The next step

To the EAT's ruling in the case mentioned in the article

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Grievance

[Procedure]

Grievances: must they be put in writing?

A quick recap

Prior to April 2009 employers had to follow statutory procedures in relation to discipline, dismissal and grievance matters. These directed that an employee had to raise a formal grievance in writing - so the position was quite clear. When the Acas Code of Practice on Disciplinary and Grievance Procedures came into force, lawyers went over its wording with a fine-tooth comb. In relation to grievances it states that if the parties can’t resolve a complaint informally it “should” be raised in writing.

Clarifying the issue

Because Acas hadn’t used the word “must” many concluded that the required format of a formal grievance was ambiguous and, therefore, an employee could, potentially, raise one verbally. However, the Employment Appeal Tribunal (EAT) has now put the position beyond doubt in Cadogan Hotel Partners Ltd v Ozog 2014 (see The next step ). Its ruling was primarily about the level of compensatory awards, but buried deep in the judgment is a helpful point for employers.

Unacceptable behaviour

Ozog (O) was employed by The Cadogan Hotel (C) as a waitress from December 2011 to July 2012. Between those dates she alleged that a colleague, Mr Torak, had behaved inappropriately towards her numerous times. On the first, he kissed her hand and touched her arms and back; on the second, he asked if she had a boyfriend and; on the third, he took off his belt, unbuttoned his trousers and said to her “Do you want this body? Come on, you are a woman. You should want this body.”

The 25% uplift rule

After the third incident O complained to her bosses verbally on at least two occasions but they ignored her. She subsequently resigned and brought various claims against C. The tribunal found that she had been the victim of sex discrimination and harassment and noted that two verbal grievances had been raised. On that basis it uplifted the compensatory award by 25% - to £10,000 - as C had “unreasonably failed” to follow the Code. C appealed this decision.

Must be in writing

The EAT concluded that the tribunal had been wrong to exercise its power to apply the 25% uplift to O’s compensatory award. In doing so it also stated: “First, we should say we do read the Acas Code as requiring grievances to be in writing. It is true that the word “should” is used - which can import some ambiguity - but we consider the intent to be plain. Employers need to understand that a grievance has been raised; hence the general requirement that it should be put in writing.”

Tip. So there you have it - if an employee wishes to raise a formal grievance, they must always put it in writing and our grievance procedure makes this clear (see The next step ). However, this ruling doesn’t mean you can simply disregard verbal complaints; you must take action if they are about serious and unacceptable behaviour, e.g. bullying, harassment and/or discrimination.

For the EAT’s ruling in this case and a free grievance procedure, visit http://tipsandadvice-personnel.co.uk/download (PS 16.17.03).