EAT gives guidance on the statutory grievance ... - Pinsent Masons

Update
January 2006
Employment
<strong>EAT</strong> <strong>gives</strong> <strong>guidance</strong> on the statutory grievance procedure
Criticism of the statutory dismissal and grievance procedures, which were introduced in October
2004, has been growing from all sides over the last few months. One of the biggest problems for
employers relates to the standard grievance procedure (SGP). This requires an employee to send a
written grievance to the employer (known as a ‘Step 1 grievance’) before commencing most types
of tribunal claim. The employer must then invite the employee to a meeting to discuss matters -
or risk paying increased compensation if the employee subsequently brings a successful tribunal
claim.
It is therefore crucial that employers
are able to identify Step 1 grievance
letters quickly and easily, yet there is
little statutory <strong>guidance</strong> to help them.
However, in recent weeks the <strong>EAT</strong> has
handed down a number of decisions
which throw some much needed light
on this issue.
The <strong>EAT</strong>'s view
According to the <strong>EAT</strong>:
• A resignation letter setting out the
general nature of the employee's
complaint can constitute a Step 1
grievance under the SGP (Thorpe;
Shergold; Galaxy Showers);
• By contrast a discrimination
questionnaire is not a Step 1
grievance (Holc-Gale);
• The Step 1 letter need not be sent
by the employee personally to the
employer personally - a letter
before action sent by solicitors will
suffice (Aspland);
• The employee need not intend to
raise the mater as a grievance
(Thorpe), use the word grievance,
refer to the statutory procedures
(Shergold) or indicate that the
complaint may go further (Galaxy
Showers). As a result employers
will need to be particularly vigilant
when assessing written
communications from employees;
• The Step 1 grievance need not
comply with the employer's own
grievance procedure (Thorpe and
Shergold). This is particularly
unsatisfactory as it means the Step
1 grievance need not necessarily be
sent to the person nominated
under the employer's procedure
and could lead to the grievance
being overlooked.
Practical implications
An employer should be wary of any
written communication from an
employee or ex-employee that could
possibly be construed as a complaint
or grievance. It is essential that all
managers (and not just senior staff or
HR professionals) are trained to
appreciate that such a letter could be
a Step 1 grievance and that failure to
invoke the remaining stages of the
statutory procedure could cost the
employer dear.
Changing terms and conditions: employers beware
The recent case of Land Securities
Trillium v Thornley is a reminder that
employers must tread carefully when
seeking to alter terms and conditions
without the employee's consent.
Management role imposed by
employer
The case concerned an architect who
resigned and claimed constructive
unfair dismissal after her employer
unilaterally changed her duties by
requiring her to manage external
design consultants rather than having
a hands-on design role herself.
Normally there is a clear breach of
contract if an employer imposes a
change of contractual duties without
the employee's consent. In addition, if
the change is sufficiently serious, it will
amount to a fundamental breach of
contract entitling the employee to
resign and claim unfair dismissal.
However in the Thornley case the
employee's contract contained a
flexibility clause, under which the
employee had to perform all the duties
of her post and ‘any other duties’
which could ‘reasonably’ be required of
her. The employer argued that this
provision gave it a broad contractual
right to alter Ms Thornley's duties
unilaterally. Accordingly, in the
employer's view, the change of role
could not amount to a fundamental
breach of contract and Ms Thornley's
unfair dismissal case could not get off
the ground.
Continued on reverse

<strong>EAT</strong> finds for employee
The employment tribunal disagreed
and found for the employee. Its
decision was subsequently upheld by
the <strong>EAT</strong> which confirmed that the
flexibility clause was not wide enough
to cover a change that would
effectively de-skill Ms Thornley as a
hands-on architect, regardless of
whether there was a sound
commercial reason for the change.
There had therefore been a
fundamental breach of contract
entitling the employee to resign and
claim constructive dismissal.
Practical implications
Employment contracts often contain
clauses which purport to give the
employer some degree of flexibility,
particularly in respect of changes to
duties, working hours and job location.
However as the Thornley case shows,
courts tend to construe such clauses
very narrowly and it can be difficult to
know on which side of the line a
particular case falls. One alternative to
imposing a change unilaterally is to
terminate the old contract and offer
the employee new terms and
conditions, but this course of action
has its own risks and needs to be
considered in light of all the
circumstances. Taking professional
advice in this type of case is therefore
strongly recommended.
Do You Need To Know…?
Age discrimination: an update
Legislation to outlaw age discrimination in the workplace is
due to take effect on 1 October 2006. The new law will
have a significant impact on a range of issues, including
recruitment, age-related benefits and retirement.
The Government originally promised to finalise the
legislation by the end of 2004, thereby giving employers
some two years to prepare for this fundamental change in
working practices. However, this has proved to be a
hopelessly optimistic timetable and, in the event, draft
Regulations were only made available for consultation in
July 2005. Since then the Government's proposals have
been widely criticised by employers, and as a result the
final Regulations may well contain important amendments.
Nonetheless the DTI is currently indicating that it will be
‘towards the end of February’ before these are publicly
available. This will give employers very little time to assess
the impact of the Regulations before they become law. We
will keep you abreast of developments.
Limits on tribunal compensation to rise
The statutory limits on the compensation that can be
awarded for certain tribunal claims are set to increase in
line with inflation. In particular, the maximum amount of a
week's pay (used for calculating redundancy payments and
the unfair dismissal basic award) increases from £280 to
£290. The maximum compensatory award for unfair
dismissal also goes up from £56,800 to £58,400.
The increases apply where the effective date of termination
(or other relevant event) occurs on or after 1 February
2006.
TUPE Regulations due any day
Shortly before Christmas the DTI announced it intended to
lay the long awaited TUPE Regulations before Parliament in
January 2006. The finalised regulations will contain changes
made following last year's consultation exercise. It remains
the intention that the new rules will come into force on 6
April 2006.
Cases referred to in this update:
Land Securities Trillium Ltd v Thornley <strong>EAT</strong>, 13.7.05; Thorpe v Poat and Lake, <strong>EAT</strong> 18.10.05; Shergold v Fieldway Medical Centre <strong>EAT</strong> 5.12.05; Holc-
Gale v Makers UK Ltd <strong>EAT</strong> 30.11.05; Galaxy Showers v Wilson <strong>EAT</strong> 10.11.05; Aspland v Mark Warner <strong>EAT</strong> 8.12.05
© Pinsent Masons 2006
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This update does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.
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