Kennedy Scott Ltd v Francis
Section 32(2) of the Employment Act 2002 says that employees cannot present a complaint to an employment tribunal unless they have set out the grievance in writing and sent it to their employer. In Kennedy Scott Ltd v Francis, the Employment Appeal Tribunal (EAT) said that there was no need for the employee to have written the letter themselves.
Basic facts
Mr Francis, who was dyslexic, told the human resource manager, Lisa Clark, in March 2006 that he was being bullied. When he expressed further concerns in May, she advised him to speak to his manager informally. He did so in May/June 2006 and his manager wrote up a note of the meeting, acknowledging his complaints of race and sex discrimination.
Around the same time, however, the company started a redundancy exercise and Mr Francis was told in early July that his employment would be terminated. He appealed against that decision, and asked about the progress of his other grievances.
On 3 October 2006, having not heard anything, Mr Francis lodged claims of unfair dismissal, race, sex and disability discrimination. He said in his claim form that he had put his complaints in writing to his employer.
His employer formally rejected his appeal against redundancy in late October 2006 and asked for more information about the other grievances. His union rep replied in November 2006, stating that his line manager had been helping him to formulate his grievances in writing but had run out of time due to the redundancy.
The company argued that Mr Francis had not complied with the statutory grievance procedure as he had not written the step one letter himself.
Tribunal decision
The tribunal said that, although Mr Francis had not written a formal grievance letter himself, the notes from his meeting with his manager satisfied the requirement.
Although the manager had written up the notes, the tribunal chair said that she did not accept “that it has to be the Claimant who physically writes up the statement for the purposes of Step 1 of the statutory procedure. There seems to me no reason why an employee should not rely on the notes he has witnessed his employer (by his line manager) typing up."
EAT decision
And the EAT agreed. It said that in deciding whether Mr Francis had complied with the obligation to put his grievance in writing, “the focus is on substance, not technicality. Employers should know where they stand but, in providing employers with that knowledge, the threshold to be crossed by employees should not be set high, and should not place in their way unduly legalistic obstacles.”
It said that Mr Francis had clearly raised a grievance at the meeting with his manager (effectively his employer) in May/June 2006. She had made a note of it at that meeting which accurately reflected his complaint. His employers were therefore aware that he had raised a grievance, which had been recorded in writing.
It pointed out that the ACAS Code of Practice on Disciplinary and Grievance procedures states that employers can help employees to formulate a written grievance if they cannot do so themselves because of a disability. It reasoned that, even where the Disability Discrimination Act 1995 was not relevant, there might be other circumstances where an employer might help an employee, such as someone with learning or literacy difficulties.
There was, therefore, no necessity for Mr Francis to have personally written the grievance and sent it to his employer. The only requirements were that it must “clearly be his grievance, his employer must receive it, and it must relate, intelligibly, to his subsequent Tribunal claim.”
It therefore dismissed the appeal.