- the employee notifies the employer of the grievance in writing;
- both parties meet to discuss the problem; and
- an appeal is arranged if requested by the employee.
The ‘modified’ procedure requires the sending of a grievance letter and that the employer responds to the letter. This simpler procedure can be used when employment has ended and the employee and the employer agree, in writing, to its use, provided the standard procedure has not been entered into prior to the employment ending.
An employee who fails to use the statutory minimum grievance procedure is disqualified from bringing most claims in an Employment Tribunal (ET). The first cases concerning the procedures suggest that the courts are taking a broad view as to what constitutes a grievance letter under the Act.
In Mark Warner Ltd. v Aspland, the Employment Appeal Tribunal (EAT) ruled that a letter sent to the employer by the claimant’s solicitor, before the matter was taken to the ET, was sufficient to meet the requirements of the legislation as it gave the employer the opportunity to resolve the complaint and so avoid the need for legal proceedings.
In Thorpe & Soleil Investments Ltd. v Poat & Lake, the EAT held that it is irrelevant whether or not the employee intended to start a statutory grievance procedure at the time of writing a letter of complaint and the employee does not have to comply with any contractual grievance procedure for a letter to constitute a valid statutory grievance. Also, where the standard procedure is used, the letter need only set out what the grievance is, whereas where the modified procedure is used the grievance letter must also set out the basis for the grievance.
Yet further guidance on what constitutes a grievance letter when using the standard procedure was given in Shergold v Fieldway Medical Centre. Here, the EAT held that the statutory requirements are minimal in terms of what is required. It is simply that the grievance must be set out in writing. If the employer needs further information as to the basis of the grievance, this can be obtained before the meeting is held. It made no difference that the grievance was contained in a letter of resignation. The EAT also held that there is no requirement that an employee must comply with any company or contractual grievance procedure. It is simply a question of setting out the grievance in writing so that the employer can understand the general nature of the complaint.
Lastly, in Commotion Ltd. v Rutty, the EAT ruled that a written request for flexible working arrangements under the Employment Rights Act 1996 can constitute a grievance letter, even though the letter does not suggest it should be treated as relating to a grievance.
These cases illustrate the relaxed approach Tribunals will take when determining what is, and what is not, a grievance letter. The purpose of the legislation is to give those involved the chance to settle complaints without recourse to litigation. Employers are advised to ensure that their grievance procedures comply with the law and that employee complaints are dealt with swiftly and carefully. Where an employer fails to deal with a grievance and the employee subsequently wins a claim, the employee will be entitled to an increase in the compensation awarded of between 10 and 50 per cent.