Employment Law E-Bulletin

Cases

Extending the time limits

One of the changes introduced by the statutory grievance procedure was that, where an employee raises a grievance within the normal time limit for bringing a claim, the employee then benefits from an additional 3 months within which to bring a claim to the Employment Tribunal. 

In HM Prison Service V Barua the EAT has clarified exactly what this means.  Doctor Barua, a medical officer at a Nottinghamshire prison, raised his grievance and handed in his notice. His employment then terminated at the end of his notice period.  A meeting took place and Doctor Barua’s grievance was effectively upheld but neither Doctor Barua nor his employer did anything further.  Then in January 2006, nearly 6 months after Doctor Barua left the Prison Service, he brought a Tribunal claim.

The Prison Service argued that because the grievance was raised before Mr Barua’s employment terminated, the extension of time did not apply.  However, the EAT disagreed.  The only time limit referred to in the legislation is the time limit after which proceedings might not be brought. The fact that the grievance had been raised before the termination date made no difference.

The result of this decision is that whenever an employee raises a grievance, regardless of when that grievance is raised, if the grievance relates to the facts upon which the employee later relies as the basis of their claim then the employee will have 6 months (rather than the usual 3) within which to bring their claim. 

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Requirements for the Modified Grievance Procedure

Although the standard grievance procedure has generated almost as much case law as the statutory dismissal procedure, the modified grievance procedure has received less attention.  However, the EAT has now had a chance to clarify exactly what steps the employee needs to take in order to have complied with the modified grievance procedure.

In the case of Bradford Metropolitan District Council v Pratt, Ms Pratt wrote to her employer saying that she thought she had an equal pay claim but gave no further details.  Bradford Council asked Ms Pratt whether she wanted to use the standard or modified procedure and she chose the latter but did not provided the Council with any further details of her complaints.  The Council therefore argued that her letter was not sufficient to comply with step one of the modified procedure.

When making their decision, the EAT specifically noted that the standard and modified procedures are different and that much more information is required from the employee when modified procedure is used.  Although the EAT acknowledged that the amount of information an employee will be able to give will depend upon the circumstances, merely stating that a claim may exist will not be sufficient.  When the modified procedure is used the employee must give the employer sufficient information to enable the employer to investigate the complaint.  Whether this is full facts or suspicions will depend upon the circumstances but the letter must be detailed enough for the employer to clearly identify the issues.

This is a useful decision for employers because, whilst the standard grievance procedure can be activated by no more than a post it note, it is now clear that the modified grievance procedure must include a more detailed record of the nature of the individual’s complaint.

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Content of the Grievance Letter

In Abbey National Plc v Fairbrother the EAT has made it clear that the “range of reasonable responses” test usually relied upon in unfair dismissal cases is also applicable when considering an employer’s handling of a grievance.

Ms Fairbrother raised a grievance after she was taunted and bullied by two work colleagues.  Abbey investigated her complaints but shortly before the grievance hearing Ms Fairbrother submitted more information about other incidents that she wanted to be considered and which she had not mentioned in her initial grievance letter.  Abbey refused and the grievance was later rejected.  Ms Fairbrother appealed but the appeal was also rejected and Ms Fairbrother resigned claiming constructive unfair dismissal on the grounds that her grievance had not been considered properly.

The EAT found, that when looking at a breach of trust and confidence based on the handling of a grievance procedure, the “ range of reasonable responses” test applies. The employer’s conduct of the procedures as a whole needed to be considered before the decision as to whether or not the grievance had been handled reasonably could be made. 

Furthermore, when looking at a constructive dismissal, the EAT went on to say that the Tribunal should first consider whether the conduct of the employer was such that the employee was entitled to resign.  The Tribunal had to consider whether the employer had reasonable and proper cause for acting in the way that it had.  Once the answer to this question has been resolved, it is only then that the Tribunal should go on to consider whether the conduct complained of was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.  This is an interesting view of the test and is one to be watched.

View the full BAILII report

Back to Employment Law E-Bulletin March 2007
Leading article on Statutory Grievance Procedures

Mar 07