Statutory dispute resolution procedures: step-one statements of grievance

Sarah-Marie Williams of Clyde & Co begins a series of articles on the statutory dispute resolution procedures with a look at how compliance with step one of the statutory grievance procedure is being interpreted in the tribunals.

Introduction

The Employment Act 2002, Part 3 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 came into force on 1 October 2004. One of the main features of the legislation is that it introduced statutory grievance procedures that an employee must follow before he or she can commence proceedings in the employment tribunal. More specifically, under the Employment Act 2002, section 32 the employee must set out his or her grievance in writing and send it to the employer at least 28 days before bringing a relevant claim (as listed in Schedule 4). This is referred to as a step-one statement of grievance

Under the new rules a tribunal will not accept a relevant claim from an employee unless the employee has complied with the requirement to send a step-one statement of grievance. However, the Employment Act 2002, Schedule 2 states only that, in order to comply with step one, 'the employee must set out the grievance in writing and send a statement or a copy of it to the employer'. The amount of detail that should be provided is unclear, and the legislation provides no guidance on what will amount to a grievance.

In the past year there have been a number of cases concerning whether employees commencing proceedings against their employer have raised a grievance in accordance with step one, as required under the legislation. It has become clear that it is not always obvious to employers whether an employee has actually lodged a written grievance. This article provides information on the recent decisions regarding the statutory grievance procedure that have begun to filter through the tribunals.

Wide interpretation of 'a grievance'

The tribunals are rigorously enforcing the new rules on admissibility of claims and there has been a great deal of speculation regarding the number of claims that are being rejected as a result of failure to comply with step one of the statutory grievance procedure. However, the case law suggests that the tribunals are interpreting what constitutes 'a grievance' widely.

For example, in Cooke v Secure Move Property Services Ltd [2005] ET/2400449/05 the employee merely wrote a letter stating that he was concerned that an investigation being carried out was tainted by bias and that he would therefore receive an unfair disciplinary hearing. The tribunal held that this was sufficient to constitute a grievance. It found that there was no requirement that the employee specifically ask for a meeting or refer to the statutory grievance procedure, or even necessarily use the word 'grievance'.

In Bowen v Moss Pharmacy and another [2005] ET/2900179/05 the employee complained that her employer had required her to work in circumstances where she was being bullied. The bullying was, however, by another employer's staff. Despite this, the tribunal held that to hold that the complaint did not constitute a grievance would mean adopting far too narrow an interpretation of what amounts to a grievance. It therefore found that she had satisfied step one of the statutory grievance procedure.

The Employment Appeal Tribunal (EAT) has now provided some guidance. In relation to written complaints from an employee and whether they constitute a step-one statement of grievance, the EAT decisions of Thorpe and Soleil Investments v Poat and Lake EAT/0503/05, Galaxy Showers Ltd v Wilson [2006] IRLR 83 EAT and Shergold v Fieldway Medical Centre [2006] IRLR 76 EAT make it clear that:

The importance of distinguishing between the standard and the modified grievance procedures has also been emphasised. Under the standard procedure, which applies in the majority of cases, an employee is required only to 'set out the grievance in writing'. However, if the modified grievance procedure applies, as well as setting out the grievance in writing, the employee is also required to set out the 'basis for' the grievance. This would include the grounds for and an outline of the grievance.

The modified procedure applies only where employment has ended and in circumstances where the standard procedure has not started. Under the standard procedure, once an employee has set out a grievance in writing it is for employer to invite him or her to attend a meeting to discuss the grievance and, following the decision, the employee must be given a right of appeal. Under the modified procedure there are only two stages: the employee sets out in writing both the grievance and the basis for it and the employer must then respond in writing.

In Mark Warner Ltd v Aspland [2006] IRLR 87 EAT the EAT upheld the employment tribunal's finding that a solicitor's letter before action amounted to a grievance. It saw no reason to read the words 'employee' and 'employer' in the requirement that 'the employee must set out the grievance in writing and send the statement or a copy of it to the employer' as excluding actions by their agents.

Meanwhile, in Holc-Gale v Makers UK Ltd [2006] IRLR 178 EAT the EAT held that, in sending an equal pay questionnaire to her employer, the claimant had not satisfied step one of the statutory grievance procedure. While the questionnaire contained statements about her claim, the EAT held that the policy behind the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 14 was to exclude altogether the anti-discrimination questionnaire procedure from the statutory definition of grievance.

Conclusion

The case law suggests that there is a low threshold for an employee to meet the requirement to send a step-one statement of grievance. If, on receiving a step-one statement of grievance, an employer fails to follow the statutory procedure (whether the standard or modified procedure) it must be noted that the tribunal will increase the amount of any award of compensation by between 10 and 50%. Employers should, therefore, be careful to consider all written complaints from employees or their representatives.

Next week's article will answer questions on the statutory dismissal and disciplinary procedures.

Sarah-Marie Williams is a solicitor in the employment team at Clyde & Co (sarah-marie.williams@clydeco.com)

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