Does a grievance always need to be in writing? This was one of the questions the Employment Appeal Tribunal (EAT) considered in the case of case of SPI Spirits (UK) Limited & Shefler v Zabelin [2023], and the EAT’s answer was no.

What was the background?

This case concerned an employee who was dismissed over the phone, after he made a protected disclosure (blew the whistle)  in a meeting a few days earlier. The Employment Tribunal found that the employee had been unfairly dismissed and decided to apply an uplift of 20%  to the compensation awarded – the employer unreasonably failed to failure to follow the Acas Code of Practice on disciplinary and grievance procedures (the Code).

One of the employer’s grounds of appeal to the EAT was that the Tribunal was wrong to uplift the compensation because the employee had not raised a written grievance about the issues which were the subject matter of his protected disclosures. The employer argued that the Code did not, therefore apply and the employer was under no requirement to follow it.

What does the Code say?

The Code sets out the minimum standards for dealing with disciplinary and grievance situations in the workplace. It places obligations on both employees and employers to comply with its provisions and each can be penalised by a Tribunal for failure to follow it.

 “If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance.”

Acas Code of Practice on disciplinary and grievance procedures, paragraph 32

Why did the  EAT decide ?

In its judgment, the EAT agreed with the employer that, for the Code to be engaged, a grievance does need to be put in writing. However, once it has been submitted, if new grievances arise, they do not each have to be put in writing – unless there is a “material change of kind in the nature or scope of the complaint…or redress sought such that fairness requires a new or additional process or written grievance, in relation to it“.

Here, the employee had sent an email which outlined his initial grievance before the meeting and call with his employer. The issues he blew the whistle on were not in the email, but they related to the subject matter of the written grievance.

The EAT commented that an employee’s case in support of a grievance will be elaborated on “as the process unfolds, for example, in the course of a meeting held to discuss it”. Whether there has been a material change was a matter for the Tribunal in each case.

What should employers take away from the decision?

Employers should be wary of dispensing with the Code. The Code is a statutory tool which provides guidance and assistance with resolving disputes that arise in the workplace. This case is a stark reminder that employers should be wary of dispensing with following the process as outlined by the code, even when grievances are raised verbally.

The Claimant was eventually awarded over £150,000 including the Acas uplift before grossing up for tax.

11th January 2024

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