Unfair dismissals update (2)

Statutory grievance procedure

It is still early days, but the statutory regime on disciplinary, dismissal and grievance procedures seems to be giving rise to a good many practical difficulties. Recent cases on the rules relating to standard grievance procedures have, thankfully, shown the EAT taking a liberal and common sense approach to a number of technical points.

In Galaxy Showers Ltd v Wilson [2006] IRLR 83, a supervisor sent a letter complaining that he had been given a verbal warning about his conduct without proper process and indicating that if matters were not resolved, he would resign at the end of the month. The employer responded by inviting him to lodge an appeal against the warning. He refused to do so, because he considered that this would continue the character of a disciplinary meeting and that by attending he would legitimise a defective process. He resigned and claimed unfair constructive dismissal. A tribunal ruled in his favour and the EAT upheld that decision. The tribunal was entitled to treat his letter of resignation as containing a statement of his grievance such as to fulfil the requirements of para 6, Sched 2, Employment Act 2002. In order to meet the requirements of para 6, there must be something in writing which complies with the definition of 'grievance' in reg 2(1) of the Employment Act 2002 (Dispute Resolutions) Regulations 2004, namely 'a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him'. A grievance is, therefore, a complaint. The employer's submission that a written grievance should indicate that the complainant wished to proceed further to some discussion or resolution of the matters of complaint could not be accepted. What is essential is that the substance of the complaint was raised. The particular form of the complaint, or indeed the particular time at which it was raised does not matter. Further, the tribunal was entitled to hold that the claimant's refusal to attend a meeting called by way of an appeal against the verbal warning did not amount to a failure to attend a meeting which would have complied with Stage 2 of the statutory grievance procedure. Paragraph 7 of Sched 2 requires the employer to invite the employee to attend a meeting to discuss the grievance. That meeting must therefore relate to the substance of the grievance. Although the employer may seek to resolve both the complaint and an appeal at one and the same hearing, part of the purpose of the meeting must be to discuss the grievance itself. The employer must indicate to the employee that there is to be a meeting which in substance will at least in part deal with the complaints which he has already made. The EAT expressed the general view 'that in any case in which the substance of the complaint has been raised, and in which there has been subsequent discussion between the parties about that complaint, it is likely that the requirements of the Regulations will have been fulfilled'.

There was a similar outcome in Shergold v Fieldway Medical Centre [2006] IRLR 76. An employee's letter of resignation set out her complaints about her manager's conduct and made it clear that she could not continue to be employed if that conduct continued. A tribunal held that that did not amount to setting out her grievance in writing in accordance with the requirement in para 6 of Sched 2 and that she was thus prevented from pursuing her complaint. However, the EAT allowed an appeal, pointing out that the requirements of para 6 Sched 2 are minimal. While the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, there is no requirement that the wording of the simple grievance in writing under para 6 and the likely much fuller exposition of the case set out in proceedings must be anywhere near identical. What is necessary is that the employer should understand the general nature of the complaint being made. Provided that the general nature of the grievance in writing was substantially the same as the matter that then forms the subject matter of the claim, its different description or a difference by way of precise ingredients or particulars does not affect statutory compliance. The employee need not make it plain in the written document that it is a grievance, or is an invocation of a grievance procedure. A grievance can be set out in writing by way of a letter that also serves as a notice of resignation. There is no requirement that an employee must comply with any company or contractual grievance procedure. It is simply a question of setting out the grievance in writing. Further, whether or not the employer had a chance to respond to the grievance is not material in determining whether the employee set out the complaint in writing.

There need be no express intention to raise a grievance, according to the EAT in Mark Warner Ltd v Aspland [2006] IRLR 87. A tribunal chairman was right to hold that correspondence from the claimant's solicitor to the employer's solicitor complaining of the employer's failure to accept the finding of an earlier tribunal that the claimant had been bullied and discriminated against, and to take disciplinary action against the manager concerned, fulfilled the requirement in para 6 of Sched 2. There may be statutory compliance even if the grievance is raised in a letter before action. The provision in reg 9 of the Dispute Resolution Regulations, which treats the parties as having complied with the applicable statutory procedures if the written grievances are submitted by an 'appropriate representative', deals with collective grievances and does not exclude an individual employee's agent '“ such as a solicitor '“ from lodging a grievance on behalf of his client.

In Commotion Ltd v Rutty [2006] IRLR 171, a tribunal ruled that a claimant's application to her employers requesting flexible working under s 80F of the Employment Rights Act 1996 was also the presentation of a grievance. An employee is not obliged by law to go through both procedures separately. A document containing a grievance can also fulfil another function about the same or about a different matter. Whether it constitutes the presentation of a grievance is a question of fact.

However, in Holc-Gale v Makers UK Ltd [2006] IRLR 178, the EAT upheld a tribunal's ruling that a claimant could not rely on statements made in ss 1 and 2(a) of an Equal Pay Act questionnaire as constituting the statement of a grievance under the statutory procedure. The whole of the questionnaire procedure is caught by reg 14 of the Dispute Resolution Regulations, which provided that: 'Where an aggrieved person questions a respondent'¦ those questions shall not constitute a statement of a grievance under paras 6 or 9 of Sched 2.' The policy behind reg 14 is to exclude the statutory anti-discrimination questionnaire procedure altogether from the statutory definition of grievance. The EAT further held that the tribunal was entitled to allow the employers to raise the reg 14 point at a case management discussion even though, in their response form, the employers had conceded that the claimant had raised the substance of the claim in writing under a grievance procedure. The question as to whether a complainant complied with the statutory grievance procedure goes to the employment tribunal's jurisdiction to entertain the claim. Where, as in the present case, the employers overlooked reg 14 when completing their response form, it was open to them to raise the matter at the case management discussion and, subject to any prejudice to the claim, to apply for leave to amend the response. The point having been raised, it was then open to the claimant to restart proceedings after putting in a written grievance. Finally, the tribunal did not err in declining the claimant's application to refer the matter to the European Court of Justice on the basis that the requirement to raise a grievance is inconsistent with the Equal Pay Directive. The Directive does not prevent member states from imposing procedural requirements as to access to the judicial process under which equal pay claims are determined. The procedural requirement does not prevent access, nor does it affect the question as to whether an effective remedy is provided.

The question of time limits under the new regime was considered in BUPA Care Homes (BNH) Ltd v Cann [2006] IRLR 248. Section 32(4) Employment Act 2002 prevents an employee from presenting a complaint to a tribunal where Step 1 of the statutory grievance procedure is not complied with until 'more than one month after the end of the original time limit for making the complaint'. The EAT held that this does not have the effect of displacing the tribunal's discretion to extend time in discrimination cases on just and equitable grounds or, in unfair dismissal cases, where it was not reasonably practicable for the complaint to be presented within the three-month time limit. The 'original time limit' for making a complaint in

s 32(4) is the time limit provided for in the relevant legislation. If Parliament had wished to restrict the tribunal's discretion to extend time, it would have said so in the Employment Act '“ but it did not.

Striking out

Sodexho v Gibbons [2005] IRLR 836, involving the striking-out of an unfair dismissal claim, illustrates the complexities of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Specifically, the EAT upheld a chairman's decision that she had power to review an earlier judgment of a chairman, striking out the claim on the ground that the claimant had failed to comply with an order to pay a deposit within 21 days as a condition of being permitted to continue with his claim. A strike-out on this basis is a 'judgment', which is reviewable. Under the 2004 Rules of Procedure, there is no distinction between a strike-out for a non-payment of a deposit and a strike-out for other reasons. The EAT noted: 'There is a serious point emerging from this case. The gradual modification and sophistication in employment tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding object and the increased powers of employment tribunal chairmen to make orders on their own initiative should be seen as valuable signposts to chairmen to exercise their independent judgment to ensure fairness between the parties.'

Settlements

In Mayo-Deman v University of Greenwich [2005] IRLR 845, shortly before a tribunal hearing, a claimant agreed to settle race and sex discrimination proceedings and all her claims in return for a payment of £3,000. She did not attend the tribunal hearing, but her lay representative told the tribunal that he fully accepted on the evidence that the matter had been withdrawn and the tribunal dismissed the application on the basis that it had been settled. However, the claimant then brought an appeal on the grounds that the terms of settlement did not comply with the conditions regulating compromise agreements in the context of sex and race discrimination claims. It was submitted that a settlement which does not comply with the statutory provisions is not binding on the parties, and that the tribunal was obliged to ensure that those provisions were complied with. Not surprisingly, perhaps, the EAT gave this argument short shrift. There is nothing in law requiring a tribunal to ensure that settlement terms agreed are binding within either the Sex Discrimination Act or the Race Relations Act before it permits a claim to be dismissed when the parties

have reached what is otherwise a contractual agreement. The tribunal had looked carefully at the terms and was entitled to dismiss the claim on the basis that the parties had reached agreement on terms of settlement.

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