Statutory Grievance Procedure

3rd March

We have seen a recent flurry of Employment Appeal Tribunal (“EAT”) decisions relating to the standard Grievance Procedure (“GP”), introduced by the Employment Act 2002 (“the 2002 Act”) and the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Regulations”).

Pre-action letters amount to a grievance
The EAT has already decided that a complaint raised in writing, even in a resignation letter, can amount to a grievance and, accordingly, the GP should be followed by the employer. The EAT has also confirmed that a solicitor’s pre-action letter detailing the claim can amount to a statement of grievance.

Now, the EAT has taken its interpretation of the Regulations one step further in the case of Arnold Clark Automobiles v Stewart & anor. In this case, the EAT held that a solicitor’s pre-action letter which intends to claim financial compensation still amounts to a grievance letter in accordance with the standard GP. Rather more controversially, the EAT also held that it did not matter that the pre-action letter was headed as “without prejudice” even though normal rules would prevent such correspondence from being admitted as evidence to the Tribunal. No doubt this last point will be challenged in due course.

Time extensions when a grievance is raised

Another case relating to the GP, Spillett v BUPA, considered the complex provisions of the 2002 Act which relate to the extension of time limits when a grievance is raised. Where an employee has raised a grievance in accordance with the Regulations, the normal time limit for lodging a Claim Form is extended by three months from the day after it would have expired. It is important to note that although the time limit for discrimination and unfair dismissal cases is normally three months, this may be increased if it is not reasonably practicable or just and equitable to comply with that time limit.

The 2002 Act states that no time limit extension of three months will be granted unless a grievance letter is sent within one month of the normal time limit. The EAT held that “normal time limit” means the ordinary time limit of three months PLUS any additional time allowed on a reasonably practicable or just and equitable basis. Importantly, this will also apply to constructive dismissal claims where an employee fails to lodge a grievance within 4 months of resignation provided he can demonstrate that it was not reasonably practicable to do so.

The GP is proving to be a procedurally complex area of law, and at last we are receiving some much needed guidance from the EAT on how to lawfully comply with it