South Kent College v. Hall, Court of Appeal - United Kingdom Employment Appeal Tribunal, July 02, 2007,  UKEAT 0087_07_0207
|Resolution Date:||July 02, 2007|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||South Kent College v. Hall|
Appeal No. UKEAT/0087/07/LA EMPLOYMENT APPEAL TRIBUNAL58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 26 June 2007 Judgment delivered on 2 July 2007 Before THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) MR T HAYWOOD MR P R A JACQUES CBE SOUTH KENT COLLEGE APPELLANT MR J HALL RESPONDENT Transcript of Proceedings JUDGMENT APPEARANCES |For the Appellant |Mr E Nuttman || |Solicitor || |Messrs Ford & Warren || |Solicitors || |Westgate Point || |Westgate || |LEEDS || |West Yorkshire || |LS1 2AX ||For the Respondent |In person. | SUMMARY PRACTICE AND PROCEDRUE 2002 Act and Pre-Action Requirements The employers contended that the Tribunal should not hear a case of unfair dismissal because the employee had failed to comply with the statutory grievance procedure. The Tribunal rejected the argument, heard the case and made a finding of unfair dismissal. The Tribunal held that the employer had not raised the issue within the meaning of s32(6) of the Employment Act 2002 simply by stating in their response that no written grievance had been raised. Further, and in any event, the procedure was inapplicable because the grievance fell within reg6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The EAT reluctantly held that the Tribunal had erred in reaching both conclusions and that they ought not to have heard the case. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This case raises yet another issue concerning the operation of the statutory grievance procedures. The appellant contends that had the Employment Tribunal properly analysed and applied the law with respect to these procedures, they would have had to decline to hear Mr Hall’s case. We will refer to him as the claimant, as he was below. He appeared in person before us, and the College was represented by Mr Nuttman, who also appeared below. The law.The Employment Act 2002 establishes certain statutory dispute resolution procedures. The provisions in the Act are supplemented by regulations, the Employment Act (Dispute Resolution) Regulations 2004. In schedule 2 to the Act there is a dismissal and disciplinary procedure for dealing with cases where the employer is contemplating dismissing or taking relevant disciplinary action against the employer. Relevant disciplinary action is defined as “action short of dismissal which the employer asserts to be based wholly or mainly on the employee’s conduct or capability, other than suspension on full pay or the issue of warnings (whether oral or written.)”(reg.2) Dismissal for the purpose of these provisions is defined by reference to s95(1)(a) and (b) of the Employment Rights Act 1996: see reg2. This embraces termination by the employer and the automatic termination of limited term contracts. Importantly, it does not include constructive dismissal i.e. the situation where the employee resigns in response to a repudiatory breach by the employer. Failure by the employer to comply with a statutory dismissal procedure will render the dismissal automatically unfair. The Act also prescribes a grievance procedure which must be used in certain circumstances. Where the employee has a grievance he must raise that with his employer in accordance with procedures set down in schedule 2 to the Act. There are two distinct procedures which are applicable in different situations, the standard and the modified procedure, although in practice the former is almost always the relevant procedure. For certain tribunal claims identified in schedule 4 to the Act (which included unfair dismissal), if the employee fails to raise a grievance through the relevant procedure with respect to the claim, s32(2) provides that he should not present a complaint to a tribunal raising that claim. Moreover, even where he has raised a grievance, s32(3) provides that he must leave 28 days from the date of lodging the grievance before presenting a claim. The purpose of this provision is to enable the procedures to have time to operate in the hope that the grievance may be resolved without the need for a tribunal hearing. He should also not present a claim if he lodges a grievance more than one month after the original time limit for lodging claims: s32(4). The obligation to lodge a grievance will in general apply even in the case of a constructive dismissal. Indeed, this is one of the most important areas for the grievance procedure to be utilised. The grievance will be with respect to the conduct of the employer which the employee alleges caused him to resign. Since there has been no termination by the employer (albeit that there is a dismissal for unfair dismissal purposes), the dismissal procedure is generally inapposite. There is, however, an exception to the obligation to raise a grievance found in reg6(5) which provides: “Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.” The logic of this has been held to be that since the employer has either dismissed or is contemplating dismissing the employee, the statutory dismissal or disciplinary procedures will be applicable and duplication is both unnecessary and undesirable: Lawrence v HM Prison Service UKEAT/0630/06. Curiously it applies only to cases where there is a contemplated dismissal, not contemplated action short of dismissal. Curiously, although s32 provides that the employee “shall not present a complaint”, if he does so it is not necessarily outwith the jurisdiction of the tribunal to hear it. Section 32(6) provides: “An employment tribunal shall be prevented from...
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