UK: When is a Grievance Not a Grievance?

Introduction

Most of you will be aware that new statutory rules for grievance procedures were introduced in October 2004. With very little guidance available at the time, it was inevitable that the rules would ultimately have to be tested by the Employment Tribunals. Recently there has been a flurry of these cases making their way through to the Employment Appeal Tribunal ("EAT").

The cases provide a useful insight into what is treated as a grievance under the new procedures. The reason why this is important is that an employer who fails to deal properly with a grievance under the procedures risk being ordered to pay increased compensation to the employee in question if the employee is subsequently successful in a claim. In addition, the submission of a grievance will in some cases trigger an extension of the normal time limits of three months to submit a Tribunal claim, to six months. An employer who fails to spot a grievance will therefore put itself at risk of having to pay additional compensation as well as being caught unawares by a Tribunal claim. Furthermore, the employer may miss a chance to resolve the employee's grievance internally without recourse to legal proceedings.

This briefing sets out a summary of recent case law, which will assist employers in recognising what might constitute a grievance under the statutory procedures.

Statutory definition of a grievance

The statutory definition of a grievance is a "complaint by an employee about action (which includes any act or omission) which his employer has taken or is contemplating taking in relation to him." This definition is potentially very wide, although it is worth noting that not all grievances trigger the statutory grievance procedures. Only those related to action that could form part of a Tribunal complaint are statutory grievances (with a few exceptions).

Action by the employer could include action by a third party (such as a colleague or a third party at whose premises the employee is required to work) and is capable of including action in relation to the way in which an earlier grievance has been handled by the employer.

Basic requirements for employee when submitting a grievance

The employee must set out the grievance in writing and send it to the employer. The EAT has held that the requirements for this first step of the statutory procedures are minimal. All the employee has to do is set out the complaint in writing. This automatically triggers the employer's duty to invite the employee to a meeting. There is no requirement that the word "grievance" is used or that the employer's own contractual grievance procedures are followed.

"In writing" includes anything in written form such as a letter, fax or e-mail. The grievance does not need to be written by the employee as long as it is done on the employee's behalf.

It is not clear from the legislation who, within the employer's organisation, is considered to be the "employer" for the purposes of receiving a grievance. In one case, it was held that a grievance sent to the area manager's home address constituted a valid grievance. As mentioned above, it makes no difference that an employer's own grievance procedures specify to whom a grievance should be submitted.

Other examples of valid grievances

The EAT has held that a solicitor's letter before action (without any reference to invoking the internal grievance procedure) can constitute a valid grievance triggering the statutory procedures.

A valid grievance may also be contained in a resignation letter and it is clear that there is no requirement that a grievance needs to indicate an intention to pursue a procedure to a resolution.

The EAT has also held that a flexible working request is capable of amounting to a grievance letter. The EAT emphasised that it is irrelevant whether the purported grievance dealt with any other matter simultaneously.

However, in a rare case of holding that a statement was not a grievance, the EAT rejected an argument that a grievance could be contained within a discrimination questionnaire.

What should employers do to protect themselves?

Given that almost any statement in writing containing a complaint by an employee could potentially constitute a grievance, it is essential that employers have a system in place to avoid overlooking them. For example, employers should ensure that managers and those in senior positions receive training on the statutory grievance procedures so that they can recognise a potential grievance and pass it on to the HR department (where there is one).

The most important lesson, however, seems to be that if in doubt as to whether a complaint is intended as a grievance, ask the employee.