Emma Paish gets legal guidance this week from Helen Badger, employment law expert, Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on managing a grievance dating back three years.
The question:
An employee during his disciplinary has also lodged a grievance. (He has since been dismissed and is appealing against the decision/process.)
This grievance letter was received via a solicitor and is three pages long with points going back as far as three years. Some of the people on this list have since left the company. We are being asked to treat every single point as a separate grievance.
Surely we can’t be expected to track down ex-employees?
Has anyone any advice on how to handle this one please?
The answers:
Helen Badger, employment law expert, Browne Jacobson
As this employee’s grievance seems to be about events prior to his dismissal, rather than the dismissal itself, the statutory grievance procedures, introduced in October 2004, will apply. This means you would have to investigate all issues that it is reasonably practicable to consider.
As the employee has now left your employment it would be acceptable for you to follow a modified procedure, which avoids the need for a further meeting with the employee and doesn’t include a right of appeal.
However, a modified procedure can only be used if the employee has agreed in writing that it can apply. If the employee does not agree you will have to follow the standard procedure, which requires a meeting with the employee, notification of the outcome of the grievance in writing, and a right of appeal.
As far as the content of the grievance is concerned, the regulations are silent on what investigations need to be carried out. The regulations simply say that the employer has to inform the employee of his decision as to their response to the grievance. Where an investigation of an issue is impracticable, because of in this case time delays and because the people involved no longer work at the company, you could legitimately say it has not been possible to investigate the issue. Provided you explain in writing that you have been unable to investigate and the reason why, you will have complied with the statutory procedures.
One risk with this approach is that the employee may include a claim about inadequate investigation of his grievance in any claim he might later lodge at the employment tribunal. However, provided there is genuine and supportable reason for not being able to investigate a particular issue, a tribunal is likely to be sympathetic to the company’s position. This is particularly so where the employee failed to raise these issues at the time they allegedly happened.
If the employee does pursue a claim against the company, and includes all of these issues, you may be able to argue that he is out of time. An employee normally has a period of three months from the alleged act of discrimination (extended to six months where a grievance has been submitted within the initial three month period) within which to lodge a claim with the tribunal. However, the employee could try to argue that there was a continuing act of harassment, the last act of which was his dismissal. If a tribunal were persuaded by this argument then it may allow all grievances to be included.
It is likely that this employee’s solicitor has included all of these issues in the grievance to make sure that his client is able to include them in his claim to the tribunal. Since the introduction of the new regulations in October 2004, an employee may now only pursue tribunal proceedings if he has lodged a written grievance with his employer and allowed 28 days for a response. It would appear then that this is probably a tactical step rather than an attempt to get each issue investigated.
Helen can be contacted at: hbadger@brownejacobson.com
Martin Brewer, is a Partner with the employment team of Mills & Reeve
There is now, as you know, a statutory obligation to deal with grievances. No doubt the ex-employee is pursuing a grievance as a prelude to instituting a tribunal claim.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 cover the procedures to be followed (there is a 3 step standard procedure and a 2 step modified procedure).
The Regulations do set out circumstances where the procedures don’t need to be followed but there is no general rule that old/stale grievances are not covered by either procedure. That being the case the advice must be to hear the grievance in accordance with one or other of the procedures.
However, bear in mind that all the procedures require is a statement of the grievance(s) and a meeting at which the employer responds (the standard procedure then allows for an appeal). Thus there is no general obligation to investigate in any particular way. All that is required is that the steps are taken without unreasonable delay.
Therefore, you need to do the best you can to respond in the current circumstances.
Martin can be contacted at: martin.brewer@mills-reeve.com
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