Pending their repeal, the statutory disciplinary and grievance procedures continue to cause headaches for employees, employers and tribunals alike:
- A document will amount to a valid grievance if a reasonable employer would have so understood it given the knowledge the employer had at the time of receipt – but not knowledge acquired subsequently. An absence report stating that an employee had gone home upset after a meeting and had suffered nosebleeds was not a valid grievance, as it was not until after receipt of the grievance that the employee informed the employer that she had been upset about being told that her lack of pay rise was pregnancy-related. However, the absence report might have been sufficient had the employee complained about the pay rise decision beforehand. Employers in receipt of a document which might conceivably indicate a complaint will therefore need to ensure they check what conversations have already taken place with all relevant managers. (Dick Lovett v Evans, EAT)
- An employer's letter informing an employee of a disciplinary meeting will amount to a valid "Step 1 letter" under the statutory procedure even if it fails to set out the alleged conduct and that dismissal is contemplated, but only if those matters were obvious to the employee from the context and surrounding circumstances. For example, in this case the employee had been caught red-handed and admitted conduct which it was well known was strictly forbidden. Likewise the employer may not need to expressly inform the employee of the "basis" of the allegations under Step 2 if this would have been clear from the circumstances. However, the facts in this case were unusual and employers should always aim to provide the required information explicitly rather than rely on implication from the circumstances. (Homeserve v Dixon, EAT)
- Unreasonable delay by the employer in following the statutory disciplinary procedure renders a dismissal automatically unfair as it amounts to "non-completion" of the procedure (Wilmot v Selvarajan, EAT). Employers need to ensure they act promptly, particularly in hearing an employee's appeal against dismissal.
- The statutory grievance procedure is clearly expressed not to apply to grievances about dismissals. The EAT has recently confirmed that tribunal claims that a dismissal is unfair, wrongful or discriminatory are not subject to the grievance procedure. (Mowels v Vix Displays, EAT; ADM Milling v Hodgson, EAT) Contractual claims (in the employment tribunal) other than for wrongful dismissal, eg for bonus outstanding on termination, are covered by the procedure. It is important for employers to identify early whether they need to follow the grievance procedure, given the potential consequence of a maximum 50% uplift to compensation awards.
- The tribunals have failed to provide any clarity on what factors are relevant in deciding how much to uplift compensation for breach of the statutory procedures. In one recent case the EAT upheld the tribunal's ruling that an employer's ignorance of the procedure justified imposing only the minimum uplift of 10% (Cex v Lewis, EAT), whereas other tribunals have imposed 50% in this situation. The EAT has also ruled that the tribunal can only consider the extent of the breach of the statutory procedure in deciding the uplift, and not other factors such as the size of employer or other poor conduct by the employer. (Aptuit v Kennedy, EAT)
- The procedures require an employer to notify an employee of his right to appeal a disciplinary or grievance decision; the EAT has confirmed this does not need to be done in writing (although this is preferable to avoid disputes as to whether notice was given). (Aptuit v Kennedy, EAT)