Clyde Valley Housing Association Ltd v MacAulay
The modified grievance procedure requires claimants to set out the basis of their grievance in a written statement. In Clyde Valley Housing Association Ltd v MacAulay, the Employment Appeal Tribunal (EAT) said that the statement must address the basic questions of who, what, why, where and when.
Ms McAulay’s union, the TGWU, instructed Thompsons to act on her behalf.
Basic facts
Ms McAulay worked for the Housing Association from June 2002 until March 2006 when she resigned, claiming unfair constructive dismissal and disability discrimination. Both parties agreed that the modified procedure (which does not require any face to face contact) of the statutory dispute resolution provisions applied.
As required under the procedure, her solicitors sent a grievance letter to Clyde on 17 May 2006, setting out a number of allegations of harassment by her managers that had ultimately resulted in her physical and mental breakdown.
In a letter dated 5 June, Clyde asked a series of questions about her grievance letter but did not say that they wanted this information to satisfy Ms MacAulay’s obligations under the modified procedure. They then wrote again on 7 August, (more than three months after the dismissal), saying that the Association would now argue that the tribunal did not have jurisdiction to hear her claim as they were not satisfied that she had set out the basis of her grievance in writing.
Relevant law
Section 32 of the 2002 Employment Act states that employees cannot make a complaint to a tribunal if the requirements in paragraphs 6 or 9 of Schedule 2 of the Act have not been complied with.
Paragraph 6 refers to the standard procedure, paragraph 9 to the modified procedure, which applied in this case. This requires an employee to set out her grievance in writing, including the “basis for it” and send it to her employer. The employer, in turn, has to set out their response in writing and then send it to their employee.
Tribunal decision
The tribunal decided that the letter of 17 May constituted a grievance letter as it set out the “basis” of her complaints against the Housing Association. Namely, “alleged unjustified and oppressive disciplinary process which caused her to resign her employment. In my view, that amounts to the claimant setting out the basis of her grievance.”
It then said that even if it was wrong in its conclusion, the sanction for failing to complete a statutory procedure under section 31 of the Act was “by way of reduction of any award that a Tribunal may make in the event that a claim is upheld following a Hearing on the merits”.
EAT decision
The EAT, however, disagreed. It said the tribunal first had to satisfy itself that Ms McAulay had complied with the terms of section 32. It then had to ask whether paragraph 6 or 9 applied. In other words, the tribunal could not entertain her claim until it had established that she had sent the Association “something in writing which set out both her grievance and the basis for it”.
Although only a short statement was required, the EAT said it needed to answer the “essential questions that one would expect to arise in a grievance, namely: ‘Who? What? Where? When? Why?’ This was a question of fact for the tribunal to decide, but it had to do so on the basis of the letter alone and not any other material contained in later documentation, such as the claimant’s tribunal application form.
So did the letter of 17 May satisfy those requirements? No, according to the EAT, because it just made a series of assertions and did not answer the basics of the “who? what? where? when? and why?” that the grievance was about. “The evidential basis for the generalised complaint is just not there yet that is what, as I have already discussed, the Claimant [is] required to do to comply with the [modified grievance procedure] Without such compliance, the Tribunal had no power to entertain this claim.”