Brock v Minerva Dental Ltd

EAT: Judge Peter Clark: 30 January 2007

On 28 September 2005 the claimant was dismissed with notice expiring on 16 December. On 5 October he appealed internally contending that his dismissal was in breach of the statutory dismissal and disciplinary procedures. The employers withdrew the dismissal and instituted disciplinary proceedings, but the claimant contended that they could not unilaterally withdraw the dismissal and that his employment would terminate on 16 December. He also alleged that by their treatment of him the employers were in breach of the relationship of trust and confidence. On 23 December 2005 the claimant made a claim of unfair dismissal on the ground that his dismissal was automatically unfair and repeated his complaint of poor treatment. On 24 March 2006 the claimant applied to amend his claim to add a claim of constructive unfair dismissal, relying on his complaint about his treatment by the employers as a statement of his grievance in compliance with the statutory grievance procedure prescribed by Schedule 2 to the Employment Act 2002. At a pre-hearing review a tribunal chairman struck out the unfair dismissal claim on the ground that the claimant had not been dismissed, as the dismissal had been rescinded by the employers on the claimant's internal appeal, and refused him leave to amend the claim on the grounds that the amendment was a new claim, which was out of time, could cause serious prejudice to the employers and had little prospect of success.

The claimant appealed.

Judge Peter Clark held:
(1) The dismissal of 28 September 2005 was automatically unfair by virtue of section 98A(1) of the Employment Rights Act 1996 on the ground that the employers had failed to comply with the statutory dismissal and disciplinary procedures, and the claimant could have commenced unfair dismissal proceedings without being required to appeal internally against the dismissal. But, by invoking the internal appeal procedure instead, the claimant sought withdrawal of the dismissal by the employers and thereby consented, expressly or impliedly, to the withdrawal of the dismissal notice. Accordingly, the claimant could not rely on the dismissal to found a complaint of unfair dismissal.

(2) Whereas by reason of regulation 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 the statutory dismissal and disciplinary procedures applied only to dismissals under section 95(1)(a) and (b) of the Employment Rights Act 1996, the statutory grievance procedure applied to claims of unfair dismissal based on constructive dismissal under section 95(1)(c). It followed that, pursuant to section 32(2) of the Employment Act 2002, a claimant could not present such a claim unless he had raised a step 1 grievance not less than 28 days before presenting his claim. The claimant had raised such a grievance when in his correspondence with the employers in 2005 he set out the complaint that formed the basis of his proposed amendment. The grievance procedure was not excluded under regulation 6(5) or (6), since in commencing disciplinary proceedings that contained no sanction of possible dismissal the employers were not contemplating dismissal, and none of the claimant's specific complaints fell within the definition of "relevant disciplinary action" in regulation 2(1). Accordingly, the time limit for making the claim was extended for a further three months under regulation 15, and the application to amend was in time.

(3) The fact that, contrary to the view of the chairman, the proposed claim was in time was a powerful factor in favour of allowing the amendment, and the paramount considerations were the relevant injustice and hardship to the parties. The chairman had properly taken into account the lateness of the application to amend and the prejudice to the employers in having to defend a constructive dismissal claim when the actual dismissal claim had been struck out, but had failed to take into account the balancing factor that if the amendment was refused the claimant would not be able to pursue a claim at all. Further, the basis on which the chairman had found that the constructive dismissal claim was unlikely to succeed was flawed in law. In exercising his discretion to refuse the amendment the chairman had fallen into error, and the balance lay in favour of permitting the claimant to amend.

The appeal against the striking out order was dismissed, and the appeal against the refusal of permission to amend was allowed.

Appearances: Paul Michell (TLT, Bristol) for the claimant; Wayne Beard (McTaggart, Cardiff) for the employers.