Piscitelli v Zilli Fish Limited, EAT, 21 December 2005
FACTS Mr Piscitelli, a general manager, was summarily dismissed on the grounds of gross misconduct following accusations of dishonesty. He instructed solicitors to challenge his dismissal, and also to pursue ‘off the record’ discussions about settling any potential claims. When those discussions floundered, Piscitelli lodged a tribunal complaint, but was 10 days outside the three-month time limit for bringing a claim. The tribunal dismissed his claim as being out of time. Piscitelli appealed, claiming he should have benefited from a three-month extension period for lodging his claim in accordance with the Employment Act 2002 (Dispute Resolution) Regulations 2004.
DECISION Under the regulations, the normal three-month time limit for bringing a tribunal claim can be extended by a further three months where an employee has reasonable grounds for believing a dismissal procedure was ongoing. Piscitelli argued that his solicitor’s letter was akin to an appeal against dismissal, and that the discussions between the lawyers gave him a reasonable belief that the dismissal process was ongoing. The tribunal dismissed his claim, concluding that the absence of any mention of appeal on his part was fatal to his claims.
APPEAL The Employment Appeal Tribunal (EAT) rejected Piscitelli’s appeal. His correspondence through his solicitor neither specifically raised an appeal nor sought to overturn the dismissal decision. Instead, the EAT said, he sought a cash settlement of his potential claims, and no more.
COMMENT Unlike a ‘grievance’, where the tribunals have shown themselves willing to adopt a very flexible approach to the statutory procedures, it seems a claimant’s request for an appeal must be clearly stated as such if a claimant is to benefit from the three-month extension period to lodge a claim. Interestingly, the EAT did not rule out the fact that a letter before action could possibly trigger an appeal but, to do so, it must be sufficiently clear.
Different statutory procedures
Commotion Limited v Rutty, EAT, 13 October 2005
FACTS Mrs Rutty made an informal request to her employer to work part time, which was rejected. Unhappy with this decision, she made a formal application for flexible working under the Employment Rights Act 1996, which was also refused. She resigned and brought tribunal complaints for constructive unfair dismissal, sex discrimination and an unreasonable rejection of her flexible working application.
DECISION The tribunal found that Rutty’s formal application under the flexible working procedures was also, on the facts, a ‘grievance’ in compliance with the Employment Act 2002. Accordingly, it upheld all her tribunal complaints and awarded compensation of 14,000.
Her employer appealed, arguing – among other things – that as there were two separate and distinct sets of statutory procedures for making a flexible working request and presenting a grievance under the Employment Act 2002, the employee was obliged to go through both procedures separately. In the employer’s opinion, although Rutty had complied with the flexible working procedure, she had not raised a grievance before issuing her tribunal claim in accordance with the Employment Act 2002, and therefore the tribunal should have rejected her unfair dismissal complaint.
APPEAL The EAT disagreed, finding that it is not necessary for an employee to go through the two sets of procedures separately.
A written document that sets out a grievance for the purposes of the statutory grievance procedures can also fulfil another function about the same or a different subject matter. The EAT upheld the tribunal’s finding that Rutty had put forward a grievance in her formal application for flexible working. The employer’s appeal was dismissed.
COMMENT Previous decisions have highlighted that it is irrelevant whether or not the employee intends to raise the complaint as a grievance. Employers are reminded here that the complaint can be contained in a document that doubles as something else.