Shaw v B&W Group Ltd

A breach of contract claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 falls within the jurisdictions listed in Schedule 3 to the Employment Act 2002. Compliance with the statutory grievance procedure may therefore extend the normal limitation period under Regulation 15.

Separate grievances must be considered separately. A grievance concerning unpaid contractual salary is not a grievance that the employer has dismissed or is contemplating dismissing the employee. By contrast, a constructive dismissal grievance falls within Regulation 6(5) where the repudiatory conduct complained of is sufficiently proximate to an actual or contemplated dismissal. Territorial jurisdiction for employees working abroad depends on applying the principles in [2006] IRLR 289 to the facts.

The Claimant, resident and normally working in Hong Kong, brought claims for unfair dismissal and breach of contract after his employment ended on 11 April 2008. He presented both claims on 31 July 2008.

The Employment Tribunal held that both claims were out of time. It also held, obiter, that it would have had territorial jurisdiction over the unfair dismissal claim. The Claimant appealed. The Respondent cross-appealed on territorial jurisdiction.

The central issues were whether Regulation 15 extended time for the breach of contract claim, whether Regulation 6(5) excluded that extension for either claim, and whether the territorial jurisdiction issue required determination.

1. The appeal concerning breach of contract was allowed. The Employment Tribunal had erred in holding that Regulation 15 did not apply to a claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. That jurisdiction was listed in Schedule 3 to the Employment Act 2002.

2. The grievance letter raised two distinct matters: an alleged repudiatory breach of the implied term of trust and confidence, relied upon for constructive dismissal, and failure to pay six months’ salary said to be contractually due. The latter grievance was independent of any dismissal or contemplated dismissal and therefore was not excluded by Regulation 6(5). Regulation 15 extended time for the breach of contract claim to 10 October 2008, so the claim presented on 31 July 2008 was in time.

3. The unfair dismissal appeal was dismissed. Applying South Kent College v Hall, the question was whether the repudiatory conduct complained of was sufficiently proximate to dismissal to amount to a grievance that the employer was contemplating dismissal. On the facts advanced by the Claimant, the Employment Tribunal was entitled to find that it was. Regulation 6(5) therefore prevented reliance on the Regulation 15 extension.

4. The cross-appeal on territorial jurisdiction did not require determination. The Tribunal nevertheless observed that the issue was fact-sensitive. The principles in Lawson v Serco Ltd required examination of how the employer operated and whether the Claimant’s role differed from that of locally engaged overseas staff. If necessary, the issue would have been remitted for further findings under Lawson and the caution in Ministry of Defence v Wallis & another.

5. The breach of contract claim was remitted to the same Employment Tribunal, if practicable, for determination.

• Employment Appeal Tribunal: allowed the appeal on the breach of contract claim, substituted a decision that it was presented in time, and remitted it to the same Employment Tribunal if practicable. The unfair dismissal appeal was dismissed.
• Employment Tribunal: dismissed both claims as out of time and held that it would have had territorial jurisdiction over the unfair dismissal claim if the claim had been in time.