TUPE and the Standard Grievance Procedure
In Bottomley v Wakefield District Housing the EAT has held that step one of the standard grievance procedure will have been complied with where following a TUPE transfer, a grievance addressed to the transferor is later copied to the transferee.
Background
After being transferred by virtue of TUPE to the employment of Wakefield District Housing ("WDH"), Ms Bottomley and her colleagues' submitted written grievances and equal pay questionnaires to their former employer, Wakefield Metropolitan District Council ("WMDC"). Ms Bottomley complained that she was not paid the same as comparators who had not transferred to WDH and who remained employed by WMDC. Copies of the grievances were also forwarded to the new employer. WDH took the view that the complaint did not comply with the statutory regime and therefore did not address the grievances.
The tribunal held that, as this complaint could not reasonably have been interpreted as having been directed to WDH or requiring WDH to take any action, sending the copy to WDH did not amount to a valid step one grievance. The EAT, however, held that the requirements of a step one grievance are minimal and the employees in this case had clearly set out their complaint in writing and sent it to WDH in accordance with the standard grievance procedure. Although the grievance in their case was directed against their former employer, it clearly related to the current employer's actions in paying the claimants less than their stated comparators. The fact that the named comparators were no longer valid comparators following the TUPE transfer would affect how the employer or a tribunal might handle the complaint, but not whether the letter complied with the statutory procedures. Having received the complaint, a response from WDH was required. It should have held a meeting, even if it would have rejected the grievance on the basis that the named comparators were inappropriate.
Impact on Employers
The decision highlights the willingness of the courts to interpret the statutory grievance provisions widely. Even where on the facts it seems that a complaint bears no relation to the employer or that the employer is the "wrong respondent", the employer should at the very least respond to the complaint and be prepared to hold a meeting under the statutory procedure to reject the grievance on that basis.