Most readers will be aware that step one of the Statutory Grievance Procedure requires an employee to set out their grievance in writing and send the statement, or a copy of it, to their employer. If an employee fails to do so they are then unable to bring most Employment Tribunal claims, other than for unfair dismissal.

Can a note written by the employee’s manager constitute compliance with these requirements?  Yes, says the Employment Appeal Tribunal in the recent case of Kennedy Scott Limited v Francis.

In this case, the employee raised concerns with his Human Resources Manager about alleged bullying by other employees. In accordance with the employer’s grievance procedure, he was told to speak to his line manager, “who would record the grievance and try to resolve it informally”. The employee met with his line manager who made a note of the meeting in his presence, which included details of his complaints. The employee was subsequently made redundant and brought claims for unfair dismissal, sex, race and disability discrimination. The employer argued that the discrimination claims could not proceed because neither the employee, nor anyone on his behalf, had set out his complaint in writing or sent a copy of it to them.

However, the EAT held that the manager’s meeting note did fulfil step one of the Statutory Grievance Procedure and there was no need for the employee personally to put the grievance in writing. In considering whether step one of the grievance procedure had been complied with, the EAT emphasised that the focus should be on substance rather than technicalities. In the present case the employer was aware of the detail of the grievance, had a written note of it and knew to which employee it related. The employee’s claims were therefore allowed to continue.

Whilst the facts of this case were a little unusual, with the grievance procedure stating that the line manager would record the grievance, it is a further example of the EAT adopting a purposive interpretation to overcome what it sees as the unfairly restrictive nature of the statutory dispute procedures.

Uncertainty over what amounts to a grievance is one of the reasons the Government is now proposing to repeal the unpopular statutory procedures in their entirety. It is not yet clear what, if anything, will be introduced instead to assist in the resolving of employment disputes. More details should emerge around the time of the Queen’s speech in November.

Even though the death knell has been sounded for the statutory procedures in their present form, the legislative process means that it is likely to be April 2009, at the earliest, before any changes are introduced.  Employers will therefore need to ensure they continue to comply with the statutory procedures no matter how creatively they may be interpreted by the Tribunals.

Posted: August 8th, 2007 under Employment/HR.
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