Date 28 July 2008
The Employment Appeal Tribunal has recently decided that where an employee states that they do not want a written complaint to be dealt with formally, this can still be a formal step 1 grievance letter and therefore the statutory grievance procedure should be followed.
Background of the Case
In the recent case of Procek -v- Oakford Farms Ltd, Mr Procek (a Polish employee) alleged that he was being treated less favourably than employees of other nationalities and that he was being paid less. He sent a letter of complaint to his employer which expressly stated that his complaint was informal and that in the event of the informal complaint not being dealt with to his satisfaction, he would send a formal grievance letter. Mr Procek subsequently resigned from his employment and submitted a claim to the employment tribunal before he presented his formal grievance letter.
The issue for the tribunal to determine was whether it had jurisdiction to hear Mr Procek's tribunal claim. If his "informal complaint" letter was not a statutory grievance, the tribunal could not have allowed Mr Procek's claim to proceed.
The Decision
On appeal, the Employment Appeal Tribunal decided that his informal complaint letter was still a valid statutory grievance. The Appeal Judge said that "the issue is not whether the grievance lodged is stated to be a statutory grievance. The only question is whether it satisfies the requirements laid down for a Step 1 grievance letter. This merely requires that the grievance is set out in writing and sent to the employer. That has been done. We do not see that the classification placed on it by [Mr Procek] can affect that conclusion."
The Implications
Where there has been a failure to deal with a step 1 grievance letter according to the statutory procedure, a tribunal must increase any award to an employee by 10%, or if it considers it just and equitable, by a maximum of 50%.
Employers are likely to argue that it would be unfair for them to face an uplift in any compensation payable for failing to address grievances in these circumstances. While each tribunal has a discretion in that regard, it appears possible that an employer might be able to persuade a tribunal that it would not be just and equitable to apply any uplift in compensation. However, there cannot be any guarantee in that regard.
This decision consequently means that, regardless of the actual intention of the employee concerned, all written complaints from employees should be considered in accordance with your business' grievance procedure to minimise the risk of criticism (and successful employment claims) at a tribunal.
© SA Law 2008
Every care is taken in the preparation of our articles. However, no responsibility is accepted as being owed to any person or organisation who acts on the basis of information contained in them. You should obtain specific advice in respect of individual cases.