When Grumbling Becomes A Grievance

Section 32 of the Employment Act 2002 requires that a complaint cannot be presented to the Employment Tribunal unless the Claimant has presented a written grievance to their Employer and waited 28 days before commencing any proceedings.

The statutory rules do not provide for any particular form in which the grievance must be made. As a result, there have been a raft of cases since the new statutory rules came into force in October 2004 considering the issue as to whether a grievance has been made. The recent case of Arnold Clark Automobiles Limited v Stewart & Anor is the latest in a line of cases considering this question.

Prior to instituting his claim, Mr Stewart's solicitors sent a letter to the company detailing the ways in which it was alleged that the company had breached Mr Stewart's contract of employment. The letter was marked "without prejudice" and finished by intimating that if the company did not confirm their acceptance of Mr Stewart's financial proposals within 14 days, Mr Stewart's solicitors would recommend that he should proceed to make appropriate claims in the Employment Tribunal without further notice.

The Employment Tribunal held that the sending of the letter, although not expressly stated to be a grievance letter, amounted to compliance with the requirements of Section 32 of the Employment Act 2002. The company appealed but the Employment Appeal Tribunal agreed with the Tribunal's decision. The Employment Appeal Tribunal decided that it did not matter that the details of Mr Stewart's grievance were not set out in a letter of a claim or that the letter was marked "without prejudice".

The Employment Appeal Tribunal's finding that it did not matter that the details of Mr Stewart's grievance was set out in a letter headed "without prejudice" is likely to prove controversial and the subject of yet further case law. "Without prejudice" correspondence is not normally admissible evidence and it seems that the Employment Appeal Tribunal may have been persuaded by reason of the fact that the claim issued in the Employment Tribunal mirrored the complaints set out in the solicitors letter.

This case is yet a further cautionary warning to employers to treat any complaint made by employees or their legal representatives as grievances raised under the statutory procedure. This is regardless of how they are communicated – whether by letter, email or even text message. A failure by employers to comply with the required procedures upon receipt of a grievance could lead to increased compensation payments in successful tribunal claims on the basis that awards are adjusted upwards if employers fail to invite employees to a meeting to discuss their grievance.

An employer is able to avoid liability for harassment committed by an employee in the course of their employment if it can prove that it took such steps as were reasonably practicable to prevent the perpetrator from committing the act of harassment. It has always been considered difficult for employers to successfully argue this statutory defence. However, in the recent case of Caspersz v Ministry of Defence, the MoD did just that and the decision of the Employment Appeal Tribunal provides useful guidance as to what is required from employers.

The background facts of the case are that Ms Caspersz complained to the Employment Tribunal about a number of matters which she said constituted discrimination against her on the grounds, principally, of sex, but in some cases, race. The relevant part of the appeal related to the Tribunal's finding that Ms Caspersz had been subject to sexual harassment by the Assistant Chief Constable to whom Ms Caspersz reported. The incidents related to two conversations between Ms Caspersz and Mr McDermott. During one conversation, Mr McDermott made a comment about Ms Caspersz "working her way through the male students" and in another conversation, Mr McDermott commented that Ms Caspersz must have "stepped her way through enough pilots to make it happen".

During her employment, Ms Caspersz made a general complaint about Mr McDermott. The MoD took swift action, arranged an interview and an investigation of Mr McDermott's actions, suspended him and subsequently terminated his employment.

The Employment Appeal Tribunal held that in order to avail itself to the statutory defence, the MoD had to show that it had taken steps to prevent the harassment and there were no other steps that the MoD could reasonably have taken.

Of crucial importance to the EAT's decision was that the MoD had a Dignity at Work policy. The introduction of this policy was announced by way of a force order in March 2003. The policy listed certain people to whom any member of staff might go if they needed support or guidance in a situation in which they believed they were being harassed or bullied. Ms Caspersz was aware of the policy but did not use it.

The action taken against Mr McDermott coupled with the MoD's effective policy, which was not just paid lip service but was fully observed, persuaded the Employment Appeal Tribunal that the MoD had taken such reasonable and practical steps to prevent the treatment afforded to Ms Caspersz.

Despite the EAT's decision, the question as to whether an employer is able to show that it has taken such steps as are reasonably practicable will depend on the circumstances of each individual case. An employer may benefit from the defence if:

• There is a relevant and current equal opportunities policy dealing with specific discrimination;
• Employees are provided with equal opportunities training covering the relevant discrimination and are also provided with regular updates; and
• The employer can show that it takes discrimination very seriously, including a thorough investigation of any allegations, prompt action and taking appropriate steps against the perpetrator.

The Employment Appeal Tribunal warned that the decision should not be taken as a "carte blanche for employers to simply adopt a policy and no more." The decision emphasises the importance of training employees and raising awareness of the company's policies.

INJURY TO FEELINGS AWARD IN SEX DISCRIMINATION CASES

Section 42(1) of the Sex Discrimination Act 1975 ("SDA") provides that an individual may be liable if they "knowingly aid" another person to unlawfully discriminate. This includes an employee who discriminates against a fellow employee and in these circumstances, the employee would be deemed to have aided the employer's discriminatory act.

A Claimant bringing a successful sex discrimination claim is entitled to receive an injury to feelings award as part of their compensation. Compensation for injury to feelings is often awarded in discrimination case. In the landmark case of Vento v Chief Constable of West Yorkshire Police, the Court of Appeal provided guidance on the level of such awards:

1. Awards of £15,000 to £25,000 should be awarded in the most serious cases, such as a lengthy campaign of harassment based on discriminatory grounds.
2. Awards of £5,000 to £15,000 should be awarded in serious cases that do not merit the highest award.
3. Awards of £500 to £5,000 should be awarded in less serious cases, such as a one-off discriminatory event.

In Miles v Gilbank, the Court of Appeal upheld an injury to feelings award of £25,000, being the maximum award under the Vento guidelines. Ms Gilbank suffered a "vicious campaign" of discrimination throughout her pregnancy primarily at the hands of her senior manager, Ms Miles. Ms Miles was held to be 100% liable for the discriminatory acts even though other managers carried out some of the acts. It was held that MsMiles, as the senior manager, had been responsible for deliberately encouraging the discrimination against Ms Gilbank.

It was previously thought that the top band of injury feelings awards in Vento would apply only where there had been prolonged harassment. However, this case shows that, although the discrimination had taken place throughout the short duration of pregnancy, it was held to be worthy of the top award as it had prevented Ms Gilbank from protecting her unborn child.