Hot on the heels of HHJ Peter Clark's decision in Thorpe & Soleil Investments v Poat & Lake (see bulletin 25/11/05) comes an even more important decision on what does (or does not) constitute a step 1 grievance letter for the purpose of the (standard) statutory grievance procedure.
In Shergold v Fieldway Medical Centre (EAT, 5/12/05), the Claimant wrote a three-page resignation letter setting out the reasons for her resignation. She did not ask for it to be treated as a grievance, although her employers invited her to a meeting to discuss the issues she raised before accepting her resignation.
The employment tribunal held that this did not amount to a step 1 grievance letter, but was instead properly classified as a resignation letter.
The Employment Appeal Tribunal (Burton P. presiding) overturned this, holding:
- there is no formality required in a statutory standard grievance letter. The requirements "are minimal" - all an employee needs to do is set out his or her complaint in writing (para 30)
- the statutory procedures should rarely result in the Claimant being debarred or the employer being liable for an automatic unfair dismissal. Burton P. states that the purpose behind the statutory grievance procedures is, like the civil court pre-action protocols, to give the parties a chance to settle disputes before litigating. "The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here...It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those are sanctions, which should be very rarely used; the purpose of the legislation is quite other, as we have described" (para 28)
- the fact that the written grievance is contained in a letter of resignation "makes no difference at all", provided that it is the setting out of a complaint in writing (para 31)
- it is not necessary to make it plain in the writing that it is a grievance, or is an invocation of a grievance procedure (para 33)
- there is equally no requirement that an employee must comply with any company or contractual grievance procedure (para 34)
- it is not necessary that every detail of the complaint be set out, as a grievance letter is not a pleading. It is sufficient if the employe can "understand the general nature of the complaint being made" (para 37)
- it is also unnecessary that the employer have the chance to respond to the grievance; all the statute requires (for the standard procedure) is for the employee to set out his complaint in writing (para 38)
NOTE: the EAT stated that it "deprecate[d]" the jargonistic use of the verb 'to grieve', as in 'Has the employee grieved?', and reminded practitioners that 'grieving' has a specific meaning which is not appropriate in the context of an employment grievance (para 17).
Shergold v Fieldway Medical Centre