Employment Law E Bulletin

Cases: July 2008

CASES

Warning over "informal" grievances - Procek v Oakford Farms Limited

Although the government assures us that the statutory dispute resolution procedures are on their way out, at present it is likely to be 2010 by the time that they are removed from the statute book. In the meantime this case is a cautionary tale for everyone who has to deal with grievances at work.

In this case Mr Procek (who is Polish) put in a written complaint alleging race discrimination; Mr Procek’s main complaint was in relation to his pay. Mr Procek made it clear his complaint was an informal one and that if it was not dealt with to his satisfaction then he would bring a formal grievance.

Despite the fact that Mr Procek specifically stated that the grievance was informal the EAT held that the statutory requirements for a step one letter had been met and therefore the grievance needed to be dealt with in accordance with the statutory grievance procedure. As the EAT commented that ‘we do not see that the classification placed on it by [Mr Procek] can affect the conclusion.’

This case highlights the point that it is important to deal with any written complaint through the grievance procedure, no matter how informal the complaint may seem.

Withdrawing an offer of employment

The case of  cScape Strategic Internet Services v Toon deals with what happens if an employer withdraws an offer of employment before the employment begins.

In this case both the employee and the employer had signed the contract of employment, but before the employment could actually start the employer had to withdraw the offer of employment.

The agreement in the contract of employment was that if the employment terminated in the first 3 months (during the probationary period) then the employee would only be due 1 week’s notice. If the employment terminated outside the 3 month period, then the employee would be due one month’s notice.

The employee claimed breach of contract and argued that he was due 1 month’s notice because technically his employment did not end in the first 3 months of the employment, because it did not start. The Employment Tribunal upheld his claim taking a very literal approach to interpreting the contract.

The EAT overturned this decision holding that the employer had committed an anticipatory breach. The employee had accepted the breach and was entitled to claim damages. The EAT ruled that if the employment had begun it should be assumed that the employer would operate the employment in the way most advantageous to them. Therefore, it was held that the employee should only get 1 week’s notice pay.

This case is helpful to employers in that it shows that an employee can not rely upon the literal interpretation of the contract if there is an anticipatory breach.

In this case both the employee and the employer had signed the contract of employment, but before the employment could actually start the employer had to withdraw the offer of employment.

For further information contact Burnetts' employment law team on 01228 552222.

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