A spate of recent decisions in the Employment Appeal Tribunal (EAT) has given employers much cause for concern as to how they can identify a grievance and comply with the standard statutory grievance procedure.
An employer’s obligations under the grievance procedure are triggered by an employee’s ‘Step 1’ grievance statement.
The Step 1 requirement under the standard procedure is, simply, to “set out the grievance in writing and send the statement or a copy of it to the employer” (paragraph 6, Schedule 2, Employment Act 2002).
This seems relatively straightforward on paper, but identifying Step 1 grievance statements in practice, and ensuring compliance with the meeting and appeal requirements, is more complex.
The issue is important in the context of whether an employee can bring a claim (and the time within which they must do so) and the amount of any award (as a result of the potential 10%-50% increase where there has been non-compliance).
It is this issue that the EAT had to consider in the recent cases of Shergold v Fieldway Medical Centre, Galaxy Showers Ltd v Wilson, Commotion Limited v Rutty, Thorpe & Soleil Investments Limited v Poat & Lake and Hoc-Gale v Makers UK Ltd. The decisions in these cases give a clear indication of the stance the EAT is taking on this issue.
In all these cases, the EAT has been quick to find compliance with the Step 1 requirement. In considering whether the procedure has been triggered, the following points can be gleaned from the decisions:
- The employee needs to set out a complaint in writing so that the substance of the complaint is clear. Under the standard procedure, the details of the complaint are not required at this stage.
- A grievance may be raised by e-mail, in a letter from the employee, in an informal ‘note’ (even a Post-it note), or in a letter from a third-party representative such as an employee’s solicitor. A grievance may also be raised in communication dealing with another matter or making an application of some kind (for example, a flexible working request).
- The intention of the employee is not relevant and an employee is not required to indicate that the complaint may be taken further.
- A complaint need not be made through the employer’s prescribed procedure (or to a prescribed person) for it to constitute a Step 1 grievance statement and nor can an employee be required to go through a company grievance procedure.
- The time when employees must inform the employer of the basis or details of a grievance is before the meeting (but after the invitation to a meeting has been made).
- An employer is required to consider not only the content, but also the context of any written communication.
In reality, these decisions make it very difficult to spot a grievance. In Rutty, the EAT surprisingly decided that by setting out, in writing, a request for flexible working in circumstances where the same request made informally had been rejected, the employee was ‘indicating’ to her employer that she had a grievance.
These decisions may also make it more difficult to deal with those grievances raised informally by an employee.
Larger employers may find they have particular problems where complaints are raised with line managers not trained to recognise a grievance under the statutory procedures. Consequently, employers should ensure that their line managers and HR teams are trained to look out for and recognise grievances that may trigger the statutory procedures and give rise to employer obligations.
Employers should also put in place processes by which grievances will be dealt with, including those grievances that fall within the scope of the statutory procedures but have not been raised under company grievance policies.
Robin Jeffcott, partner and head of employment group, Richards Butler
For more on what constitutes a grievance, see the February issue of Employers’ Law.