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 Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 because the Order is listed in Schedule 3 to the Employment Act 2002. A grievance about unpaid contractual compensation is distinct from a grievance about contemplated dismissal and is not excluded by Regulation 6(5). A constructive dismissal grievance is excluded where the alleged repudiatory conduct is sufficiently proximate to dismissal to amount to a complaint that dismissal was contemplated.

The Claimant, normally resident and working in Hong Kong, was employed by the Respondent, whose business and offices were in England. His employment ended on 11 April 2008. He presented claims for unfair dismissal and breach of contract 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 on limitation and 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, and whether the unfair dismissal grievance concerned contemplated dismissal.

1. Breach of contract. The Employment Tribunal erred in holding that Regulation 15 did not apply to a claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The Order is listed in Schedule 3 to the Employment Act 2002, so Regulation 15 applied.
2. The letter of 17 June 2008 raised two separate grievances. One concerned the alleged repudiatory breach of trust and confidence leading to constructive dismissal. The other concerned failure to pay six months’ salary under the contract. The latter grievance was not that the employer had dismissed or was contemplating dismissing the Claimant, so Regulation 6(5) did not exclude the statutory grievance procedure. The time limit was therefore extended to 10 October 2008, and the claim presented on 31 July 2008 was in time.
3. Unfair dismissal. Applying South Kent College v Hall, the Tribunal was entitled to find that the grievance was, in substance, a complaint that the Respondent was contemplating dismissal. The alleged conduct was sufficiently proximate to dismissal. Regulation 6(5) therefore applied and Regulation 15 did not extend time. The appeal on this claim was dismissed.
4. Territorial jurisdiction. The cross-appeal was unnecessary to determine. The Tribunal’s conclusion was treated as an obiter observation. The principles in Lawson v Serco Ltd involve applying principles to the employment relationship, rather than fitting facts into rigid categories. The Tribunal would have needed further findings about the Respondent’s operations and the Claimant’s role before deciding the issue.

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 finding that it was presented in time, and remitted it to the same Tribunal. Dismissed the appeal concerning unfair dismissal. The Respondent’s cross-appeal on territorial jurisdiction was not determined.
• Employment Tribunal: Dismissed both claims as out of time and held that it would have had territorial jurisdiction over the unfair dismissal claim.