Background

Since 2004, the statutory grievance procedures have prevented employees from making certain Tribunal claims if they have not first raised a grievance with the employer. This is intended to allow employers and employees to resolve problems internally before a Tribunal claim is brought.

In the recent case of DMC Business Machines PLC v Plummer, the EAT considered when a failure to raise a grievance could prevent a Tribunal claim from continuing.

The Facts

An altercation between Mr Plummer, a warehouse manager, and one of his subordinates resulted in Mr Plummer being threatened by his subordinate’s brothers. DMC investigated and gave both employees a final written warning. Mr Plummer then resigned from his employment because he said that the conflict with the other employee had become “life threatening”. He subsequently wrote a further letter to DMC complaining about the “handling of events…which led to my resignation”.

Mr Plummer filed a Tribunal claim, and answered the question “Have you put your complaint in writing to the respondent?” in the affirmative.

The Tribunal found that Mr Plummer’s grievance letter made reference to both the relationship between him and the other employee, and the disciplinary process followed by DMC. The Tribunal found that Mr Plummer had been constructively dismissed.

DMC appealled, claiming that the disciplinary issue had not been raised in the grievance letter and therefore Mr Plummer should have been prevented from bringing that claim before the Tribunal.

The Decision

The EAT decided that the wording of the grievance letter was wide enough to include a complaint about the disciplinary process.

However, the EAT also crucially commented that if an employee has not raised a grievance, he is not automatically prevented from bringing a Tribunal claim.

Rather, one of two things must happen. The failure to raise the grievance must be either: (a) apparent to the Tribunal from the Claim Form (ET1); or (b) raised by the employer in the Response Form (ET3).

In this case, Mr Plummer had said in the ET1 that he had raised a grievance. Therefore, the alleged failure was not obvious to the Tribunal. The employer had not raised the point in the ET3. Therefore, even if Mr Plummer had not raised a grievance he would have been able to bring his claim.

What this means for employers

When an employer receives an ET1 from an employee, it is vital that the employer should re-read the employee’s grievance letter/s (or the letter/s in which the employee alleges he has raised a grievance in the ET1).

If the employer considers that no grievance was raised, or that the grievance raised does not cover the Tribunal claims, then the employer MUST mention this in the ET3 and assert that the Tribunal is prevented from considering all or part of the claim. If the employer fails to do so, then the employee’s claims may be heard by the Tribunal, even if no grievance was, in fact, raised.