Towergate London Market Ltd v Harris

For an unfair dismissal claim, the statutory dismissal procedure may remain applicable after dismissal because its appeal stage can take place later. The first requirement under regulation 15(1) is therefore not defeated merely because the employee has already been dismissed.

Under regulation 15(2), the tribunal must ask whether the employee believed that a dismissal or disciplinary procedure, statutory or otherwise, was being followed in relation to the substance of the complaint, and whether reasonable grounds supported that belief. The tribunal must assess substance rather than labels such as grievance or appeal, and should avoid undue technicality.

Mrs Harris was dismissed for redundancy and presented an unfair dismissal complaint outside the ordinary three-month limit. The Employment Tribunal rejected both the statutory reasonable-practicability extension and the extension under regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The Employment Appeal Tribunal allowed her appeal and remitted the claim for hearing under UK EAT/0090/07/DM, holding that the issue was whether she reasonably believed that an ongoing dismissal procedure existed, rather than whether her correspondence was formally an appeal. Towergate appealed. The central issues were whether the dismissal procedure was applicable after dismissal and whether Mrs Harris had reasonable grounds for believing that a dismissal procedure was still being followed.

1. Majority: applicability of the statutory procedure. Keene LJ, with whom Wilson LJ agreed, rejected the argument that regulation 15(1) could never apply to an unfair dismissal claim because regulation 3(1) refers to an employer contemplating dismissal. An unfair dismissal complaint necessarily arises after dismissal. The statutory procedure begins before dismissal but may continue afterwards, since the appeal meeting need not take place before dismissal takes effect. Regulation 15(1) was therefore capable of being satisfied.
2. The regulation 15(2) test. The tribunal had to ask two questions: whether the employee believed that a dismissal or disciplinary procedure, statutory or otherwise, was being followed in respect of matters including the substance of the tribunal complaint; and whether there were reasonable grounds for that belief. The question was not whether a procedure was objectively being followed.
3. Substance rather than labels. The Chairman erred by concentrating on whether Mrs Harris’s letter was an appeal or a grievance. An employee may have a grievance about dismissal in ordinary language, although regulation 6(5) prevents either statutory grievance procedure applying to such a grievance. The correspondence and surrounding events could nevertheless evidence a non-statutory dismissal procedure. The court endorsed the warning in Shergold v Fieldway Medical Centre [2006] 1CR 304 and Canary Wharf Management Ltd v Edebi [2006] 1RLR 416 against undue technicality.
4. Application and disposition. The meeting, provision of assessment documents, request for a further meeting and absence of a response gave Mrs Harris reasonable grounds for believing that an internal procedure concerning the fairness of her dismissal remained in progress. Under section 35(1) of the Employment Tribunals Act 1996, the EAT was entitled to determine the issue itself on the documentary material and to remit the claim for hearing. The appeal was dismissed. Ward LJ dissented, holding that no statutory dismissal procedure was applicable after dismissal and, alternatively, that the correspondence was a grievance rather than an appeal.

• Court of Appeal (Civil Division): By majority, dismissed Towergate’s appeal and upheld the Employment Appeal Tribunal’s order remitting the unfair dismissal claim for hearing.
• Employment Appeal Tribunal: Allowed Mrs Harris’s appeal and remitted the matter for a tribunal hearing under UK EAT/0090/07/DM.
• Employment Tribunal: Found that neither available extension of time was satisfied and dismissed the unfair dismissal claim.