An employee readily agreed to cover for sickness absence but later resigned and is now claiming constructive dismissal on the grounds of bullying and harassment. How should this be treated? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills and Reeve, offer legal advice.
The question:
We recently asked an employee to help us by covering for sickness in a different department. At the time he agreed readily, but later told his supervisor that he was unhappy and wanted to resign. This is not the first time he has threatened to resign, so his supervisor told him if he was serious he should put it in writing. This took him aback a little, but he did agree and has now left the company.
I have since received a letter from him with a list of complaints and he informs us that he will be claiming constructive dismissal on the grounds of bullying and harassment. Opinions vary here, and one view is that if he did not follow the grievance procedure whilst employed by us we need take no action. My own feeling is that this should be treated as a grievance and investigated as such. What do you think?
Fiona Fritz
Legal advice:
Martin Brewer, partner and employment law specialist, Mills and Reeve
Fiona, we need to look at this in stages.
First, there is no obligation on you to deal with an ex-employee's grievance unless that grievance falls within the Employment Act 2002 and the 2004 Regulations.
Second, therefore, we must ask whether this ex-employee has raised a 'grievance' within the meaning of the 2004 Regulations? This is important because an ex-employee who wishes to complain to an employment tribunal about, in this case, constructive dismissal will not be allowed to do so unless he first raises the matters complained of with you under the 2002 Act and 2004 Regulations.
The Regulations define a grievance as, amongst other things, a complaint about action which the employer has taken in relation to the employee. Thus if this ex-employee wishes to go to a tribunal to claim constructive dismissal against you he must raise a complaint about the matters which would form the substance of the constructive dismissal claim (although the grievance doesn't have to be very detailed nor even say it's a grievance).
Third, assuming the letter you have received complains of constructive dismissal, or pre-termination bullying, harassment etc. then it seems to me this falls squarely within the definition of a statutory grievance and the 2004 Regulations will apply.
Fourth, if that's correct you have three choices:
- Ignore the grievance
- Deal with it under the 'Modified' procedure
- Deal with it under the 'Standard' procedure
If you ignore (or fail properly to deal with) the grievance and the ex-employee is successful in tribunal, any award of compensation made will be increased by between 10 percent and 50 percent (and it will very likely be 50 percent if you take a conscious decision simply to ignore the grievance).
The Modified grievance procedure is a two step process allowing you to respond to the grievance in writing. However, the ex-employee would have to agree to use the Modified procedure.
The Standard procedure (which most employers use) requires you to invite the employee to a meeting to discuss the grievance, inform them of the response to it after the meeting and allow an appeal (and respond to that following an appeal meeting). There are general requirement in the Regulations to act without unreasonable delay, to make the timings and location of meetings reasonable etc.
In summary, it is dangerous to ignore something which is obviously a grievance from a former employee who has clearly indicated a wish to take out proceedings against you. Not only do you run the risk of an uplift in any award, you potentially make the award more likely, particularly in a constructive dismissal complaint where you are effectively being accused of acting unreasonably, by looking like an unreasonable employer in the first place simply because you have chosen to ignore a grievance which the law requires you to deal with.
Martin can be contacted at: martin.brewer@mills-reeve.com
Esther Smith, partner, Thomas Eggar
I agree with you entirely Fiona and think that the company would be very ill advised not to treat his letter as a grievance and progress it through the grievance procedure. As he has now left employment you do have the option of using the modified grievance procedure, with his agreement, which in simple terms avoids the need for a grievance hearing.
If you were to ignore his letter it is highly likely that he will pursue a tribunal claim and recent case law has shown that tribunals take a very wide view of what amounts to a grievance letter. An employee does not need to expressly state that they wish to raise a grievance under the procedure, but any letter setting out concerns or complaints can be taken as a grievance. The fact that you have not dealt with his complaint through a fair and reasonable process, and simply ignored him, would not put the company in a very good light before a tribunal and your prospects of defending the claim would be prejudiced.
As there are statutory provisions relating to grievance procedures, the company could also be penalised financially for not complying with the procedures. In the event that the employee wins a constructive unfair dismissal claim the tribunal have the ability to increase any compensation he is awarded by between ten and fifty percent to take account of a failure to comply with the statutory procedures.
Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information please visit Thomas Eggar
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