This is an important issue for employers, given the potentially serious legal consequences of complying, or failing to comply, with the statutory grievance procedures. For example, if an employer fails to respond to a validly lodged grievance, and the employee subsequently brings successful employment tribunal proceedings in relation to the matters that were the subject of that grievance, any compensation awarded against the employer will be increased by up to 50 per cent. Similarly, if an employee fails to participate in an employer’s grievance procedure having raised a statutory grievance, any compensation awarded to him will be reduced. In addition, an employee who wishes to pursue a claim to which the statutory grievance procedures apply can do so only if he has first raised a grievance with his employer. The process of submitting the grievance may also have the effect of extending the time within which an employee may submit a tribunal claim, in certain circumstances.
A line of authorities have demonstrated that tribunals adopt a broad interpretation of what amounts to a step 1 grievance letter. It may include, for example, a solicitor’s letter before action, a resignation letter or a request for flexible working. Provided that the employee has set out the grievance in writing and sent the statement or a copy of it to the employer then it is likely that the step 1 requirement will have been met.
There is, however, an important exemption under the statutory grievance procedures which is often overlooked by both employers and employees. Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the statutory grievance procedures are not applicable where the “grievance is that the employer has dismissed or is contemplating dismissing the employee”. This means that employers are not obliged to treat as grievances complaints raised by employees where those complaints relate to the fact of a dismissal (or contemplated dismissal). Instead, these are matters that should be considered as grounds of appeal against the dismissal.
Understanding and recognising when this exemption applies is important for employers for two reasons. Firstly, it will allow them to avoid the unnecessary commitment of time and resources in conducting an internal grievance procedure to consider issues that have already been or should be considered under an appeal procedure. Secondly, and perhaps more importantly, it will allow employers to assess more clearly the potential legal risks that may arise from the employee complaints that have been raised. For example, employers will be able to identify whether, by not responding to the grievance, they will run the risk of an increase in any tribunal compensation awarded against them. They will also be able to assess whether the employee’s time for submitting a tribunal claim is likely to be extended (by virtue of having raised a grievance under the statutory procedures). This will allow employers to make a more informed assessment of the risks of not progressing a complaint as a formal grievance, particularly where tribunal proceedings have also been submitted or intimated.
The Government has now indicated that the statutory dispute resolution procedures are to be repealed (this will probably happen next year). Until then, however, employers will continue to face complaints from employees and it is important that they are able to recognise when such complaints should be progressed as grievances.