The Modified Grievance Procedure

May 2009

The recent Scottish Employment Appeals Tribunal (EAT) case of Clyde Valley Housing Association v McAuley has highlighted the statutory dispute resolution procedures and the requirements for compliance under the modified procedure. The statutory procedures, as pointed out by Lady Smith in the Scottish EAT “have provoked a sea of negative comment of Pacific rather than Caspian proportions”. The question of how much or how little is required for compliance with the statutory procedures has been considered in numerous authorities since the Act and its associated regulations came into force.

The claimant in this case was employed with the respondents from June 2002 until March 2006 when she resigned claiming constructive dismissal and disability discrimination. The claimant submitted a statement of grievance in the form of a letter dated 17 May 2006 which was sent from her solicitor to the respondent’s solicitor. It was agreed between the parties that the modified grievance procedure should apply. On 5 June 2006, the respondent’s solicitors posed a series of questions in response to the grievance letter asking for clarification of the basis of the allegations of the claimant contained in the letter. They received no response and on 7 August 2006 the respondent’s solicitor wrote to the claimant’s solicitor to advise that they have “been restricted in the investigation that they could conduct into the grievance due to Mrs MacAulay’s refusal to set out in writing the basis of her grievance…”

The employment tribunal held that the grievance procedures had been complied with and the claimant won her case. The employer however, appealed to the EAT on the basis that the tribunal had no power to entertain the claim as the statutory procedures had not been complied with. The appeal to the EAT required the consideration of whether the letter from the claimant’s solicitor set out the basis for her grievance so that it complied with the statutory procedures.

The EAT stated in the case that in deciding whether the letter amounted to compliance with the statutory procedures, what might or might not have been contained in any other documentation either produced for the Tribunal or previously in the possession of the respondents should not be considered. The statutory provisions require that the grievance letter and the letter alone should be examined.

Lady Smith pointed out in her judgment that “the point of the Mandatory Grievance Procedures is to seek to achieve an outcome whereby the parties never have to resort to the Tribunal.” In considering the claimant’s grievance letter of 17 May 2006 then, the basic questions of who, what, where, when, and why the claimant has a grievance should be covered in the grievance letter in order that it complies with the Mandatory Grievance Procedures.

The EAT therefore upheld the appeal and dismissed the Claimant’s claim. This is an important decision for employers as it highlights employers’ requirements under the Statutory Grievance Procedures.