In this article...

• The background
• The facts
• The decision
• What does this mean for me?

The background

The Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Regulations”) introduced statutory minimum grievance procedures. Where the procedures apply, an employee may not bring a claim before an employment tribunal unless they have first lodged a grievance with their employer and waited at least 28 days. A grievance is defined as any complaint in writing by an employee about action which their employer has taken, or is contemplating taking, in relation to them. Once an employer has received a step one grievance letter, they must arrange a meeting to discuss the grievance.

Under the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”), where there is a transfer of undertakings, the employment of all transferring employees moves across to the new employer, and everything done (or not done) by the original employer is deemed to have been done (or not done) by the new employer.

The Equal Pay Act 1970 requires that men and women be paid equally for equal work. Complainants must identify, in their grievance, a “comparator” whom they allege is being paid more than them for undertaking the same, or equivalent, work.

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The facts

In Bottomley and others v Wakefield District Housing, the claimants’ employment had been transferred under TUPE from Wakefield Metropolitan District Council (“the Council”) to Wakefield District Housing (“Wakefield”).

In, what the claimants’ solicitors have admitted was an error, the claimants’ equal pay grievances were sent to their pre-transfer employer, the Council. The grievances were copied by email to the claimants’ current employer, Wakefield. The grievances were addressed to the Council and the comparators cited in the grievance remained in the Council’s employment, as they had not transferred to Wakefield along with the claimants.

Wakefield read the email, and the attached grievance, but took no action, on the basis that:

		the comparators were not in their employment;.
		there was nothing that they could do to resolve the grievance; and
		the grievance was addressed to the Council, not Wakefield.

The Employment Tribunal held that the requirements for a step one grievance letter had not been met and, therefore, struck out the claimants’ claims. The claimants appealed.

The decision

The Employment Appeal Tribunal (“EAT”) allowed the appeal and said that a valid grievance had been lodged against Wakefield. The EAT noted that:

		the requirements for a step one grievance letter are minimal;
		the only requirement is for a written complaint to be made;
		there is no requirement for an employee to specify that they would like their complaint resolved; and
		there is no requirement for an employee to expressly invoke a grievance procedure.

The EAT said that it was irrelevant that the grievance was not expressly addressed to Wakefield; the claimants’ had mentioned “equal pay” and Wakefield was responsible for paying the claimants’ pay, so this was enough to trigger the requirement for Wakefield to arrange a meeting.

The EAT noted that it may have been that, if Wakefield had arranged the grievance meeting, it would have had very little to say to the claimants, except to point out that there was nothing they could do to resolve the issues raised. Nonetheless, the EAT decided that the grievance letter was valid and, therefore, Wakefield was obliged to arrange a meeting.

What does this means for me?

This case confirms that almost any complaint brought to an employer in writing can be considered a grievance for the purposes of the Regulations, regardless of whether it does not, on the face of it, look like a grievance, and whether or not it is directly addressed to the employer.

Therefore, it is now more important than ever to:

		keep a close eye on any incoming communication from employees or their advisers, which could be construed as a grievance;
		ensure that managers are briefed so that they are aware that a broad range of communications may be classed as “grievances” even if they may not be labelled as such;
		ensure that, if there is any doubt about whether an employee may be raising a grievance, a meeting is offered to discuss any matters which have been raised; and
		be particularly vigilant in the context of transfers of businesses / outsourcing in relation to complaints from employees who have, or are likely to, transfer, even if it does not appear that you are the correct employer to resolve them.

As we reported in January’s Employment Eye, the statutory disciplinary and grievance procedures are very likely to be repealed next year. In the meantime, the Regulations still apply and, therefore, the safest course of action is to follow the steps set out above.