A recent EAT decision has established that the note which a manager took recording an employee's grievance constituted compliance with step 1 of the SGP. The facts of this case were slightly unusual as it seemed that the parties had agreed that they would work together to record the grievance following the meeting. However, anyone processing grievances should be aware of the possibility that an employer's written record of a grievance raised could, itself, constitute the employee's compliance with step 1 of the SGP thereby enabling the individual to pursue their claim at tribunal directly and also putting the employer at risk of compensation uplift should they fail to hold a meeting and allow an appeal. (Kennedy Scott Limited v Francis). This case is something to consider when carrying out, for example, exit interviews at which concerns may be raised and recorded by HR in writing. It will be important to seek confirmation as to whether the individual is intending to make a formal grievance.
Another interesting case to be aware of is Harris v Towergate London Market Limited in which the EAT held that an employee who failed to use company procedures to appeal the decision to make her redundant, but instead submitted a grievance in relation to the redundancy dismissal, could pursue her unfair dismissal claim at tribunal on the basis that time for submitting a complaint had been extended under regulation 15 of the dispute resolution procedures as she believed that a dismissal procedure was ongoing at the time of the expiry of the normal time limit.
One way of dealing with this would be to ensure that the employer sends a clear message in response to any such correspondence advising the individual that the statutory grievance procedures do not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee. Further, provided that a reasonable time period has elapsed after the individual had failed to appeal under the company procedures, the employer should inform the individual that the time period for appealing the decision has expired and ensure s/he understands that the decision is final.
The DTI consultation "Success at Work: Resolving Disputes in the Workplace" and the supplementary review of the options for the law relating to procedural fairness in unfair dismissal closed on 20 June 2007. One of the measures considered, and which seems an increasingly likely result, is the repeal of the Employment Act 2002 (Dispute Resolution) Regulations 2002. It is anticipated that such a move would be welcomed by businesses, employees and legal practitioners. It remains to be seen what the Government may introduce in their place, if anything. It would be sensible to provide clear guidelines on good practice for resolving disputes, building on the current ACAS guidance. The Government is also considering whether to provide a new advice service on dispute resolution which could be accessible by telephone and the internet. One concern about this option is that if only generic advice is offered, such a service would add little value to the material already available through the DTI website. (See here)
In relation to the related reform of s.98A of the Employment Rights Act 1996, which would become necessary should the Dispute Resolution Procedures be repealed, the Government set out three options. The first was to revert to the position before the introduction of the 2004 procedures, the second to repeal section 98A in full (but provide for alternative findings reflecting the balance of procedural and substantive unfairness in the dismissal) and the third (and, most radical!), was to reverse the Polkey decision in full and revert to the "no difference" rule. Option one which "would reinstate the Polkey decision such that procedural failings would normally render a dismissal unfair, but compensation could then be reduced in proportion to the likelihood that the dismissal would have gone ahead anyway" would seem to have the advantages of clarity, as it would revert to a position that was well understood by both employers and employees. (Seehere)