GRIEVANCE PROCEDURE

Spillett v Tesco Stores Ltd; BUPA Care Homes (BNH) Ltd v Cann

EAT: Judge Peter Clark: 22 February 2006

In the first case, the claimant made an unsuccessful application for promotion in May 2004. Following her resignation in October 2004, she wrote to her employers complaining about their failure to promote her, and on 2 January 2005 she presented a complaint of disability discrimination to an employment tribunal claiming that the reason for the failure to promote her was her stammer. At a pre-hearing review a tribunal chairman refused permission to amend the claim to add complaints of constructive unfair dismissal and disability discrimination by reason of such dismissal and dismissed the claim on the ground that it was made outside the three-month period prescribed by paragraph 3(1) of Schedule 3 to the Disability Discrimination Act 1995 and that it was not just and equitable to extend time.

The claimant appealed.

In the second case, the claimant gave four weeks' notice of her resignation by a letter dated 24 November 2004, in which she asserted, inter alia, that the employers had caused her distress by requiring an independent medical examination following her return to work on 12 November after a period of absence due to back pain. On 11 April 2005 her claim form complaining of unfair constructive dismissal and disability discrimination was accepted by an employment tribunal. At a pre-hearing review a tribunal chairman held that the letter of resignation did not constitute a statement of grievance for the purposes of paragraph 6 of Schedule 2 to the Employment Act 2002. He dismissed the unfair dismissal claim on the ground that the claimant had not satisfied section 32 of the 2002 Act and/or it was out of time under section 111(2) of the Employment Rights Act 1996. In respect of the disability discrimination claim, he extended the time limit under paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995, on the ground that it was just and equitable to do so, and held that evidence and documents adduced by the claimant at the pre-hearing review could be treated as a grievance for the purposes of satisfying section 32 of the 2002 Act.

The employers appealed on the ground, inter alia, that section 32(4) of the 2002 Act constituted a bar to the tribunal considering a discrimination complaint where the grievance was submitted more than four months after the act of discrimination. The claimant cross-appealed on the ground that the letter of resignation did constitute a statement of grievance.

JUDGE PETER CLARK held:
(1) In the first case, the tribunal chairman, in exercising her discretion to refuse permission to amend the claim, had been entitled to conclude that the amendments, which were substantial, were not foreshadowed in the original claim form. The chairman's decision, in relation to both that matter and her refusal to extend time for pursuing a claim arising from the original act of discrimination, revealed no error of law.

(2) The employers' appeal in the second case raised the question of whether the expression "original time limit" in section 32(4) of the Employment Act 2002 referred to the primary three-month limitation period or to that period as extended either, under section 111(2)(b) of the Employment Rights Act 1996, where it was not reasonably practicable to present a complaint of unfair dismissal in time, or, under paragraph 3(2) of Schedule 3 to the Disability Discrimination Act 1995, where it was just and equitable to extend time for a disability discrimination claim. Had Parliament wished to restrict the discretion to extend time given to the tribunal by the 1996 and 1995 Acts, it would have specifically so provided in the 2002 Act, rather than doing so implicitly by section 32(4). Accordingly, the "original time limit for making the complaint" in section 32(4) was the time limit provided for by the relevant legislation, which included the power to consider a complaint made outside the primary limitation period where, in the case of disability discrimination, it was just and equitable to do so, and, in the circumstances, the claimant's discrimination claim would not be time-barred.

(3) The claimant's letter of resignation plainly raised the complaints which formed the basis of her subsequent claim to the tribunal, and it was not necessary for her expressly to invoke a grievance procedure. As the claim was in writing and sent to the employers, the requirements of paragraph 6 of Schedule 2 to the Employment Act 2002 had been met; and, accordingly, the claimant had, in any event, satisfied the provisions of section 32(2) and (4) of the Act and her claim would be remitted for hearing.

The appeal in the first case was dismissed; and the cross-appeal in the second case was allowed.

Appearances: James Tayler (Disability Rights Commission, Manchester) for the claimants in both cases; Richard Powell (DLA Piper Rudnick Gray Cary UK LLP, Birmingham) for the employers in the first case; Martin Palmer (Legal Department, BUPA Care Homes (BNH) Ltd) for the employers in the second case.