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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Noushouri v HBOS Plc [2009] UKEAT 0334_09_1112 (11 December 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0334_09_1112.html Cite as: [2009] UKEAT 0334_09_1112, [2009] UKEAT 334_9_1112 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE WILKIE
MR P GAMMON MBE
MR D WELCH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR B SPELLER (of Counsel) Instructed by: Messrs Funnell & Perring Solicitors 192-193 Queens Road Hastings East Sussex TN34 1RG |
For the Respondent | MR R WHITE (of Counsel) Instructed by: Lloyds Banking Group Plc Legal Services 1st Floor 38 St Andrew Square Edinburgh EH2 2AD |
SUMMARY
JURISDICTIONAL POINTS
CLAIM IN TIME AND EFFECTIVE DATE OF TERMINATION
Employment Tribunal erred in law in concluding that it did not have jurisdiction as it misapplied the provisions relating to the time limit for commencing proceedings where the Claimant reasonably believes that a disciplinary or dismissal procedure is still being pursued.
The cross appeal on the substance of the claim, in essence a perversity challenge, fails.
THE HONOURABLE MR JUSTICE WILKIE
"I am raising this grievance as I need these matters to be formally addressed. Please acknowledge receipt of this letter upon receipt and confirm when a response will be available."
"This matter will be fully investigated, and you will be invited to attend a meeting, which will take place within the timescales outlined in the Grievance Policy and Procedures."
"are you saying that if reinstatement were an option you would come back?"
"reinstatement is not an option."
"I don't want people to think they got rid of Jo easily. I want people like Sandra investigated for the way they treated me, I want to be compensated for all losses I have incurred."
"I didn't think I could go through an appeal, I took advice from a solicitor and was told I had a right to grievance."
"Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee."
"(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and -
(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or
(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;
the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.
(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint."
"The letter of 4 December is consistent with the fact that the Claimant was also claiming that she had been constructively dismissed and was complaining about the disparity in treatment between herself and Mr Hackett, which then became a sex discrimination claim. Both of those aspects of the claim required a grievance to be raised and in our judgment that was the purpose of the letter that was written on 4 December. It was a letter of grievance and is headed as such. As at 10 December 2007 the Claimant did not have reasonable grounds for believing that a dismissal or disciplinary procedure, whether statutory or otherwise, was being followed. This conclusion is reinforced by the replies the Claimant gave at the grievance meeting. Those were not the replies of someone wishing to reverse the decision to dismiss. They are the replies of someone going through the grievance procedure as a preliminary to making a Tribunal claim. Regulation 15(2) does not apply and the Tribunal does not have jurisdiction to hear the Claimant's claim for unfair dismissal as it was presented out of time."
"The appeal tribunal took the view that these demonstrated a belief that there was an ongoing procedure putting in issue her dismissal. It is quite true that in her letter she described what she was doing as raising a grievance, but her complaint was patently about her redundancy and consequent dismissal. In common parlance, she had a grievance about her dismissal, and she stated that she was entitled to a meeting to resolve this issue. That is an indication that she believed that some sort of procedure relating to her dismissal was being followed. It will be borne in mind that the belief does not have to be that a statutory procedure is being followed: the words 'or otherwise' in Regulation 15(2) indicate that a belief in other forms of procedure will suffice. Clearly the so-called grievance related to her dismissal, as did the meeting to which she believed herself to be entitled. She was, in reality, seeking to challenge that dismissal through the company's internal procedures."
"Within the meaning of the legislation, as in common parlance, an employee can have a 'grievance' that an employer has dismissed him or is contemplating dismissing him. But, notwithstanding that such is a grievance, neither of the grievance procedures applies to it."
"So as it happens, Mrs Harris said nothing objectionable nor misconceived when, in her letter dated 25 January 2006, she stated that she wished 'to raise a formal grievance in respect of [her redundancy]'."
"(a) Both parties must then have believed that they were following a non-statutory procedure in respect of a looming issue in relation to the fairness of her dismissal.
(b) Take Towergate's provision of the documents to Mrs Harris on 5 January 2006. What did it expect her to do with them? It expected her, with the help of her union representative, to analyse them and in the light of them either to accept that her dismissal was fair or formally to contend that it was unfair. Thus the non-statutory procedure was still being followed.
(c) Finally, take Mrs Harris' letter dated 26 January 2006. In it she formally contended that her dismissal was unfair; asked for a meeting; said, rightly or wrongly, that she was entitled to the meeting; indicated that she wished her union representative to accompany her to it; articulated an aspiration that the issue be resolved by 23 February 2006; and said that she awaited Towergate's comments.
(d) … In my view the only inference reasonably to be drawn from the sequence and content of the communications set out in (a) to (c) above is that on that date Mrs Harris had reasonable grounds for believing that, with the active cooperation of Towergate up to that point, she was following a non-statutory dismissal procedure with a view to resolving the issue of the fairness or otherwise of her dismissal without resort to the Tribunal."
"The Tribunal would have taken into account the form completed by Mrs McCain after the disciplinary interview on 6 September. She had obviously considered the options and had for her own benefit noted the options she believed to be available. These did not include dismissal. This was what was in her mind at the time and we find that the options she was considering were the options of a reasonable employer bearing in mind the Claimant's length of service, her relative inexperience as a first line supervisor, the pressures of short staffing, the way Mr Hackett had been treated, and the personal pressures of which the Respondent was aware. For some reason about which we have not been told, Mrs McCain subsequently made the decision that dismissal was inevitable. In view of all the mitigating factors and in view of what Mrs McCain initially felt after the interview we would have come to the conclusion that dismissal would not have been within the band of reasonable responses of a reasonable employer."
"The Tribunal did not hear any persuasive reason why the position had changed. Mrs McCain said in evidence that she later concluded that the Claimant had lied from the start, that the Claimant knew that she should not have done what she did, she could have admitted her fault but instead she had tried to blame others who were not as experienced as she nor had held a management position. None of these reasons explain why Mrs McCain had completed the post interview form in the way she did."