Recent press reports have suggested that the first week in January is the most miserable week of the year for employees and so it is hardly surprising that many HR managers have returned to work after the Christmas break to find a high number of staff off sick, and enthusiasm at an all time low. At the same time, we have been reading reports of how happiness is the key to success. With this in mind some employers are taking drastic action to stop staff from moaning in the workplace. German IT specialist Nutzwerk has introduced a “two moans and you’re out” policy to clamp down on moaning and to prevent office morale from being dragged down. Whilst many HR managers may consider this to be a good means of warding off the January blues, could an employer leave itself open to a claim by not listening properly to workers’ dissatisfaction?

What constitutes a formal grievance?

There is a fine line between whinging and raising a formal grievance. How do HR managers know whether an employee’s gripe is sufficiently serious to implement the business’s grievance procedure? After all, failure to follow the statutory grievance procedure could have expensive and damaging consequences. Whilst such failure does not give an employee the right to bring a freestanding claim, it may lead to a Tribunal increasing the amount of any award to an employee by between 10 and 50 per cent.

The statutory grievance procedures, as set out in Schedule 2 of the Employment Act 2002 (“the Act”), must be followed where an employee raises a grievance in respect of any act or proposed act by his employer which could form the basis of a complaint to the Tribunal. Helpfully, Schedules 3 and 4 of the Act contain a list of possible grievances. These include, among others, discrimination, detriment in employment, and breach of contract. Furthermore, the employee must put his/her grievance in writing in order for it to be submitted correctly. A “standard” grievance must merely be in writing, whereas a grievance under the modified procedure must be in writing and state the basis for the grievance (i.e. the grounds for the grievance). So complaining to a colleague at the water-cooler about an overly aggressive manager will not be sufficient to lodge a statutory grievance. But would a stroppy email qualify? Over the past few months, there have been a number of decisions in the Tribunals concerning what qualifies as a statutory grievance.

Recent case law

In Thorpe & Soleil Investments v Poat & Lake the EAT found that an employee does not have to comply with any contractual grievance procedure in order for the grievance letter to form a valid statutory grievance. Here, the employee had not sent the grievance to the member of staff identified in the company handbook. We must assume from this decision that employees need not follow their employer’s grievance procedures, which are likely to contain routes to try and resolve grievances informally before a written grievance is submitted. This is an unhelpful decision for employers and may lead to employees issuing statutory letters and escalating a complaint that could otherwise have been resolved quickly under carefully drafted handbook procedures.

A complaint about third parties can also amount to a grievance. The ET decided in Bowen v Moss Pharmacy and anor that an employee’s complaint that another employer’s member of staff was bullying her was a valid statutory grievance. As she was complaining that her employer required her to work in circumstances in which she was being bullied, her grievance was about her employer’s actions.

Letters that do not on their face purport to be grievances may nevertheless fall within the Act’s requirements for a statutory grievance. For example, in Aspland v Mark Warner Ltd the Tribunal decided that there is no requirement in the Act for an employee to write his grievance personally in order for it to be a valid statutory grievance. Therefore, his solicitor’s letter before action was a validly submitted grievance. The Tribunal in Stewart v Barnetts Motor Group Ltd went further than this, and found that a solicitor’s letter satisfied the requirements for a statutory grievance, even where it is marked “without prejudice”. Both of these decisions are being appealed.

The above cases tend to agree with the EAT’s finding in Shergold v Fieldway Medical Centre that the requirements for a grievance to be properly submitted under the standard procedure are “minimal”. Here it was decided that an employee’s resignation letter, which detailed a number of complaints about her working arrangements, was a valid grievance.

Conclusion

Employers should arrange a meeting with an employee and clarify whether a formal grievance is intended as soon as they receive any complaint in writing, either from an employee personally or from someone acting on behalf of the employee, such as a solicitor.

Clearly, there is a low threshold for a written grievance to satisfy the statutory requirements, and there is no need for the employee to follow the employer’s contractual procedure. No doubt, this will be a highly contentious area of law over the coming months as employers continue to get to grips with these troublesome procedures.


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