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Statutory Dismissal Procedure: Extensions of Time

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The Court of Appeal has held by a 2:1 majority in Towergate London Marketing v. Harris that a claimant was entitled to an extension of time in accordance with Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in circumstances where she had filed a 'grievance', but not an 'appeal' letter, within the original three months' time limit.

The tribunal decision, holding that at the date the limitation period expired, she did not have reasonable grounds for believing that a disciplinary procedure was being followed within the meaning of Regulation 15(1), was overturned.

Keen LJ, in the majority, stated that whereas to an employment lawyer there is clearly a distinction between a 'grievance' and an 'appeal', "one does not expect an employee to have a ready grasp of these arcane mysteries". Most employees do not have ready access to skilled legal advice; it is, therefore, important that the courts avoid an unduly technical approach. He felt that from the wording of the Regulation was clear that the claimant's belief did not have to be that a statutory procedure was being followed, merely that a procedure was being followed.

Wilson LJ agreed, saying that an employee can have a grievance in accordance with the use of the word in common parlance. It is not objectionable or misconceived for the claimant to write a letter to her employer stating that she had a 'grievance', when she meant to say she had an 'appeal'.

Ward LJ, dissenting, was of the opinion that, looking at the matter objectively, a reasonable employer would construct the letter to mean what it clearly and plainly said, i.e. that it was a grievance about action the employer had taken. It was too late for the claimant to bring such a complaint because she had already been dismissed. She should have exercised her right to appeal if she wanted to make such a complaint to the tribunal.