The EAT has held in the case of DMC Business Machines PLC v Plummer that a Tribunal may still have jurisdiction to hear a complaint, even if a written grievance has not been lodged.
In this case, Mr Plummer resigned as an employee in May 2005 following a final written warning. His resignation letter did not mention any complaint about the company’s disciplinary procedure. In July, Plummer sent a letter to the company, in which he said he wished “to raise a complaint concerning the handling of the events by the company which led to my resignation.” This letter contained no complaint about the company’s disciplinary process. Plummer then brought Tribunal proceedings in November 2005 for unfair dismissal. His ET1 was amended in December, with the Tribunal’s consent, to include a complaint about the company’s disciplinary procedure.
The Tribunal upheld Plummer’s complaint of unfair dismissal. DMC appealed on the ground that the grievance Plummer submitted was not the one he relied on for his unfair dismissal claim, and so therefore he was in breach of section 32(2) of the 2002 Employment Act – the requirement to lodge a grievance in writing.
The EAT dismissed DMC’s appeal, on the grounds that Plummer’s July letter did indeed cover the complaint contained in his later Tribunal proceedings. However, the EAT did state that this decision was reached with “considerable hesitation”. DMC did not raise section 32(6) of EA 2002 in its ET3, arguing that it did not need to because Mr Plummer had only complained about the conduct of a colleague in his ET1.
This argument was dismissed by the EAT because DMC did not amend their ET3 to address 32(6) (which would have prevented the Tribunal considering the claim) after Plummer had amended his to include the specific complaint about the disciplinary process. During the appeal, the EAT observed that the current provisions are “exceptionally awkwardly drafted”.
Employers should note that this case underlines the need to address directly in an ET3 any possible complaint or grievance an employee has made.