Commercial/Employment UPDATE

Issue No.12 March 2006

Why it is crucial to identify an employee “grievance”

The new statutory grievance procedure is triggered in the event that an employee raises a “grievance” but what amounts to a “grievance”? To qualify, an employee complaint must be in writing but recent case law indicates that the tribunals will otherwise give the expression a very wide and flexible interpretation. Consider the following:

• A letter chronicling a litany of complaints but not identifying itself as a grievance or requesting remedial action can amount to a grievance (Thorp v Poat and Lake EAT 0503/05/SM)
• A resignation letter setting out complaints but not identifying itself as a grievance or mentioning the employer’s grievance procedure can amount to a grievance (Shergold v Fieldway Medical Centre EAT/0487/05/ZT)
• There is no requirement to comply with any contractual grievance procedure. In the Thorp case referred to above, this meant that the grievance was valid even though it was not sent to the person designated by the employer’s contractual grievance procedure.
• There is no need for the complaint to be presented by the employee personally. In the case of Warner v Aspland [2006] IRLR 87, a letter written by the employee’s solicitors was considered to amount to a grievance.

It is essential that employers do not overlook the fact that a grievance may have been raised (whether during employment or after its termination). The safest course of action is to assume that any written complaint will trigger the statutory grievance procedure NB If a grievance is presented and an employer does not comply with the statutory grievance procedure, a tribunal will award an uplift in the employee’s compensation of between 10-50% (unless there are exceptional circumstances).

Guidance on providing reference to employees

There is normally no requirement to provide a reference for an employee. However, this depends on the nature of the employee’s job and the usual practice in the industry in which he/she is employed. In circumstances where it is usual industry practice to provide a reference and an employee cannot be expected to obtain new employment without one, then an implied obligation does arise.

If an employer does provide references then the law implies a term that the reference must be true, accurate and fair in substance. The most prudent course of action is to have a policy that only factual references will be provided. If you do provide substantive references then you should ensure that they are marked “confidential” and bear in mind that the employee may have a right to require the new employer to disclose the reference to him/her (see below for further explanation).

The Information Commissioner has recently provided guidance on good practice in relation to providing employees with copies of references about them. The main points to note are the following:

• An employer does not have to provide an employee with a copy of a reference it has written about him/her.
• An employer may have to disclose to an employee a reference provided to it by a previous employer. If an employee makes a written request for disclosure together with a fee of up to £10, an employer will normally have to provide the information within 14 days. However, an employer should proceed with caution if the reference contains confidential information. If the reference is marked “confidential”, the prudent course of action is to consult the previous employer. If the previous employer does not consent to the disclosure, an employer may still have to disclose to the employee if the information is not genuinely “confidential” in nature.

Note:

Please note that this newsletter is not intended to be a comprehensive statement of the law and should be used for guidance purposes only. If you require specific legal advice please contact Mark Machray or Edward Bond or by telephone 020 7493 2903.