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Issue 109 (March 2006)

Contents

In the news
Regulating disputes
Causing a commotion
Unity is strength
Out clubbing
Equally valued
Holiday blues
Life on the ocean wave

Regulating Disputes

In October 2004, the Government introduced new dispute resolution regulations, requiring employees to put their grievance in writing before they lodge a tribunal claim.
In Shergold v Fieldway Medical Centre (IDS 797), the employment appeal tribunal (EAT) has said that a resignation letter setting out general complaints can amount to a grievance under the Employment Act (Dispute Resolution) Regulations 2004.

What were the basic facts?

After 17 and a half years as an audit clerk for a GP practice, Mrs Shergold resigned in a letter dated 31 October 2004, which set out a number of complaints about a colleague, Jacqui Smith.

The two GPs asked her to a meeting at the beginning of November to discuss her complaints, at which one of them said that, if she had a grievance against Ms Smith, she should follow the formal procedure.

In any event, the meeting did not resolve any of her concerns and her employment ended on 24 December. She then lodged a claim of constructive dismissal.

The medical practice responded by saying that the resignation letter was not a grievance and, although she had been advised to lodge one at the meeting, she had not done so. Nor had she ever stated that her resignation letter was a grievance.

What did the tribunal decide?

And the tribunal agreed. It said that Mrs Shergold's resignation letter could not be construed as a grievance.

In particular, it said that it did not raise two of the allegations that she had mentioned in her application to the tribunal and which she was now relying on as part of her claim. As a result, the GPs had not had a chance to respond to them.

What did the EAT decide?

The EAT, however, disagreed. It said that, although the purpose of the regulations was to encourage conciliation, the courts had to be careful not to bog people down in endless technicalities.

It emphasised, therefore, the minimal nature of the statutory requirements - basically, that the grievance just has to be in writing. Under the standard grievance procedure, it does not even have to set out the particulars of the grievance, as they can be clarified at any time before the meeting that the employer has to set up to hear it.

Nor does it make any difference if the grievance is set out in a document that doubles as something else (in this case a letter of resignation), particularly if there is plenty of time to resolve the grievance before the resignation takes effect.

The EAT said that the regulations do not require employees to make clear that they are lodging a grievance when they write their letter. Nor is there any requirement for the employee to comply with any company or contractual grievance procedure.

The EAT agreed with the tribunal, however in that the "grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with." So if the grievance relates to unpaid holiday pay, the subsequent claim cannot be based on race or sex discrimination with no reference to holiday pay.

But that does not mean that the wording of the grievance has to be identical to the wording in the claim, not least because the person bringing the grievance is not required under the regulations to set out their reasons when lodging it.

In this case, Mrs Shergold's complaint centred on the conduct of Jacqui Smith - both her letter of resignation and her subsequent claim were on exactly the same basis. The fact that the GPs had not had a chance to respond to two of the allegations in her subsequent claim was completely irrelevant.

Comment

Despite this ruling, it is better for union officials to ensure that members' grievances do specify the grievance clearly and give enough background to prevent the employer raising procedural points.