Employer information: The recent case of Gibbs (trading as Jarlands Financial Services) v Harris 2007 considered this issue. In this case a dispute arose between the employer and employee regarding unpaid commission, and the employee subsequently resigned and submitted an ET1 claiming constructive dismissal.

The employer sought to say that Mr Harris could not bring a claim as he had not raised a grievance and waited the 28 days before submitting a claim as required under the statutory grievance procedures. Mr Harris submitted a new claim and claimed that his original ET1 which had set out the circumstances leading to the claim had been his written form of grievance. 

The Employment Appeal Tribunal (EAT) held that the statutory structure envisages a grievance procedure being invoked before litigation is commenced. It also noted the statutory grievance procedure provides that the employee must give the employer 28 days after submitting the grievance before commencing litigation, and held that it would "run wholly counter to the statutory scheme" if the two processes could run in parallel.  The EAT also noted that it could not see how an employee could be said to have "sent" a statement of grievance to the employer by submitting an ET1 to the employment tribunal. The tribunal could not be seen as the employee's agent in sending on the ET1 to the employer.

This is a sensible interpretation of the statutory grievance procedures, which were introduced to help reduce litigation in employment tribunals.