Weekly dilemma: Complaints about workload

An employee has sent me an e-mail complaining about his workload. I thought that I would give the employee a call to discuss this further, but one of his managers informed me that there was no cause for concern as all his colleagues were doing identical hours without complaining. What should the HR department do?

Identify the real concern

There are a number of issues that are raised by this question.

First, has the employee agreed to opt out of the Working Time Regulations 1998 (WTR), which limits his working week to 48 hours? If the employee has signed an opt-out, then he is required to give up to three months’ written notice of his intention to withdraw from the opt-out. HR will need to clarify whether he is intending to give such notice and whether his hours are, in fact, the real concern. If he has not opted out, the employer may be in breach of the WTR, which could give rise to a breach of contract claim if the employee’s weekly hours exceed 48 hours on average.

Second, HR should consider whether the e-mail is sufficient to constitute a grievance note under the statutory grievance procedures (Personnel Today, 21 February). Recent case law has taken a very liberal approach to what constitutes a grievance. The Employment Appeal Tribunal has decided that the only essential requirement of a grievance is that the substance of a complaint is raised by way of a written “statement” before a claim is lodged in the tribunal. An employee is not required in their grievance to indicate that they wishes further discussion or resolution of the matter complained of.

Step 1 grievance note

This e-mail will almost certainly constitute a grievance note, so the employee should be invited to attend a meeting in accordance with the company’s grievance procedure. A telephone call is not compliant with the requirements of the Employment Act 2002 (Dispute Resolution)Regulations 2004, and a tribunal is likely to find that the employer failed to follow the grievance procedure if a step 2 meeting is not convened.

Underlying concerns

Finally, you should address the employee’s concern, as he is clearly not coping with an increase in workload, and this may cause him to suffer stress or other psychiatric conditions. It may also be symptomatic of another underlying cause as to why he is unable to cope, such as illness or bullying. A step 2 meeting will allow you to explore the basis for the e-mail complaint and then consider how the issue can be addressed.

Kiran Daurka, solicitor, Magrath & Co

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