Mark Warner Limited v Aspland

Delegating a grievance

Mark Warner Limited v Aspland, Employment Appeal Tribunal, 8 December 2005

Facts

In 2004, Aspland brought a successful tribunal complaint, in which she had alleged pregnancy-related harassment by her manager. Afterwards, the company’s managing director gave a number of interviews to the trade press, indicating support for the manager concerned. Aspland’s solicitor wrote to the company’s solicitor expressing concern that no disciplinary action had been taken against the manager, particularly bearing in mind Aspland’s pending return to work from maternity leave. The letter demanded that, unless this was remedied in seven days, Aspland would resign.

Following further correspondence between the lawyers, Aspland did resign, and brought a claim alleging constructive dismissal and victimisation.

Hearing

At tribunal, the company contended, among other things, that since Aspland had not lodged a written grievance before resigning, she had failed to comply with the statutory dispute resolution procedures and could not proceed with her claim. The chairman, however, concluded that the letters sent by Aspland’s solicitor to the company’s solicitor did in fact amount to a written grievance within the meaning of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The company appealed.

Appeal

The EAT rejected the company’s appeal, finding that Aspland had properly raised a grievance. She had clearly raised a complaint in writing about action taken by the employer that satisfied the statutory requirements, regardless of the fact that the letters were sent not by her, but by her solicitor.

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Comment

Employers who were expecting the statutory grievance requirements to sufficiently ‘tip them off’ about potential claims will be increasingly disappointed. A recent stream of decisions in this area all point to the fact that employers need to take a liberal view of whether a formal grievance has been raised.