Towergate London Market Limited v Harris

The Court of Appeal considered whether the three-month time limit for presenting an unfair dismissal claim under section 111(2)(a) of the Employment Rights Act 1996 could be extended by regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The critical questions were (a) whether a dismissal or disciplinary procedure (statutory or otherwise) was the applicable statutory procedure for the purposes of regulation 15(1) and (b) whether the claimant had reasonable grounds to believe, at the expiry of the normal time limit, that such a procedure was being followed.

The majority (Keene LJ and Wilson LJ) held that the tribunal chairman had erred by focussing on whether the claimant's letter was formally an "appeal" rather than asking whether she reasonably believed a dismissal procedure was being followed. They concluded the dismissal procedures could be "applicable" even where dismissal had occurred and that on the facts the claimant had reasonable grounds to believe an internal procedure to challenge the dismissal was ongoing, so regulation 15(2) extended time and the claim was in time. The appeal was therefore dismissed and the Employment Appeal Tribunal's order remitting the claim to a tribunal was restored.

Background and nature of the claim.

Mrs Harris was dismissed for redundancy with an effective termination date of 31 October 2005. She presented an unfair dismissal claim to the employment tribunal on 21 April 2006, outside the three-month period specified by section 111(2)(a) of the Employment Rights Act 1996. The dispute before the Court of Appeal concerned whether time could be extended under either section 111(2)(b) (reasonable practicability) or, more importantly in this appeal, regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 which permits a three-month extension where the employee had reasonable grounds for believing, when the time limit expired, that a dismissal or disciplinary procedure (statutory or otherwise) was being followed in respect of matters including the substance of the tribunal complaint.

Procedural history.

• The employment tribunal (chairman Walton) struck out/dismissed the claim for want of jurisdiction on time grounds.
• The Employment Appeal Tribunal (McMullen QC) allowed the claimant's appeal on regulation 15 grounds and remitted the claim to a tribunal.
• Towergate obtained permission to appeal to the Court of Appeal. Laws LJ granted permission as the point was arguable.

Issues framed by the Court.

1. Whether, for the purposes of regulation 15(1), either of the dismissal and disciplinary procedures was the "applicable statutory procedure" in a case where dismissal had already taken effect.
2. Whether the tribunal chairman erred in law by treating the claimant's post-termination correspondence as a grievance (not an appeal) and by focusing on the label rather than on whether the claimant reasonably believed a dismissal procedure was being followed when the time limit expired.
3. On the facts, whether the claimant had reasonable grounds to so believe, thereby attracting the three-month extension under regulation 15(2).

Court’s reasoning and decision.

The majority concluded that "applicable" in regulation 15(1) means the procedure which as a matter of law should have been followed in the circumstances and that those procedures may continue after dismissal (for example, by way of appeal meetings). Consequently regulation 15(1) can be engaged in unfair dismissal cases where the claim is presented after dismissal. The majority held that the tribunal chairman had applied the wrong test by concentrating on whether the claimant's letter was an appeal rather than whether she reasonably believed a dismissal procedure (statutory or otherwise) was being followed. On the facts (meetings with the employer and union, information supplied on 5 January, and the claimant's letter of 25/26 January requesting a meeting) the majority considered it open to the EAT to conclude that the claimant had reasonable grounds for that belief. Time was therefore extended and the claim was in time; the EAT order remitting the matter for hearing stood. The appeal was dismissed.

Notable subsidiary points. Ward LJ dissented on a narrow point of statutory construction, taking the view that the standard dismissal procedure only applies where dismissal is contemplated and therefore could not be "applicable" after dismissal had occurred; he would have allowed the employer's appeal and dismissed the claim. The majority rejected that construction as producing an absurd result and read "applicable" more broadly.

This was an appeal. The Court of Appeal (majority: Keene LJ and Wilson LJ) dismissed the employer’s appeal. They held that regulation 15(1) could apply to unfair dismissal claims presented after dismissal because the dismissal procedures may remain the applicable statutory procedure in the circumstances; the tribunal chairman erred by focusing on whether the claimant’s letter was formally an appeal rather than whether she reasonably believed a dismissal procedure was being followed; on the facts the claimant had reasonable grounds to hold that belief and so regulation 15(2) extended time and the claim was in time. Ward LJ dissented on the construction of regulation 15(1) and would have allowed the appeal.

Appeal from a decision of the Employment Appeal Tribunal (His Honour Judge McMullen QC, UK EAT/0090/07/DM) allowing the claimant’s appeal against an Employment Tribunal time-bar decision. Permission to appeal to the Court of Appeal was granted by Laws LJ. The Court of Appeal dismissed the employer’s appeal, restoring the EAT’s order remitting the claim to a tribunal.