Be wary of informal grievance complaints as tribunals may see fit to consider them
Statutory grievance procedures continue to plague employers. For example, in Procek v Oakford Farms Limited, the Employment Appeal Tribunal (EAT) found that a grievance which had been labelled by Mr Procek, a Polish farm worker, as “informal” did satisfy the requirements of the statutory grievance procedures. Consequently, the tribunal was able, not just to hear Procek’s claims, but also to slap a punitive 50% uplift on any award of compensation it made against his employer.
This case shows that although the statutory grievance procedures have been with us now for more than four years, the basics of their application continue to be debated at tribunal.
Past case law tells us that grievances can be “minimal” in terms of content do not need to refer to the statutory procedures nor even indicate that the sender requires the complaint to be dealt with. Now with the decision in Procek, a grievance that the employee had labelled as being informal, and which specifically indicated that it was not intended to satisfy the statutory procedures, has been determined as being sufficient to satisfy the statutory requirements.
Some may see this ruling as unsurprising, but the statutory procedures have real bite, and failure to comply with them has serious consequences for both the employee and the employer. From an employee’s perspective, they can be prevented from having their claim heard from an employer’s perspective, they can face an uplift in the damages that have to be paid if they are unsuccessful in defending a claim.
This may seem like a fair quid pro quo. However, the link between an employer’s failure to comply and the potential award a claimant could receive has been the source of much discontent among employers. The volume of cases on this issue is testament in itself to the difficulty the procedures have caused for them. When an employer’s failure to comply hinges on its inability to recognise a grievance (rather than from inadequate internal procedures, a disregard for the law, or behaviour in any way culpable), an uplift of up to 50% hardly seems proportionate.
In Procek, the EAT considered this point but found that since the uplift was determined at the tribunal’s discretion, rather than being an inevitable outcome, the argument was insufficient to dissuade them from finding that the grievance did not satisfy the statutory requirements.
So how should employers react to this decision? Most employers’ grievance policies provide for a grievance to be dealt with informally. Arguably, this is the best way to resolve employment disputes, nipping them in the bud at an early stage before the parties’ positions become entrenched. If the position cannot be satisfactorily resolved, then the grievance procedure will go on to suggest that the employee raises their concern in a more formal way.
Following Procek, the era of the informal grievance is over: any employee who writes an e-mail to HR raising a complaint should expect the response to set in motion the full force of the statutory procedures, whether they like it or not. The message for employers is clear: any written complaint must be dealt with in accordance with the statutory procedure, or a 50% uplift in compensation may result.
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It would seem the informal grievance has breathed its last breath.
Key points:
- Employers and employees are required to follow the statutory grievance procedures when dealing with workplace complaints.
- The vagueness of the procedures has resulted in a raft of case law, much of which deals with what will or will not amount to a grievance for the purpose of the procedures.
- Failure to comply with statutory grievance procedures means that a tribunal will uplift any award made against an employer by a minimum of 10% and a maximum of 50%.
- In cases where compensation is uncapped, such as discrimination claims, the amount of the uplift can be substantial.
- Employers would be well advised to respond to any complaint that is put in writing by following the statutory grievance procedures.
