Knowledge grievance

Dick Lovett Ltd (t/a Porsche Centre Swindon) v Evans

The statutory dispute resolution regulations require employees to lodge a grievance in writing with their employer before making certain complaints to a tribunal.

In Dick Lovett Ltd (t/a Porsche Centre Swindon) v Evans, the Employment Appeal Tribunal (EAT) said that employers cannot be expected to know an employee has submitted a grievance because of something that happened subsequently. The context in which the grievance is raised is important and the employer’s knowledge of it has to be assessed at the time they receive the grievance document, particularly if it is ambiguous.

Main facts

On 10 April 2006, Ms Lovett was told at a meeting with her employer that she would not receive a pay rise. She was very upset and subsequently went off work for a week. When she returned she filled in an absence record on 18 April stating “Following on from meeting with Richard and Mark, went home very upset. Didn’t sleep and suffered numerous nose bleeds.”

She then had a further two meetings with her employer, at which she explained that she was upset because it seemed that they were refusing to give her a pay rise because of her pregnancy.

Ms Evans then claimed that the absence record and two subsequent meetings constituted a grievance, allowing her to pursue a claim of sex discrimination and equal pay.

Relevant law

Section 32(2) of the Employment Act 2002 says that employees cannot make a complaint to a tribunal unless they have complied with paragraph 6 of schedule 2 which requires them to submit a grievance in writing as a first step.

Paragraph 7 (2) states that the step two meeting must not take place until:

“… (a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and (b) the employer has had a reasonable opportunity to consider his response to that information.”

Tribunal decision

Relying on Canary Wharf Management Ltd v Edebi, the tribunal chair said that the provisions of the statute could only be met by looking at the context in which the grievance was made.

He thought this could “refer both to what happened before the grievance letter and what happened immediately after it.” In this case, that included the further discussions between Ms Evans and her employer at which she explained that she was upset about not getting a pay rise because she was pregnant.

He concluded that “the employer reading that document, again in the context of what has been said, can clearly understand that this is, in fact, a complaint of sex or pregnancy discrimination.”

The employers appealed, arguing that, in this case, the “context” of a later meeting supplementing an “earlier document” only made sense if that document could be interpreted as a grievance. In other words, “there has to be some substance of complaint appearing from the document itself which can be further understood in the context of the meeting.”

EAT decision

And the EAT chair agreed with them. He said that the Canary Wharf case made clear that the employer’s knowledge about the grievance had to be assessed at the time of receiving it.

In this case, the chair pointed out that the comment contained in the return-to-work document gave no indication of any form of grievance, and bore no resemblance to the complaints of sex discrimination and equal pay that Ms Evans subsequently lodged with the tribunal.

He therefore concluded that “events which occur after the creation of the document cannot be used as a context in which to interpret that document and, in any event, the document itself, it seems to me, has to give some indication of a grievance. Accordingly, for these reasons, I would allow the appeal.”