a four-day hearing of unfair dismissal, and on appeal, of course, is heard by three of us.  We will refer to the parties as the Claimant and the Respondent.
 
Introduction
2.	It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at Stratford East registered with Reasons on 20 April 2009 chaired by Employment Judge Manley.  The Claimant and the Respondent have been represented respectively by Mr Matthew Sheridan and Miss Sophie Belgrove of counsel.  The Claimant claimed unfair dismissal.  The Respondent contends he was dismissed fairly by reason of redundancy.  The issue to be tried by the Tribunal as the preliminary point was whether the claim was in time.  The Tribunal found it was not, and so dismissed his claim.  He appeals.  Directions sending this to a full hearing were given in chambers by HHJ Peter Clark, who took the view that the Claimant might have a point under regulation 15(2), which we will describe in due course.

The legislation
3.	An unfair dismissal claim should be presented to an Employment Tribunal within three months of the effective date of termination.  See the Employment Rights Act 1996 section 111.  An extension of three months is given in a case where regulation 15(2) applies, as follows:
“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 this tribunal complaint.”

4.	As I made clear in Joshi v Manchester City Council UKEAT/0235/07, the period is effectively three months less a day, and it is extended by regulation 15(2) to six months less a day, the practitioners’ rule of thumb used for calculation.  The reference in regulation 15(2) to statutory procedures is to those procedures that must be complied with by an employer prior to dismissal on pain of having uplifts in awards made if the claim succeeds.  The grievance procedures are not applicable to a case of straightforward dismissal but apply where there is an allegation (not here) of constructive unfair dismissal.  The grievance procedures apply, therefore, in advance of presentation of a claim to an Employment Tribunal so as to debar a Claimant who has not vouchsafed to the employer the nature of the claim in a grievance.  In short, the earnest intent of these regulations was to ensure that parties resolved their disputes without going to an Employment Tribunal.

The facts
5.	The Claimant, who is 40, was engaged by the Respondent, which is a global finance house in the City of London, on 2 January 2001, and was dismissed by reason of redundancy on 31 October 2007.  He was an IT program manager taking home with bonus about £85,000 a year.  The Respondent was going through a huge restructuring, and it was necessary to notify the statutory authorities of impending redundancies. The Claimant was informed by letter on 31 August 2007 that his employment would be terminated on 31 October 2007.

6.	The Respondent operates grievance and disciplinary procedures.  When the Respondent indicated that there was to be a dismissal, the Claimant contended that he wished to contest this, and the Respondent diverted this into stage 3 of its grievance procedure on 7 September 2007.  On 30 October 2007, on the eve of his dismissal, the Claimant filed a grievance against his line manager, Mr Kevin Baker, and made allegations of a long and unhappy relationship at work, described as six years of misery at the hands of Mr Baker.  He contended that Mr Baker was wholly unprofessional and had ruined his life and his career.  There were to be further iterations of that in the course of the correspondence between the parties.

7.	It was acknowledged on the same day as a grievance, this time under stage 2 of the grievance procedure.  There were further exchanges referring to what was going on as an appeal, and it was made clear by the Claimant that he wished to challenge what he described as “redundancy”, indicating then that he did not believe that it was a genuine redundancy.  Shortly thereafter he wished to agree a compromise.  On 12 December 2007 he made clear in an email that he was again unhappy about his being made “redundant” and he wished to work further towards a compromise.  At this date, as Miss Belgrove accepts, the letter shows not only that there was a procedure ongoing to deal with dismissal but also that the Claimant’s belief on reasonable grounds at that time was that there was such a procedure, and that, if 12 December 2007 had been the last day of the three-month period, this reply would immediately have triggered the three-month extension.

8.	So, the question is what happened between then and 30 January 2008, which was the primary limitation period, three months from the date of dismissal?  On 25 January 2008, a response was given by Ms Barrowman, the Managing Director.  In a lengthy letter, she apparently separated the Claimant’s grievances against in particular Mr Baker and his challenge to his dismissal.  The letter itself includes as the scope of the grievance, “You were treated unfairly by Kevin Baker.  You were demoralised by Kevin Baker”, and the promotion that he had was engineered in order to force his redundancy.  In Ms Barrowman’s mind, therefore, by the delineation she herself set out as, on the one hand, grievance and, on the other, appeal, under the former there was an issue relating to the forced redundancy of the Claimant.  It was resolved in the following way.  

“6 Your promotion was eventually approved in order to eliminate your role and force your redundancy
You suggested that Kevin Baker eventually agreed to back your promotion as a way of eliminating your role.  It was clear from speaking with Kevin Baker and Steve Smith that at the time you were put forward for promotion there was no knowledge of the potential need to make redundancies.  It was also clear from everyone interviewed that Kevin Baker actively supported your promotion and had been proactively pushing you forward for promotion for several years, not just in 2007.” 

9.	It is true that, in her conclusion, she indicated a separate conclusion dismissing the appeal on the grounds of redundancy.  She says:
“I did not find any grounds to indicate you were promoted in order to force your redundancy.” 

It will be recalled that “forcing redundancy” was under her analytic distinction placed under the head of grievance with which she had opened the letter.  A right of appeal against the grievance was given but not against the decision to dismiss him by reason of redundancy.

10.	What was the Claimant’s state of mind thereafter?  It is demonstrated in two documents.  On 28 January 2008, he raises issues in which he contends that he has been libelled, and the remedy he seeks is that all relevant records are amended and a retraction be made by Ms Barrowman of the allegedly libellous statements she had made.  That is what he demanded.  He also said this:  

“However, as was made clear in my 30th October 2007 e.mail, my aim, in communicating the depths of my experience with the ‘employer of choice’, is to ensure Credit Suisse is sufficiently clear of the contacts for the compromise it wishes to reach with me.  Despite the nature of Laura’s response, I have reasonable confidence this goal has been met, and I do not regard wringing a full confession to be a necessary step.
Therefore, I hope you will be understanding when I eschew a thorough deconstruction of Laura’s investigations and findings, and, instead, ask that you provide Joan, or her successor, a full briefing, so that we can work efficiently to find the way forward.” 

As a matter of construction, that indicates that the Claimant considers further steps should be taken in order to resolve the continuing problem between himself and the Respondent.  The test for examining his state of mind is to be met at the expiry of the first limitation period, which is midnight on 30 January 2008.  As an indication of what that was, there is the letter.  Secondly, a letter was written on 31 January 2008 in rather more formal terms.  The Claimant said this:  

“Please be informed of my wish to appeal against Laura Barrowman’s 25th January 2008 response to, what Credit Suisse designated, the grievance under Stage 2 of the company’s grievance procedure.
Additionally, I should be grateful if you would register my unqualified rejection of Laura Barrowman’s presumption to rule on an ‘appeal against redundancy’ yet to be framed.” 

11.	It is clear that he was seeking to raise issues that Ms Barrowman had defined as within the grievance procedure, ie matters to do with his selection for redundancy and his treatment at the hands of Mr Baker who influenced the dismissal.  Secondly, he was indicating that there was yet unfinished business under what he described as an appeal against redundancy.  The response of the Respondent was to conduct an appeal, the outcome of which was notified on 3 April 2008 rejecting the Claimant’s case.

12.	On 29 April 2008, the penultimate day of the six-month period, the Claimant presented his claim form, and the Respondent contends that he was almost three months out of time beyond the primary limitation period.  

13.	The Claimant’s position was that this was a so-called grievance procedure and, in effect, it was to deal with again the Claimant’s complaint that he had been wrongly selected for redundancy.  The Tribunal’s conclusion was this.

“We found this a difficult question and spent considerable time looking at the various documents, although they were not lengthy, and considering the evidence that the Claimant gave us.  We do not accept that the Claimant had reasonable grounds for believing that there was a process ongoing which dealt with matters which he has raised in the substance of the Tribunal complaint, that is, his complaint of unfair dismissal.  It was not reasonable for him to believe that, given the very clear and unequivocal final sentence of the outcome of the grievance from Laura Barrowman on 25 January where she makes it absolutely clear that that was the end of any appeal, if there had been one, about the dismissal.  We took that together with the Claimant’s own assertion in the email of 31 January where he made it clear that he had rejected, in any event, her trying to treat him as having raised any questions within that context as an appeal against redundancy and in which he said the appeal was ‘yet to be framed’.  There was clearly no appeal against redundancy at that stage and there was nothing that was ongoing that the Claimant could believe was ongoing and which would have given him the benefit of the three months extension.  He cannot therefore rely on Regulation 15(2) because he does not have a reasonable belief that there was a statutory procedure which was dealing with matters of his dismissal.  His claim is therefore out of time.  It clearly could have been submitted in time, it was reasonably practicable for that to have occurred and his claim must fail and is dismissed.” (our emphasis)

On the basis of that, the Tribunal brought the proceedings to an end, rejecting the Respondent’s application for costs.

The Claimant’s case
14.	The Claimant seeks to invoke regulation 15(2), and, if it applies, he will be in time.  This is not a case where the not reasonably practicable defence is available.  It has not been argued.  The sole issue is whether there was a procedure within regulation 15(2) that he reasonably believed to be ongoing.  The Employment Tribunal cited the regulation and set out the chronology, paying attention to the correspondence.  It noted that it was the Respondent’s position that there was no ongoing disciplinary procedure after 25 January 2008, Ms Barrowman’s refusal to allow any further steps, but juxtaposed that to the Respondent’s assertion that there was a grievance procedure ongoing.  Indeed there was.  And the Tribunal noted that it was the Respondent’s position that at the expiry of the time limit on 30 January, such a grievance procedure was ongoing.

15.	Although the Claimant was represented at the Tribunal and here, he did a homemade Notice of Appeal, which was difficult to follow until it fell into the careful hands of Mr Sheridan so that when counsel drafted his skeleton argument he was able to refine the points into three.  The first is that the Tribunal did not consider whether the procedure, which was acknowledged to be ongoing, could amount to a procedure falling within regulation 15(2).  Secondly, the issue of the Claimant’s reasonable belief would obviously fall in line with that, and it would be perverse to find that he was not following such a procedure on the grounds of a reasonable belief in it.  Thirdly, the Tribunal had made a gross error of law in its formulation cited above when the Tribunal made a reference solely to the statutory procedure.

The Respondent’s case
16.	On behalf of the Respondent, it is accepted that the Tribunal did make a gross legal error but Miss Belgrove contends that it is rescued because the Tribunal elsewhere cites the correct provision, and there is no indication that it did not follow the precise statutory construction.  Secondly, the Claimant knew that he was operating separately the grievance procedure and the complaint about his dismissal, and that that latter was over by the flat refusal of Ms Barrowman to countenance further activity on this after 25 January 2008.  Finally, the Claimant had not indicated his reasonable belief in such a procedure.

The legal principles
17.	The legal principles to be applied in this case emerge from a number of authorities which have my fingerprints on them.  In Towergate London Market Limited v Harris [2008] ICR 1200, the Court of Appeal (Keene and Wilson LJJ, Ward LJ dissenting) upheld a judgment I gave when I reversed a judgment of an employment judge on regulation 15(2).  The correct question was not to ask whether in any technical sense there was an appeal but to ask the more broadly based question consistent with the language of regulation 15(2), for Keene LJ said this:  
“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, Q.C., 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.”
43. 
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 Relations 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 where 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. 
44. 
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 that the courts in this area of law avoid an unduly technical approach. I would warmly endorse the words of Elias J, President of the EAT, in Canary Wharf Management Ltd v. Edebi [2006] 1RLR 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 (ante) 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 this specialist appeal tribunal, to which considerable respect must be paid. 
45. 
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.”

18.	I also decided Eagles v Rugged Systems Limited UKEAT/0018/09 after the judgment in the instant case, and there I was considering whether or not pursuit of a compromise could constitute a procedure under regulation 15(2). I said this in a passage relied upon by counsel:
“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 compromise 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.”

19.	Since I appear to have developed a niche market in this field, I should also cite Remploy Limited v Shaw [2009] ICR 1159, again relied on by counsel in this case, as directly relevant to issues under the not reasonably practicable jurisdiction but also indirectly relevant to the extension of time under regulation 15(2).  Of particular relevance to our case is a subsidiary issue in that case where it was contended that the judge below had made an error of law once but had the law right elsewhere in her judgment.  I came to this conclusion:

“32. It is consistent with every statement in this jurisdiction since at least 1973, that parties are encouraged to resolve their differences before resorting to Employment Tribunals, but the correct test is one of reasonable practicability.  She addressed the correct test on at least four occasions in the course of her judgment, making it clear that she was looking at what is not reasonably practicable.  The fact that she misses out ‘practicable’ from this last formulation does not vitiate the judgment, provided the gist of the judgment is clear and there has been a correct self direction.  Infelicitous language later in her judgment does not make the judgment wrong, see Jones v Mid-Glamorgan [1997] IRLR 685 CA.”

20.	It is also instructive to note what the purpose of these regulations is, and I set out there, drawing from the authorities that I had cited, the parliamentary intent that parties should together resolve their disputes without vexing the Tribunal.

Discussion and conclusions
21.	With those principles in mind, we seek to apply them to the judgment in this case.  The first is easy.  The Tribunal is acknowledged by counsel to have made an error of law when it concludes that the Claimant failed because he did not have a reasonable belief that there was “a statutory procedure, which was dealing with matters of his dismissal”.  In our judgment, Miss Belgrove is right in immunising that statement.  The Tribunal expressly cites the statute.  The only place where that statutory procedure occurs is there.  It was argued by Mr Sheridan that that statutory procedure approach infected the rest of paragraph 17.  We do not agree.  This was a slip.  The Employment Tribunal is entitled to the generosity of Jones v Mid-Glamorgan cited above in Remploy.  What is important is that the Tribunal never opened the statutory procedures.  These are in other provisions of the Employment Act 2002 and the regulations.  There never was an issue in this case as to whether a statutory dismissal procedure was in play.  There is no doubt that what the Tribunal was concerned with was the paperwork concerning the procedures operated by the employer.  These are not statutory procedures.  They are, as the Tribunal holds them to be, the Respondent’s own grievance and disciplinary dismissal procedures.  

22.	The Tribunal also indicates that it was looking at any procedure in its short summary of its task at paragraph 2 in its judgment.  It said, “We are considering what procedures if any were being used at that time”.  That is sensible shorthand, and there is no doubt that it had the documents from which to consider whether there was a procedure matching that in regulation 15(2). So, we hold that, although the formulation is incorrect in law, it does not condemn this judgment on its own.

23.	What, however, the Tribunal has done is to focus only on what is described as an appeal.  That is an error as was pointed out in Towergate, and a much softer approach has to be taken  recognising that people use, as a way of challenging mistreatment at work, a whole range of different nouns.  It is wrong to simply focus on an appeal which is actually part of the statutory disciplinary procedure.  As the Court of Appeal has made clear in Towergate a broad approach is to be given by the use of the words “or otherwise” in regulation 15(2).  In our judgment, the Tribunal went wrong because it did not consider whether the grievance itself did contain material subsequently relied upon in the claim form.  In order to make good this point it is necessary only to look at the claim form, which sets out the details of the Claimant’s case: 

“33. 	For the above-mentioned reasons the Claimant considers that he has been unfairly dismissed.
  35. 	The Claimant considers that the reason given for his dismissal is not the genuine reason … .  The Claimant believes that the reason given for his dismissal is simply the culmination of a campaign by Mr Baker to ensure his removal from the Respondent motivated by personal animosity towards the Claimant.”  

24.	Those paragraphs follow a long exegesis of the history of discontent caused to the Claimant, on his claim, by the actions by Mr Baker, and Mr Baker was involved in the Claimant’s dismissal for redundancy.  It remained the Claimant’s case that Mr Baker engineered the Claimant’s promotion in order to bring about his redundancy.  That was the substance of the grievance/appeal, and, in our judgment, that meets the last part of regulation 15(2), “the substance of the Tribunal complaint”.

25.	Then one looks at the grievance itself.  Again, a simple solution presents itself because Ms Barrowman acknowledges that the complaints about Mr Baker form part of the grievance.  The Claimant’s objection to his being made redundant was followed into the Respondent’s grievance procedure.  As a matter of law under the little-lamented 2002 Act regime, the two are separate but, for the purposes of regulation 15(2), if there is some sort of procedure that the Claimant believes to be ongoing, it does not matter whether it is called a grievance or a disciplinary matter.  In our judgment, these regulations have introduced unwanted pedantry.  All employment relations practitioners, particularly those involved in a big finance house like this, know the difference between grievances and discipline, and there are different schedules set out in the Employment Act 2002.  But they do not detract from the fact that regulation 15(2) allows for a belief to be held that some procedures to do with dismissal may be ongoing.  The Tribunal, having found that Ms Barrowman had put an end to what was described as the appeal against redundancy, failed to consider whether there was anyway some procedure, that is the grievance procedure that was in fact going on, that dealt with the Claimant’s ultimate complaint of unfair dismissal.

26.	The simple question is was any procedure being followed in respect of the complaint against Mr Baker which was subsequently made?  In our judgment, there plainly was.  The approach by Ms Barrowman to separate the two issues caused the Tribunal to take its eye off that central question.  It may well have been right that certain parts of the Claimant’s case were disposed of by Ms Barrowman but, since the critical date is 30 January, there was material there upon which it was accepted the grievance procedure was ongoing.

27.	We indicated in debate with counsel that, where there is no procedure ongoing, a claimant seeking to be rescued by regulation 15(2) will find it more difficult.  See the cases I cited in Remploy v Shaw.  Where, however, a procedure is ongoing and there are indications by a claimant that he has invoked it, it would be very easy for him to establish his reasonable belief that there was a procedure being followed.  The two emanations of the Claimant’s mind are the correspondence on 28 and 31 January, and they indicate the Claimant’s faith in eliciting a response by the Respondent to his outstanding issues, which, as we have defined it, includes a complaint by him that his redundancy was engineered by Mr Baker.  So, the Employment Tribunal has erred in failing to consider the material in what Ms Barrowman subsequently regarded as the grievance.

28.	That error having been made, it is open to us to decide what to do.  We canvassed both counsel.  Mr Sheridan contended there was nothing more to be investigated here, and that we should make the decision ourselves.  Miss Belgrove contended that this must go back to an Employment Tribunal.  We hold that there is sufficient material here to indicate what the Claimant’s state of mind was on 30 January 2008.  That is, first, on the Respondent’s concession that the grievance procedure was ongoing, it would be extraordinary if he were not to be credited with believing that there was a procedure being followed.  So, he is entitled to that.  It is not necessary for us to investigate whether he was confused by the approach of the Respondent to allocating his complaint to a grievance procedure.  It simply cannot have helped him.

29.	So, we ourselves have decided that the claim was in time, and that this should, therefore, develop into a full hearing.

30.	We would very much like to thank both counsel for their careful arguments in this case.  We hope, in view of the passage of time and the Claimant’s continued desire to compromise, that there may be a solution to this case.  Otherwise, we direct a full hearing.