A hidden grievance?
You’ll know that under the statutory grievance procedures you have to set up a meeting once you’ve received a grievance letter. But should you treat other communications, such as a request for flexible working, as a grievance too?
Informal grievances become formal?
If an employee writes to you informally requesting part-time work or flexible hours and you reject that request, could a subsequent formal application constitute a statutory grievance? Incredibly, the answer seems to be “yes”. In Commotion Ltd v Rutty (R) 2005 the employer made the mistake of believing that an informal request to work a three-day week was just that, but the tribunal disagreed saying that a formal grievance had been raised. The employer appealed to the Employment Appeal Tribunal (EAT) claiming that the employee had not raised a grievance and so her claim should not have been accepted. The EAT disagreed saying that the formal request for flexible working had amounted to a statutory grievance - meaning the full procedures should have been followed.
When is the grievance raised?
Because a statutory grievance doesn’t have to be headed “grievance’ or even “complaint” it’s dangerous to assume that one isn’t being submitted to you just because an application or request doesn’t use those words. In R’s case, after sending in her informal request, the employer, in a similarly informal way, rejected it - any easy mistake to make. Several months later R made a formal application for flexible working under the rules in the Employment Rights Act 1996. The letter didn’t make any mention of it being a grievance. When her application was refused R resigned and made her claim to the tribunal.
Pro-employee. Like most tribunals, the EAT took a relaxed view of the statutory grievance procedures, and said that a grievance letter can also fulfil another purpose such as a flexible work application, provided the employee puts the “complaint in writing”. In this case it’s true that the employer didn’t handle the request for flexible working properly; had they done so by holding a meeting with R and allowing her to appeal within reasonable timescales they would have probably satisfied the rules on handling grievances.
An exceptional case?
Yes; by first raising her request informally and having it rejected, the formal flexible working application was treated as being a grievance because it was essentially the same request. But this case is a reminder of the danger that similar informal requests or complaints with regard to matters such as equal pay, discrimination, working time and pay issues could all be deemed to be statutory grievances as long as they’re in writing (even if the word grievance isn’t used). If you fail to deal with the “informal” letter as a statutory grievance there’s a strong risk that if the employee is eventually successful at tribunal you’ll have to pay additional compensation for not having followed the statutory procedures.
Tip. When employees write to you making informal or formal applications, requests or complaints, ask them to confirm whether they are raising a grievance at the same time. If their answer is “no”, ask them to sign a short document that states that it does not constitute a grievance. You can then use this if they try to bring a claim against you.
The next step
For a sample document avoiding a grievance claim visit http://personnel.indicator.co.uk (PS 08.10.03).
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