Breach of Contract

Has Your Employer Breached Your Contract of Employment?.

Employees’ Guide To “Employment Law” & “Employment Terminology”

I have compiled a list of legal terminology, which can aid you in establishing what your employer may be culpable of in order to resign, or to help you formulate a grievance letter to enter the grievance procedure

Definition of Employers Breaches

Material breach = can be a breach that has serious consequences on the outcome of the employment contract.

Fundamental breach = would be one so serious that the employment contract has to be terminated.

Anticipatory breach = is one where one of the parties makes it known that they will not be carrying out agreed work, and the consequences can be termination of the employment contract, and damages being sought in court.

Definition of Employers “Duties”

Relevant Duty = The definition of “relevant duty of care” is based on the duty owed by an employer under the law of negligence. Eg. there will be a “gross breach” of this duty when the conduct of senior management falls far below that prescribed by relevant “health and safety” legislation.

Duty of Care = It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees, and to provide a safe place and system of work.

Onerous Duty = An “onerous duty” is one that can require an employer to do things for a disabled person that it would not have to do for its other employees. (Eg. act in good faith).

Common-law Duty = Employers duty of care for its employees’ occupational health and safety, viz: the physiological and psychological well-being of persons engaged in work. Eg. employers have a common law duty to take reasonable care to guard their employees’ health and safety at work.

Statutory Duty = An employer has a ‘duty of care’ not to breach a Statutory Act or Regulation. Eg. an employer can be ‘vicariously liable’ if it fails to prevent harassment within the working environment, especially where it knows harassment is taking place but fails to prevent it from reoccurring.

Implied Duty = An Implied Duty is a term that is not written into an employees’ contract of employment, but none the less is considered to be part of it; for example, an employer would have a duty to provide a healthy and safe working environment for its employees’.

Expressed Duty = An example of an express duty is to act ‘conscientiously’ and in ‘good faith’.

Fiduciary Duty = A fiduciary duty exists where a person holds power, such as a company Director. Eg. a company director has a fiduciary duty of care to his/her employees to effectively ‘champion’ the company’s health and safety policies and procedures down the chain of command to his/her “ordinary employees”.

Duty of Trust and Confidence = Duty of trust and confidence exists between the employer and employee, who owe each other a duty not to act in a way that is likely to destroy, or seriously damage the relationship of trust and confidence. This is a term which is implied by the law into every contract of employment.

Employer Acting In An “Arbitrary and Capricious Manner”

What it means: Arbitrary and capricious means doing something according to one’s will or caprice, and therefore conveying a notion of a tendency to “abuse the possession of power”. In my own experiences, the employers whom I worked for have all “acted” in a “arbitrary and capricious manner” after lodging a grievance letter. This is due to the very fact that the employer wants to limit its liability, which could potentially make it liable to pay compensation.

Express and Implied Terms Of Employment

“Express terms” of the contract of employment are terms which are expressly or specifically stated, either orally, or in writing. Express terms include things like pay, hours and holidays.

“Implied terms” are contractual terms. These are not expressly or explicitly stated as they are fairly obvious to both parties to the contract of employment. Implied terms include “statutory rights” such as the right to equal pay and duties such as a “duty of care”.

Implied Term of Mutual Trust and Confidence

Every contract of employment has an “implied term” that the employer “shall not conduct itself in a manner, ‘calculated or likely to destroy’ the ‘mutual trust and confidence’ between employer and employee without reasonable cause.”

In the case of Morrow v Safeway Stores [2002] IRLR 9 the Employment Appeal Tribunal held that “Conduct which amounts to a breach of the implied term of trust and confidence will mean that there has been a fundamental or repudiatory breach going to the root of the contract’.

This is significant, especially in the grievance procedure. In laypersons terms, it means that the onus is on your employer not to act in a “capricious or arbitrary manner” or abuse its position of power. Put shortly, the employer shall not conduct itself in a manner which is “calculated” or “likely to destroy” the “mutual trust and confidence” between employer and employee. Should the employer “act” harshly, oppressively, unreasonably, unfairly, capriciously or arbitrarily, then the employee may have the right to resign due to the employer’s failure to observe the “mutual trust and confidence”.

You won’t find the words “mutual trust and confidence” in your contract of employment. When you lodge your written formal grievance, make it very clear that you expect your employer to observe the “mutual trust and confidence”..

Employment Fundamental or Repudiatory Breach:

For a fundamental or repudiatory breach to have taken place, the employee would have to establish that the employer was guilty of something, which goes to the “root of the contract”. The test case for this was Western Excavating (ECC) Ltd v Sharp {1978} IRLR 27.

In laypersons terms, a “fundamental breach” of the employment contract allows the employee to repudiate the employment contract. The employee would resign with immediate effect, without working out their notice, due to the fact they “repudiate” the contract of employment. Therefore the employer will not be able to enforce the terms of the employee’s contract of employment, or make the employee work their notice period, which they would otherwise be legally obliged to do. This is known as “constructive dismissal”.

My wife and I both claimed “constructive unfair dismissal” due to the fact our employer had acted so badly towards us, that to have stayed and continued to have worked, would have been to have accepted the repudiation (acquiesced and affirmed the breaches).

Example: Let’s say your boss punches you in the mouth for no “reasonable reason” other than the fact he felt like it. You would be within your rights to repudiate the contract of employment with immediate effect, and leave your employer instantly (constructive dismissal). The reason you could give the Tribunal was that you feared for your “safety” and that your bosses “unwanted conduct” posed a “risk of harm” to your “health”. Alternatively, if you chose, you could forgive your boss, kiss and make up, and put it all behind you. Should you choose the latter, you accept the repudiation (affirm the breach).

In the words of Lord Denning:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”

“The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

 “Last Straw in Employment Context”

In the above scenario, let’s say you decided to stay and continue to work with your boss, despite the fact he had punched you in the face. A few months later, he hits you again, which you do nothing about. Down the road he has another go at you, and gets handy with his fists again. You would be completely within your rights to “repudiate the contract” and lodge a Tribunal claim, without entering the grievance procedure. You would state in your ET1 (Tribunal claim) that your bosses habitual proclivity for violence was the “last straw” in a “series of events” which gave cause to make a claim for “constructive dismissal”. The fact you did not resign to the first and second assaults meant you had “affirmed” the contract of employment by staying on at work. However, the third assault was the “last straw” in a “series of events”.

You could also contend that “a series of acts” could “cumulatively have amounted” to a “repudiatory breach” of the “implied duty of trust and confidence”. In other words, being subjected to a “systematic campaign” of harassment and intimidation amounted to the “breach” – it was not any one incident, but the accumalative effects.

Either way, the Tribunal would take into consideration the fact that you had little or no choice but to leave your place of work. You did so to “protect” yourself from a “foreseeable risk of harm” to your “health”. You could establish that the reason you chose not to leave your employment after the first and second assaults, was due to the fact you had a family to support, and given the economic climate, it would be unlikely you would find another job.

“Affirming the Contract”

To affirm the contract of employment is to continue to stay on at work, after something has happened, which would otherwise have allowed you to have “repudiated” the “contract of employment”. You have to be careful here, as affirming the contract of employment could adversely effect your claim in a Tribunal, should you wait too long between the breach and date of resignation.

In our own case, my wife and I were coerced to remove ourselves from the working environment due to our employer’s breaches of its “duty of care” to protect our “health and safety”. It had “omitted to act” to take [reasonable and practicable steps]. As a consequence, these omissions were “prejudicial to our health” and or “materially injurious” to our health. You may be interested to know that we did not resign. We simply walked out of our place of work, and refused to come back to work until such time as our employer had provided us with “a safe place of work” and “a safe system of work”.

Having lodged a grievance letter, our employer chose not to act upon our grievances with immediate effect. Instead, it initiated an investigation to look into our grievances without taking immediate remedial action to remedy the breach. However, our employer continued to pay us our salaries, despite the fact we were not present at work. To have accepted our salaries “without protest” would have been to have “affirmed the breaches”. In essence, our employer was pulling a fast one – it was hoping that we would continue to accept our salaries “without protest”.

However, we didn’t play ball. Instead, we wrote to our employer and stated that we would continue to accept our salaries “under protest”. We stated that we “reserved our rights” to “repudiate the contract of employment” should the employer fail to observe its statutory “health and safety obligations”. By accepting our wages “under protest” we had not “affirmed” the “contract of employment”. We had “reserved our rights” to still “repudiate” the “contract of employment” at a later date. The onus therefore, was still upon our employer to take “reasonable and practicable steps” to provide us with “a safe place of work” and “a safe system of work”.

“Employment Context – Omission To Act”

An “omission to act” is where the employer fails to do anything to remedy the situation, once the employee has lodged a written formal grievance. The employer is generally entitled to take what he is told by his employee at “face value.” A failure to investigate an employee’s grievances adequately and promptlycan give rise to the employee making a claim to an Employment Tribunal. The employee has to wait twenty-eight days after lodging a written formal grievance before making a claim to a Tribunal. The 28 day period gives the employer adequate time to look into the employee’s grievances and remedy any potential breach.

W. A. Goolds (Pearmak) Ltd v McConnell [1995] IRLR 516. “The employers duty to reasonably and promptly afford an opportunity to the employee to obtain redress of any grievance they may have”

“Deliberate Omission To Act”

Once the employee has lodged a letter of grievance, and established facts that the employer is under a “duty of care” to either (i) make reasonable adjustments or (ii) take reasonable and practicable steps, or (iii) remedy a breach of the employers “health and safety” obligations. The onus is thus placed upon theemployer to observe the “mutual trust and confidence” to “act reasonably” and take what the employee has stated at “face value”. The employer must act swiftly, with prudence and “due diligence” to right the wrong, taking into account the employers undertaking, resources, size etc., to do so. The bigger the employer, the greater the onus upon the employer compared to a small employer, with limited resources.

Should the employee make a claim to the Employment Tribunal due to the employer’s “acts and omissions” or “omissions to act” the employee needs to establish in their ET1 what the employer actually failed to do (breach). The Employment Tribunal will then look at what steps the employer could and shouldhave undertaken, to have remedied the “breach”.

“Workplace Harassment”

Where an employer fails to take what the employee tells him seriously (or at face value) it may give rise to the employee making a claim for constructive dismissal.

Wigan Borough Council v Davies 1979. “There is an implied term in contracts of employment that the employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow workers; and where an employer has an obligation to take reasonable steps to achieve something and takes few or no steps, the onus of proving what steps would have been reasonable is on the employer.”

An employer’s failure to take “reasonable and practicable steps” to prevent the harasser from harassing the complainant may likely make the employer “vicariously liable” for the harassers acts. This means that the employer could be “vicariously liable” for an employee’s conduct, whether the employer knows harassment is happening or not. In our own case, we contended our employer was “vicariously liable” for “omitting to act” to take adequate “control measures” to ‘prevent’ further acts of harassment from being purported upon our persons. The fact our employer initiated an investigation into our grievances was not enough. Our employer could have, and should have acted immediately, and taken proactive and preventative measures to ensure that we were not subjected to any further acts of discrimination, harassment, less favourable treatment or victimisation.

Notwithstanding, our employer had failed to observe the mutual trust and confidence by failing to demonstrate “adequate prevention methods” to eradicate harassment from reoccurring. It had ‘omitted to act’ to render any training, consultations or advice to its employees. Despite the fact our employer had a harassment policy insitu, it had failed to “implement” its policies and procedures within the workforce at large. It is not enough for an employer to rely upon the fact it has a Harassment Policy. The employers Harassment Policy has to be “effectual” and “effectively communicated” to all its employees – See: Beadles Group Ltd v Angelica Graham. Also, see “fiduciary obligations”.

“Employment – Vicarious Liability”

An employer is vicariously liable for its employees’ torts (wrongs) in the course of their employment.

Example: In our own case, we had informed five senior managers that we were being subjected to a “systematic campaign” of harassment, intimidation and discrimination by our line manager. Each manager (i) chose not to do anything (ii) failed to observe or implement the organisations harassment policies or procedures (iii) failed to report the incidents to our employer’s Human Resources Department.

Due to managements “omissions to act”, my wife and I approached a company director, and expressed our ‘profound concern’ of his managements “deliberate omissions”. In turn, the director ignored his own “fiduciary obligations” and chose to believe his senior management, who lied through their teeth to cover their own ineptitude. Under the Equality Act 2010, the “director” is “vicariously liable” for his employees’ torts in the course of their employment (see fiduciary obligations).

Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316) “An employer is bound by acts done by employees in the course of their employment.”

“Employment Context – Victimisation”

“Victimisation” in an employment law context means “treating someone less favourably” than others because that someone has exercised, or intends to exercise, rights under specific legislation.

An example of victimisation: The employee invokes the grievance procedure and lodges a letter of grievance, let’s say, due to sex harassment. In turn, the employer does not remove the alleged harasser, but instead sends the complainant to work in another department. This amounts to victimisation. The employee had exercised their right under the Equality Act 2010. The employer treated the complainant less favourably than the alleged harasser. The employer should not have moved the complainant, especially when it is against the complainants own wishes. This also amounts to a “detriment” where the aggrieved employee is ‘disadvantaged’.

Employment – Risk Assessment – Pregnancy – The Management of Health and Safety At Work Regualtions 1999

Management of Health and Safety at Work Regulations 1999 (MHSWR 1999) R.16 is germane to the employers duty of care to undertake a “risk assessment in respect of new or expectant mothers”.

Under the MHSWR 1999, an employer ought to undertake a risk assessment for all women whom it employs, who are of child bearing age. See:  Day v Pickles Farms Ltd [1999] IRLR 217. This is to comply with R16(1)(a).

However, in the recent case of O’Neill v Buckinghamshire County Court the Employment Appeal Tribunal held that there will be no automatic right for new and expectant mothers to be risk assessed in their workplaces, unless the employee can ‘demonstrate’ that their work poses a “risk of harm” to their (or unborn child/s) “health and safety”. The “nature and extent” of the expectant mother’s work, ought to be taken into consideration, insofar that she is not subjected to a “detriment” which could give rise to her making a claim in the Tribunal.

Employment Risk Assessment And Stress – Stress Audits and Stress Tests For Employees

The Health and Safety Executive defines “stress” as:

“The adverse reaction a person has to “excessive pressure” or other types of “demand” placed upon them.”

I have covered the topic of the employers duty of care to undertake a stress specific risk assessment in “Workplace Stress“.

“Magnitude of the Risk of Harm Occurring – The Gravity of the Harm”

The employer is only in “breach of duty” if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the “magnitude of the risk of harm occurring, and the gravity of the harm which may occur”, the costs and practicability of preventing it, and the justifications for running the risk. In other words, the bigger the employer, the greater their resources, the greater the onus is upon the employer to act with “due diligence” and prudence with regard to its respective employees, where a “risk of harm” exists, which may be “prejudicial to health”.

With workplace stress, the claimant must show that that “breach of duty” has “caused” or “materially contributed” to the “harm” suffered. It is not enough to show that occupational stress has caused the harm. Let’s put this into laypersons language. In our own case, we established that the combination of “harassment” and “excessive workload” had “triggered” the reoccurrance of my wife’s panic attacks and depression, and also exacerbated my asthma. Both ‘panic attacks’ – ‘depression’ and ‘asthma’ are recognised disabilities. Therefore, we had the ‘tie in’. Our employer had “constructive knowledge” we were employees with disabilities.

This potentially made the employer liable for disability discrimination. The employer had failed to “assess the risks” and failed to prevent the “detrimental impact” (magnitude of the risk of harm) which, combined with “harassment” had “caused” and “triggered” our disabilities (gravity of harm).

“Work-related stress” is actionable as a “personal injury” claim only in a court. In order to bring a claim in the Employment Tribunal, the employee would need to establish that “work-related stress” triggered, caused or materially contributed to a contravention of a “protected characteristic” under the Equality Act 2010. In essence, you need to tie it in to something like sex or disability discrimination or harassment.

See. “Workplace Stress

“Employee’s Abilities and Capabilities”

The employer has a ‘duty of care’ to make sure that the employees’ “abilities and capabilities” are suited to the position for which he/she was employed to undertake, and as such, do not pose a ‘risk of harm’ to the employees health.

The MHSAWR 1999 R.13(1) states: “Every employer shall,entrusting tasks to his employees, take into account capabilities as regards health and safety.”

The Health And Safety Executives “Management Standards” state: “Employees indicate that they able to cope with their jobs – people’s skills and abilities are matched to the job demands – jobs are designed to be within the capabilities of employees.”

From my own experiences, the employer will endeavour at some point, to call into question an employee’s “abilities and capabilities” for having lodged a letter of grievance. This is part and parcel of the employer’s ‘dirty tricks campaign’ and usually undertaken as a reprisal due to the aggrieved employee having lodged a written formal grievance letter. However, such conduct by the employer may amount to either “victimisation” or “detrimental treatment” under the Equality Act 2010 and Employment Rights Act 1996. The fastest way for an employer to boot an employee who it no longer views as a ‘team player’ – is to use the excuse that the aggrieved employee was ‘under performing’. On each of the three occasions I have invoked the grievance procedure, each employer sank to this level of skulduggery. This is why I suggest, that at the time you lodge your letter of grievance, you make it clear that the discrimination or harassment purported upon your person is having a detrimental impact upon your abilities and capabilities (see example letter). This way, an attempt by your employer to pull this little number out of the goodie bag, will amount to “less favourable treatment” and or “victimisation” under the Equality Act 2010/Employment Rights Act 1996, making it potentially liable to pay you compensation.

“Safe System of Work” – “Safe Place of Work” – Health And Safety At Work Act 1974 – Duty of Care to Employees

Your employer is statutory bound to provide its employees’ with “a safe system of work” and “a safe place of work”. Should an employee hold a “belief” that there exists a “risk of harm” (danger) to his/her health or safety, the employee is completely within their legal right to remove themselves from their place of work, with immediate effect. The employee does not have to have factual evidence that a palpable “risk of harm” actually exists – only a “reasonable belief”. This is significant, as in our own case, we removed ourselves from the working environment due to workplace “dangers” – (harassment being injurious to health).

In Harvest Press Ltd V McCaffrey(EAT) (1999) IRLR 778 the Employment Appeals Tribunal held that the conduct of workplace colleagues could amount to a “danger”. This is brilliant, as it provides employees’ an alternative course of action should they be unable to tie a “protected characteristic” in under the Equality Act 2010. A workplace “danger” could constitute a “risk of harm” should it in any way affect an employee’s “safety” and or be “prejudicial” to an employee’s “health”. I have enclosed the following sentence from the European Commissions Code Of Practice on Sex Harassment 1991, which drives home this point.

“Sexual harassment pollutes the working environment and can have a ‘devastating effect’ upon the ‘health’, confidence, morale and performance of those affected by it. The anxiety and stress produced by sexual harassment commonly leads to those subjected to it taking time off work due to sickness, being less efficient at work, or leaving their job to seek work elsewhere.”

Webmaster’s thought: If using this example in cases of harassment, you would need to establish to the Employment Tribunal, that a “risk of harm” potentially existed, which either was “materially injurious” to your health, or was “prejudicial to your health” had you not have removed yourself from the working environment. Therefore, I would suggest that PRIOR to lodging your letter of grievance, you consult your doctor and state for the record that the “unwanted conduct” by your workplace colleague/s either exacerbates an impairment or triggers a disability. I would also make sure that your medical records indicate that “stress” caused by the ‘unwanted conduct’ is a “trigger” for your disability, viz: induces panic attacks, fainting, migranes, anxiety, asthma attacks, depression etc – anything ‘risk of harm’ which could be ‘prejudicial to your health’.

See: Whistle-blowing.

Directors Fiduciary Duties – Employers Fiduciary Duties

Directors are in a position of trust within their organisations. Therefore, they have “fiduciary duties” to their employees’, especially when it comes to employees’ “health and safety”. An employer’s management may also have fiduciaries should their title contain the word “director” such as a ‘health and safety director’ – ‘finance director’ – ‘sales director’ or ‘managing director’.

The Health and Safety Executive have produced a bulletin INDG 417. These are ‘guidelines’ for directors to follow to observe their “health and safety obligations” to their respective employees. What the guidelines establish are this:

“Strong and active leadership from the top, establishing ‘effective’ downward communication to ‘engage the workforce’ in the ‘promotion’ and ‘achievement of safe, and healthy working conditions; provide high quality ‘training‘, identify and manage ‘health and safety risks’, accessing competent advice, monitoring reporting and reviewing performance.”

It is well worth a read, as company directors are responsible for “championing” health and safety within the workplace. Therefore, the employer’s health and safety policies and procedures are driven into the workforce by its company directors, who are responsible (fiduciary obligations) to engage, involve, promote and communicate the companies “health and safety” policies and procedures down the chain of command to their “ordinary employees”.

See: Health and Safety Policies.

Employment – Reasonable Adjustments – Disability Discrimination

Once an employer knows, or reasonably ought to know, that one of its employee’s is a disabled person within the meaning of the Equality Act 2010, the employer is under a “duty” to make “reasonable adjustments” to ensure that the employee is not placed at a substantial disadvantage in comparison to those people who are not disabled. The key here is to ask yourself whether your employer is aware that you have a disability? If not, then make sure you inform the employer in your formal grievance that you have a disability/impairment.

For a list of legally recognised disabilities, click here.

Employer – Constructive Knowledge – Disability

Should your employer have instructed a third party occupational health provider to undertake a health questionnaire at the commencement of your employment, then it would very likely have asked whether or not you have a disability, either past or present. Should you have answered yes, then your employer would have “constructive knowledge” of your disability.

Your employer may also have enquired as to whether you have a disability (or whether it may need to make reasonable adjustment/s for your person) during the following times: (i) application for employment (ii) probationary review (iii) annual appraisal  (iv) tax information (disability tax credits) (v) parking. Should your employer be aware that you have a disability, it has “constructive knowledge”.

If you have a mental or physical impairment, I would strongly suggest that you mention it in your formal grievance; otherwise, your employer might not realise it has a duty to make an adjustment for your person.

Employers Duty to Care to Take Reasonable and Practicable Steps

The employer shall take “reasonable and practicable steps” to ensure its employees’ “health and safety” whilst at work.

Section 2(1) of the Health and Safety At Work Act 1974: “It shall be the duty of every employer to ensure, so far as is ‘reasonably practicable’ the health, safety and welfare at work of all his employees.”

Let’s break down the above sentence, and see what it is actually stating.

The employers “relevant duty” is to “ensure” as is “reasonably practicable” the “health”, “safety” and “welfare” of his employees’.

A contravention of the HSWA 1974, may potentially amount to a breach of the contract of employment.

Forewarned is Forearmed

Given the fact that on average five thousand Employment Tribunal claims are lodged weekly, one has to ask how many more thousands of employees’ invoke the grievance procedure, and lodge a letter of grievance? It is therefore imperative, that the grievance letter you lodge establishes facts from which your employer (and latterly Employment Tribunal) could conclude that there has been either direct or indirect discrimination, harassment, less favourable treatment or victimisation under the Equality Act 2010.

For “workplace stress” and “excessive workload” you will likely need to make a claim for ‘personal injury’ in a Court. However, should workplace stress have “materially contributed” to the “triggering” of a past or present disability” then you can bring your claim to the Employment Tribunal under the auspices of theEquality Act 2010.

Remember, that potentially everything you write to your employer, may be seen by a Judge at some future time. Therefore, what you have stated in your letter of grievance is vitally important as to establishing the “reasonable and practicable steps” your employer could have, should have, and ought to have undertaken. (See: Case Law – Igen v Wong 2005 – Hatton v Sutherland [2002] EWCA Civ 76 – Barber v. Somerset County Council 2004).

Should it become necessary to lodge an ET1 in an Employment Tribunal, you will have to prove (on the balance of probabilities) facts from which the Employment Tribunal could conclude, in the absence of an adequate explanation, that your employer has committed some “act” which amounts to a contravention of a statutory duty. I have written a Grievance Letter Template Aid to assist employees in writing a letter of grievance to enter the grievance procedure.