Veitch Penny LLP - Exeter | Crediton, Devon

Case

Bisset v Martins and Castlehill Housing Association Ltd
Employment Appeal Tribunal - 18 August 2006

Issues

(1) Disciplinary Procedure
(2) Grievance Procedure
(3) The Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the Regulations")

Facts

Ms Martins, the Claimant wrote a letter to her employer making a grievance against her colleagues Carol Bisset and Gordon Kyle. At that time she had been subject to a disciplinary process which had not completed. Ms Martins was subsequently dismissed as a result of that process on 9 May 2005 .

She made a claim at the Employment Tribunal relating to unfair dismissal, race discrimination, disciplinary discrimination and outstanding holiday pay. In respect of her claim for disability discrimination she referred to the request she made that all correspondence relating to the disciplinary procedure be directed to her representative. She argued that the failure of her employer to do this constituted failure to make a reasonable adjustment. The claim was submitted on 8 August 2005 and as the last date of any act of discrimination by Bisset, took place on 5 April, the discrimination claim against Bisset appeared to be out of time having been submitted more than 3 months after the date of the alleged discrimination.

At a preliminary hearing, the Tribunal allowed the Claimant to rely on the 3 month extension of time available as a consequence of her presenting a written grievance and waiting 28 days before submitting a claim as required by the Regulations. The Tribunal went on to rule that Ms Martin's claim against Bisset was not time barred and could proceed. Ms Bisset appealed.

Decision

The Employment Appeal Tribunal (EAT) upheld her appeal. They found that the claims made against Ms Martins were separate from those against the employer. Having considered the Regulations, the EAT concluded that the Regulations provided for an extension of time solely against an employer. They "plainly" did not apply to the claim against a fellow employee so the matter was referred back to the original Tribunal.

Comments

This is an interesting case regarding the application of the Regulations, the ramifications of which are still being felt through case law despite coming into force in October 2004. Whilst the time limit for issuing a claim against the employer can be extended where a written grievance has been presented, this is not the case with a claim against a fellow employee. Grievance procedures including the extension of time are deemed to be implied into the employment contract. As no employment contract can exist between fellow workers, there can be no grievance procedure and therefore no extension of time. Consequently only joint claims must be presented within the relevant time limit even if a grievance has been submitted to prevent the claim from being time barred.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.