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Oh no! Not again! The Grievance Procedures are back!

Since our last article on this subject in December 2005, there have been a number of interesting cases concerning the Statutory Grievance Procedures (“SGP”). We thought that we should take a canter through a few of them to ensure that you are up to speed. The Employment Appeal Tribunal (“EAT”)
decided in the case of Thorpe and Soleil Investments v Poat and Lake (2005) that a combined letter of complaint and resignation faxed to an employer by an employee constituted a grievance for the
purposes of the SGP. Not surprisingly, it was irrelevant whether or not the complainant intended to raise a grievance.

The EAT also took a liberal approach in its application of the SGP in Arnold Clark Automobiles v Stewart & Anor (2006). In this case the complainant’s solicitor sent a letter to his former employer immediately after he had resigned from his employment. The letter detailed the ways in which it was alleged that the employer had breached the terms of employment. The letter was marked ‘without prejudice’ and set out what the employee wanted as compensation,threatening to commence proceedings in the Employment Tribunal if the settlement proposals were not accepted within 14 days. Even though the solicitor’s letter did not state that it was a grievance, the EAT decided that the letter amounted to a grievance for the purposes of the SGP.

In Canary Wharf Management v Edebi (2006), the EAT sensibly decided that a grievance does not need to be formulated in any unduly legalistic or technical manner, but must give enough information to the party receiving the complaint so that it could appreciate the relevant grievance being raised. The case itself is interesting, as it concerned an asthmatic employee who wrote a complaint to his employer about his working conditions. He alleged that the conditions that he was required to work in were damaging his general health. He went on to say that he was treating himself as constructively
dismissed. The letter did not mention any complaint under the Disability Discrimination Act 1995 (the “DDA”). However, he went on to file a complaint with the Employment Tribunal under the DDA.
An issue arose over whether the employee had raised the DDA issue earlier by way of Grievance under the SGP, in order for the Tribunal to be able to determine it. The EAT declared that the complaint under the DDA should not be allowed to continue. Despite the employee raising a number of issues, the
EAT concluded that the grievance letter could not reasonably be regarded as having raised a DDA issue. So the DDA claim could not proceed as it had not been raised under the SGP first.

So, what have we learned from all this?

= Any gripe set out in writing by an employee or his representative should be treated as a grievance under the SGP, even if marked ‘without prejudice’; and
= Where the nature of the grievance is unclear, consider whether you should ask the complainant (employee) to clarify their position and ask for information as to the basis of their complaint (concern) for you to deal with it; and
= The last (Canary Wharf) case suggests that more employees will be wary of starting non-unfair dismissal claims without raising grievances under the SGP as a pre-cursor to full e.g. DDA or other discrimination complaints in a Tribunal Claim Forms.

For further enquiries please contact Nick Hobden (view full profile) on 01892 701326 or email nick.hobden@ts-p.co.uk.

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