Mark Warner v Aspland and Galaxy Showers v Wilson
Employment Appeal Tribunal : A pair of useful cases about what constitutes a grievance
Under the Employment Act 2002 (Dispute Resolution) Regulations 2004, an employee cannot bring claims before an employment tribunal unless they have first followed the statutory grievance procedures. Under the procedures, the first step for the employee is to set out the grievance in writing to their employer.
In the first case, Mark Warner v Aspland, the EAT dealt with the issue of what constitutes a grievance letter sufficient to trigger statutory procedure. The EAT upheld the tribunal’s finding that letters before action to Mrs Aspland’s employer’s representatives sent by her solicitor did constitute a grievance for the purposes of the 2004 regulations. This was so, even though the solicitor’s letters did not expressly refer to the internal grievance procedures.
The tribunal, and subsequently the EAT, were satisfied that the letters met the requirements of the 2004 regulations and could therefore amount to a statement of grievance. The EAT found it was irrelevant that the letters were not written by the employee herself.
Breach of procedure
In the second case, Galaxy Showers v Wilson, the decision also went against the employer as the EAT decided the requirements for a ‘Step 1’ letter in respect of statutory grievance procedures are minimal. Mr Wilson sent a letter of resignation, dated 9 December 2004, complaining of Galaxy’s conduct towards him.
His letter set out various complaints, including the fact that his employer had breached the disciplinary procedure by issuing him with a verbal warning without following a fair procedure.Wilson indicated in his letter that unless the complaints were resolved, he would resign on 31 December.
In its response, the employer invited him to lodge an appeal against the verbal warning, albeit it did not acknowledge any breach of its disciplinary procedures. In reply, Wilson refused to attend the appeal hearing as he believed to do so would legitimise a process he considered to be defective in any event. The employer did not arrange any grievance meeting to discuss his letter. Wilson resigned and claimed constructive dismissal.
The tribunal found that Wilson’s letter of 9 December clearly set out his complaints and that this letter satisfied the requirements for a grievance under the 2004 regulations. Further, the tribunal found that the employer had behaved in a number of ways which together constituted a breach of the implied term not to act in a manner likely to destroy or damage the relationship of trust and confidence between employer and employee.
In dismissing Galaxy’s appeal, the EAT agreed with the tribunal that a valid grievance had been raised under the 2004 regulations. The EAT also dismissed the employer’s contention that the offer of an appeal meeting constituted a ‘Step 2’ meeting as it did not appear that it was intended to discuss the disciplinary procedure at all, but merely the issue of whether or not Galaxy should have been issued with a verbal warning.
Tribunals are taking a wide interpretation of what constitutes a grievance. If the complaint is in writing, it is likely to qualify as a grievance.
The word ‘grievance’ does not need to be used when the individual makes the complaint.
The employee does not need to refer to the statutory or other grievance procedure for their complaint to amount to a grievance under the 2004 regulations.
What you should do
Treat all written complaints from employees (or their representatives) as potential grievances, as failure to do so could result in an increase in any compensation subsequently awarded to the claimant of between 10% and 50%.
Ensure that line managers and HR are trained appropriately to know what is likely to constitute a grievance and what steps should subsequently be taken.
Ensure that a grievance procedure is in place and check it complies with the statutory model.
If the complaint is set out in a resignation letter there is scope for avoiding having a meeting with the individual, provided the statutory Modified Grievance Procedure is followed.