Feeling aggrieved

Do aggrieved employees have to follow a specific procedure for their claims? Esther Morris reports

What must an employee do to ensure that he has complied with the requirement to set out a grievance in writing in relation to a matter of which he complains to an employment tribunal? The EAT recently addressed this issue in Canary Wharf Management Ltd v Edebi [2006] IRLR 416.

Grievance procedure

Part 3 of the Employment Act 2002 (the 2002 Act) makes provision for a statutory framework for the resolution of workplace disputes covering both disciplinary and grievance procedures. The Employment Act 2002 (Dispute Resolution) Regulations 2004 (the 2004 Regulations) set out how the framework is to operate. The consequences of a failure to comply may be significant for either party. For an employer, a failure to comply may result in automatic findings of unfair dismissal and enhanced compensatory awards. For an employee, a failure to comply may result in a reduction in the amount of compensation or a bar on bringing a complaint to a tribunal.

Section 32 of the 2002 Act seeks to encourage potential claimants to use grievance procedures before lodging certain claims in an employment tribunal. In such cases, the employee must send a written statement of grievance to the employer and wait at least 28 days for the employer to respond before lodging a claim. If an employee has not complied with this procedure, the tribunal will not hear the complaint. If, however, the employee has complied, in certain circumstances the time for lodging a claim with the employment tribunal will be extended by three months. Further, if either the employer or the employee fails, through their own fault, to follow the grievance procedure, that will have an effect on the award of compensation (s 31 of the 2002 Act).

Compliance with the grievance procedures

In March of this year, the EAT addressed the issue of what is meant by a 'grievance' within the meaning of the 2002 Act and whether a relevant grievance had been raised in Edebi.

Mr Edebi, a security officer, wrote a long letter to his employer complaining about issues regarding his health. The employer alleged that Edebi had not raised a grievance in writing with respect to his claims for disability discrimination, constructive dismissal and unlawful deduction of wages
and that, therefore, his claim should not be allowed to proceed. At a pre-hearing review, the chairman found that the employee had sent a lengthy letter to the employer in which all of the matters had been raised as a grievance. The appeal was brought against that decision. The appeal was directed solely to the issue of whether the employee had raised a grievance under the Disability Discrimination Act 1995.

EAT guidance

In its decision, the EAT set out the following useful guidance in relation to the raising of a grievance:

(1) There is no maximum time limit prior to the lodging of a claim in which the grievance must have been raised. However, raising a grievance months or years before lodging a claim with a tribunal will not necessarily constitute the appropriate raising of a grievance. The grievance must be extant.

(2) If a grievance is not extant, because it can be inferred that the employee did not wish to pursue it, or it was apparently satisfactorily dealt with, a new grievance will be necessary.

(3) There is a minimum period of 28 days that must be allowed before lodging a claim with
a tribunal.

(4) There is considerable flexibility about the form that a grievance should take. It can be raised in a resignation letter, by a solicitor in a communication to an employer's solicitor, or even after a dismissal has taken effect.

(5) Under the standard procedure, there is no obligation to set out the basis of the claim. It is enough that the employee identifies the complaint. However, the complaint must be essentially the same as that subsequently advanced before the tribunal. The employee will, however, have to notify the employer of the basis of the grievance at the second stage of the standard procedure.

(6) In identifying whether or not the complaint is identical to that which has been lodged before the tribunal, the issue must not be approached in a technical way (Shergold v Fieldway Medical Centre [2006] IRLR 76).

(7) The objective of the statute is met if the employer, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised.

(8) If the statement cannot in context be fairly read, even in a non-technical and unsophisticated way, as raising the grievance that is the subject matter of the tribunal complaint, the tribunal cannot hear the claim. There is no overriding interest of justice that can be invoked to save it.

(9) The complaint about an act can also include a failure to act (Galaxy Showers Ltd v Wilson [2006] IRLR 83). So, for example, in a disability claim, an employer's failure to make reasonable adjustments would constitute a matter in respect of which a grievance should be raised before the tribunal can
exercise jurisdiction.

The EAT held that Edebi's letter complained that his working conditions had an adverse effect on his health but did not raise, even in a non-technical and unsophisticated way, an issue that his employer could reasonably have understood to arise under the
Disability Discrimination Act.

In practice

The EAT in Edebi helpfully refined the test for whether a claimant in the employment tribunal has complied with the requirement to set out his grievance in writing in relation to a particular matter of which he complains. An employee and his legal representative would be well advised to heed this guidance to ensure that the tribunal has jurisdiction to hear the employee's complaint.