By Darren Clayton, Doyle Clayton, Solicitors, London


Grieving for the grievance process

Sometimes, late at night, my mind begins to wander and I start to believe that somewhere there exists a parallel universe. And in this place, far, far away, there are employment lawyers whose minds are so infinitely superior to ours that they understand the full implications of the statutory disciplinary and grievance procedures; and there are clients who know how to apply them.



But then I wake up and have to face some hard questions. First, does anyone really understand exhaustively how these things work (except the creatures of darkness who wrote them), and second has there really ever been a formal grievance process in Britain in which an employer has actually upheld an employee's complaints (in full)?



On the first point, there are, of course, rare moments of brilliance when we feel we have cracked it, but then like sand it all begins to pour through our fingers. On the second, perhaps everyone finds something minor to accept (such as, we agree the coffee at your meeting could have had a richer aroma) or someone else to blame. But are these processes really treated as anything more than a decorous letter before action and reply process?



Admittedly, the second problem is one of the very issues that led to the concept of the statutory minimum procedures, and the idea of placing employers and employees under increased pressure to take grievances seriously was a good one. In principle, how many claims could be avoided if the parties genuinely addressed the disputes that arose at an early stage? Sadly, however, it is human nature that these overly legalistic procedures have had the reverse effect, increasing disputes and the number of claims pursued.



It is for these major reasons that in December 2006 the Department of Trade and Industry commissioned the excellent Michael Gibbons to conduct an independent review into the 2004 Dispute Resolution Regulations. He found an overwhelming consensus that the intention of the regulations was sound (and the policy good) but that the rules were 'inappropriately inflexible and prescriptive'. In short, instead of reducing the number of disputes that went to litigation, the regulations diminished the prospect of informal resolution by making matters more legalistic, as parties seek to protect their position.



So what exactly is the problem? To begin with, checking the procedures can only be likened to playing 'chase the lady' at cards. While many of us undoubtedly enjoy a game of whist and a dry sherry at our desks of an afternoon, for the busy practitioner the search through the Employment Rights Act 1996, the Employment Act 2002 and the 2004 regulations can be less than cheering.



Having done so, the next complication is deciding whether you really need to look at the disciplinary or grievance procedures. This is usually plain but can be curious where the disaffected employee resigns on the grounds of constructive dismissal prior to a disciplinary hearing and the employer goes ahead (in absentia) and 'dismisses'. The employee persists with their grievance; the company persists to regard it as a disciplinary appeal. Both clients are confused and the dispute is polarised. Equally, if there is a disciplinary process at stake, we lurch potentially into section 98(A) of the 1996 Act (the 'no-difference' rule and the learned debate on whether it applies to the statutory procedures as well as the employer's own) - which I happily leave to Judges Elias (K Alexander, C Hatherley v Bridgen Enterprises Ltd [2006] LTL 20 September, [2006] IRLR 422, and McMullen (G Mason v Ward End Primary School Governing Body [2006] IRLR 432).



If we assume we actually have a grievance issue, there is next the question of whether what has been written is a grievance for the purpose of the procedure or a simple moan. Given the recent sequence of cases following Shergold v Fieldway Medical Centre [2006] IRLR 76, it would appear that even the shortest grumble written on the back of a beer mat could qualify, leaving the unsuspecting employer (who chooses perhaps sensibly to deal with the matter informally) in breach of the statutory procedure from the off.



Indeed, it is this formalisation that has led to the probable death knell for the procedures, with Mr Gibbons recommending that they be replaced in their entirety with something clearer and simpler in operation. This, he feels, will reduce administration and give parties the chance to sort things out an early stage as Parliament intended.



There are, though, aspects of which he approves, namely some system to incentivise us to use the procedures - which he feels sensibly should involve tribunals taking reasonableness of behaviour and process into account when assessing costs awards. Indeed his report (see www.dti.gov.uk/ files/file38516.pdf) goes further - with general recommendations for streamlining tribunal procedure and some interesting specific measures (such as keeping ACAS actively involved in promoting a resolution of tribunal disputes - instead of withdrawing as it so often does now in the early stages).



Consultation closed on 20 June and we now eagerly await the outcome. However, whether or not changes occur, and in all likelihood they will, we will lamentably be stuck with the existing process for some time.



But whatever any new regulations may bring, a fundamental question will remain. If we agree that the only way to promote the use of grievance procedures is to prescribe what they should be (and fix a penalty for failure), can we really ever succeed if the natural and opposite reaction (whatever the prescribed process) is for lawyers and their clients on both sides to begin using the procedures to their advantage? Ironically, is it not really the case that the only prospect employees often have of a 'finding in their favour', and the only hope employers have of a simple grievance being raised, is to be found through good old-fashioned informal discussion?



Ultimately, on this planet, in this space and time, we have to doubt whether we are really capable of using any formal procedures to admit fault and repair damage. For the sake of argument, let us hope this is wrong.