UK: EAT Gives Guidance on the Statutory Grievance Procedure

Last Updated: 26 January 2006
Article by Christopher Booth

Criticism of the statutory dismissal and grievance procedures, which were introduced in October 2004, has been growing from all sides over the last few months. One of the biggest problems for employers relates to the standard grievance procedure (SGP). This requires an employee to send a written grievance to the employer (known as a ‘Step 1 grievance’) before commencing most types of tribunal claim. The employer must then invite the employee to a meeting to discuss matters - or risk paying increased compensation if the employee subsequently brings a successful tribunal claim.

It is therefore crucial that employers are able to identify Step 1 grievance letters quickly and easily, yet there is little statutory guidance to help them. However, in recent weeks the EAT has handed down a number of decisions which throw some much needed light on this issue.

The EAT's view

According to the EAT:

  • A resignation letter setting out the general nature of the employee's complaint can constitute a Step 1 grievance under the SGP (Thorpe; Shergold; Galaxy Showers);
  • By contrast a discrimination questionnaire is not a Step 1 grievance (Holc-Gale);
  • The Step 1 letter need not be sent by the employee personally to the employer personally - a letter before action sent by solicitors will suffice (Aspland);
  • The employee need not intend to raise the mater as a grievance (Thorpe), use the word grievance, refer to the statutory procedures (Shergold) or indicate that the complaint may go further (Galaxy Showers). As a result employers will need to be particularly vigilant when assessing written communications from employees;
  • The Step 1 grievance need not comply with the employer's own grievance procedure (Thorpe and Shergold). This is particularly unsatisfactory as it means the Step 1 grievance need not necessarily be sent to the person nominated under the employer's procedure and could lead to the grievance being overlooked.

Practical implications

An employer should be wary of any written communication from an employee or ex-employee that could possibly be construed as a complaint or grievance. It is essential that all managers (and not just senior staff or HR professionals) are trained to appreciate that such a letter could be a Step 1 grievance and that failure to invoke the remaining stages of the statutory procedure could cost the employer dear.

Changing terms and conditions: employers beware

The recent case of Land Securities Trillium v Thornley is a reminder that employers must tread carefully when seeking to alter terms and conditions without the employee's consent.

Management role imposed by employer

The case concerned an architect who resigned and claimed constructive unfair dismissal after her employer unilaterally changed her duties by requiring her to manage external design consultants rather than having a hands-on design role herself.

Normally there is a clear breach of contract if an employer imposes a change of contractual duties without the employee's consent. In addition, if the change is sufficiently serious, it will amount to a fundamental breach of contract entitling the employee to resign and claim unfair dismissal.

However in the Thornley case the employee's contract contained a flexibility clause, under which the employee had to perform all the duties of her post and ‘any other duties’ which could ‘reasonably’ be required of her. The employer argued that this provision gave it a broad contractual right to alter Ms Thornley's duties unilaterally. Accordingly, in the employer's view, the change of role could not amount to a fundamental breach of contract and Ms Thornley's unfair dismissal case could not get off the ground.

EAT finds for employee

The employment tribunal disagreed and found for the employee. Its decision was subsequently upheld by the EAT which confirmed that the flexibility clause was not wide enough to cover a change that would effectively de-skill Ms Thornley as a hands-on architect, regardless of whether there was a sound commercial reason for the change. There had therefore been a fundamental breach of contract entitling the employee to resign and claim constructive dismissal.

Practical implications

Employment contracts often contain clauses which purport to give the employer some degree of flexibility, particularly in respect of changes to duties, working hours and job location. However as the Thornley case shows, courts tend to construe such clauses very narrowly and it can be difficult to know on which side of the line a particular case falls. One alternative to imposing a change unilaterally is to terminate the old contract and offer the employee new terms and conditions, but this course of action has its own risks and needs to be considered in light of all the circumstances. Taking professional advice in this type of case is therefore strongly recommended.

Do You Need To Know…?

Age discrimination: an update

Legislation to outlaw age discrimination in the workplace is due to take effect on 1 October 2006. The new law will have a significant impact on a range of issues, including recruitment, age-related benefits and retirement.

The Government originally promised to finalise the legislation by the end of 2004, thereby giving employers some two years to prepare for this fundamental change in working practices. However, this has proved to be a hopelessly optimistic timetable and, in the event, draft Regulations were only made available for consultation in July 2005. Since then the Government's proposals have been widely criticised by employers, and as a result the final Regulations may well contain important amendments. Nonetheless the DTI is currently indicating that it will be ‘towards the end of February’ before these are publicly available. This will give employers very little time to assess the impact of the Regulations before they become law.We will keep you abreast of developments.

Limits on tribunal compensation to rise

The statutory limits on the compensation that can be awarded for certain tribunal claims are set to increase in line with inflation. In particular, the maximum amount of a week's pay (used for calculating redundancy payments and the unfair dismissal basic award) increases from £280 to £290. The maximum compensatory award for unfair dismissal also goes up from £56,800 to £58,400.

The increases apply where the effective date of termination (or other relevant event) occurs on or after 1 February 2006.

TUPE Regulations due any day

Shortly before Christmas the DTI announced it intended to lay the long awaited TUPE Regulations before Parliament in January 2006. The finalised regulations will contain changes made following last year's consultation exercise. It remains the intention that the new rules will come into force on 6 April 2006.

Cases referred to in this update:

Land Securities Trillium Ltd v Thornley EAT, 13.7.05; Thorpe v Poat and Lake, EAT 18.10.05; Shergold v Fieldway Medical Centre EAT 5.12.05; Holc- Gale v Makers UK Ltd EAT 30.11.05; Galaxy Showers v Wilson EAT 10.11.05; Aspland v Mark Warner EAT 8.12.05

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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