The recent case of Kennedy Scott Ltd v Francis has thrown the spotlight on the thorny issue of employee grievance procedure.
It centred around the issue of whether an employee who had difficulties with writing had lodged a written grievance, in circumstances where he had made his complaint verbally. The grounds for the plaintiff making this claim was that at a meeting with the employer to discuss the issue, the employer took notes about the complaint.
The employer argued before the Employment Tribunal that the notes it had prepared could not amount to a written grievance by the employee. The tribunal disagreed.
However, perhaps surprisingly, the Employment Appeal Tribunal upheld the tribunal's decision that this was sufficient to comply with the statutory process - that the grievance was set out in writing and sent to the employer.
While this decision does strain at the limits of the wording of the regulations, and should perhaps be seen as a decision on its own facts only, it is important for employers to remember the wide range of situations where employees will be taken to have lodged a grievance. If the employer fails to follow the required procedure for dealing with these, there could well be financial consequences.
So let us review exactly what the law is.
The statutory dispute resolution regulations require employees, in most instances, to raise a grievance with their employer if they have a complaint about the employer's conduct, before they will be allowed to present a claim to an employment tribunal about the subject matter of that complaint.
The major exception to this is where the employer has dismissed the employee, or is planning to do so.
Under the regulations an employee must, "set out the grievance in writing and send the statement or a copy of it to the employer". The employer must then follow a specific process for dealing with the written grievance, including arranging a meeting, and giving a right of appeal.
It is important to identify when a grievance has been raised, for two reasons: If there has been no written grievance, the employee may be barred from bringing a tribunal claim; If the employer receives a written grievance and does not follow the correct procedure in response, any compensation awarded to the employee at tribunal can be increased.
The courts have confirmed that almost any written communication of dissatisfaction with the employer's conduct could be a statutory grievance, requiring the employer to follow the statutory procedure in response. This can include resignation letters, solicitors' letters etc. Douglas Strang is an associate with Mitchells Roberton, Glasgow
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