It’s good to talk

In this article, Joe O’Hara, a solicitor from Thompsons Employment Rights Unit in London, looks at what the EAT has said about how the standard grievance procedure (which applies to complaints such as constructive dismissal, deductions from wages, equal pay and discrimination) should work.

What has the EAT said about step one?

In both Shergold -v- Fieldway Medical Centre (LELR 109) and Galaxy Showers Ltd -v- Wilson the EAT said that a letter of resignation can amount to a step one letter, even though the employer might not have a chance to respond to it.

Indeed, the employee does not even have to make it plain that they are invoking the grievance procedure in the letter, as long as the general nature of the complaint they are making is clear to the employer.

In Galaxy Showers the EAT rejected the employer’s argument that the employee had to make clear in their written grievance that they wanted to go ahead and have it resolved. It said that the subject matter of the grievance just had to be broadly the same as their tribunal claim.

How detailed should the letter be?

It’s best if employees set out the grievance and its background clearly in the step one letter, although it only has to state the basic fact of the grievance in the standard grievance procedure.

In Shergold the EAT said that the step one grievance letter did not have to contain the actual basis of the grievance, as this can be cleared up before the step two meeting (although it can be fatal if it isn’t).

Employees can also draw on decisions dealing with the statutory dismissal and disciplinary procedure (since the wording is practically identical). So, for instance, in Martin -v- Class Security Installations Ltd, the EAT said that a letter complaining of repudiatory breach of contract was enough for a complaint of unfair constructive dismissal.

And in Draper -v- Mears Ltd, the EAT said that, when deciding whether a document meets the requirements for a disciplinary step one letter, tribunals can take into account whether the employee could have been in any doubt about its status.

If the tribunal finds there was ambiguity, it can then widen its investigation and look, for instance, at whether the employee knew what the allegations against them were. The same reasoning applies to step one grievance letters, but the wisest course of action is to set out the grievance and its background in the step one letter (which employees have to do for the modified procedure anyway).

In Canary Wharf Management Ltd -v- Edebi, the employee complained about working conditions and the effect that they had on his health and that of his colleagues. The EAT said that this was not sufficient to raise a grievance about a breach of the Disability Discrimination Act, which was not mentioned anywhere in the letter. So the complaint to the employer must be essentially the same complaint that is subsequently advanced before the employment tribunal.

Furthermore, the EAT in Holc-Gale -v- Makers UK Ltd (LELR 108) confirmed that regulation 14 of the 2004 dispute resolution regulations excludes all the contents of a discrimination questionnaire (for instance under the Sex Discrimination Act). If the employee serves a statutory questionnaire, they must also serve a separate step one letter.

Does the employee have to write the letter?

That is certainly what paragraphs six and nine of Schedule 2 to the 2002 Employment Act both state, but in Mark Warner Ltd -v- Aspland the EAT said that the employee’s agent could write the step one letter. In that case, the employee’s solicitor wrote a “letter before action” to the employer’s solicitor.

This decision should be helpful to trade unions, provided they have their member’s authority to write the letter, even where they fail to name every relevant member and so fall outside regulation nine (collective grievances).

What has the EAT said about step two?

It follows that an employee who has set out the barest information in their step one letter must, before the step two meeting, make sure that the employer knows the basis of the grievance. For instance, in an equal pay complaint, who the comparator is and what increase they want.

The employee must take all reasonable steps to attend the step two meeting.

In Galaxy Showers Ltd -v- Wilson, the EAT said that, although the meeting can discuss both discipline and grievance, part of the purpose of the meeting must be to discuss the substance of the grievance itself.

That means the employer must indicate to the employee that there is to be a meeting that will (at least in part) deal with the complaints already made.

When does the SGP apply?

The EAT has looked at two issues about whether the standard grievance procedure (SGP) applies at all.

The first concerns complaints against a fellow-employee for whose actions the employee says the employer is vicariously liable, such as racial harassment by a manager.

The EAT has made two conflicting decisions: Bisset -v- Martins and Castlehill Housing Association Ltd (LELR 115) says the SGP does not apply; but London Borough of Lambeth & others -v- Corlett says it does. Until that difference of opinion is resolved, claimants should follow the SGP but without relying on the three-month extension to the tribunal deadline.

The second concerns the overlap between dismissals and grievances. Except for constructive dismissals, regulation 6(5) says that the SGP does not apply if the grievance is that the employer dismissed or contemplated dismissing the employee.

London Borough of Lambeth & others -v- Corlett concerned a claim by an employee for damages for breach of contract arising from his summary dismissal. The EAT said that the complaint was that the employee had been dismissed and so the statutory dismissal and disciplinary procedure, not the SGP, applied.

Thompsons does not think this case has been correctly decided. Until it has been overruled, however, employees who have been dismissed and are owed notice pay, holiday pay or redundancy pay, should lodge a grievance, if possible wait 28 days, then rely on the shorter of the two possible time limit extensions.

Thompsons agrees, however, with the decision in Jones -v- Department for Constitutional Affairs, which says that a grievance that the employer had dismissed, or had contemplated dismissing, someone included a complaint about the manner in which the employer was contemplating dismissal – so the SGP did not apply.

How are time limits affected?

If an employee triggers the SGP within the tribunal time limit, that time limit is then extended by three months. In Singh t/a Rainbow International -v- Taylor, the EAT suggested that this was three months and one day, but Thompsons believes that is wrong. For example, in a sex discrimination case, time expires six months minus a day from the act complained of.

More usefully, in a decision covering two cases, Bupa Care Homes (BNH) Ltd -v- Cann and Spillett -v- Tesco Stores Ltd, the EAT ruled that the dispute resolution rules do not affect the normal tribunal discretion to extend the time limit. For instance, in discrimination cases where it is just and reasonable to do so.

What impact have the rules had on procedural issues?

In Scott-Davies -v- Redgate Medical Services the EAT confirmed that employees do not have a free-standing right to complain of a breach of the statutory procedures in the absence of a valid claim of unfair dismissal (in this case someone with less than one year’s service).

Finally, since an employee’s failure to comply with the SGP affects whether tribunals can hear their claim, employers can raise that failure at a very late stage, even where their ET3 form had accepted compliance – Holc-Gale -v- Makers UK Ltd and tribunal rule 3(9).