Dispute Resolution Regulations
The Employment Act 2002 (Dispute
Resolution) Regulations 2004 were made on
The Regulations make provision for the application of the statutory dismissal and disciplinary procedures, and the statutory grievance procedures, set out in Schedule 2 of the Employment Act 2002 (EOR 109). This article focuses on the statutory grievance procedures, as this is the area of greatest importance from an equal opportunities perspective.
Scope
The overriding general principle established by the 2002 Act is that if an employee does not use the grievance procedure, they will not be able to make a tribunal claim of unlawful discrimination. Section 32(2) of the Act stipulates that an employee "shall not present a complaint to an employment tribunal" if it "concerns" a grievance in respect of which the statutory grievance procedure applies and the employee has not complied with the first step in the procedure, which is that "the employee must set out the grievance in writing and send the statement or a copy of it to the employer."
Schedule 3 makes clear that this rule applies to claims under all the discrimination jurisdictions: the Equal Pay Act, the Sex Discrimination Act, the Race Relations Act, the Disability Discrimination Act, the Employment Equality (Religion or Belief) Regulations and the Employment Equality (Sexual Orientation) Regulations.
Meaning of a "grievance"
The Act did not define a "grievance". This is now explicitly defined by the Regulations as "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him". Regulation 6(1) then goes on to provide that "the grievance procedures apply . . . in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so if the action took place."
This is apparently intended to cover all the various forms of discrimination complaints, but the wording is certainly not free from ambiguity. Take an equal pay complaint by a woman who finds out that a male colleague has subsequently been appointed at a higher salary. Is that an "action" that the employer has taken "in relation to" the woman that triggers the obligation to raise a grievance under the statutory procedures before she can make an equal pay complaint? The only "action" by the employer has been to pay the man more. If the woman raised the grievance with the employer and was turned down, arguably that would be action by the employer in relation to her, but that is putting the cart before the horse. The issue is whether she has to raise the grievance before going to the tribunal.
What about complaints of harassment by work colleagues? The government's response to the public consultation on the Dispute Resolution Regulations says unequivocally: "This definition will, in the appropriate circumstances, also cover the actions of a third party (eg a colleague)." There is nothing in the Regulations themselves which provides for this, nor is the principle set out in the Employment Act. Of course, if an employee brought a complaint of sexual, racial or disability harassment by a work colleague, and the case went to a tribunal, they would be able to rely on the employer liability provisions of those statutes to help establish that the employer was legally responsible for harassment by its employees. However, the employer is only legally liable for discrimination by its employees because it is expressly deemed to be so by the respective discrimination statutes. On that basis, since there is no comparable provision in either the 2003 Act or the 2004 Regulations, it is hard to see how harassment by a work colleague falls within the definition of "action by the employer" in reg. 6 and, therefore, why the provisions requiring the employee to use a grievance procedure before making a tribunal complaint operate in such circumstances.
Standard and modified procedures
The Employment Act distinguishes between a standard three-step statutory grievance procedure and a modified two-step procedure, which does not require a meeting between the employer and the employee. The Regulations make clear that the modified two-step grievance procedure will apply only in a narrow set of circumstances. These are that the employee's employment has ended, and the parties have mutually agreed in writing to use the modified procedure, rather than the standard procedure, for the particular grievance. The effect of this is that, unless there are other exceptional circumstances, either the employer or the employee can insist on a meeting in accordance with the statutory provisions to discuss the grievance even though the employment has ended.
The grievance procedures do not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee, since, in such a case, the statutory dismissal and disciplinary procedure will apply.
Harassment
Regulation 11 provides that the grievance procedures also do not apply where:
"(a) the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person;
(b) the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment; or
(c) it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period."
These exclusions are more limited than foreshadowed by the minister during debates on the Bill (see EOR 109), who suggested then that there would be no obligation to follow the statutory procedures in cases of "bullying, violence and sexual harassment". In the event, the grievance procedure must be followed unless the employee has reasonable grounds for believing, not only that the behaviour would be repeated, but also that this would be the result of commencing the grievance procedure or complying with its requirements.
The definition of harassment in the Regulations is the same as that in the Regulations on race, disability, religion or belief and sexual orientation :
"conduct which has the purpose or effect of:
(a) violating the person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him,
but conduct shall only be regarded as having that purpose or effect if, having regard to all the circumstances, including in particular, the perception of the person who was the subject of the conduct, it should reasonably be considered as having that purpose or effect."
What is interesting about this is that it
applies to grievances about sexual harassment as of
Collective grievances
There is an exemption from going through the statutory procedures if a grievance is raised by an "appropriate representative" on behalf of two or more employees. This applies where the representative has "written to the employer setting out the grievance" and "specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance."
"Appropriate representative" is defined as either an official of an independent trade union recognised by the employer for the purposes of collective bargaining in respect of the employee's group, or an elected or appointed employee representative who has the authority under an established grievance procedure to represent employees.
In addition, reg. 10 provides that if a collectively agreed industry-level grievance procedure exists and the employee uses it to raise his grievance, it will not be necessary for the parties to go through the statutory procedures as well.
Questionnaires
The Regulations specifically provide that serving an employee with a statutory form for questioning does not amount to a statement of grievance sufficient to comply with the employee's obligations.
Time limits
Where the employee's grievance would also give rise to a claim in an employment tribunal, the time limit for bringing that claim is to be automatically extended to six months once the grievance procedure has been initiated.
Procedure not implied term
Section 30 of the Employment Act provides for it to be an implied term of every contract of employment that the statutory procedures will apply. However, the government has decided not to bring s.30 into force at the moment, so that the procedures will not automatically have contractual effect.
This was explained by the government spokesman, Lord Sainsbury, in the debate in the House of Lords on approving the Regulations as follows: "These statutory procedures will be a major change for many workplaces. So that their impact is controlled, the government do not at this time intend to commence the provision contained in the Employment Act 2002, which would make the statutory dispute resolution procedures an implied contractual term for all employees . . . If employers do not follow the procedures and the dispute subsequently escalates to employment tribunal proceedings, they will suffer the adverse consequences provided for in the 2002 Act . . . In all cases, if a failure to start or complete a statutory procedure was the employer's fault, the tribunal will increase any award by up to 50% if it finds in the employee's favour. It is important to recognise that these statutory procedures will be a major change for the 800,000 or more firms that have inadequate or non-existent procedures in place at the moment. Because of the burden of applying new operating procedures, the government's view is that it is best to proceed in stages, starting with these Regulations, which apply procedures to disputes that involve employment rights. I should make clear that our approach is not set in stone. The government are committed, after two years, to a review of how the procedures operate in practice. If there is evidence to suggest that the procedures have not been universally adopted, then it would be appropriate to consider introducing the implied term, so that the employees can make breach of contract claims if their employer fails to follow the procedures."
* SI 2004 No.752.
