Employment Update: Statutory Grievance Procedure

28 April 2008

In the case of a collective grievance, an 'appropriate representative' may use the statutory grievance procedure (SGP) but strict rules apply.

In Alitalia v Akrif and others the employer purported to do a deal to alter the pension benefits of the employees.

In response, the employees wanted to claim under the Employment Equality (Age) Regulations. The question was whether they had complied with the statutory grievance procedure, as set out in s32 Employment Act 2002, before filing their claims. The issue was: had they raised the matter properly in writing with the employer and allowed 28 days before filing their claims?

Reg 9 of the Dispute Resolution Regulations 2004 allows a grievance to be filed collectively by an 'appropriate representative' provided that it specifies '(whether in setting out the grievance or otherwise)' the names of 'at least two employees one of whom is the employee having the grievance'.

Under the Age Regulations there is a questionnaire procedure, but it is specifically stated that the questionnaire cannot be a 'grievance' for the purposes of the SGP, as with other discrimination questionnaires.

The time scale in this case was as follows:

  • On 14 December, the employees' union representative wrote a letter to the employer raising a grievance about the pension issue, in which 22 employees were named.

  • By 27 December, 21 Age Regulation questionnaires had been sent to the employer but only another 3 employees were identified by name.

  • On 25 January, 21 individual Employment Tribunal claims were filed but only 7 of those Claimants had been named in the original grievance letter. Another three of the claims were made by those 3 employees who could be identified in the questionnaires.

  • The Employment Tribunal concluded that all the claims could proceed, deciding that the general rules about SGP as set out in s32 of the 2002 Act do not apply to collective grievances.

The EAT has now ruled that this is wrong. Their reasoning was that the rules relating to collective grievances in Reg 9 of the 2004 Regs are just another way of filing a grievance but the general rule in s32 still applies, meaning that the individual employees must be named and 28 days must pass between grievance and claim.

The only concession made in the Claimants' favour was that the 3 Claimants who were identifiable from the questionnaire forms could proceed with their claims because they had identified themselves before filing their claims. They could be taken to be covered by the formal grievance that had been filed on 14 December, because their questionnaires related to the same issue and Reg 9 allowed them to be named 'otherwise'. Thus only 10 individual Claimants had fulfilled the requirements of the SGP and could go ahead with their claims.

There was a minor issue as to whether the Age Regulations could apply in this case as they came into force (on 1 October 2006) while the pension changes were being implemented. The EAT confirmed that they could.

Point to note:

  • Where grievances are dealt with collectively, trade unions must ensure that individual employees are named in the grievance documentation if the individual employee wishes to be able to file a Tribunal claim if their grievance is not satisfactorily dealt with.

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