The claimant resigned in September 2007 after a disciplinary meeting which said that she would be dismissed for gross misconduct, but was given the option to resign instead. However, the paperwork completed by the claimant’s manager did not indicate that dismissal was being considered as an option. In February 2008, well after the 3 month time limit for submitting a claim for unfair dismissal, the claimant wrote a letter to the respondent, raising a formal grievance in respect of her employment, which the respondent acknowledged by arranging a grievance hearing. At the meeting, the claimant acknowledged that she had waived her right of appeal by resigning and said that she did not want to be reinstated although wanted to be compensated for the losses she had incurred.

The EAT looked at Regulation 15, pursuant to the Employment Act 2002 (Dispute Resolution) Regulations 2004, which makes provision for an extension of time if a dismissal or disciplinary procedure, whether statutory or otherwise, was being followed in respect of the original complaint after the 3 month time limit had expired, but within 3 months after the day on which the normal time limit would have expired. The ET had concluded that this case did not fall within Regulation 15(2) as the claimant did not wish to reverse the decision to dismiss, but instead use the grievance procedure as a preliminary to making a Tribunal claim. The EAT disagreed, stating that the mere fact that it was anticipated that the claimant might not succeed in obtaining satisfaction from her employer does not amount in law to a correct basis for concluding that this was not a Regulation 15(2) procedure. Also the EAT agreed with the ET that the dismissal was not within the band of reasonable responses of a reasonable employer and thus the cross appeal failed. The matter was remitted back to the ET to consider remedy.