When do the statutory grievance procedures apply?
In general terms, the statutory grievance procedures (SGP), which came into effect in October 2004, apply when an employee raises a ‘grievance’ in writing about something they could make a tribunal claim about (but there are some exceptions not covered here). A grievance is (in broad terms) defined as a complaint about action against the employee taken or contemplated.
Where the standard three-stage SGP applies, the employee must first set out the grievance in writing, then a meeting must take place after the employee has ‘informed’ the employer of the ‘basis’ for the grievance, and then the employee has a right of appeal.
When the modified two-stage grievance procedure applies – where a) employment has ended, b) the standard SGP hadn’t started, and c) the parties agree to use it – the employee must set out in writing both the grievance and the basis for it, and the employer needs to respond in writing.
Most claims will not be accepted by a tribunal unless the employee has complied with the first stage. If an employer doesn’t deal with a grievance under the SGP, the employee will usually be entitled to an extra 10-50% compensation, if successful.
Does the employee have to identify the grievance or intend to make their grievance?
No. The only requirement is that they set out their grievance in writing. So general complaints made to a manager in an e-mail, a resignation letter or written in an exit interview, for example, could be a grievance (whether or not identified or intended).
The case of Commotion Ltd v Rutty says that a formal flexible working request under the statutory request procedure (after an informal request was refused) can still be a grievance.
Does it matter if the employee doesn’t comply with internal grievance procedures?
No. For the purposes of the SGP, any requirements of internal grievance procedures are irrelevant. If an employee submits a grievance that does not satisfy internal requirements (ie. the grievance was not sent within a specified time, or not to the specified person) it will still trigger the SGP if it meets the statutory requirements.
What should we do if the employee only makes a very general complaint, or a complaint we cannot understand?
Try to clarify it, but it is dangerous to assume that the SGP is not triggered just because the complaint is vague. Where the standard SGP applies, it is triggered simply by a grievance in writing – although there is no requirement to have a meeting unless the employee has set out the basis for the grievance.
The modified SGP isn’t triggered at all unless the grievance basis has been set out. In practice, this means the employee must provide sufficient details, so there would be no obligation to hold a grievance meeting (or respond in writing if the modified procedure applies) unless the grievance is clear.
In practice, until this is clarified by the tribunals, it would be risky to rely on a narrow, technical interpretation: if an employer thinks the employee hasn’t provided enough detail of the basis of their complaint and so doesn’t proceed with the SGP but a tribunal disagrees, the employer is exposed to increases in compensation.
Must the employee list every issue/incident in the grievance which they subsequently rely on in any tribunal claim?
No. For the SGP to be triggered – and so for any subsequent tribunal claim to be admissible – the Employment Appeal Tribunal says that the grievance in writing must be “substantially the same” as the matter which then forms the subject of the claim. It is enough that the employer understands the “general nature of the complaint being made”.
What should we do now?
Make sure managers and all HR staff understand that a grievance is really any complaint in writing – whether or not it is called that, or even intended to be that – and that there can be serious consequences if they are not dealt with properly.
Read our Legislation guide on dispute resolution in the workplace