Mbog v. Whitbread Group Plc

For the purposes of Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the substance of the tribunal complaint means the substantial factual matrix from which the cause of action arises. It does not mean the particular legal cause of action pleaded in the ET1.

The provision therefore may extend time where an employee reasonably believes that a dismissal or disciplinary procedure remains ongoing in relation to facts later relied upon in an unfair-dismissal complaint, even though the employee also frames those facts as racial discrimination. An unduly technical separation of overlapping causes of action is impermissible.

The appellant was dismissed for alleged gross misconduct, with the effective termination date treated as 30 January 2008. The ordinary limitation period for an unfair-dismissal complaint expired on 29 April 2008.

She presented an ET1 on 30 April 2008 alleging unfair dismissal. She later presented a further ET1 alleging race discrimination and victimisation. Her grievances, raised before and after dismissal, challenged the treatment by her manager and alleged that the dismissal was racially motivated. The Employment Tribunal held that the race-discrimination complaint was in time but that it lacked jurisdiction over the unfair-dismissal complaint.

The appeal concerned whether the ongoing grievance procedure related to matters consisting of or including the substance of the unfair-dismissal complaint for the purposes of Regulation 15(2).

1. Appeal allowed. The Employment Tribunal had jurisdiction to consider the unfair-dismissal complaint. The time limit was extended by three months from 29 April 2008.

2. The Employment Tribunal adopted too narrow an interpretation of the phrase substance of the tribunal complaint in Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The phrase refers to the substantial factual matrix of the complaint, rather than to the particular cause of action pleaded in the ET1.

3. The facts underlying the appellant’s unfair-dismissal complaint substantially overlapped with those underlying her later allegations of race discrimination and victimisation. The fact that different legal causes of action were derived from that factual matrix did not mean that the ongoing procedure concerned only the discrimination complaint.

4. The Employment Tribunal had found that, when the ordinary limitation period expired, the appellant had reasonable grounds for believing that a procedure concerning her dismissal remained ongoing. That finding was sufficient under Regulation 15(2), because the procedure related to matters consisting of or including the substance of her complaint.

5. The approach was consistent with Harris v Towergate London Market Limited [2008] IRLR 537 and the subsequent Employment Appeal Tribunal decisions in Remploy Ltd v Shaw [2009] ICR 1159, Eagles v Rugged Systems Ltd UKEAT/0018/09/ZT and Mockett v Credit Suisse Securities (Europe) Limited UKEAT/0299/09/CEA. The legislation should not be applied with undue formalism.

1. Employment Appeal Tribunal: Appeal allowed. The decision that the unfair-dismissal complaint was out of time was set aside, and jurisdiction was declared.
2. Employment Tribunal: On 28 August 2009, with judgment entered on 8 September 2009, the tribunal held that the unfair-dismissal complaint was out of time but accepted jurisdiction over the race-discrimination complaint.