Clyde Valley Housing Association Ltd v MacAulay - sometimes the employee gets it wrong

01/09/2008

By Nick Hobden, Partner and Head of Employment.

It is fair to say that whenever new employment legislation comes into force, more often than not, it results in various new obligations being heaped upon the employer. However, with the statutory grievance procedures (SGPs), employees have had to accept certain obligations of their own.

Under the SGPs, where an employee's employment has terminated prior to a written grievance being submitted or resolved, by agreement between the parties the modified SGP can be used. As a first step, the employee must raise a complaint in writing, setting out the nature of the grievance and the basis for it. In the above named case the Employment Appeal Tribunal (EAT) considered precisely how much detail an employee is obliged to provide in order to satisfy this requirement; it is worth remembering that if an invalid grievance or no grievance at all is sent by the employee, then in most circumstances the employee will be prevented from pursuing a connected Employment Tribunal claim.

After resigning from her employment with Clyde Valley Housing Association, Ms MacAulay's solicitors wrote to the Housing Association's solicitors, purporting to raise a grievance regarding the actions of that Housing Association. The "grievance" described the Housing Association's conduct as being "oppressive", "degrading" and "humiliating". It alleged that the conduct was calculated or likely to destroy the relationship of trust and confidence, forcing the employee to resign. What the letter failed to do was particularise precisely which acts the employee alleged constituted such apparently deplorable treatment.

When Ms MacAulay subsequently brought a claim for unfair (constructive) dismissal against the Housing Association, the Association sought to argue that the claim should fail on the grounds that no valid grievance under the modified SGP had been submitted. Whilst this argument failed at the Employment Tribunal, the Housing Association appealed to the EAT.

Finding in favour of the Housing Association, the EAT concluded that Ms MacAulay's purported grievance amounted to merely a "generalised complaint" about the character of the treatment that she received. It failed to go into sufficient detail, including, in effect, the "Who? What? Where? When? Why?"

This case underlines the fact that employees are likely to come unstuck if they fail to submit an appropriately drafted grievance before filing an Employment Tribunal claim. As employers, you should consider whether the grievance that you have received is sufficient for you to understand the nature of the complaint being made. Whilst it may be risky to fail to deal with a vague grievance, without first asking for further details, if no such details are forthcoming, you may have a technical defence to any subsequent Employment Tribunal claim that might be filed.