Employer's notes of informal meeting constitutes a grievance ...

The Employment Appeal Tribunal ("EAT") has decided that a note taken by an employee's manager during a meeting in which complaints about sex and race discrimination were discussed constituted a written statement of grievance under Step One of the Standard Grievance Procedure (i.e. the grievance is put in writing and sent to the employer) and that the Employment Tribunal therefore had jurisdiction to consider the claims for sex and race discrimination subsequently brought by the employee.

In Kennedy Scott Ltd v Francis [2007] Mr Francis informed his employer that he wished to discuss bullying by his manager as well as other members of staff. He was advised to instigate the first stage of the company's grievance procedure which required an employee to raise his or her concerns informally with his direct line manager. Accordingly, Mr Francis met his direct line manager to express his concerns. The manager took notes of this meeting.

Mr Francis' position was subsequently made redundant. Mr Francis thereafter issued proceedings for unfair dismissal and claims for sex and race discrimination, i.e. the matters he had raised by way of an informal grievance.

The EAT had to decide whether the Tribunal had jurisdiction to hear the sex and race discrimination claims in the circumstances where Mr Francis had not detailed his grievance in writing.

The EAT agreed with the Employment Tribunal that the manager's notes amounted to a written statement of grievance and therefore satisfied the statutory requirement for an employee to raise a written grievance. It was held that the employee did not have to be the one to physically write or type their statement of grievance. The employer argued that the notes taken by Mr Francis' line manager were taken on behalf of the employer and were for that purpose only and there was no intention for the notes to be a written record of the grievance on Mr Francis' behalf. The EAT however did not agree with this and said that the relevant question was whether, as a matter of substance, Mr Francis could be said in the circumstances to have set out the grievance in writing.

This decision may be problematic for employers. It is clear from this EAT decision that a note of a meeting relating to an informal or oral grievance will now amount to Step One of the Statutory Grievance Procedure which will mean that the employer will have to invoke Step Two of the Statutory Grievance Procedure and to hold a meeting to comply with the statutory procedure. It may therefore be sensible for employers in this situation to ascertain whether the employee wishes to invoke a formal grievance and to keep a note of the reply for paper trail purposes. Unfortunately, one potential consequence of this decision is that employees who have complaints may be more reluctant to come forward if what they believe to be an informal meeting will turn into a formal grievance under the statutory procedures.