This was one of the questions looked at in the recent Employment Appeal Tribunal (EAT) case (1) SPI Spirits (2) Shefler v Zabelin [2023], and the EAT’s answer was no.
Employer found to have unreasonably failed to follow Acas Code
This case concerned an employee who was dismissed over the phone, after verbally making a protected disclosure in a meeting a few days previously. The Employment Tribunal found that the employee had been unfairly dismissed and decided to uplift the compensation awarded to the employee by 20% for the employer’s unreasonable 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 Employment 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 had not, therefore, been engaged and the employer was under no requirement to follow it.
Code requirement to raise original grievance in writing
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 an Employment Tribunal for failure to follow it. Paragraph 32 of the code states that, “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.”
Subsequent grievances may be raised verbally provided no material change
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 subsequently 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". In this case, the employee had sent an email which outlined his initial grievance before the meeting and call with his employer. The protected disclosures were not in the email, but they related to the subject matter of the grievance set out in the email. The EAT observed that an employee’s case in support of a grievance will naturally be “filled out as the process unfolds, for example, in the course of a meeting held to discuss it”. Whether there has been a material change will be a “matter for the industrial judgment of the tribunal in each case, in relation to which the EAT should allow it a generous margin of appreciation.”
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.
Sarah Taylor
Azrah Ahmed