Can a note taken by an employee’s manager be a written grievance?

Kennedy Scott Limited v Francis (Employment Appeal Tribunal – May 2007)

Step One of the statutory grievance procedure requires an employee to set out a grievance in writing and send the statement or a copy of it to their employer before a claim can be made in the Employment Tribunal about that issue. Since the introduction of the statutory dispute resolution procedures there have been a series of cases which have looked at what constitutes a written grievance compliant with Step One. It has been found that the employee does not have to personally write the letter, and that a letter from a solicitor can be regarded as a Step One letter.

In the Kennedy Scott case the first step of the company’s procedure required the employee to raise concerns informally with his immediate line manager who then made record of the grievance. This was the only recorded form of the grievance. The Employment Tribunal thought that the procedures should not be approached in an overly technical way and the requirements on the parties should be minimal. As the employee did not have to physically write the grievance, it would be possible for the notes taken by his manager when discussing the grievance to be regarded as a written Step One grievance.

Not surprisingly the employer appealed this decision on the basis that the employee or someone acting for him should write the grievance, not the employee’s manager, who was representing and taking the notes for the employer. The Employment Appeal Tribunal noted that the Employment Tribunal was correct to find that notes made by the manager were not made by him as an agent for or on behalf of the employee. The key element was that employee and the manager had been working together “to draw up some document evidencing the grievance”.

The Employment Appeal Tribunal felt that the purpose for making the written record was not material. Neither did it matter that at the same time the notes were taken the manager was seeking to discus the nature of the grievance with a view to resolving it. The key thing was whether the grievance had been set out and sent to the employer.

The fact that technically the employer never sent the written note of the grievance to the employer, because he did not make the note or actually send it, has been pushed aside here. Instead, the Employment Appeal Tribunal has looked at whether the employer has received a written statement which can be regarded as a grievance and it is clear from whom it comes. As the grievance related to the matters being claimed at the Employment Tribunal that was sufficient to allow the claim to proceed.

The Employment Tribunal did stress that this case was decided upon its individual facts. With that in mind, if employers routinely have an initial meeting to investigate a hitherto unwritten grievance, and notes are taken at that meeting then such notes could be regarded as being compliant with Step One of the statutory grievance procedures. Employers should either consider changing such a practice, or ensure that such a “grievance” is then subject to Steps Two and Three of the statutory procedures.