In this article...

• Allegations against colleagues
• Modified grievance procedure
• Grievances and constructive dismissal
• Key points

The statutory grievance procedures continue to give rise to some tricky practical issues for employers. Jean Sapeta takes a look at some recent cases that shed light on the scope of the rules.

The Employment Act 2002 (Dispute Resolution) Regulations 2004 introduced statutory minimum grievance procedures. Where the procedures apply, an employee may not bring a claim before an employment tribunal unless he or she has lodged a grievance with the employer and waited at least 28 days. If the employee submits a statement of grievance to the employer within the normal time limit for bringing a tribunal claim, the time limit for presenting a claim to the employment tribunal will be automatically extended by three months.

Allegations against colleagues

The statutory grievance procedures apply in relation to “action by the employer”. In Odoemelam v The Whittington Hospital NHS Trust, the EAT decided that they do not come into play when an employee brings a discrimination claim against a fellow worker.

The case was brought by a staff nurse who raised concerns when a patient who had previously assaulted her was readmitted to her ward. She subsequently claimed race discrimination against the Trust and two managers, complaining that her concerns had not been properly dealt with because she was black.

The claimant had failed to spell out in correspondence with the Trust that she considered her alleged treatment to have been on racial grounds. Thus, she had not complied with the statutory grievance procedures in relation to her employer and was barred from pursuing that aspect of her claim, except in so far as it related to events that took place before the statutory grievance procedures came into force.

The EAT held, however, that she was entitled to proceed with the claims against her two colleagues, despite the fact that she had not raised a valid grievance against them. While an employer can be held liable for an act of discrimination carried out by an employee in the course of his or her employment, in the EAT’s view this does not mean that the employee’s act amounts to “action by the employer” such as to trigger the statutory grievance procedures.

Modified grievance procedure

A modified version of the statutory grievance procedure allows the employer to respond to the grievance in writing instead of holding a meeting. The modified procedure applies where three conditions are satisfied:

	the employee has ceased to be employed
	either the employer was unaware of the grievance before the employment ceased or the standard grievance procedure had not been started or completed by that date, and
	the parties have agreed in writing that the modified, rather than the standard, procedure should apply.

Under step one of the modified procedure, the employee is required to set out in writing not only the grievance but also the basis for it. In City of Bradford Metropolitan District Council v Pratt the EAT held that an employee had not complied with step one of the modified procedure when she wrote a letter to her employer complaining that she was paid less than male colleagues doing similar work. Her letter did not adequately set out the basis for her complaint because it did not identify her male comparators or the type of payment which she alleged she had been denied. As a result, she was barred from proceeding with her equal pay claim.

It should be noted that Ms Pratt’s letter would have been sufficient to comply with step one of the standard grievance procedure, which only requires the employee to set out the grievance in writing. Under the standard procedure, the employee must inform the employer of the basis of the grievance before the step two meeting takes place, but does not need to do so in writing or as part of step one.

Grievances and constructive dismissal

In Abbey National plc v Fairbrother the EAT considered a constructive dismissal claim brought in the context of a contractual grievance procedure that was alleged to have been badly conducted.

Mrs Fairbrother was a customer manager who suffered from obsessive compulsive disorder. Following taunts by two colleagues about her condition, she went off sick. Shortly afterwards she sent a grievance letter requesting a formal investigation into her colleagues’ conduct and the way in which her initial complaint had been handled.

The employer conducted an investigation and rejected the grievance. Mrs Fairbrother brought an internal appeal, seeking to rely on new evidence. A further investigation took place but the investigating officer did not speak to the individuals about whom the fresh allegations were made. The appeal was rejected and Mrs Fairbrother resigned and claimed unfair constructive dismissal, citing her employer’s failure to bring her grievance to a reasonable conclusion. A tribunal upheld her claim on the basis that there had been a number of serious flaws in the grievance procedure.

The EAT overturned the tribunal’s decision. In the EAT’s view, the tribunal should have asked itself whether the employer’s conduct of the grievance procedure fell within the band of responses open to a reasonable employer. Tribunals should not separate out each part of the grievance procedure to see whether it was reasonably conducted, but should examine the procedure as a whole.

The EAT added that, in constructive dismissal cases based on a breach of the implied term of mutual trust and confidence, tribunals should consider whether the employer had reasonable and proper cause for its conduct before going on to examine whether the conduct complained of was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.

Key points

	Employees do not have to raise a statutory grievance before issuing a discrimination claim against a fellow worker, as distinct from a claim against an employer. The flipside is that they cannot benefit from the extension of the tribunal time limit that compliance with the grievance procedures would normally confer
	In cases where the modified grievance procedure applies, the employee must set out in his or her step one statement not only the grievance but also the essential reasons for holding it, in sufficient detail to enable the employer to respond
	When an employee resigns in response to an allegedly flawed contractual grievance procedure and claims unfair constructive dismissal, the employer’s conduct of the grievance procedure should be judged according to the “band of reasonable responses” test.