As contained in our briefing note “End of the road for the Statutory Dispute Resolution Regulations?”, the Gibbons review has emphatically recommended “the complete repeal of the Statutory Dispute Procedures”. Although the end is in sight, for now and for the immediate future, considerable time and energy will continue to be spent by lawyers, tribunals and businesses alike grappling with the interpretation and application of these regulations. There is now a rapidly growing body of case law, particularly concerning the statutory grievance procedures (SGP).
What can amount to a statement of grievance?
2007 has seen a number of EAT level decisions in connection with the SGP. As a brief reminder, an employee is obliged to send a statement of grievance in writing to his employer, the employer is obliged to deal with that complaint and, finally, the employee has the right to appeal if dissatisfied with the outcome. Without raising a grievance (and waiting 28 days) an employee is prevented from bringing an employment tribunal claim based on the issues which should have been covered by the grievance. While sounding quite straightforward, numerous issues have arisen before the tribunals suggesting that the reality is somewhat different.
A basic issue which continues to come up is what actually constitutes a “grievance”. The Employment Act 2002 merely requires that a grievance should be in writing. There is no further guidance given and tribunals are accepting as grievances very broadly worded complaints including letters of resignation where detailed complaints are merely outlined. It also appears that just about anything in writing indicating that the employee is unhappy about something can amount to a grievance.
So far, the EAT has confirmed:
- There is no need for the letter to set out the exact nature of the complaint;
- It does not need to state that it is a grievance;
- There is no need for the employee at the time of sending the letter to intend for it to be a grievance;
- It may be contained in something else such as a flexible working request;
- The grievance may be written and submitted by a third party on behalf of the employee (such as a solicitor).
As to what cannot amount to a statutory statement of grievance, we can at least say that a discrimination questionnaire is not a statement of grievance. Although Regulation 14 is very specific on this point, it did not initially stop the debate which resulted in an EAT decision in Holc-Gale v Makers UK Limited. In that case, Mrs Holc-Gale tried to claim that her written statutory questionnaire in relation to a potential equal pay claim could double as her statement of grievance. However, the EAT confirmed that Regulation 14 was specifically designed to exclude the statutory questionnaire procedure from the statutory definition of a grievance. However, even that has a slight loophole. Although Regulation 14 applies to statutory questionnaires in relation to most forms of discrimination legislation, it was not updated to include age discrimination when the new age regulations came into force in October last year. However, this loophole is being closed from 6 April.
It has been suggested by some tribunal chairmen that an ET1 rejected on the basis that the SGP had been followed, could itself amount to the written statement of grievance relied upon in a subsequent filed ET1. This point came before the EAT in the case of Gibbs v Harris. Fortunately, the EAT has clearly held that the original ET1 could not constitute a written statement of grievance. In particular, an employee cannot be said to have “sent” a statement of grievance to the employer by submitting an ET1 to the employment tribunal. The tribunal could not be seen as the employer’s agent in forwarding on the rejected ET1 to the employer (which in many cases, they do not do).
Tribunal jurisdiction not “automatically” ousted by lack of written grievance
DMC Business Machines PLC v Plummer is a warning to employers to plead in their ET3 any alleged failure by the employee to raise a grievance. In this case, the EAT held that an employee’s failure to lodge a grievance does not “automatically” deprive the tribunal of jurisdiction to hear the claim. Either the tribunal must raise it because the ET1 form does not state that a grievance has been raised, or (where the employee wrongly states that they have submitted a written grievance), the employer must explicitly plead the breach in its ET3.
Automatic extension of time: SGP
Regulation 15 provides that the original time limit (generally three months) for bringing a tribunal claim is extended by a further period of three months where the employee attempts to lodge a claim with the tribunal within the normal time limit, but in circumstances where he/she has failed first to lodge a grievance. However, to benefit from the three-month extension, the employee must lodge the statement of grievance within one month of the expiry of the original time limit.
A question arose in discrimination claims: does ‘original time limit’ for bringing a Tribunal claim mean the normal three months or does it include any extension of time as a result of the Tribunal exercising its just and equitable discretion under discrimination legislation? The EAT in BUPA Care Homes (BNH) Ltd v Cann and Spillett v Tesco Stores Ltd has now confirmed that in a discrimination case, the “original time limit” includes any extension by virtue of the exercise of the Tribunal’s just and equitable discretion. So, even though the grievance was submitted in these cases more than four months after the act of discrimination complained of, the claims were permitted to proceed.
Automatic extension of time: DDP
In relation to the statutory dismissal and disciplinary procedures (DDP), the “normal time limit” for an employee to bring a claim will be automatically increased by three months if the employee reasonably believes that a disciplinary or dismissal procedure is still ongoing at the time the “normal time limit” expires. This might happen if he has an outstanding appeal, for example. In Codemasters Software Company Limited v Wong, the EAT confirmed that where an employee lodges an appeal the day before the expiry of the three-month time limit for an unfair dismissal claim, there will be a reasonable belief that the DDP is still ongoing and time will be automatically extended by a further three months. Tenby v Smee’s Advertising Limited illustrates the importance of ensuring that compliance with the DDP is completed as early as possible to avoid giving the employee a reasonable belief that the procedure is ongoing and in turn, the benefit of the three-month time extension. In this case, the employee sent a letter asking for further clarification 10 days before the expiry of the time limit. The employer responded 12 days later, she therefore was entitled to the three-month extension. If the employer had replied within nine days she would not have been entitled to the automatic extension.
Separation of SGP and DDP
Regulation 6(5) disapplies the SGP where the grievance is that the employer has dismissed or is contemplating dismissing the employee. But, what is the position where the complaint is one of discrimination, notwithstanding that it relates to the dismissal decision? In Lawrence v HM Prison the employee suffered from eczema which caused intermittent absences from work. He was dismissed because of these absences. The EAT has confirmed that the grievance procedure does not apply in those circumstances. So, where an employee claims discrimination arising from a dismissal:
- he is under no obligation to lodge a step 1 grievance letter; and
- he is not entitled to a three-month extension of time.
This does not mean, of course, that the allegation of discrimination can be ignored. It just means it can be dealt with in the course of the dismissal process.