It’s crucial that an employer knows when an employee is initiating grievance procedures, so a recent case suggesting this can be happening when you might not necessarily expect it has to be worth a look.
When is an employee triggering grievance procedures? A recent case suggests this may be happening when you might not expect. How come?
The story started in 1 October 2004. From that date, any employee who has wanted to bring a grievance against his or her employer has had to comply with the Statutory Grievance Procedure. Failure to do so can mean that an employee is barred from bringing an employment tribunal claim, or any compensation awarded may be reduced by between 10-50%.
The minimum 3-step procedure that must be followed is:
§ Step 1 – the employee must inform the employer of the grievance in writing;
§ Step 2 – the employer must meet with the employee to discuss the grievance; and
§ Step 3 – the employer must hold an appeal, if requested by the employee.
Therefore, all that is required from an employee in order to comply with Step 1 is that the complaint is in writing.
So how do you know that an employee has invoked the Statutory Grievance Procedure? Under the statutory procedure there is no need for an employee to make it clear that they are raising a grievance, nor do they have to comply with any company or contractual grievance procedure. Worryingly for employers, recent case law has shown that Tribunals are giving a very wide interpretation as to what a grievance in writing actually is. At present, a grievance letter could equal the following:
§ any letter of complaint be it, for example, in relation to the terms and conditions of employment, health and safety, relationships at work, bullying and harassment, new working practices, organisational change, or equal opportunities. Such a letter could come from either the employee themselves, or on their behalf, for example, from an employee's solicitor;
§ a resignation letter (provided it sets out the complaints/grounds for resignation). In Galaxy Showers Ltd v Wilson, a letter written by Mr Wilson, putting his employer on notice that he would resign if the stated complaints were not resolved to his satisfaction within three weeks, was found to be a valid grievance letter;
§ a solicitor's letter before action; or
§ a formal application for flexible working time though not always – much would depend on the facts of the situation – in the case of Commotion Ltd v Rutty a key factor was that before making her formal application Mrs Rutty had made an informal request for flexible working which had been rejected.
On a positive note, statutory questionnaires often served on employers by employees who feel they have been unlawfully discriminated against or subjected to harassment, are not grievances for the purpose of the statutory procedures. Therefore, if you receive a questionnaire which is in the relevant prescribed form Tribunals have made it very clear that this will not constitute a grievance under the statutory procedures.
So what does all this mean in practice?
Be on guard! At present it is be best practice to treat any letter from, or on behalf of, an employee which sets out any complaints as a grievance, and to respond accordingly by inviting them to a meeting to discuss their concerns.
Ignoring procedures, regardless of how time consuming they may be, could lead to a finding of procedural unfair dismissal, and could increase the amount of damages awarded by up to 50%. In discrimination cases, such an uplift could be particularly damaging for employers.
