In Kennedy Scott Limited v Francis, the employer raised an ingenious (though ultimately unsuccessful) defence to a claimant's claim for sex and race discrimination. Mr Francis had met with his line manager to discuss Mr Francis's complaint of bullying, such a meeting fulfilling step one of Kennedy's Scott's grievance procedure. The manager made a note of this meeting and took down details of Mr Francis's allegations of sexual and racial harassment.
Kennedy Scott argued that Mr Francis's claims for sex and race discrimination should be struck out because he had failed to comply with the statutory grievance procedure. Kennedy Scott submitted that step one of the statutory grievance procedure required the employee, or someone acting as their agent, to set out the grievance in writing and to send it to their employer. Since neither Mr Francis nor his agent had supplied Kennedy Scott with written details of his grievance, Kennedy Scott argued that step one of the procedure had not been completed. The EAT rejected this argument and noted that there could be considerable flexibility over the form in which grievances were submitted and that step one does not require the employee physically to write the statement that is submitted to their employer. The EAT held that employers should know where they stand in relation to grievances submitted by employees, but in providing employers with that knowledge, a high threshold to be crossed by employees should not be set.