Mrs Hunter raised a grievance about a reduction in her working hours at Step in Time Ltd, a traditional Scottish and Irish dance and dancewear company. When the grievance was not resolved to her satisfaction, she appealed.
Hunter succeeded in a subsequent employment tribunal claim for unlawful deduction from wages. In both her tribunal claim form and her grievance appeal Hunter made general complaints about the employer’s treatment of her and said she felt victimised.
Later, she was off sick and had cause to complain to her employer about non-payment of sick pay. Hunter then resigned and issued employment tribunal proceedings alleging constructive dismissal. Her complaint was based on harassment, bullying and victimisation, late payment of wages, non-payment of sick pay and the poor working environment.
Mrs M Fox also raised a grievance with the same employer about a reduction in her working hours. Her grievance was upheld and her hours reinstated. Fox too succeeded in a subsequent unlawful deduction from wages claim. In both her grievance and her tribunal claim form, Fox referred to feeling victimised. She later resigned and she too issued a constructive dismissal claim. Her claim was based on feeling victimised for being a friend and supporter of Hunter.
A preliminary issue was whether or not Hunter and Fox had complied with the statutory grievance procedures, as a tribunal cannot hear a constructive dismissal claim unless a written grievance statement has been submitted to the employer and at least 28 days have elapsed to provide an opportunity for the grievance to be resolved. Neither Hunter nor Fox could not rely on the grievances raised in their resignation letters since they had not waited 28 days before presenting their claims.
The employment tribunal decided that the requirement for a written grievance had been complied with. Hunter had raised the issue of victimisation in her letter appealing against the grievance decision and in her first employment tribunal claim form. Fox too had raised the relevant issues in her first claim form and in her grievance letter.
Following an appeal by the employer, the Employment Appeal Tribunal decided that the employment tribunal had been wrong to rely on the earlier claim forms as relevant grievance statements. Mrs Hunter could proceed with her claim as it related to the content of her original grievance letter, which had never been resolved. In terms of Mrs Fox, her claim was sent back to the employment tribunal for it to decide whether there was enough evidence other than her tribunal complaint and original grievance letter and whether this grievance had never actually been resolved.
This case provides confirmation that a complaint set out in an employment tribunal application form does not have to be treated by an employer as a formal employee grievance. That said, because previous case law has adopted a broad approach to the question of what forms a grievance for the purposes of the statutory procedures, many employers currently handle any sort of employee complaint as a formal grievance. This practical approach is one that would make sense to continue at least until the grievance procedures are repealed in April 2009.
Brian Campbell, legal director, DLA Piper Glasgow