One of the radical features of the minimum statutory procedures introduced in October 2004 is the fact that (except for claims concerning dismissals) a tribunal has to refuse to hear any claim if the claimant has not first initiated the statutory grievance procedure. Section 32 of the Employment Act 2002 provides that where the grievance procedure applies, and the employee has not carried out Step 1 of the procedure (setting out the grievance in writing and sending the statement or a copy of it to the employer), the tribunal will not have jurisdiction.
The aim is for the parties to be forced to deal with issues internally before a tribunal can be called upon to adjudicate – a rare thing prior to the legislation.
The potential ousting of the tribunal’s jurisdiction attracted a lot of criticism that valid claims might not be heard and the right to a fair trial could be compromised. With the first tribunal decisions on this issue now trickling through, it is clear that tribunals will be slow to deny claimants a hearing.
In Noskiw v Royal Mail Group plc (7 March 2005), the approach was initially tough. Noskiw’s claim for disability discrimination was rejected on the basis that he had not properly raised a grievance. He had sent an e-mail to his employer complaining about aspects of his treatment, but had crucially not made any reference in it to disability discrimination.
A later decision, Cooke v Secure Move Property Services (3 May 2005) adopted a significantly softer line. In that case, Cooke was suspended pending investigations into alleged malpractice, which could have led to his dismissal for gross misconduct. The day before his disciplinary hearing, Cooke resigned by letter.
Previously, he had written to his employer criticising various aspects of the disciplinary procedure, including the comment that he was “concerned that this whole investigation has been tainted by an element of bias which means I will not receive a fair hearing”. When he later claimed constructive unfair dismissal, the tribunal said the earlier letter was sufficient to constitute a Step 1 statement.
There was no requirement that he should have specifically requested a meeting, used the word ‘grievance’ or referred to the grievance procedure.
The tribunal went on, controversially, to say that because Cooke’s constructive dismissal claim concerned the handling of ‘relevant disciplinary action’, the grievance procedure was in any event disapplied by virtue of regulations 6(5) and (6) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, since the grievance was about his contemplated dismissal. This is surely a step too far as this would effectively disapply all the statutory procedures when an employee resigns, claiming constructive dismissal, to avoid a disciplinary hearing.
Next up was the Scottish decision of Stewart v Barnetts Motor Group (30 May 2005). This confirmed that a standard, aggressive solicitor’s letter before action could also constitute a Step 1 statement, despite not referring to any grievance as such, nor asking for the triggering of the grievance procedure. In looking at the matter, the tribunal concluded: “It is in writing. It is about a complaint” and, therefore, it satisfied the requirements of Step 1.
The same conclusion was reached by a London Central Tribunal in Aspland v Mark Warner (12 July 2005). Solicitors for both sides had been corresponding prior to the submission of the claim, but nothing had been done by Aspland specifically to trigger a grievance. Nevertheless, the tribunal concluded that those letters constituted enough to amount to a written grievance.
Only when a complaint does not mention the legal basis of the claim at all, as in Noskiw, will the employer have a chance of having the claim (temporarily) barred. You should scrutinise any written documentation received from, or on behalf of, any employee. However short, it could constitute a Step 1 statement, enabling a claim to be brought in the tribunal. If in doubt, you should call a grievance meeting and comply with the rest of the grievance procedure.
Russell Brimelow is partner with Lewis Silkin
Learning points for HR
Almost any written complaint to the employer, whether it comes from the claimant, a lawyer or any other person on their behalf, is likely to be treated as a Step 1 statement
If such a communication is received, you should clarify with the sender whether or not it is intended to act as the initiation of a formal grievance
Safer still (but possibly being too generous to the employee) is to always treat any such communication as triggering the grievance procedure
If such a communication is deemed to have triggered the grievance procedure, you will be at risk of an increase in compensation of between 10% and 50% if the rest of the grievance procedure has not been carried out
Until a successful appeal of Cooke, you should note that if someone resigns claiming constructive dismissal during the course of a disciplinary procedure (or even before it commences) they may be absolved from any duty to bring a grievance at all (or bring an appeal in the disciplinary procedure).
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