Dispute Resolution: Spotting an Employee's 'Grievance' - Employment Law News Spring 2007

01 April 2007

With effect from 1 October 2004, the Employment Act 2002 (Dispute Resolution) Regulations 2004 introduced new statutory grievance procedures (GPs) and dismissal and disciplinary procedures (DDPs), to apply to every employee regardless of the size of the employer. Dispute resolution: spotting an employee’s ‘grievance’ The stated aim of the statutory dispute resolution procedures was to encouraging employees and employers to resolve workplace disputes without recourse to legal action. In this feature we focus on the GP aspects of the statutory procedures.

Two forms of GP

There is the ‘standard’ procedure and an alternative ‘modified’ procedure. The standard GP involves three steps: the employee’s written grievance to the employer; a meeting to consider the grievance after which the employer reaches a decision; and the employee’s appeal against the decision, should they wish. The modified GP can be used when the employee has left the employer’s employment and both parties agree not to follow the standard GP. The modified GP involves two steps: the employee sends the employer a written grievance and the employer responds to the grievance in writing. There is no meeting or appeal process under the modified GP.

Crucially, an employee must, in most circumstances, send a written grievance to the employer raising workplace concerns at least 28 days before issuing proceedings at an employment tribunal. Failure to do so could lead to the claim being inadmissible at the employment tribunal. In addition, where the GP has not been completed due to the fault of either party, the employment tribunal can adjust (increase or decrease) the award to a successful employee by between 10 and 50%. It is also noteworthy that the invocation of the GP will in most cases increase the jurisdictional time limit for issuing a claim at an employment tribunal from three to six months.

What is a grievance?

The legislation defines a grievance as ‘a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him.’ Other than stating that it must be in writing, the legislation does not provide for any particular form in which the grievance must be made. Given the employment tribunal’s power to adjust and uplift an award to the successful employee for failure by the employer to complete the GP, it is important for an employer to spot and appreciate when a written grievance has been received. There have been a number of recent cases concerned with whether the employee has effectively raised a grievance as required by the legislation. The leading case is the Employment Appeal Tribunal’s (EAT) decision in Shergold v Fieldway Medical Centre (2006). In this and in subsequent cases, the EAT has considered a number of points on the issue of what constitutes a grievance under the GP.

The guidance can be summarised as follows:

• The statutory requirements are minimal; all the employee has to do is set out their grievance in writing;
• It is not necessary for the employee to indicate that the statement is a grievance or an invocation of a grievance or that the complaint might go further;
• The written grievance can be contained in a letter of resignation;
• The written grievance does not have to set out every detail of the complaint that is subsequently lodged with the employment 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 any company or contractual grievance procedure in order for a grievance to satisfy the statutory test; it is simply a question of setting out the grievance in writing;
• 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. This will be the case when the letter is adversarial rather than conciliatory and which is intended to claim financial compensation rather than invoke a grievance. Therefore, it does not matter that the solicitor’s letter was headed ‘without prejudice’ and would not normally be admissible as evidence; and
• The presentation of the 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.

What is clear from the cases is that ‘grievances’ will be widely interpreted by employment tribunals and employees do not have to say much to trigger the standard GP. Therefore, when an employer receives a written complaint from an employee that could form the basis of a subsequent employment tribunal claim, the employer should be cautious and treat it as a grievance.

It has yet to be seen whether the introduction of the new statutory dispute resolution procedures is achieving its stated aim. However, it is noteworthy that the latest (2005/06) Annual Report of the Employment Tribunal Service makes disappointing reading for employers, with applications to employment tribunals increasing during the period from the previous year. The DTI also estimate that the statutory dispute resolution procedures are costing employers £290million a year. It is, therefore, of no surprise that the DTI will be carrying out a detailed review, with a view to simplifying and improving the system

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

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