When is a grievance not a grievance?
Could focusing on the subject matter of a tribunal claim have a negative influence on employers' attitudes to grievances, asks consultant editor Darren Newman.
It is always a pleasure to return to the topic of the statutory dispute resolution procedures, and our report on Canary Wharf Management Ltd v Edebi1gives me the opportunity to do just that. Edebi is yet another case in which the EAT had to decide whether an employee had raised a grievance before bringing a tribunal claim. However, perhaps surprisingly, the EAT held that in respect of part of his claim - disability discrimination - he had not.
The surprise comes not from the fact that up to now the EAT has bent over backwards to hold that almost any written communication amounts to a grievance. Rather, it is that the employee had quite clearly raised a grievance. He had written, on his resignation, a lengthy and detailed complaint divided into headings including: prior information; working conditions; and heaters. He had made it quite clear that the employer had fallen short of his expectations in relation to each area, and had made a number of suggestions for improvement.
The EAT held, however, that his letter did not indicate that he was aggrieved in relation to a matter covered by the Disability Discrimination Act 1995 (DDA). Mr Justice Elias said: "If the statement cannot in context fairly be read even in a non-technical and unsophisticated way as raising a grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim." Accordingly, the tribunal did not have jurisdiction to consider the DDA complaint. Mr Edebi's parallel complaint of constructive dismissal was, however, allowed to proceed.
Understanding the basis for this decision means picking our way through the Employment Act 2002 (Dispute Resolution) Regulations 2004. The definition of a grievance in reg. 2 includes complaints about "action" taken by an employer in relation to an employee. Regulation 6 provides that the grievance procedures apply where the complaint "could form the basis" of a tribunal complaint. Of course, almost any action "could" form the basis of a tribunal complaint. If I am aggrieved by the colour of the office wallpaper, that could form the basis of a constructive dismissal claim - although the chance of success is remote.
Under s.32 of the Employment Act 2002 an employee must not present a tribunal complaint that "concerns a matter" to which the grievance procedures apply without first complying with step one of the grievance procedure and then waiting 28 days. Edebi makes it clear that the written grievance required under step one must contain the "subject matter" of the tribunal complaint in question. The subject matter of a constructive dismissal claim is the conduct of the employer that it is alleged amounts to a fundamental breach of contract.
However, the subject matter of a disability discrimination claim is either some element of less favourable treatment or a failure to make reasonable adjustments to remove a disadvantage. Mr Edebi was permitted to pursue his constructive dismissal claim because the subject matter of that complaint was clearly raised in his letter. But, far from claiming that he was treated less favourably than others or subjected to a particular disadvantage, his complaint stressed that working conditions were equally unpleasant for his colleagues. On that basis, his complaint did not raise the subject matter of a discrimination claim.
Given that the
employee had clearly indicated that he was very unhappy with a range of issues
to do with his working conditions, it seems harsh to dismiss such an important
aspect of his claim on this basis. One could argue that Mr Edebi's complaint was
sufficiently clear to warrant a meeting at which both sides could explain their
case. The scope of a grievance meeting should not be limited by the tribunal
claims that appear to be raised by the written complaint. An unintended
consequence of Edebi could be that both sides in a
grievance focus too heavily on the nature of resulting tribunal claims. Not, it
would seem, the best way of resolving workplace
disputes.
1See Canary Wharf Management Ltd v
Edebi for more.
