When Is A Piece of Communication Actually A Grievance?

Any communication which contains a problem or a complaint which an employee raises with their employer should potentially be treated as a grievance. The employer should always ask the employee directly if there is any doubt.

Before April 6 2009 employers were required to follow the statutory grievance procedures. There are numerous cases concerning these procedures which provide some guidance as to what constitutes a grievance. These could just be regarded as historical interest, however they do demonstrate the wide range of possible grievances. Many employers can handle minor complaints informally, but should always be prepared to treat any as potential grievances.

These previous cases raised some key points which employers should be aware:

  • Grievances can come in a wide variety of formats, for example a letter or email with a general moan or grumble, resignation letters, in an email from the employee’s solicitor (even if it is threatening proceedings) or even in a flexible working request.
  • If a grievance does not mention the legal basis of the claim then the employer has a chance of having a subsequent claim barred, or at least temporarily.
  • Employees don’t need to set out a detailed statement of grievance, but there must be sufficient for the employer to appreciate that a grievance has been raised.
  • Employers should scrutinise the employee’s ET1 claim form to determine the nature of the complaint and compare it to the grievance.

One particular case worth a mention on this subject is the Shergold v Fieldway Medical Centre [2006] IRLR 76, EAT. The Employment Appeal Tribunal held that a resignation letter was sufficient to initiate the statutory grievance process as long as the ‘grievance’ is set out in writing. The tribunal commented that it is not necessary to state that a letter is a grievance, or is an invocation of a grievance procedure. It was also stated that the grievance need not be identical to subsequent proceedings, but there must be material similarity if the statutory procedures are to be complied with.

If you have any concern about a situation in your business where an employee may have made a complaint, please get in touch with us at: [email protected] or call us on 01386 751740.

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