When confronted by grumbles and moans from dissatisfied employees, the difficult question for an employer is which complaints can be ignored and which need to be dealt with as a grievance under the statutory procedures?
In October 2004, compulsory procedures, including statutory minimum grievance procedures, were introduced with a view to improving workplace dispute resolution.
Generally, in order to bring a claim in an employment tribunal, an employee now has to have first submitted a written grievance to their employer and waited 28 days.
The standard statutory grievance procedure is a three-step process:
The employee must set out the grievance in writing.
The employer must invite the employee to attend a meeting to discuss the grievance.
The employer must inform the employee of the decision and notify him of his right to appeal it if not satisfied.
A grievance is defined as a "complaint by an employee about action which his employer has taken or is contemplating taking in relation to him". Action is further defined as "any act or omission" and can therefore include the failure of an employer to do something.
How, then, does an employer recognise a complaint from an employee that will amount to a grievance under the statutory procedure and consequently trigger an obligation to invite the employee to a meeting?
Such complaints may result from an employee having taken legal advice about the steps they must take in order to bring a claim against their employer. It can therefore act as a warning to an employer of what is to come and offer the opportunity, if dealt with appropriately, to avoid claims at employment tribunals.
It's not necessary for the employee to make it clear that the letter is a grievance or that he or she is invoking the grievance procedure. The intention of the employee in making the complaint is also irrelevant under the statutory regime, as are the terms of any contractual grievance procedure.
There is no statutory guidance on the form the written grievance should take. However, case law has provided some assistance. For example, a grievance can be contained within a resignation letter but a statutory discrimination questionnaire cannot amount to a grievance. The complaint does not even necessarily have to have been raised by the individual themselves and can be written by a third party. For example, a letter before action written by a solicitor on behalf of an individual can amount to a written grievance.
The complaint, in fact, need not appear to relate to the employer's actions directly and can be about the actions of a third party whom the employee is required to work alongside by the employer.
A grievance can also be a complaint by an employee about the way in which his or her original grievance has been handled, ie, a grievance about a grievance.
It appears, therefore, that it's a low hurdle an employee has to overcome to validly raise a grievance and consequently trigger an employer's obligations under the statutory procedures.
Employers must ensure they have appropriate procedures in place so that any written complaint raised by an employee or ex-employee is not ignored.
Given the lack of clarity as to what amounts to a grievance, employers should treat as a grievance any letter from an employee or from a third party on behalf of an employee which sets out a complaint, and invite the employee to a meeting.
If the complaint is from an ex-employee, the employer should consider whether it's preferable to seek the employee's agreement in writing to use the modified procedure. The modified procedure is essentially a paper exercise and has the advantage in some circumstances that the employer doesn't have to meet with the employee or offer a right of appeal.
A failure by an employer to comply with the statutory grievance procedure will, other than in exceptional circumstances, result in an uplift in the amount of any compensation ultimately awarded by an employment tribunal of 10-50%.