Statutory Disciplinary and Dismissal Procedures

[Thanks to Claire Darwin of Matrix Chambers for providing this case summary]

In Ngo Mbog v Whitbread Group Plc, the EAT (HHJ Hand QC) was asked to decide the meaning of the words "substance of the Tribunal complaint" in Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The employee in this case presented two ET1s. The first ET1 complained only of unfair dismissal pursuant to s94 and s98 of the Employment Rights Act 1996. The second ET1, presented approximately a month later, complained that the same dismissal was contrary to the Race Relations Act 1976. The EAT held that both ET1s relied on more or less the same factual matrix.

Both ET1s were presented out of time, and the employee sought to rely on Regulation 15 to extend time.

The employee had pursued an internal appeal in relation to her unfair dismissal complaint. This was concluded before the primary limitation period expired. She had also complained by way of the employer's grievance procedure that her dismissal was discriminatory. This procedure was ongoing at the time of the expiry of the primary limitation period.

East London ET held that the circumstances specified in Regulation 15(2) did not apply to the unfair dismissal complaint, because at the time of the expiry of the primary limitation period, no procedure was being followed in respect of that particular cause of action.

The EAT allowed the appeal by the employee, and held that the words "substance of the complaint" in Regulation 15(2) referred to the factual matrix of the complaint rather than the individual cause of action relied on.

This case serves as yet another reminder that ETs should avoid approaching the question of compliance with the Statutory Procedures in an overly-technical manner.