Owolowo v Family Mosaic Housing Association

Under regulation 15(2) of the 2004 Dispute Resolution Regulations, the relevant question is whether the claimant actually held, and had reasonable grounds for holding, a belief that a procedure concerning the substance of the complaint remained ongoing when the ordinary limitation period expired. The test is subjective as to belief, with objective reasonableness assessed in the circumstances.

A procedure need not form part of the employer’s formal internal process. Correspondence from a solicitor seeking reinstatement and compensation may provide a sufficient basis for such a belief. Where a litigant in person’s claim form raises the issue, the Employment Tribunal should address it. The EAT may exceptionally permit the point to be raised for the first time on appeal where its determination requires findings of evidence.

The claimant appealed against a preliminary judgment of Employment Judge Haynes, registered on 20 January 2010, which dismissed his discrimination and unfair-dismissal claims as approximately one month out of time.

The claimant had been dismissed, had pursued an internal appeal, and had received a solicitor’s letter seeking compensation and a return to employment before the limitation period expired. The Employment Judge considered the applicable provisions but did not determine whether the claimant reasonably believed that an ongoing dismissal procedure existed within regulation 15(2).

The central issue before the EAT was whether that question had been raised sufficiently by the claim form and correspondence, and whether it should be remitted for determination.

1. Appeal allowed and case remitted. The appeal was remitted to the same Employment Judge for a further pre-hearing review under regulations 15(1)(a) and 15(2) of the 2004 Dispute Resolution Regulations.
2. The relevant time was midnight on 24 May 2009, when the primary limitation period expired. The question was whether the claimant believed that a process concerning the substance of his complaint was ongoing and, if so, whether that belief was reasonable in the circumstances.
3. The test under regulation 15(2) was subjective. The Employment Tribunal had to determine the claimant’s state of mind and then assess whether the belief was reasonable. The Employment Judge had instead applied an objective approach to the written material.
4. The solicitor’s letter, which sought reinstatement and compensation and invited the employer to reconsider the matter, was capable of constituting a process relating to the dismissal. The fact that it was outside the employer’s formal internal procedure did not prevent it from falling within regulation 15(2). The approach in Towergate London Markets Limited v Harris [2008] IRLR 537 and Eagles v Rugged UKEAT/0018/09/ZT was applied.
5. Although the EAT generally refused new points on appeal, this was an exceptional case. The claimant was a litigant in person, the claim form supplied a foundation for the issue, and determining the point required evidence about his belief. The Employment Judge was therefore required to consider it and make the necessary findings.

• Employment Appeal Tribunal: allowed the appeal against the preliminary judgment registered on 20 January 2010 and remitted the matter to the same Employment Judge for determination under regulations 15(1)(a) and 15(2) of the 2004 Dispute Resolution Regulations.
• Employment Tribunal: held that the claims were out of time and dismissed them without determining whether regulation 15(2) applied to the solicitor’s letter and the claimant’s alleged belief in an ongoing procedure.