I would imagine that your natural reaction to a grievance from an ex-employee (since the abolition of the Statutory Minimum Procedures some years ago), would be to shrug your shoulders and take the attitude that since they have already left, there is nothing that you can really do? There are a number of reasons why this might not be the right approach.
The first relates to claims for victimisation which are, of course, a special category of discrimination claim. A victimisation complaint arises where an employer, by its act or omission, subjects the individual who raised a complaint to further detrimental treatment. Thus, if your ex-employee had a history of either bringing some kind of discrimination complaint during their employment, or they had already raised a grievance of that nature, your failure to address the current grievance, which could of course be about different things, could then amount to an act of victimisation. For the potential claimant to succeed, they would have to show there was a link between the failure to address the second grievance and the earlier complaint or claim that they had brought.
The second issue to think about is the ACAS Code of Practice on Disciplinary and Grievance Procedures. Under that Code, an Employment Tribunal can adjust the amount of compensation awarded to somebody by up to 25%, if there has been an unreasonable failure to comply with the Code (Section 207A – Trade Union & Labour Relationships (Consolidation) Act 1992). The Code itself does not define who it is talking about when it refers to ‘employees’, or expressly state that it applies to current employees only. The definition of ‘employee ‘ in Section 295 of TULRCA does include somebody who has left.
In the recent case of Base Childrenswear Ltd -v- Otshudi,where an employee had been summarily dismissed, the employer claimed on grounds of redundancy. The employee believed it was because of her race and submitted a grievance and an appeal, which the employer failure to respond to. The employee later brought a claim of racial harassment before the Tribunal, at which point the employer changed their story and alleged that they had dismissed the employee because of a suspected theft, despite the fact that these allegations were never raised with her. The Tribunal found her dismissal was an act of racial harassment and awarded £3,500 loss of earnings, £16,000 injury to feelings, £5,000 aggravated damages for the employers post dismissal conduct including its failure to respond to the grievance and the way it conducted its tribunal proceedings (changing its story) and its failure to apologise to her. In addition, the employee received £3,000 for personal injury for the depression she suffered for 3 months after her dismissal, and an uplift of 25% due to the employer’s failure to follow the ACAS Code as well as interest.
The employer appealed the value of the award in that there was some overlap between the different categories of award made, that the injury to feelings award was too high and that the award was excessive.
The Employment Appeal Tribunal (“EAT)” said a one-off act of harassment could fall within the middle band of Ventoand it was permissible, in this case, for the Tribunal to conclude that the serious nature of the case gave rise to an injury to feelings award of that nature. The EAT did not agree that the award was excessive when it stood back and looked at the whole picture, and it agreed that there had not been any double counting.
The case illustrates the risks that employers take when they summarily dismiss an employee with short service, even though they have no unfair dismissal rights: if the employee can get another claim off the ground, they may see the award for that claim uplifted by 25% for failure to follow the Code/a procedure.
The EAT did not make any comment to suggest that the Tribunal had been wrong in making an uplift for failure to follow the Code when the grievance was made post-termination. This suggests that it is advisable for employers to follow the Code in respect of post-termination grievances and it is wrong to ignore a grievance from an ex-employee.