Work in progress

The rights and procedures introduced by the Employment Rights Act 2002 are not as rigid as may first appear. It remains possible for employers to defeat a finding of automatically unfair dismissal, for employees to benefit from extensions of time long after they have submitted their grievance, and even to exploit to either party's advantage the conflicts between the grievance and disciplinary procedures. A recent case before the Employment Appeal Tribunal has also identified a potential chasm in the statutory requirement to provide a grievance.

Alexander effect

As a result of the decision in the recently decided case of Alexander v Bridgen Enterprises Ltd [2006] ICR 1277; [2006] IRLR 422, there are situations where employers can effectively circumvent findings of automatic unfair dismissal for failing to meet the minimum statutory procedure.

In this case, the respondent company made a number of redundancies to its welding department; selection criteria were used, but the employees were not provided with details of their own scores and the question arose as to whether sufficient information had been provided to comply with the statutory disciplinary/dismissal procedure.

The EAT (Elias P presiding), allowed the appeal, holding that:

1. the employee had been unfairly dismissed;

2. but approved the employment tribunal's decision that the compensatory part of the award could be reduced to nil where there was a 100 per cent likelihood that the dismissal would have happened '“ despite a failing to meet the statutory minimum procedures. In this case the employment tribunal had found that the employees would have been selected for redundancy in any event.

It follows that where the compensatory part of the award is reduced to nil, there can be no uplift (for breaching the statutory disciplinary procedures) and that s 31 of the Employment Act 2002 will have no effect. Therefore an employee can be dismissed in breach of the statutory minimum disciplinary procedures, benefit from a finding of automatic unfair dismissal, but receive no compensation.

Submitting a claim form

As a result of the ratio in HM Prison Service v Barua [2006] UKEAT 0378/06, employers defending employment tribunal claims should be aware of the long time an employee has, having triggered an extension, for the submission of his employment tribunal claim form (ET1).

Dr Barua, the appellant, was employed as a part-time medical officer. He complained about a unilateral reduction in pay and subsequently resigned. During the period of his notice he submitted a grievance letter and a meeting was held. Exactly six months after his resignation he submitted his ET1 and the question arose as to whether he was entitled to benefit from the three-month extension.

Underhill J sitting alone, held that there is no defined beginning period for the lodging of a grievance.

Therefore, an employee can lodge his grievance at any time and enjoy the full six month period for submission of his ET1 (pursuant to reg 15 of the Employment Act (Dispute Resolution) Regulations 2004).

It is noted at para 12 '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'.

In cases of constructive dismissal where there is a long line of issues that aggregate to give rise to repudiation on the part of the employer, this could mean that a grievance is submitted many months before the employee's actual resignation. In these circumstances, employers, and those representing them, must be aware that the employee has six months to submit his ET1.

Hence, one can understand the comment of the EAT: 'This is yet another appeal depending on the construction of the rebarbative provisions of Part 3 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004'.

On a similar point, the EAT in Samantha Spillet v Bupa Care Homes [2006] UKEAT 0475/05/DZM (HHJ Clark sitting alone) held that reg 15 of the Dispute Resolution Regulations stipulates that time starts to run from the end of the 'primary limitation period'.

The EAT rejected the submission that s 32(4) of the Employment Act 2002 replaces the tribunal's discretion to extend time for service of the ET1 under other Acts, such as para 3, Sched of the Disability Discrimination Act 1995.

The outcome of this decision is that employees gain the advantage of the full extension under the Employment Appeal in addition to any discretionary extensions offered by other Acts.

However, employees should be alert to exactly what constitutes a grievance. One might think that setting out in statement form what one is complaining of, would be sufficient, even if such a complaint were included in an anti-discriminatory questionnaire.

The EAT in Holc-Gale v Makers UK Ltd [2006] ICR 462 ; [2006] IRLR 178 decided otherwise, holding that para 14 of Dispute Resolution Regulations precludes the use of a statement as a grievance if it is contained within such a questionnaire.

Grievance and disciplinary procedures

There will also be instances where a considered benefit can be gained where both the grievance and disciplinary procedures are invoked. In Department for Constitutional Affairs v Mr J Jones [2006] UKEAT/0333/06 (HHJ Richardson sitting alone), the EAT ruled that where both sets

of procedures came into play, it was possible as in the instant case, that the employee's grievance would not trigger an extension of the time limit for submitting the ET1 to six months.

Mr Jones unsuccessfully argued that his complaints about the manner of disciplinary procedures amounted to a grievance outside of reg 6(5) and that therefore he should be entitled to an extension of time.

Regulation 6 (5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 states: 'Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee'.

The EAT commented at para 41: 'The provisions of the 2002 Act, and more particularly the 2004 Regulations, are full of difficulty. They are not easy to construe, and are at times counter-intuitive. They have the potential to introduce undue technicality and over-sophistication, resulting in problems for employer and employee alike.'

Which procedures apply?

The case of Van Dieren v Edwards [2006] UKEAT/0166/66 (before HHJ Burke alone), further illustrates the potential for confusion when considering which procedures apply.

Mr Van Dieren was employed by Mr Edwards on a caravan site near Holywell in North Wales. The employer claimed that Van Dieren was guilty of gross misconduct in his management of the caravan site. He was invited to a disciplinary meeting. A letter set out, in general terms, the nature of his employer's complaints and subsequently he was summarily dismissed. Van Dieren sent a letter indicating that he was appealing against the dismissal. His employer sent a reply, inviting Van Dieren to a meeting to discuss the appeal. Van Dieren did not attend the meeting. There was no formal response to the appeal. Van Dieren presented his claim one day over the three month time limit set out in s 111 of the Employment Rights Act 1996.

The employment tribunal dismissed Van Dieren's claim as being out of time, but this was overturned on appeal. The employment tribunal erred in applying the statutory grievance procedures where the statutory disciplinary procedures should have been applied instead. The EAT commented: 'The reality is that, in this case, the tribunal appears to have gone down the wrong road by focusing on the grievance procedure and the regulations which operate in the case of the application of a grievance procedure.'

However, the principle that it is incumbent on the employment tribunal to identify the correct procedure is contradicted by the later EAT case of Smith v Edmundson Electrical Ltd [2006] UKEATS/0017/06 where the Honourable Lady Smith (sitting alone) rejected the ground of appeal that the employment tribunal should, on its own motion, have considered applying the statutory disciplinary procedures.

The EAT stated: 'I cannot conclude, on the basis of what was submitted and having read the tribunal's judgment, that the chairman should have realised that the claimant was in fact advancing a case under para 15(2) of the 2004 Regulationsº the chairman was under no obligation to consider whether it should have been and what would have been the outcome in that event'.

Jurisdiction argument

In DMC Business Machines Plc v Plummer [2006] UKEAT/0381/06/MAA, the EAT (Underhill J presiding) identified a potential argument concerning jurisdiction and the requirement for a grievance to be lodged.

Mr Plummer resigned as a warehouse manager, initially citing his fear of a colleague, as a result of conflict between them. Over two months later he submitted a written complaint to his ex-employer 'concerning the handling of events by the company'. Between three and six months after his employment ended, Plummer claimed constructive dismissal. The employment tribunal found that Plummer's grievance was substantially the same as his complaint and that he had been unfairly dismissed.

On appeal, the employer took a new point, not in its grounds, about jurisdiction, specifically claiming that Plummer had failed to set out his grievance in writing, because his complaint to the tribunal was not substantially the same as his grievance. The EAT found that Plummer's grievance 'only just scrapes over the hurdle'.

The EAT also highlighted the jurisdictional restrictions of ss 32(6)(a) and (b) of the Employment Act 2002, observing that 'the requirement is on the employer is to plead explicitly that there has been non-compliance with s 32' unless (quoting the words of the Act), 'the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of proceedings'. The Act here appears to be referring to the screening of ET1s prior to their acceptance.

The EAT also rejected the employer's submission that the Court of Appeal in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 held because a point went to jurisdiction it meant that it had to be allowed to be taken in the Appeal Tribunal.

With respect to a potential jurisdictional argument, the EAT questioned the employer's interpretation of reg 6 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, at para 21(b) of the judgment. Regulation 6 concerns the application of the grievance procedures.

Should the employer's interpretation of this provision be wrong, then the employee is not required to raise a grievance (and conversely will not benefit from the extension of time periods) where his complaint does 'not as such attract the operation of any of the statutory jurisdictions '“ that is, they [are] not, eg, complaints of discrimination or about an unlawful deduction of wages'.

As in the instant case, the employee may have a complaint that does not fall squarely into Sched 4 of the Employment Act 2002, since the employee was not in fact complaining about being unfairly dismissed or any of the other matters listed in Sched 4. The employee was complaining about his employer's handling of an incident. The tribunal found that employer's handling amounted to a repudiatory breach and was in fact therefore an unfair dismissal, but it is open to argument whether the employee was ever complaining about the fact of unfair dismissal. Dismissal in this instance may equate directly with the employer's breach and that therefore they are effectively one and the same. However, constructive dismissal is in truth an act by the employee (as an acceptance of a repudiation) '“ and not the employer.

Although obiter, the EAT did state that 'there may be room for argument' in respect of this point. Evidently, this is a submission that could both allow a claimant to proceed, where otherwise debarred, or a respondent to prevent a claim.

It is clear, from the judicial comment and cases cited above, that practitioners should take great care in construing the Employment Act 2002 (and associated) provisions.

Furthermore, the Employment Act 2002 has caused a number of prominent representative groups to express strong concerns on the proposed extension of the dispute resolution procedures. Consequently, the Department of Trade and Industry has pledged to issue a consultation paper on the working of the Employment Act 2002 and the broader resolution of employment disputes, at some point in early 2007.

Therefore, it is anticipated that some changes will made to these provisions in the near future. Watch this space!