GRIEVANCES (EMPLOYMENT LAW)

We represent and both employees and employers, giving advice and guidance on grievance processes, and employment law generally.

GRIEVANCES: GETTING IT RIGHT FROM THE EMPLOYEE/WORKER’S VIEW AND THE EMPLOYER’S VIEW – an article by David Welch

What it is a Grievance: It is a complaint/concern normally made in writing by an employee/worker after a work problem has not been resolved despite them having raised it with their line manager, or with the person complained about.

What is a Grievance procedure: A Grievance procedure is the formal way for an employee/worker to raise a problem or complaint to their employer with the expectation that it will be dealt with in accordance with a fair procedure.

The Law-The ACAS Code of Practice was issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. The current guidance came into effect on 11 March 2015. It includes practical guidance for employers, employees and their representatives and principles for handling grievance and (disciplinary) situations at work,  and includes those working from home. Acas Code of Practice on disciplinary and grievance procedures. 

However, just because an employer fails to follow the code does not, render those responsible i.e. an individual a person or the organisation, being liable to court/tribunal proceedings. Nevertheless, Employment Tribunals will take the Code into account when determining individual Employment claims. N.B the Code does not apply to redundancy dismissals or when fixed-term contracts  are not renewed. ACAS also advises that an employer should respond to an “informal grievance” This suggests that even if a Grievance notification form is not completed or if the word “grievance” is not used the employer should still treat it as a grievance.

Despite there being plenty of written advice, on the ACAS and government websites and blogs/podcasts available on the Internet many employee/workers complainants fail to obtain their desired solution to their grievance, and that many companies/organisations fail to handle such matters promptly, or fairly, or in accordance with their own or ACAS procedures. The Do’s/Don’t’s lists below should assist in achieving better and fairer outcomes for all concerned.

DO’s/DON’T’s-EMPLOYEE /WORKER

1. An informal approach by the employee may be the best first step (and may be necessary under the  Grievance procedure) e.g. Someone has shouted you at work. You wish them to apologise for their behaviour either in person, or in writing (always more difficult as people are increasingly fearful that litigation may follow). 
2. If the informal approach is unsuccessful then submit a short and succinct statement/grievance using the organisations grievance template, if they provide one, and attach any exhibits (but keep exhibits/documentary evidence to a minimum at the first stage). Always include numbered paragraphs in the grievance as this makes it easier to keep track of/cross reference subsequent correspondence. 
3. Concentrate on the facts and avoid emotive opinion (e.g. do not call someone a liar but instead state you have reasons to believe what they have stated is untrue). Do not use capital letters or underlining, to emphasise points as this can be interpreted as shouting.
4. Obtain advice and representation from a union if possible or from a trusted colleague, or from an external lawyer. N.B. most employers do not permit lawyers to attend and represent at a grievance hearing but that does not prevent the employee from obtaining good advice from their chosen lawyer, and seeking assistance from them in the preparation of materials/witness statements etc for a successful grievance.
5. Do not delay in bringing a grievance. Some grievance procedures have a strict time limit in which to bring such a claim (usually three months after the date of the last incident complained of), otherwise the employer can justifiably refuse to consider the grievance.
6. Content of Grievance: Do not suggest that your employer dismisses somebody else but it is okay to go as far suggest to your employer that a matter ought to be investigated under the disciplinary procedure.
7. Remedy: If you wish to suceed it is imperative to ask for a realistic remedy. 
8. Before submitting a grievance carefully read the Grievance procedure, which should either have been included with your Statement of Terms and Conditions of employment (contract) or be easily available on the company Internet, or obtainable from Human Resources.
9. Many complainants who raise grievances are unsuccessful at the first stage and then unsurprisingly abandon their complaint but remain aggrieved. However, at this stage it is always important to reassess the prospects of success, and also to be aware that most Grievance procedures have one or more further appeal stages, where the complainant remains dissatisfied with the outcome at the first stage.

EMPLOYERS DO’s/DON’TS

1. Ensure that all you employees are provided with a copy of the Grievance procedure when commencing their employment, and given easy access to the current Grievance procedure via a company Intranet, or via Human Resources.
2. The Grievance procedure should commit to addressing grievances fairly and consistently.
3. Responding to a grievance: Ensure adherence to the procedure including time scales to avoid appeals on grounds of procedural irregularity.
4. Ensure the employee knows of their right to be accompanied by a relevant person to the grievance hearing so that the decision is not subject to appeal on the grounds of unfair procedure. 
5. Ensure the employee knows of their right to be accompanied by a relevant person to the grievance hearing so that the decision is not subject to appeal on grounds of unfair procedure. 
6. Ensure that the panel/person determining the grievance has sufficient documentary information including any witness statements and the determination is provided to the employee as soon as possible.
7. Advise the employee at the hearing and in writing of their right to appeal in line with the procedure. 
8. Ensure that existing employees are made aware or any change/updating to the existing procedure.
9. If the employer does not have a Grievance procedure it should follow the ACAS Code.
10. Retain a list and copies of all correspondence and documentation of the grievance in case the employee decides to lodge a claim in the Employment Tribunal or in another court/tribunal. 
11. Grievances are not necessarily concluded just because the employee resigns. or is dismissed (check and follow the procedure on this point).

Comments: In our experience it is remarkable that many employers either fail to respond at all to grievances, or fail to respond within the grievance procedure’s time frames or otherwise in a reasonable time frame. 

These failures can give rise to grievances about grievances. It is also possible that employees can lodge a grievance about the way a disciplinary process is being handled against them.

Employers are increasingly using external organisations to investigate and handle the processing of grievances (and disciplinaries). This may be part of the fashion for outsourcing or it may be a mechanism for avoiding blame if there are subsequent complaints about the application of the procedure.

GUIDANCE TO BOTH EMPOYERS AND EMPLOYEES

If in doubt about the pros and cons of bringing grievances/responding to grievances we can advise on the prospects of success, and on drafting/amending the grievance, and providing a response to the employee/employer following receipt of the grievance and the  investigation.

Our Legal Services

We can conduct investigations on behalf of employers.

We can offer a mediation service/a mediator to both parties to enable them to reach an agreement. 

We can advise/represent either the employer or the employee if the matters are likely to, or have resulted in an Employment Tribunal case or a County/High Court claim.

As Direct Access lawyers we can deal with the courts/tribunals in the conduct of all necessary litigation procedures from start to finish.

Call us in relation to any employment law issue, whether you are an employer or employee, on 0845 652 0451 or use our Contact Form

Article by David Welch