Currently employees cannot generally make a Tribunal claim in respect of an issue to which the standard grievance procedure applies, if they have not first submitted a written statement of grievance to their employer.

In the recent case of Kennedy Scott Ltd v Francis, the EAT held that an agreed contemporaneous note, taken by the employer, of a meeting at which the grievance was discussed was a written statement of grievance.

The facts

Mr Francis lodged Employment Tribunal claims for race and sex discrimination. The former employer, Kennedy Scott, argued that the claims could not proceed because Mr Francis had failed to raise a written grievance in respect of them in accordance with the statutory procedures.

Mr Francis had met with the Respondent’s Human Resources Manager to discuss what he considered to be ongoing bullying by a manager and other members of staff. The Respondent’s grievance procedure provided for the first stage of the process to be an informal meeting with an employee’s immediate manager who would then record details of the grievance and attempt to resolve it.

This was the meeting Mr Francis attended. His manager took notes which Mr Francis agreed were an accurate summary of his complaints. Mr Francis subsequently claimed that these notes constitued compliance with step one of the standard grievance procedure.

The Decision

The EAT found that the contemporaneous notes of a meeting in which an employee outlines their complaints can constitute a written statement of grievance. The fact that the note-taker was not the employee and was not taking notes on the employee’s behalf or as his agent did not matter.

The relevant question is whether, in the circumstances, the employee can be said to have set out his grievance in writing. The employer was aware that a grievance had been raised. There is no need for an employee to put the grievance in writing and send it to his employer. Employers should not take too legalistic approach to the steps required to be taken to satisfy step one of the grievance process.

What this means for employers

Employers should be aware that Employment Tribunals are taking a pragmatic, rather than a technical, approach to compliance with the statutory grievance procedures. Whether an employee had raised a grievance in writing will depend on the facts of the case. The relevant issue is whether the employer has come into possession of a written statement which can reasonably be understood to be a grievance. That written statement must then relate to the subject matter of any subsequent claim.

Employers should note that where an initial meeting is held to investigate complaints any notes that are taken may amount to compliance with step one of the standard grievance procedure. This will almost certainly be the case if the notes are agreed with the employee. Employers should be aware that the same principle will apply to notes taken at an exit interview which, depending on the nature of the discussion, may also need to be treated as a “grievance” for the purpose of the statutory procedures.