GRIEVANCE PROCEDURES

Lambeth London Borough Council and others v Corlett

EAT: Judge Peter Clark: 12 October 2006

The claimant was employed as an estate director by the respondent council until October 2005, when he was summarily dismissed on the ground of gross misconduct. In April 2006 he made claims of, inter alia, wrongful dismissal and unlawful discrimination on the grounds of race and sexual orientation. At a pre-hearing review the council contented that the tribunal had no jurisdiction to hear the complaints by virtue of section 32 of the Employment Act 2002 and because the complaints were time-barred. The employment tribunal chairman, sitting alone, found that, in so far as the act of discrimination complained of was the dismissal, under regulation 6(5) and (6) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the statutory grievance procedure did not apply and that the claimant was entitled to rely on regulation 15(2) to extend the time limit to present his discrimination claims, as an internal appeal against his dismissal was still pending when the initial three-month time limit expired. She made no express ruling on the wrongful dismissal claim.

The respondents appealed.

JUDGE PETER CLARK held:
(1) While the claim of wrongful dismissal related to the council's failure to give notice or pay in lieu, the claimant's "grievance" for the purposes of regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 was that he had been dismissed, and, therefore, neither the statutory grievance procedure nor the statutory disciplinary procedure applied. The claimant's internal appeal against his dismissal included the substance of his wrongful dismissal complaint to the employment tribunal, namely that his dismissal was in breach of contract at common law, and the claim, therefore, fell within the extension of time provision in regulation 15(2). Accordingly, the tribunal had jurisdiction to hear the claim for wrongful dismissal.

(2) The claims of discrimination contained a number of alleged acts not involving dismissal, not dealt with by the tribunal, some of which took place before the 2004 Regulations came into force and to which regulation 15 could not apply. A complaint made of suspension on full pay could not amount to the taking of "relevant disciplinary action" for the purposes of regulation 6(6), as it was expressly excluded by regulation 2(1), and it was not, therefore, exempt from the need to comply with the grievance procedures. Further, and even in so far as the claims related to dismissal, the claimant could have had no reasonable grounds for believing that the disciplinary procedure was being followed in respect of those matters, since he had raised no complaint of discrimination on the ground of race or sexual orientation in the internal appeal procedure. Accordingly, the tribunal was wrong to conclude that the claimant was entitled to rely on regulation 15(2) of the 2004 Regulations to extend the time limit, and there was no jurisdiction in respect of any of the discrimination complaints.

Appeal allowed in part.

Appearances: Dijen Basu (Director of Legal and Democratic Services, Lambeth London Borough Council) for the appellants; the claimant in person.