When is a grievance not a grievance - ccv?

[Pootle78]

I raised a grievance against my employer about the provision of ccv whilst on 0 pay mat leave. The grievance was sent via email to the payroll team leader that I has been dealing with, copied into my line manager and the Hr manager who the payroll team leader had been liaising with. This was nearly 3 weeks ago. Last week I emailed the director of HR as i'd had no response (and in the mean time my ccv had been stopped completely) to be emailed back to be told it needed a response by last Tuesday. I've finally had an email today saying they're not viewing as a grievance as I didn't follow the correct procedures through my line manager. As I'm on mat leave I didn't have access to the policy and now I have access I think they're trying to get round on a technicality as the policy says raise in writing to relevant manager, normally your line manager.

They are also stating that the HMRC guidance are that and not legislative so this is why they not paying them.

How can I respond? I want my original grievance to be acknowledged as that as it was their mismanagement that missed their own time scales (my e-mail has never even been acknowledged) ta

[flowery]

What procedure didn't you follow? What needed a response by last Tuesday?

[Pootle78]

They are saying I didn't follow the organisations grievance procedure.

Because they hadn't responded, and I sent an email to the Director of HR, they requested back to HR manager that my email was to be responded to by last Tuesday.

Does that make sense?

[flowery]

I mean what aspect of the grievance procedure didn't you follow?

Either way, case law has established that if something arrives on a desk which a reasonable person would think ought to be a grievance, the employer should treat it as such, and a technical breach of their own procedure doesn't give them the right to disregard its contents entirely.

If the technical breach is something easily fixed, I would suggest you resubmit fixing that breach, and also note that you do not believe the breach was sufficient for them to justify dismissing your grievance out of hand.

[Bearcat]

Flowery could you point me in the direction of that case law you mention above.
I may find it useful in the not too distant future.
Many Thanks and sorry to hijack Pootle

[flowery]

Sorry Bearcat, I just don't have the time to do that kind of research for threads on MN. I'm happy to help with principles and general law stuff, but can't do that kind of specific stuff. If you or anyone else is in a situation where they are quoting case law, they need proper RL legal advice.

If someone reading knows the name of any relevant cases off the top of their head, I'm sure they will post them.

[Bearcat]

Thanks for answering Flowery

[Bearcat]

Found it I think Flowery
WA Goold (Pearmak) Ltd v McConnell.
Just seeing what you wrote earlier to Pootle may be very helpful to me and probably Pootle too.
Thanks

[flowery]

That case is more about having to have a procedure.

Here you go, from CIPD website

DG07: Which communications should an employer treat as a grievance?



Any communication which contains a problem or complaint that the employees raises with their employer should potentially be treated as a grievance. If an employer is in doubt about whether the employee is raising a formal grievance, that issue could always be clarified with the employee by asking them directly.


The key points which employers should note concerning grievances arising from previous case law are:
?Grievances can be contained in a wide variety of written communications, for example, a letter making a general moan or grumble, emails, resignation letters, in a letter from the employee?s solicitor (even if a letter threatening proceedings) and a flexible working request.
?If a grievance does not mention the legal basis of the claim at all, the employer may have a chance of having a subsequent claim barred, at least temporarily.
?Employees do not need to set out a detailed statement of grievance, but there must be sufficient for the employer to appreciate that a relevant grievance has being raised.
?Employers should scrutinise an employee?s ET1 claim form to determine the nature of the complaint and compare it to the grievance.

Case law examples

The following are examples of the numerous cases under the statutory procedures which clarify whether the employee has intiated the grievance procedure:
?Commotion Ltd v Rutty [2006] IRLR 171, EAT. In this case, it was held that a written request for flexible working under the Employment Rights Act 1996 section 80F can count as a grievance letter even though there was no specific reference to a grievance as such.
?Martin v Class Security Installations Limited (unreported EAT/0188/06/DM). The Employment Appeal Tribunal (EAT) found that a resignation letter and a solicitor?s letter were both sufficient to constitute a grievance letter even although the solicitor's letter implied that a grievance would follow in due course.
?Shergold v Fieldway Medical Centre [2006] IRLR 76. It was held that a resignation letter was sufficient to initiate the statutory grievance process as long as the 'grievance' is set out in writing. The tribunal commented that it is not necessary to state that a letter is a grievance, or is an invocation of a grievance procedure. It was also stated that the grievance need not be identical to subsequent proceedings, but there must be material similarity if the statutory procedures are to be complied with.



Basically if it might be a grievance, it should be treated as one. So in the OPs case, her employer clearly know it is a grievance, otherwise they wouldn't feel the need to point out that she hasn't technically followed the procedure, so they should treat it as one not dismiss it out of hand for a techicality.

[Bearcat]

Thank you Flowery
Very helpful. Been finding out a lot this afternoon due to OP's post and your advice.

[Pootle78]

Thank you flowery and bearcat your input has been useful too, now to raise a reply.

I'm not sure why they are saying its not a grievance as it was raised with the manager in payroll, in writing, with the legal aspect I was raising my grievance about.

It was the fact it was forwarded to the hr manager to sort and ignored that has meant they have missed all their timescales

[Pootle78]

Thank you flowery and bearcat your input has been useful too, now to raise a reply.

I'm not sure why they are saying its not a grievance as it was raised with the manager in payroll, in writing, with the legal aspect I was raising my grievance about.

It was the fact it was forwarded to the hr manager to sort and ignored that has meant they have missed all their timescales

I'm just royally pissed off at the moment!

[baffledmum]

Does your employer offer CCV through salary exchange / sacrifice? I can't remember what you said before...

In any event, all of your benefits should continue throughout your mat leave and your employers are in the wrong.

I would be half-minded to seek legal advice on this through your CAB or union. I have never met an employer who asks employees for payment of CCVs when they are on leave.

[Pootle78]

Hi baffled yes, vouchers are by salary sacrifice. I've already had legal advice that told me to raise a grievance, appeal if it didn't go my way, then get back to them if an ET was on the cards as they would assist from there.

I'm going to ring HMRC as work have said they looked at guidance and chose not to follow as it wasn't legislative so will see what they have to say.

[Pootle78]

Forgot to add, they've said by continuing the vouchers but to be paid back once returned from mat leave is a benefit as its seen as an advance on my wages.

[baffledmum]

Your employers are absolutely wrong about this and are in breach of contract.

When you give up your salary for these vouchers by way of the exchange you are giving up salary, you are not actually buying these vouchers from your employer. By using salary exchange, your vouchers are a non-cash benefit and all non-cash benefits must continue during mat leave. In the event the employee is on stat SMP then the employer must meet the cost. They have already enjoyed the tax and employer's NI savings. HMRC is very clear on that.

I am not in work now until Tuesday but there is an article from Lewis Silkin that should be easy to find if you Google Lewis Silkin salary sacrifice. It was published in Feb 2012 and they are a law firm. You may already know that - don't mean to assume that you don't.

When I return to work I will try to send you the information from HMRC called salary exchange and maternity in which it describes your situation (an employer asking an employee to pay for their vouchers while on mat leave) as a common myth.

Can I ask, do you work for a small business or should they know better?

Also, if you have a pension or any other benefits that could be classed as non-cash benefits (that is anything you obtain through salary exchange) your employer must pick up the cost of those. Some employers try to suggest that the pension is a grey area - it is - but by virtue of salary exchange all contributions become employer contributions and the law is clear that these must continue to be met too.

[baffledmum]

//www.hmrc.gov.uk/employers/sml-salary-sacrifice.pdf

//www.lewissilkin.com/en/Knowledge/.../~/.../Salary%20sacrifice.ashx

Realised my kids are asleep and so I could get this to you myself. Hope the links work - if not, it's a start!

[baffledmum]

Please come back to me if you need further advice about this.

If you are doing a grievance, keep any emotion out of it and stick to the facts:

I am going on maternity leave.

The law requires you to meet the value of my non-cash benefits once I am in receipt of SMP only.

You cannot compel or encourage me to opt out of receiving CCVs, nor can you ask me to reimburse you once I return to work.

Please see the attached information from HMRC and Lewis Silkin from which it is clear that you are in breach of my salary exchange agreement with you. Your position, that I effectively buy these vouchers from you, is incorrect. I receive them as a non-cash benefit and all non-cash benefits must continue by law when an individual is on maternity leave with the employer meeting the cost of such non-cash benefits once there is no enhanced occupational maternity pay to deduct from. That is the law.

Please confirm that you will meet the cost of my CCVs once I am in receipt of SMP only.

[Pootle78]

Thanks so much baffled they are a "should know better" employer!!

I have quoted that HMRC guidance to them so many times but they seem to think they can pick and choose which bits they want to stick by!

My grievance was for breech of contract as non cash benefits should be paid as per Equality act and HMRC (which ultimately they did in my feb pay by stopping the vouchers against my wishes and without informing me first) but that seems to have been brushed aside too.

I really need to buckle down and write my response but there's also been a slight change in this all which I don't think I can say without outing myself if HR search this on google although I probably gave anyway so just need to work out what I'm going to say!

[baffledmum]

Pootle - you are welcome to PM me if you want to take this offline.

[Pootle78]

Thanks baffled I've messaged you