Buddy says:  A tribunal will extend the time limit: 

• Where an applicable statutory dismissal or disciplinary procedure (whether standard or modified) applies; and
• Where the employee reasonably believed that “a dismissal or disciplinary procedure, whether statutory or otherwise ... was being followed in respect of matters that consisted of or included the substance of the tribunal complaint”.

However, case law has recently suggested that it is possible, depending on the circumstances of the case, for the latter requirement to be satisfied when the employee in fact raises a grievance, rather than an appeal against a decision to dismiss.

Employer information:  Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the ordinary time limit for bringing a claim can be extended by a further three months (beginning with the original expiration date) in the two situations set out above.

In Towergate London Market Limited v Harris [2008] EWCA Civ 433, the employee was dismissed by reason of redundancy.  Following a meeting, Towergate gave Mrs Harris the right to appeal which she chose not to exercise. Her effective date of termination was 31 October 2005.

Mrs Harris was later informed by a colleague that she had been “stitched up” by the redundancy selection criteria and, following advice from her trade union, requested the information on her selection at a meeting held with Towergate on 16 December 2005, which was duly provided on 5 January 2006.

Mrs Harris raised a grievance on 25 January 2006, claiming the assessment criteria used to make her redundant was “unfair and inaccurate”. Towergate replied that since the employment relationship had ended, it would not address her grievance; it did this on 31 January 2006, one day after the ordinary three-month time limit for bringing a claim had expired.

The subsequent unfair dismissal claim was struck out at the first instance, as the employment judge found that Mrs Harris had not presented her claim in time – in spite of Mrs Harris’s later argument that her letter was in fact an appeal. The EAT held that, in light of this, the reasonable belief requirement under Regulation 15(2) had been satisfied. Towergate appealed on grounds that the EAT had erred in substituting its own view that Mrs Harris’s grievance was in fact an appeal against dismissal.

The majority of the Court of Appeal dismissed the appeal. Towergate had conceded that the standard DDP was the applicable procedure, and that the procedure applied both pre- and post-dismissal. Regulation 15(2) was satisfied on the basis that the meeting on 16 December 2005 suggested that both parties were undertaking a non-statutory procedure in respect of Mrs Harris’s dismissal. Mrs Harris subsequently relied on the information provided by Towergate on 5 January 2006. She therefore had the requisite reasonable belief when the time limit expired on 30 January 2006 as she had not at that time received a response from Towergate; the CA made it clear that the test was not a question of whether such a procedure was in fact being followed.

The Employment Bill, which is currently going through Parliament, intends to repeal the statutory dismissal and disciplinary procedures, but until this time, employers must beware of the pitfalls of the SDDPs.