UK Employment Alert No. 152: “Informal” grievance still amounts to a statutory grievance
July 9, 2008
Background
Since 2004, employees and employers have had to follow the statutory discipline and grievance procedures.
If an employee wishes to bring Tribunal proceedings about any issue (except one which relates to dismissal), he must first raise a grievance and wait 28 days. If he does not, he will be prevented from bringing a claim in the Tribunal. If an employer fails to follow the statutory grievance procedure after an employee has raised a grievance, a tribunal may increase any subsequent award of compensation by between 10 and 50%, unless such an increase would be unjust or inequitable.
The Facts
In the case of Procek v Oakford Farms Ltd, Mr Procek, raised a grievance about race discrimination on an “informal” basis. He wrote a letter which said that if his complaints were not addressed on an informal basis within 14 days, he would lodge a “formal grievance of racial discrimination under the Employment Act 2002 (Dispute Resolution) Regulations 2004”. The Tribunal held that, in the circumstances, the “informal” grievance should not be treated as a statutory grievance. As no further grievance had been lodged by the employee, the Tribunal had no jurisdiction to hear his claim.
The Decision
The EAT disagreed. In order to raise a grievance for the purpose of the statutory grievance procedure, all that is required is for the employee to set out his grievance in writing and send it to the employer. Mr Procek had done this.
Where an employee expressly states that they do not want their complaint to be dealt with as a “formal” grievance, it may seem unfair to penalise the employer for agreeing to that request. The EAT commented that in such circumstances, it was within the Tribunal’s power to refuse to increase any award of compensation if such an increase would be unjust or inequitable.
What this means for employers
The EAT’s decision reiterates that the threshold for raising a grievance (and therefore triggering the statutory greivance procedure) is very low. Provided an employee puts their complaint in writing and sends it to the employer, the statutory grievance procedure is triggered – even if the employee has expressed a wish for the matter to be addressed informally.
To comply with the procedure, the employer must then: (1) invite the employee to a meeting; (2) confirm the outcome of the grievance to the employee in writing and notify the employee of their right of appeal; (3) hold an appeal meeting if the employee wishes to appeal.
What the future holds for statutory discipline and grievance procedures
The statuory discipline and grievance procedures have been controversial. Introduced with the aim of encouraging internal dispute resolution and therefore reducing litigation they have, in practice (and as demonstrated by the above case) had the opposite effect. A vast body of case law has been created dealing soley with the interpretation of the statutory procedures.
A review of the statutory procedures was commissioned by the government at the end of 2006. The review recommended their complete repeal. This has been accepted by government and the Employment Bill including this repeal is likely to be passed as law in April 2009 (subject to parliamentary consideration).
However, until the repeal, the statutory procedures remain in force and employers should follow them or face increased Tribunal awards.
