In the case of the ROYAL BANK OF SCOTLAND v BEVAN Judge Richardson of the Employment Appeals Tribunal has decided that a former employee of the Royal Bank Of Scotland should be able to have his case heard in front of a tribunal despite the former employer arguing that his case was out of time.
After being dismissed for gross misconduct Mr Bevan received incorrect advice from a CAB that informed him he could not apply to a tribunal before the internal appeal under the Dismissal And Disciplinary Procedures had been decided.
Although a claimant should under regulation 12 be wary of being the first to break with the requirements of the DDP's(as this result in a 10-50% reduction of any eventual award) there are situations where making an application to a tribunal is justified even before the completion of internal company procedures such as an appeal. E.g there is a general requirement such as taking steps without delay or conducting oneself properly at a meeting. If an employer is dragging his feet over the process, then a worker is justified in making his tribunal application.
Mr Bevan followed this advice which resulted in his deciding not to apply to a tribunal to hear his case for alleged unfair dismissal until the appeal had been decided by RBS.
Under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 an extension of time is allowed where an employee reasonably believes that statutory dismissal procedures are being followed. If the dismissal procedures are completed before the end of 3 months, then there is obviously no reason for a worker to believe that procedures are being followed. In the normal way of things therefore, there would be no reason for another 3 months to be added to the time in which an application to the tribunal, the ET1 could be completed. The ET1 would need to be sent to the tribunal before the end of 3 months.
On the day that Mr Bevan's 3 months were to end he came home at 7pm to find a letter from his employer dismissing his appeal. There were therefore only 5 hours in which to lodge an employment tribunal application.
Mr Bevan did not do this, but contacted his lawyers the next day. They made an application to the tribunal (ET1) some days later.
The RBS objected to Mr Bevan's claim being accepted by the tribunal, arguing that the existence of an ongoing appeal procedure does not of itself indicate that it is not reasonably practicable to present a Tribunal claim in time.
RBS further argued that, contrary to the requirements of regulation 15 of the Employment Act 2000, Mr Bevan did not believe that any procedure was still being followed on the expiry of the 3 month time limit. There could therefore be no extension of time to bring his complaint.
RBS' arguments were not accepted by the tribunal or the EAT.
The employment tribunal justified accepting Mr Bevan's application in the following way, "he was entitled to wait until he had heard the outcome of the appeal before presenting his claim. Indeed the whole structure of Regulation 15 is intended to encourage parties not to start proceedings until internal proceedings have been completed. It seems to me that the injustice caused by last minute notification that his appeal is dismissed can properly be dealt with by the not reasonably practicable provisions of the section."
The tribunal chairman moreover commented that, it was a "remarkable co-incidence" that the letter arrived so shortly before the last moment at which it would have extended time for a further 3 months.
WorkRep does not suggest that the Royal Bank Of Scotland would deliberately attempt to abuse procedure in order to run one of its workers out of time in a case of unfair dismissal before an employment tribunal. Coincidences do happen.
It is however elsewhere not infrequent for claimants to face sleight of hand on the part of lawyers acting for employers. The tricks are many and varied and even extend to lawyers misquoting the law to lead unrepresented claimants astray. It therefore welcome that judges are willing to be flexible as regards procedure.
Judge Richardson in upholding the tribunal's decision to allow the claim to go forward to a tribunal, cautioned clients against believing that Regulation 15 could act to extend the time limit beyond 6 months; "the statutory intention is that after 6 months the claim should be commenced even if an employee reasonably believes that a procedure is still being followed."
When considering complaining to a tribunal; in the absence of other advice, it is still a good idea for a claimant to keep the rule of 3 to the fore.
For the full transcript of this case click:
here
© Workrep 06 / 12 / 2007