Tagged: dispute resolution

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Late claim for unfair dismissal

In RBS v Bevan, the EAT considered an appeal against an employment tribunal’s decision that it had not been reasonably practicable for the claimant to present his claim within the first 3 months from dismissal in circumstances where he did not hear of the failure of his internal appeal against dismissal until 5 hours before the expiry of the time limit.

The Employment Act 2002 (Dispute Resolution Regulations) 2004 provide an extension of time by 3 months in circumstances where at the time when the initial 3 month period expires the claimant reasonably believes that an internal appeal is still in progress. Mr Bevan did not get the extension, because by the time the initial 3 months expired he was aware that his internal appeal had failed – even though only just. The question was therefore whether it had been reasonably practicable for him to present his claim in time. It was argued that it was – because there was nothing to prevent him from presenting his claim before he knew the result of the internal appeal, although he might prefer not to.

The EAT held that the employment tribunal had been entitled to find that it was not reasonably practicable for Mr Bevan to present his claim in time. Both the employment tribunal and the EAT may have been influenced by a suspicion (which emerges quite clearly without being stated) that the employer may have deliberately timed its announcement of the outcome of the appeal for the last day of the original period in the hope that it might induce Mr Bevan to miss the deadline.

Although the outcome is clearly just, it is difficult to reconcile it with the statutory provisions: rather, it appears to be an expression of the view that it ought to be permissible to extend time for an unfair dismissal claim on the grounds that it is ‘just and equitable’ in all the circumstances to do so. This is the basis on which time can be extended for discrimination claims; it is difficult to see any good reason for the tougher requirement in unfair dismissal cases to show that it was not ‘reasonably practicable’ to present the claim in time.

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Dispute resolution: the current situation

Although a Bill to abolish the dispute resolution regime has been published (see previous post), it does not seem likely to come into force until April 2009 at the earliest. Meanwhile, the regime is still law. See paragraphs 1.69 – 1.83 and Chapter 2 of the book for guidance on how to comply, and how employment tribunal time limits are affected.

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Ding dong the witch is dead!

Or mortally wounded, at any rate. The witch in question is the statutory dispute resolution regime introduced by Part 3 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. This is the set of rules by which employees cannot bring claims (most claims other than dismissal) to the employment tribunal unless they have first raised a grievance with the employer and then waited 28 days; and by which awards are adjusted up or down if statutory minimum procedures are not complied with on either side. The proposal to introduce the regime was strongly resisted by almost everyone who responded to government consultation, but it was brought in anyway. To the extent that the criticisms raised in the consultation were addressed at all, they were addressed by making the already Byzantine draft provisions even more complicated.

The predictable – and predicted – chaos ensued. The EAT had to tie itself in knots trying to make some kind of sense of provisions that had not been properly thought out and at various points simply did not work. Lawyers, advisers, trade unions, industry and the judiciary were united in condemning the regime. There was further consultation in which everyone who had told the government on the first consultation that the regime was a bad idea when it was proposed pointed out that implementation had merely served to demonstrate that it was an even worse idea than they had thought.

The Employment Bill, introduced in the House of Lords last week after an elaborate consultation culminating in the Gibbons review, proposes wholesale repeal. The dialogue belongs in the realms of panto:

Government: Shall we do something amazingly stupid?

Consultees [shouting all together]: No!

Government [spending lots of money]: What did you say?

Consultees [shouting even louder]: NO!

Government: Ok then, we’ll do it.

Consultees: [Groan]

[COMEDY SONG AND DANCE ROUTINE: The Change Management Waltz, in which tribunal judiciary, staff, advisers and litigants whirl around and trip over piles of paper and one another. A chorus of Change Managers sings The output will be a strategic direction.]

Government: There! Do you like it?

Consultees: No, we hate it! We told you it was a terrible idea. You didn’t listen.

Government: Oh dear! We thought you’d like it. Whatever shall we do?

Consultees: Repeal it!

Government: Tell you what [slaps its thigh and winks] – let’s commission a review!

Consultees [getting tired]: Go on then.

Michael Gibbons: The Government has asked me to ask you what you think of the dispute resolution regime…

Consultees [wearily]: We still hate it.

Michael Gibbons: It had better be repealed.

Government: Oh. Don’t they like it? All right then, we’ll repeal it.

It would be interesting to know the total cost of this performance.

(No criticism of Michael Gibbons or his review is intended, incidentally: he did the job that he was asked to do fast and efficiently, and came up with the right answer.)

Thanks to Daniel Barnett, one of whose email bulletins brought the glad tidings to us.

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Lovett Ltd v Evans

In Lovett Ltd v Evans the EAT returned to the question of what makes a grievance under the statutory dispute resolution regime.

Following a meeting in which she was told she would not be getting a pay rise, for reasons connected to her pregnancy, Ms Evans was off work for a short period. When she returned she completed an absence reporting, which said:

Following on from meeting with Richard and Mark, went home very upset. Didn’t sleep and
suffered numerous nose bleeds.

The tribunal concluded that this was not sufficient to amount to a grievance, because it did not contain any explanation of what the complaint was. However, it went on to refer to a meeting that occurred a few days later, in which Ms Evans set out her complaint more fully. It concluded that the absence report, read in the context of the later meeting, was sufficient to satisfy the need to lodge a grievance.

The EAT overturned this decision. A written statement must be read in the context of events leading up to it. But what happens have the statement is made, cannot be used to clarify or explain it.

Lovett Ltd v Evans