Appeal No. UKEAT/0638/05/DZM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2005
Judgment delivered on 21 December 2005

Before
HIS HONOUR JUDGE PETER CLARK
MS K BILGAN
MR J MALLENDER

MR A PISCITELLI	APPELLANT

ZILLI FISH LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS ELAINE BANTON
(Of Counsel)
Instructed by:
Messrs Levenes
Solicitors
Ashley House
235-239 High Road
Wood Green
London
N22 8HF	
For the Respondent	MS KIM BERKELEY
A Representative

SUMMARY

Statutory disciplinary procedure – internal appeal – reasonable grounds for belief, Regulation 15(2), 2004 Regulations.  Solicitor’s letter before action not raising appeal.  Immaterial that employer had no appeal procedure.

HIS HONOUR JUDGE PETER CLARK

1.	The parties before the London (Central) Employment Tribunal in this matter were Mr Piscitelli, the Claimant and his former employer, Zilli Fish Ltd, Respondent.  The Claimant now appeals against the Judgment of a Chairman, Mr G P Sigsworth, sitting alone on 7 September 2005, dismissing his claims of unfair dismissal, breach of contract and unpaid wages as being out of time.  That Judgment with Reasons was promulgated on 20 September.

2.	The Claimant was at the relevant time employed by the Respondent as General Manager.  On 26 January 2005 he was suspended, it being alleged that he had included a service charge on customers’ bills contrary to the Respondent’s instructions, the suggestion being that he was pocketing equivalent cash amounts from the till.  On 2 February he attended a disciplinary hearing conducted by Mr Aldo Zilli at which was summarily dismissed on the grounds of gross misconduct.

3.	The Claimant instructed solicitors, Levenes, and on 23 February those solicitors wrote to Mr Zilli, contending that the dismissal was both procedurally and substantively unfair.  They added that they had advised the Claimant of his right to present a complaint to an Employment Tribunal of unfair dismissal and set out a calculation of compensation totalling £41,624 (including some double counting).  In an addendum headed ‘Without Prejudice’ they put forward an offer of settlement in the sum of £10,000, to be left open for 14 days.

4.	Attempts were then made to negotiate a compromise.  On 17 March the Claimant’s solicitor spoke to Mr Zilli at the telephone.  The question of misconduct in connection with the Claimant’s alleged dishonesty was discussed.  Mr Zilli said that he wished to resolve things informally but was not prepared to pay £10,000.  A figure of around £3,000 was mentioned.
5.	The final contact was made on 9 May.  The Claimant’s solicitor spoke to the Respondent’s representative who said that Mr Zilli was not prepared to discuss the matter further.  On 11 May the Claimant’s solicitor lodged his claim with the Employment Tribunal.  The 3 month primary limitation period for his claims had expired on 1 May.

6.	The first issue in this appeal is whether the Chairman was wrong in law in finding that the Claimant did not have reasonable grounds for believing, when the primary limitation period expired, that a dismissal or disciplinary procedure, whether statutory or otherwise … was being followed in respect of matters that consisted of or included the substance of the tribunal complaint, as provided for in Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the 2004 Regulations).  If so, then the ordinary time limit falls to be extended under Regulation 15 by a further 3 months.  In these circumstances the unfair dismissal and breach of contract claims would be in time.

7.	The Chairman considered the letter of 23 February, relied on by the Claimant as amounting to an appeal against the dismissal decision of 2 February and concluded that it did not.

8.	In support of the appeal Miss Banton submitted that the concept of an internal appeal, which would have the effect of giving reasonable grounds for the belief that a disciplinary procedure was being followed, should be given the same wide meaning as a grievance for the purposes of the grievance procedure requirements of the 2004 Regulations.  See now my judgment in Thorpe v Poat and Lake (UKEAT/0503/SM.  18 October 2005) and Galaxy Showers v Wilson (UKEAT/0525/05/CK. 10 November 2005.  Langstaff J).  She contends that the evidence before the Chairman show that up to 9 May the employer wished to have a meeting with the Claimant, indicating a willingness to entertain an appeal and thus giving rise to the necessary reasonable grounds for belief required by Regulation 15(2) to extend time for presenting the claim.

9.	We are unable to accept that submission on the facts of this case.  We accept that the fact that the Claimant’s Solicitor’s letter of 23 February could be viewed as a letter before action does  not of itself preclude such a letter from raising an appeal (or indeed a grievance for other purposes under the 2004 Regulations).  (See Regulation 2(2)) However, we do not read paragraph 11 of the Chairman’s reasons as relying simply on the fact it was a letter before action as precluding the possibility that it also constituted an appeal.  Rather, that on a proper reading of the letter it did not raise an appeal.  We think that is a fair reading.  It did not seek the Claimant’s reinstatement or re-engagement, the invariable purpose of an internal appeal against dismissal; instead it sought a cash settlement of the Claimant’s potential claim for unfair dismissal and no more.

10.	Further, there is no suggestion in any of the evidence before the Chairman, other than a self-serving assertion in the Claimant’s witness statement, that any appeal had in fact been lodged or that any meeting sought by the employer was to explore rescission of the dismissal decision.

11.	Miss Banton further complains that on the Chairman’s findings it was doubtful whether the Respondent had an appeal procedure.  Thus, she submits, the Respondent was in breach of the contractual term, statutorily incorporated from 1 October 2004 by Section 30 EA 2002, providing for an appeal procedure.  The Respondent’s refusal to grant the right of appeal would result in a 10-50 pc uplift in the compensatory award in the event of an unfair dismissal claim succeeding by virtue of Section 31(3) EA 2002 (interestingly, not a point made in the letter of 23 September).  The effect of the Chairman’s finding was to allow the Respondent to benefit from their own breach of statutory procedures.

12.	We are not persuaded that this is so.  What is required in the first place is for the employee to lodge an internal appeal.  If the employer then refuses to entertain it the employee has no reasonable grounds for believing that the disciplinary process is being followed.  He knows that he must present his claim within the ordinary 3 month period.  If that claim succeeds, the employer will then be penalized in compensation in the way earlier described.  There was nothing to prevent this Claimant from simply indicating his intention to appeal.  Neither he nor his solicitors did so.

13.	Thus we are driven to conclude that no error of law has been made out in the Chairman’s approach.  It seems that the Claimant’s Solicitors simply missed the primary limitation deadline.  We note that the claim form was completed in April 2005; within time.  It was, found the Chairman, reasonably practicable to present it within time.  Consequently the claim is time-barred.  This appeal fails and is dismissed.