IAIN BIRRELL
“A complex system that works is invariably found to have evolved from a simple system that worked. A complex system designed from scratch never works and cannot be patched up to make it work. You have to start over with a working simple system.”
Gall’s Law of Systems, 1986
“I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”
Ulysses S Grant, 18th President of the USA, Inaugural address March 4th 1869
THE PROCEDURES
The focus of this section will be on the 3 stage procedures which arrived fully formed in October 2004. Although they are found in the Employment Act 2002, they are supplemented by the Employment Act 2002 (Dispute Resolution) Regulations 2004, an ACAS code of practice and case law. Describing the simplicity underlying the procedures is easy, although the procedures themselves are far from simple in the round. Both the statutory disciplinary & dismissal procedure and the statutory grievance procedure share the same (sensible) basic structure:
Stage 1
The provision of a written statement by the party aggrieved, sketching out what it is that they are aggrieved by. This statement to be sent to the other party. The employee to be invited to the Stage 2 meeting at which the problem will be aired.
Stage 2
A meeting, held as soon as reasonably possible, which both parties should attend if they can, where the problem can be aired, both parties having the chance to say their piece at a time, and in a location that is reasonably amenable to that happening. Prior to the hearing the ‘accused’ party to have had adequate opportunity to consider the evidence and to formulate their response to it. The decision thereafter to be communicated to the employee with notification of a right to appeal.
Stage 3
A further meeting, again held as soon as reasonably possible, this time to appeal the decision arrived at in Stage 2. As before it is a meeting which both parties attend if they can, where the problem can be aired, both parties having the chance to say their piece at a time, and in a location that is reasonably amenable to that happening. Prior to the hearing the ‘accused’ party to have had adequate opportunity to consider the evidence and to formulate their response to it.
THE CASES
Because of the close correlation between the structure and requirements of the statutory disciplinary & dismissal procedure and statutory grievance procedure the case law can, in most instances, be equally applied to both. I shall therefore not tend to draw any direct distinctions unless it becomes necessary to do so. What is notable however is the fact that policy considerations are at the forefront of many of the EAT’s decisions so far (there are no Court of Appeal decisions at this stage). Regrettably for litigants and practitioners the EAT cannot quite agree how they want that public policy to develop.
The Key Stage 1 Cases
Almost all of the key stage 1 cases have arisen in the statutory grievance procedure context. This explains why the EAT has been keen to set the bar low because doing otherwise bars access to justice because of red tape that one judge has called ‘rebarbative’[i].
Firstly it is clear that almost any written complaint can be a grievance, even if it is not meant to be. The inadvertent grievance has been seen in cases of a resignation letter setting out the reasons for leaving[ii], solicitors’ letters threatening proceedings[iii] or seeking settlement[iv], a stream of correspondence from an employee and their solicitor[v], an employee’s application for flexible working[vi], an appeal letter[vii] and even a letter from the employee’s chiropractor[viii]. (By way of contrast note that a solicitors letter alleging that a dismissal was procedurally and substantively unfair did not amount to a letter appealing the dismissal[ix]). It is also clear that there is no need to use the word ‘grievance’ or call a document a grievance[x].
The amount of detail required for a Stage 1 letter is also quite little. It is simply enough for the other party to be able to understand the general nature of the complaint being raised[xi] and it is not necessary for there to be an unduly technical or formal approach. One case said that it was not necessary for the basis of a complaint of constructive dismissal to be identified in this letter, all that was necessary was that the relevant complaint was made[xii]. However, the EAT has warned employees and their advisers not to believe that a complaint expressed shortly and allusively would necessarily suffice however[xiii]. If an employee can use buzzwords such as ‘unlawful deductions from wages’ or ‘disability discrimination’ in their grievance letter then so much the better[xiv]. Where the written document itself is unclear then one can point to the context in which it was written to show compliance[xv]. What is important though is that what you complain about in your ET1 has previously been raised in a grievance. In one constructive dismissal claim the claimant had raised several complaints over 4 grievances but at no point referred to them as being breaches of contract. The EAT held that this was therefore not enough to bring a constructive dismissal claim alleging that a fundamental breach of contract had occurred[xvi].
It is important to remember that the procedures require only that the Stage 1 letter is sent, there is no requirement that it be received. As we see from the cases referred to in the previous paragraph, it is also clear that the employee is not required to send the Stage 1 themselves, they can use an agent such as a solicitor, other representative or chiropractor!
Complaints against co-workers (e.g. alleging they are bullies or harassers) are not covered by the statutory grievance procedure and so there is no requirement to lodge a Stage 1 letter[xvii]. This is so even though in normal circumstances the employer would be held accountable[xviii].
It is also clear that neither statutory questionnaires[xix] nor ET1s[xx] can be grievances for the purposes of the statutory grievance procedure.
A grievance will still count if it is lodged before the event complained of takes place (e.g. a constructive dismissal grievance before the effective date of termination[xxi] or about a deductions from wages before it is made).
In a disciplinary context part of the test as to whether the statutory disciplinary & dismissal procedure applies is whether an employer is ‘contemplating dismissal’ and this is a matter of fact for the employer to prove and is a low threshold to cross although the employee need not be told to satisfy this test[xxii]. There is a suggestion however that where an employer does not give a warning that dismissal may be an outcome they are in breach of the procedure if they do in fact subsequently dismiss[xxiii]. It is also clear that if, during the disciplinary procedures, new and distinct allegations against the employee arise, the employer must restart the process in respect of those. Simply tacking them onto existing proceedings will result in unfair dismissal[xxiv]. The same is true where new information comes to light during the process that takes the contemplated outcome from a non-dismissal situation to one where dismissal is a real possibility[xxv] although on this point the EAT is undecided since in another case it held that, “…there is no express obligation, and none should be implied, to provide further information or evidence which may accrue in the course of his investigations thereafter, however important it may be in the interests of fairness that the employee should be made aware of the information and his response sought.”[xxvi]
In a redundancy context it has also been decided that unless a Stage 1 letter contains the reason for redundancy, the selection criteria and the employee’s own scores it is not compliant and the subsequent dismissal will be unfair[xxvii].
The obligation to offer a Stage 2 meeting is on the employer and they will fail to have complied with it if they leave it to the employee to contact them to ask for one[xxviii].
The Key Stage 2 Cases
The Stage 2 meeting must not take place until and unless the aggrieved party has revealed the basis for the complaint, and have given the other party reasonable opportunity to consider their response to that information. There is no definition of what amounts to the basis of the complaint and it is causing problems. One might be forgiven for thinking that it was all the evidence that that party intends to rely upon at the Stage 2 meeting, although one would be wrong. This would be a step “too far” according to the EAT in a case where evidence was still being handed to the employee during the stage 2 (disciplinary) meeting but where the employee knew the ‘fundamental complaint’ against them by that point [xxix].
The EAT has confusingly held that an investigatory meeting can be a Stage 2 meeting, thereby throwing up the possibility that the Stage 2 is over before any of the parties realised it has begun[xxx]. This shows that there can be accidental compliance with the procedures[xxxi].
Although the wording of the legislation is that the decision must be communicated ‘after the meeting’ it is permissible to communicate it at the meeting itself[xxxii]. The obligation to notify the employee of the right to appeal is an absolute one and it is not enough for the employer to simply say that the employee knew they had that right[xxxiii].
The Key Stage 3 Cases
Most of the requirements of the appeal stage are the same as the Stage 2 and so there are fewer decisions relating to this aspect. Remembering that the statutory procedures operate outside those of the employers’, the EAT has held that an employer was in breach where it had rejected an employee’s request for an appeal on the grounds that it did not comply with the employer’s procedures (in this case requiring it to contain sufficient detail[xxxiv] but it could equally well be other requirements such as requiring appeals to be registered within a set number of days from the decision).
More General Aspects
There is a requirement pervading the procedures that all steps should be taken without unreasonable delay. What this amounts to will depend on the circumstances of each case. The 28 days delay before an ET1 can be lodged was originally thought to be a benchmark time for completing the grievance process but real life throws up longer timetables. It is not necessarily safe to assume that, in a grievance context, you have 3 months in which to appeal or lodge a grievance. In one case the employee appealed on the day before the 3 month limitation for unfair dismissal expired. The employer thought the delay to be too long and refused to deal with it. HHJ McMullen QC remarked that broadly speaking he would agree[xxxv]. The same judge ruled in another case that a delay in the disciplinary process of 3 months was prima facie unreasonable in the absence of a good explanation[xxxvi].
An employee can claim a 3 month extension to the dismissal limitations if he has reasonable grounds for believing that there was some form of process continuing at the expiry of the original 3 months. That belief is likely to be reasonable if it is based upon advice received from an advisor[xxxvii]. It also would seem that a reasonably held, but nevertheless incorrect, belief will suffice. To get that extension though the employee must prove that they had a reasonable beliefthat the substance of their complaint was still the subject of ongoing procedures. It is vital then that the employee put all their cards on the table before the appeal is completed. E.g., if an employee appeals their dismissal saying simply that it is unfair they will be unable to claim later in the tribunal that it was discriminatory too[xxxviii]. Note however in this context that the EAT has held that where there is a grievance about the dismissal (or proposed dismissal) it will automatically include a complaint about the manner in which they dealt with the dismissal itself[xxxix]. What is not clear at this point is whether a claimant in those circumstances would fall between the two stools. As a matter of fact and law he may have an implied grievance about the manner of his dismissal but can he be said to have a reasonable belief that he raises that complaint if he is unaware that he is doing so? Probably not, and if that is right then it seems that he could bring a claim in the Tribunal for a discriminatory dismissal as long as he does not need to rely on any extension to the limitation to do so.
There is no freestanding claim for a breach of the statutory procedures[xl].
Wrongful dismissal claims are covered by the statutory disciplinary & dismissal procedure and there is no need to lodge grievances[xli]. This does not sit happily with the Employment Act 2002 (Dispute Resolution) Regulations 2004 however. Although those regulations do not require a grievance to be lodged, the failure to do so triggers the compensation reduction provisions in the Employment Act 2002. Those provisions may only be disapplied in exceptional circumstances where it is just and equitable to do so. If every wrongful dismissal claim is so treated, what is exceptional about that and where does it leave the wronged claimant?
If the employer wants to rely on an allegation that the claimant has breached the statutory grievance procedure then they must specifically plead that in their ET3. It is not something that they can raise otherwise[xlii]. Arguably this applies to breaches of the statutory disciplinary & dismissal procedure as well.
1 INSTITUTE OF EMPLOYMENT RIGHTS G&D PROCEDURES 13TH JUNE 2007
[i] HHJ Underhill in HM Prison Service v Barua [2007] IRLR 4, EAT at paragraph 1. ‘Rebarbative’ describes them perfectly, it being defined as ‘tending to irritate’ or ‘repellent’.
[ii]Shergold v Fieldway Medical Centre [2006] IRLR 76, EAT
[iii]Mark Warner Ltd v Aspland [2006] IRLR 87, EAT
[iv]Arnold Clark Automobiles Ltd v Stewart EATS 0052/2005, 20th December 2005
[v]Martin v Class Security Ltd [2006] ALL ER (D) 80 (May), EAT
[vi]Commotion v Rutty [2006] IRLR 17, EAT
[vii]Lambeth London Borough Council v Corlett [2007] ICR 88, EAT
[viii]Chard v Telewest Communications Ltd (2006) ET case numbers 1401078/2005 and 1401786/2005
[ix]Piscitelli v Zilli Fish Ltd [2005] All ER (D) 333 (Dec), EAT
[x]O’Connell v BBC (2006) ET case number 3300364/2006
[xi]Shergold v Fieldway Medical Centre [2006] IRLR 76, EAT; Canary Wharf Management Ltd v Edebi [2006] IRLR 416, EAT; and DMC Business Machines plc v Plummer [2006] All ER (D) 347 (Dec), EAT
[xii]Martin v Class Security Ltd [2006] ALL ER (D) 80 (May), EAT. Beware however Lambrou v Cyprus Airways Ltd [2007] All ER (D) 445 (May), EAT (below) where the basis of the complaint was raised but not the key phrase ‘breach of contract’
[xiii]DMC Business Machines plc v Plummer [2006] All ER (D) 347 (Dec), EAT at paragraph 24
[xiv] see for instance Edebi (supra) where a long complaint about his ill health was not enough to raise a disability discrimination complaint, and similarly Noskiw v Royal Mail Group plc ET 7th March 2005, IDS Brief 786
[xv]Draper v Mears [2006] IRLR 869, EAT (a statutory disciplinary & dismissal procedure case), and also Serco Group plc v Wild [2007] All ER (D) 92 (Feb), EAT (a statutory grievance procedure case)
[xvi]Lambrou v Cyprus Airways Ltd [2007] All ER (D) 445 (May), EAT
[xvii]Bisset v (1) Martins(2) Castle Hill Housing Association Ltd EAT 0022-23/2006, IDS Brief 814
[xviii]Odomelam v The Whittington Hospitals NHS Trust EAT 0016/2006 6th February 2007
[xix]Holc-Gale v Makers UK Ltd[2006] IRLR 178, EAT and regulation 14 Employment Act 2002 (Dispute Resolution) Regulations 2004
[xx]Gibbs t/a Jarlands Financial Services v Harris[2007] All ER (D) 449 (Mar), EAT
[xxi]HM Prison Service v Barua [2007] IRLR 4, EAT
[xxii]Madhewoo v NHS Direct [2006] ALL ER (D) 36 (April) EAT
[xxiii] In Alexander & Hatherley v Brigden Enterprises Ltd [2006] IRLR 422, EAT the President of the EAT noted: “… in our view, the proper analysis of the employer’s obligation is as follows. At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree … that at step one the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy.
[xxiv]Silman v ICTS (UK) Ltd [2006] All ER (D) 04 (Apr), EAT
[xxv]Premier Foods Ltd v Garner EAT [2007] All ER (D) 337 (Mar), EAT, HHJ Richardson 24th November 2006
[xxvi]YMCA Training v Stewart [2007] IRLR 185 EAT, per Underhill J at paragraph 14, 6th December 2006
[xxvii]Alexander & Hatherley v Brigden Enterprises Ltd [2006] IRLR 422, EAT
[xxviii]Miller & another v Ims Ltd t/a MF Promotions ET case numbers 1300499/2005 and 1300569/2005
[xxix]Ingram v Bristol Street Parts EAT 0601/2006 23rd April 2007, at paragraph 21
[xxx]YMCA Training v Stewart [2007] IRLR 185, EAT. This is because we are encouraged not to look at the labels that the parties give to things and here the combination of events amounted to compliance
[xxxi] see too Patel v Leicester City Council [2006] All ER (D) 317 (Dec), EAT where a meeting initiated by the employee was found to be the Stage 2 meeting of the statutory disciplinary & dismissal procedure
[xxxii]YMCA Training v Stewart [2007] IRLR 185, EAT
[xxxiii]Bradshaw v Philip J Milton & Co plc ET case number 1700265/2005
[xxxiv]Masterfoods (a division of Mars UK Ltd) v Wilson [2006] All ER (D) 35 (Dec), EAT, IDS Brief 819
[xxxv]Codemasters Software Company Ltd v Wong [2007] All ER (D) 102 (Jan), EAT
[xxxvi]King & Khan v The Home Office EAT 0026/2006, 17th November 2006, at paragraph 87
[xxxvii]Codemasters Software Company Ltd v Wong [2007] All ER (D) 102 (Jan), EAT where it was a solicitor’s advice
[xxxviii]Lambeth London Borough Council v Corlett [2007] ICR 88, EAT
[xxxix]Department for Constitutional Affairs v Jones [2006] All ER (D) 345 (Nov), EAT. In this case the claimant alleged that the manner in which the investigation, the grievance, the disciplinary hearing and the appeals hearing were carried out amounted to disability discrimination
[xl]Scott-Davies v Redgate Medical Services [2006] All ER (D) 29 (Dec), EAT
[xli]Lambeth London Borough Council v Corlett [2007] ICR 88, EAT
[xlii]DMC Business Machines plc v Plummer [2006] All ER (D) 347 (Dec), EAT