Statutory Grievance Procedure
Statutory grievance procedures were introduced to help resolve grievances before recourse is had to the employment tribunal.
Standard Grievance Procedure
1. Statement of grievance.
The employee must set out the grievance in writing and send a copy to the employer (we recommend registered or recorded delivery mail and advise against using internal mail systems).
The employer must invite the employee to attend a meeting to discuss the grievance
The meeting must not take place unless-
a. The employee has informed the employer what the basis for the grievance was when he or she made the statement of grievance, and
b. The employer has had a reasonable opportunity to consider his response to that information.
The employee must take all reasonable steps to attend the meeting.
After the meeting the employer must inform the employee of his decision as to his response to the grievance and notify the employee of the right to appeal against the decision if the employee is not satisfied with it.
The employer must allow an appeal.
If the employee wishes to appeal her or she must inform the employer.
If the employee informs the employer of his or her wish to appeal, the employer must take all reasonable steps to attend the meeting
After the appeal meeting the employer must inform the employee of his final decision.
When will the standard procedure apply?
If the statutory grievance procedure applies, the standard procedure is the default procedure. The modified procedure can only apply where the employee has left employment and the parties have agreed not to follow the standard procedure.
A grievance is defined as ‘a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him’.
The procedure only applies to employees; it does not extend to workers.
Modified Grievance Procedure
1. Statement of grievance
The employer must: -
a. Set out in writing (i) the grievance and (ii) the basis for it and
b. Send the statement or a copy of it to the employer
2. The response
The employer must set out his reasons in writing and send the statement or a copy of it to the employee
Circumstances in which neither procedure applies
Where an employee has ceased to be employed and, since the employment ended it has ceased to be reasonably practicable for the employee to comply with the requirement of sending the statement of grievance.
Where an employee’s grievance is about an actual or contemplated dismissal (other than constructive dismissal)
Where an employee’s grievance is about ‘relevant disciplinary action’ that the employer has taken or is contemplating unless one of the reasons for the grievance is contained in reg 7(1).
a. relevant disciplinary action is action short of dismissal that the employer asserts to be based wholly or mainly on the employees conduct or capability, other than suspension on full pay or the issuing of warnings. Where relevant disciplinary action occurs the standard DDP applies.
b. However where the employee is dissastified with the relevant disciplinary action taken or contemplated, the GP will apply in addition to the DDP if the reason for the employee’s grievance is one of the two reasons in reg 7 (1)
(i) The disciplinary action taken or being contemplated by the employer amounted to or would amount to unlawful discrimination
(ii) The ground on which the employer took or is contemplating taking the disciplinary action is unrelated to the ground on which he asserted that he took or is asserting that the is contemplating that action.
What constitutes a grievance letter?
The EAT has taken a flexible approach to grievance letters. In Shergold v Fieldway Medical Centre a long-serving medical clerk wrote a letter to the practice partners which began ‘It is with great regret that I write to you to end my employment.’ The letter continued with a series of complaints about the attitude of a senior employee and concluded by giving eight weeks notice. The practice doctors held a meeting with her but this was unsuccessful and she left after the notice period expired. She later started tribunal proceedings but the tribunal disallowed her claim on the ground that she had not complied with the procedure. They said she had written a resignation letter not a grievance letter.
The EAT allowed her appeal. The Chairman stated ‘the statutory requirements are minimal in terms of what is required.’ He went on to say that a written grievance can be contained in a letter of resignation and it is irrelevant whether the communication deals with other issues.
The case of Commotion Ltd. v Rutty is also helpful to employees. In that case the employee had applied in writing for a variation in working patterns under the flexible working laws. The request was unreasonably refused and the employee then left and did not submit another grievance. The EAT has held that the original letter of request was enough to constitute a grievance.
However, a resignation letter where the employee resigns with immediate effect my not amount to a grievance letter. And the EAT has held that an equal pay questionnaire does not amount to a grievance letter.
Grievances and admissibility of claims
Where the statutory GPs apply there are three sets of circumstances where an employee ’shall not’ bring a tribunal claim. These are when the employee:
Failed to send a statement of grievance to the employer before bringing a tribunal claim
Has sent the statement of grievance but has not waited 28 days after doing so before bringing the tribunal claim
Did not send the statement of grievance until one month or more after the expiry of the original time limit for bringing the tribunal claim in question.
Right to be Accompanied
Under section 10 of the Employment Relations Act 1999 as amended by the ERA 2004 a worker who is invited by an employer to attend a grievance hearing has the right to bring a companion. The companion is chosen by the worker and can be a full-time union official (whether or not the union is recognised), a certified lay official (someone the union has trained to accompany individuals to hearings) or a workplace colleague. Whether or not Solidarity is recognised by your employer we are entitled to send a Rep to accompany you.
Normal time limit for submitting a claim in the employment tribunal is three months
Where a potential claimant submits a claim to the employment tribunal without complying with the GP they get an automatic extension of three months to comply with the GP and resubmit the claim
Where the GP applies and a potential claimant complies with it, they get a three-month extension to submit their claim in the employment tribunal
The employment tribunal can increase or reduce an award where:
There are proceedings before a tribunal
The claim to which the proceedings relate concerns a matter to which a statutory DDP or GP applies
The applicable statutory procedure was not completed before the proceedings were begun; and
The non-completion of the procedure was wholly or mainly attributable to a failure by the employee to comply with a requirement of the procedure or to exercise a right of appeal under it; or a failure by the employer to comply with a requirement of the procedure.
If the reason was non-completion due to a failure on the part of the employee the tribunal must reduce the award. If the failure was due to the employer, the award must be increased.
The minimum adjustment is 10%, the maximum 50%
It is the compensatory award, which is adjusted, not the basic award.