A resignation letter may not itself constitute a ‘grievance in writing’ for the purposes of initiating the statutory grievance procedure. Failure to initiate this procedure will mean that the employee is not entitled to later bring an unfair dismissal claim.
In Carcianiga v Lepra an employee’s request for flexible working after her return from maternity leave was refused. She resigned and, in her resignation letter, made the point that she had decided to do so because her flexible working request had been rejected, making it impracticable for her to continue in employment.
She subsequently claimed constructive dismissal and sex discrimination but her claim was filed outside the statutory three-month time limit. She argued that her resignation letter had raised a valid grievance and so should be taken as a ‘statement of grievance’ initiating the statutory grievance procedure and thus extending her time for filing an unfair dismissal claim by a further three months.
The Tribunal disagreed. Her resignation letter had spoken with a certain degree of fondness of her time working for the employer. She had no claim for constructive dismissal. Furthermore, the letter was not a ‘grievance’ for the purposes of the statutory procedures and, because the statutory grievance procedure had never been engaged, there could be no extension of time allowed for the filing of a claim.
Points to note:
# In other cases, a resignation letter has be taken to constitute a ‘statement of grievance’. Because of the serious consequences in terms of the risk of unfair dismissal claims, legal advice should always be obtained in cases of doubt.
# The time limit rules are harsh on employees who have failed to set out a ‘grievance in writing’ to the employer before filing an unfair dismissal claim. Different rules apply, and the time limits can be extended more readily, in unlawful discrimination claims where the Tribunal simply has to consider whether it would be ‘just and equitable’ to extend time. Where a claim appears to have been made too late, we shall be happy to advise employers as to whether or not to raise the issue with the Tribunal.
…But notes made by the employer of a meeting with an employee may constitute the employee’s ‘grievance in writing’ and thus allow a Tribunal claim to proceed.
In Kennedy Scott v Francis the employee had indicated to an HR manager that he wished to make a complaint about verbal abuse that was both racist and sexist. She recommended that he initially raise the matter informally with his immediate manager. He eventually did so. They had a meeting at which his manager took notes which accurately recorded his complaint. However, he then decided not to proceed with his grievance, because he felt it might lead to more abuse and because he thought it might influence his position in an upcoming redundancy exercise. In the event, he was selected for redundancy. He then sought to raise his grievance again. The employer’s response was that there was no ongoing grievance as he had not provided a written statement of grievance to the HR department. The employer’s position was that the issue had been resolved informally with his line manager.
The employee brought claims of sex and race discrimination. He claimed that he had complied with the statutory grievance procedure before submitting his Tribunal claim by raising his complaints with his manager who had written them down at their meeting.
Was this enough to satisfy the statutory requirement that he ‘set out the grievance in writing and send the statement or a copy of it to the employer’?
The EAT decided that it was. The question should not be approached in a technical way. Provided that employers knew where they stood, and could appreciate that a complaint was being made, the law would be satisfied.
Points to note:
# It did not help the employer in this case that its own policy document stated that – ‘where you have a grievance arising from your employment you should initially raise the matter informally with your immediate manager who will record details of the grievance and attempt to resolve it with you’. Employers should appreciate that any recorded complaint may amount to a ‘statement of grievance’.
# Although it was not relevant in Kennedy Scott v Francis, the EAT noted that the Acas Code of Practice on Disciplinary and Grievance Procedures says that an employer’s duty to ‘make reasonable adjustments’ for disabled employees may include assisting employees to formulate a formal grievance if they are unable to do so themselves because of their disability.