Buddy says:  Although the requirement under step one of the standard grievance procedure is minimal in that the grievance only needs to be set out in writing and sent to the employer, the modified procedure is more onerous: the employee must also set out the “basis for” the grievance.

In a recent decision the Employment Appeal Tribunal held that, where the modified procedure applies, the grievance must answer the essential questions that arise, namely: “Who? What? Where? When? Why?”

Since no specifics had been provided, the “grievance” set out above fails to address the questions and therefore does not comply with the modified procedure.

Further info

Regulation 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 states that the modified grievance procedure will apply when the employee has left employment and both parties have agreed in writing to adopt the modified procedure.

Paragraph 9(a)(ii) of Schedule 2 to the Employment Act 2002 states that, under the modified procedure, the employee must also set out the “basis for” the grievance.

In Clyde Valley Housing Association Ltd v MacAuley UKEATS/0045/07, the claimant had resigned and her solicitors subsequently wrote to her employer stating that she had been “harassed and intimidated” by her manager who had “thereafter embarked on a wholly unjustified and oppressive disciplinary investigation... resulting in the complete breakdown of [her] physical and mental health”. The employer was also accused of not making any adjustments in relation to the claimant’s disability and destroying her confidence and trust in the employer.

The employer’s solicitors requested further information as to the basis of the allegations, but received no reply. The employer responded to the grievance by stating that it had been restricted in its investigations owing to the claimant’s “refusal to set out in writing the basis of her grievance”.

The claimant brought a claim for constructive unfair dismissal in the employment tribunal and her employer argued that her failure to comply with step one of the modified grievance procedure made her claim inadmissible.

At first instance, the tribunal allowed the claim to proceed, holding that the claimant’s damages could be reduced under section 31 of the Employment Act 2002 (non-completion of the statutory procedure: adjustment of awards).

The employer’s appeal to the EAT was successful; it held that failure to comply with step one had rendered the claimant’s claim inadmissible.

The EAT held that it was “the letter and the letter alone that required to be examined”. It went on to state that the “basis” for a grievance is that which “the employee relies on to substantiate his complaint.  It appears, accordingly, to be a matter of giving fair notice of what, evidentially, is being relied on by the employee who has the grievance; an explanation of how and why it is that they come to be making the complaint contained in the grievance document”.

The claimant sought to rely on regulation 7(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which provides that the parties are deemed to have complied with the applicable procedure (standard or modified) where a written grievance in relation to disciplinary action has been provided. Regulation 7 does not make reference to the requirement for the basis of that grievance to be set out. However, this claim failed on the basis that the claimant’s complaint related to discrimination not disciplinary action.

It must be noted that, had the standard grievance procedure applied, the claim would not have been rendered inadmissible – failure to comply would have simply resulted in a reduction of the compensation payable to the claimant.