Introduction

The case of Mark Warner Ltd v. Aspland ([2005] UKEAT 0531_05_0812) adjudicated by the United Kingdom Employment Appeal Tribunal on December 8, 2005, serves as a pivotal reference in employment law, particularly concerning the procedural aspects of raising grievances and the legitimacy of solicitor-mediated communications. The parties involved are Mrs. Aspland, the Claimant, and Mark Warner Ltd, the Respondent. Mrs. Aspland, employed as a National Sales Manager since August 1999, alleged constructive unfair dismissal and victimization following grievances related to her pregnancy, demotion, pay alteration, and bullying by her line manager, Jo Powell.

Summary of the Judgment

The Appeal was lodged by Mark Warner Ltd against a previous Tribunal decision that accepted Mrs. Aspland’s claims of constructive unfair dismissal and victimization as per the Sex Discrimination Act 1975. The Respondent contested whether Mrs. Aspland had appropriately followed the Statutory Grievance Procedure (SGP) under the Employment Act 2002 and complied with the Employment Tribunal Rules of Procedure 2004. The Employment Appeal Tribunal, presided over by Mr. Buckley, upheld the original Tribunal's findings, confirming that the grievance procedures were duly followed through the Claimant's solicitor correspondence. Consequently, the Appeal was dismissed, reinforcing the validity of solicitor-led grievance submissions.

Analysis

Precedents Cited

The judgment referenced several key precedents that shaped the Tribunal’s approach to defining a grievance:

• Shergold v Fieldway Medical Centre (EAT/0487/05/ZT 5 December 2005) – Affirmed the principles surrounding the definition of a grievance and its relation to subsequent claims.
• Rush & Tompkins Ltd v Greater London Council [1989] AC1280 – Addressed the nature of “without prejudice” communications and their role in settlement negotiations.
• Other cases like Thorpe v Poat and Lake UKEAT 0503/05/SM 18 October 2005, as well as Galaxy Showers v Wilson ...EAT 0525/05/CK 10 November 2005, were instrumental in forming a consistent approach towards grievance definitions and procedures.

These precedents collectively influenced the court's interpretation of what constitutes a valid grievance, especially when mediated through legal representatives.

Legal Reasoning

The crux of the legal reasoning centered on whether the written communications sent by Mrs. Aspland’s solicitor constituted a formal grievance under the Employment Act 2002. The Tribunal assessed the content and context of the letters, determining that they indeed fulfilled the criteria outlined in the relevant statutory provisions. Key points in the reasoning included:

• The correspondence specifically referenced victimization and the Respondent's failure to act on Tribunal findings, directly relating to the claims of constructive unfair dismissal and discrimination.
• The use of a solicitor did not negate the authenticity or intent of the grievance, as the Employment Act 2002 does not restrict grievances to communications solely by the employee.
• The absence of explicit "without prejudice" language did not reclassify the letters as settlement negotiations, as the context did not indicate an attempt to compromise potential claims.

Furthermore, the Tribunal emphasized that compliance with philosophical principles of mutual trust and confidence within employment relationships was paramount, thereby justifying the acceptance of the grievance as valid.

Impact

This judgment significantly impacts future employment disputes by clarifying that grievances can be effectively raised through legal representatives, provided that the communication content meets statutory requirements. It ensures that employees utilizing solicitors to articulate their grievances are not disadvantaged, promoting fairness in procedural compliance. Moreover, it reinforces the necessity for employers to diligently address grievances to prevent claims of constructive dismissal and victimization.

Complex Concepts Simplified

Constructive Unfair Dismissal

This occurs when an employee resigns due to the employer's misconduct, effectively forcing the resignation. It is "constructive" because the dismissal is inferred from the employer's actions rather than a direct termination.

Victimization

Victimization refers to treating an employee unfairly because they have made or supported a complaint of discrimination or other wrongdoing within the workplace.

Statutory Grievance Procedure (SGP)

The SGP under the Employment Act 2002 requires employees to follow certain steps to formally raise workplace concerns before seeking legal remedies. This ensures that issues are addressed internally, promoting resolution without litigation.

Employment Tribunal Rules of Procedure 2004

These rules govern the processes and formalities employees and employers must adhere to when bringing a case before an Employment Tribunal, ensuring systematic and fair handling of disputes.

Conclusion

The Mark Warner Ltd v. Aspland judgment underscores the legitimacy of grievance procedures conducted through legal representatives, provided that the substantive requirements of the Employment Act 2002 are met. By affirming that solicitor-mediated communications can satisfy statutory grievance requirements, the Tribunal ensures that employees have effective avenues to articulate grievances without procedural disadvantages. This decision not only consolidates procedural fairness but also reinforces the protective frameworks essential for maintaining trust and confidence within employment relationships. Employers and legal practitioners must heed these guidelines to navigate grievances adequately, mitigating risks of claims related to unfair dismissal and victimization.