Grievance Q and A

11 June 2007

Question:

An employer has just received a letter of resignation from an underperforming employee making adverse comments about his treatment by the employer. He had not previously raised a formal grievance. The employer is relieved that the employee has resigned as it was considering taking performance related disciplinary action against him. Does the employer now need to do anything?

Answer:

The letter is likely to represent a step one grievance and trigger the three step standard grievance procedure (GP). The employer should instigate a grievance procedure to include a meeting with the employee and, if the employee remains dissatisfied, a right of appeal. Failure to do so leaves the door open to an employment tribunal claim and where the GP has not been completed due to the fault of the employer, the tribunal can increase the compensation award to a successful employee by between 10 and 50%.

There have been a number of recent legal cases concerned with whether an employee has raised a step one grievance. The leading case is Shergold v Fieldway Medical Centre (2006). What is clear is that ‘grievances’ will be widely interpreted by tribunals and employees do not have to say much to trigger the GP.

Therefore, when an employer receives a written complaint from an employee that could form the basis of a subsequent tribunal claim, it should be cautious and treat it as a grievance. Further guidance can be summarised as follows:

• It is not necessary to indicate that it is a grievance, an invocation of a grievance or that the complaint might go further;
• The grievance does not have to set out every detail of the complaint that is subsequently lodged with the tribunal. It is sufficient if the employer can understand the general nature of the complaint being made;
• An employee is not required to comply with the employer’s grievance procedure;
• A grievance can be raised by a third party, for example, an employee’s solicitor acting as agent;
• ‘Without prejudice’ letters before action can constitute a grievance if there is no evidence to suggest that the parties are seeking to compromise the potential claims; and
• An application for flexible working can amount to a presentation of a grievance, but a discrimination questionnaire is expressly excluded from the statutory definition of grievance.

For more information please contact Andrew Masters, Partner & Head of Employment.

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