Legal Updates

Employment – Constructive Dismissal – Procedure – Complaint Handling – Employment Act 2002

The case of Plummer v DMC Business Machines Plc [2007], began when an employee had a dispute with one of his colleagues. The employer initiated disciplinary proceedings which resulted in both men receiving final written warnings. The employee subsequently resigned and wrote a letter to the employer complaining that he was unhappy with the way the employer had handled the events leading up to his resignation.

The employee initiated proceedings for constructive dismissal and won. The employer appealed. The following issues then arose:

• Whether or not the tribunal had the jurisdiction to hear the claim due to the fact that the employee had not lodged a grievance in writing pursuant to s.32(2) and para.6 of Schedule 2 of the Employment Act 2002.
• Whether or not the employer had been obliged to raise the issue of non-compliance with s.32(2) in order to activate the provisions in s.32(6).

According to s.32(6)(b) of the Employment Act 2002, a tribunal is prevented from considering a complaint where s.32(2) has not been complied with, but only if the tribunal is satisfied that the breach was brought to their attention by the employer raising the issue of non-compliance with s.32(2).

The appeal was dismissed:-

• In order to satisfy para.6 (and 9) of Schedule 2, the written statement of the grievance need not have been formal nor elaborate. It did however have to make it clear to the employer what the compliant was about.
• In this case, it was held that the letter which was written was apt to cover the complaint. Even though the letter made no specific reference to the disciplinary procedure, it was held that it was clearly what the employee was referring to, as there was not anything else which the employer had done which could have been the subject of the employee’s letter.
• For this reason the employee had just scraped over the bar outlined in para.6.
• It was held that in order to activate the provisions in s.32(6) (which if activated would prevent the tribunal from considering a complaint which is in breach of s.32(2)), an employer was required to plead explicitly that there had been non-compliance of those provisions. Whilst the issue of non-compliance could potentially be met by the employer raising the issue in an amendment, once the hearing had proceeded on the basis that the matters in question had been properly pleaded by the employee, the onus was on the employer to seek to amend to raise the issue of non-compliance if they wished to invoke s 32(6) of the 2002 Act.
• This is what had happened in the instant case, namely that the hearing had proceeded on the basis that the matters had properly been pleaded by the employee.
• The employer had failed to seek to amend to raise the issue of non-compliance and it followed that the employer had not raised the issue of non-compliance in accordance with s.32(6)(b).

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Comment: This is an employment decision, which raises the issues of an employee bringing a grievance and the procedures that have to be followed both by the employee and employer, especially when the case is brought before an employment tribunal.

© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.