Q We seem to be receiving more grievances from staff than we used to. Why is this?
A The Employment Act 2002, which came into force on 1 October 2004, introduced a new regime whereby to lodge an employment tribunal claim, in the majority of cases, the employee first has to invoke the statutory minimum grievance procedure. This involves the employee setting out in writing their grievance and issuing it to the employer, who is then expected to meet the employee to resolve the issues. Further, the employee is expected to appeal if they feel the outcome of the meeting has not resolved their grievance.
Failure on the part of an employee to follow this procedure could result in any compensation they do receive, in any subsequent claim they bring, being reduced by between 10% and 50%. Likewise, if you don’t take grievances seriously and respond to them without “unreasonable delay”, if an employee receives a compensation award, the tribunal could inflate it by up to 50%.
A recent example of a case involving an indirect sex discrimination complaint flowing from a refusal to allow the employee to work part-time or more flexibly resulted in the tribunal awarding a 40% uplift (Giles v Cornelia Care Homes). This new regime has resulted in employers facing an increase in formal grievances that they are required to deal with.
Q We recently took disciplinary action against an employee in the form of demoting her from a supervisor position. I’ve had a letter from her father accusing us of victimising her. This isn’t a grievance, is it?
A Arguably, this isn’t a grievance covered by the Employment Act 2002 because it falls into one of the categories where the statutory minimum procedures do not apply – namely, where the employee’s grievance is about an actual or contemplated dismissal or “other relevant disciplinary action”. However, if the employee had a discrimination complaint, she would be expected to follow the minimum procedure and raise a Step 1 letter.
Clearly, your employee did not write the letter, but case law makes it clear that if the writer is acting as an agent for the individual, it may count as their Step 1 letter (Stewart v Barnetts Motor Group, Arnold Clark Automobiles v Stewart). Check with the employee if she is aware of the letter and wishes to meet with you to discuss the issues further.
Q I have had an e-mail from an ex-employee who left just over three months ago complaining that he was bullied while he was with us. Is it safe to ignore it on the basis that he will be out of time to bring a claim?
A No – the minimum procedures apply even to an employee who has left. You could, however, agree with the employee to use the ‘modified’ grievance procedure, which avoids the need for a meeting, leaving you free to respond in writing, provided you also offer the right of appeal to someone more senior. You could only do this if the employee’s e-mail to you (e-mail will count as a written format) gives you sufficient detail about the complaint. This is because the modified procedure requires the employee to set out the ‘basis’ for his complaint in his Step 1 letter.
There are also provisions in the Employment Act 2002 for extending the normal time limits for employees to lodge a claim at the tribunal where a Step 1 grievance letter has been issued to the employer.
Provided the ex-employee waits 28 days to give you an opportunity to deal with the grievance, he can bring a complaint in the tribunal up to six months from when the alleged act or omission towards him occurred. Equally, the tribunal may have jurisdiction to extend the time limit further.
These days, it is potentially therefore a lot longer before you can safely assume an ex-employee cannot bring a claim against you.
Q I have to deal with an appeal hearing in relation to the dismissal of an employee for misconduct. As part of the appeal the employee has now raised a grievance about the way in which the disciplining officer conducted the disciplinary hearing. Can I deal with their grievance as part of the appeal process?
A You can use an appeal meeting (Step 3 of the minimum dismissal procedure) as a Step 2 meeting in relation to a grievance, provided you make it very clear that that is what is happening and make it apparent at the time that part of the meeting is addressing the grievance issues (Galaxy Showers Limited v Wilson).
For example, you would want to make it clear in the notes that the meeting was held in two parts. However, in your case, if the grievance is actually about the dismissal and the way in which it was achieved, it may fall outside the minimum grievance procedure, and the appropriate forum for dealing with the issues will be the appeal hearing anyway.
Q We have a formal grievance procedure and, to invoke it, staff have to use a set form that is an appendix to our procedure. If an employee writes their grievance in a different form – for example, on an exit interview questionnaire – can that count as a Step 1 letter for the purposes of the statutory minimum procedure?
A Yes – the exit questionnaire could constitute a grievance based on current case law. The case law in this area makes it clear that there is no need for express reference to your contractual grievance procedure. Indeed, there is no requirement for the employee to actually label the document “grievance”. In the case of Canary Wharf v Edebi, it was clarified that the employer must be able to appreciate from the wider context and from the statement made that a relevant complaint is being made. For example, in that particular case, the employee complained about his outdoor working conditions and made general complaints about minor ailments that had resulted from working outdoors, but it was not apparent that he was complaining about discrimination.
Q I know the Employment Equality (Age) Regulations 2006 are coming into force on 1 October, and am concerned that someone who is retiring in August might try and bring a claim. Will they have to bring a grievance first?
A Yes. The age regulations amend the Employment Act 2002, so that any employee wishing to bring an age discrimination complaint will have to use the minimum grievance procedure first.
Anna Denton, employment lawyer and trainer, Morgan Cole