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It’s all about your grievance

1. What is a grievance?

A grievance is any concern, problem or complaint that an employee raises with you. It could cover anything from arguments over who washes up the tea mugs to resentment over favouritism or poor management. Grievances relating to changes in working practices, terms and conditions (including pay), and problems over personality clashes are common. Other problem areas are health and safety issues, workplace restructuring or other organisational changes, and discrimination.

Grievances could also be about an employee’s relationships with another worker – perhaps on grounds of another worker’s personal hygiene, attitude, or capability for the job, or because of bullying or harassment.

It could concern their relationship with clients or customers, or with suppliers, or those they deal with when working at another business’s premises.

2. Do we have to have a written grievance procedure?

A written procedure for dealing with grievances helps make it clear to employees how to raise a grievance, and what will happen if they do. It also makes sure employees can find out their rights, such as the right to be accompanied at grievance hearings.

You may wish to provide for external mediation for certain types of grievance, or if a grievance cannot be resolved informally, before resorting to formal procedures. A written procedure can explain how and when mediators may be used.

In practice a grievance often precedes a resignation and a possible claim for discrimination or constructive dismissal, and using a fair, reasonable procedure may actually prevent Tribunal claims.

The 2009 Acas Code of Practice on Disciplinary and Grievance Procedures (see 3) recommends that you introduce a written, specific and clear grievance procedure. If you unreasonably fail to follow the good practice and advice in the Code, you risk an uplift of up to 25% in any Employment Tribunal award made against you.

In any event, all businesses, no matter how small, are required to include in their employees’ written statements of terms and conditions:

3. I’ve heard there is an Acas Code of Practice on grievance procedures. Do I have to follow it?

All employers are required to act fairly and reasonably when responding to a grievance claim. There is an Acas Code of Practice on Disciplinary and Grievance Procedures that provides basic, practical guidance and principles to help you (and your employees and their representatives). It sets out the basic requirements of fairness and, for most cases, provides a standard of reasonable behaviour. The Code also applies to disciplinary issues.
If the Code applies (see 5) and you unreasonably fail to follow any of its provisions, an Employment Tribunal can increase any award it makes against you by up to 25%. This could be particularly expensive in discrimination cases, where there are no limits on the compensation that can be awarded. However, failure to follow the Code is not, of itself, automatically unfair.

When deciding whether or not you have unreasonably failed to follow the Code’s provisions, the Tribunal will take into account all the circumstances, including your size and resources. Sometimes it may not be practicable for you to take all (or any) of the steps set out in this Code. But take legal advice if you do not feel you can follow the Code for any reason, or you risk the 25% uplift.

You can find help on the Code in a supplemental guide (Discipline and Grievances at Work: The Acas guide). This provides good practice and advice, including examples, and sample grievance procedures and other documents. It is not part of the Code and Employment Tribunals are not required to take it into account when deciding whether you have been fair and reasonable, but it would be unwise to ignore what it says. The Guide is available on the Acas website.

4. I’ve already got a grievance procedure. Do I need a new one?

It depends. If your existing procedures follow the Acas Code of Practice on Disciplinary and Grievance Procedures, then no. But if not, and you think an Employment Tribunal could decide your failure to follow it is unreasonable, then yes, because that means you risk a 25% uplift in any award made against you in a Tribunal claim relating to the grievance.

Your procedures should be reviewed anyway – at least every year – to make sure that they remain relevant and are still working effectively. Any proposed changes should also be discussed with employees and any representatives.

If you are planning to overhaul (or introduce) grievance procedures speak to Adrian Berkeley at Berkeley Solicitors.

5. Surely there are circumstances when I can just ignore the Acas Code?

The foreword to the Acas Code on Disciplinary and Grievance Procedures (see 3) suggests that employers might want to Details of the grievance (and disciplinary) procedures that apply to employees, or an indication of where employees can find and read them.

The name or title of the person to whom employees can apply if they want redress for grievances (or are dissatisfied with disciplinary decisions).

Establish separate procedures for dealing with issues involving bullying, harassment or whistleblowing. But it stresses that, if they do, the basic principles of fairness and reasonableness set out in the Code should still be followed, with any necessary adaptations. Take advice.

The Code does not apply to grievances raised on behalf of two or more employees by a union or other official workplace representative – a collective grievance – which should be handled according to a separate collective grievance process.
Consider whether you need one.

6. How do I recognise when an employee has submitted a grievance?

The Acas Code on Disciplinary and Grievance Procedures (see 3) says that, if a problem cannot be resolved informally, an employee should submit a grievance in writing without unreasonable delay to a manager who is not the subject of the grievance. It should set out the nature of the grievance.

However, you need to be careful. In a series of cases under the pre-2009 rules, the Employment Appeals Tribunal decided that grievances under the old rules did not need to be specifically identified as such to be effective, or even to come from the employee. Employers therefore found many documents treated as formal written grievances by Employment Tribunals, even though it was not immediately apparent that they were. For instance, it decided in various cases:

So if any sort of written document from an employee, from anyone acting on their behalf, or from anyone else, indicating that they have a complaint or grievance, you had better assume it is a formal written grievance and treat it as such.

7. Can an employee ignore my grievance procedure and go straight to the Employment Tribunal?

Yes. Employees can bring a claim arising from a grievance, or for constructive dismissal, before the Employment Tribunal whether or not they have followed your grievance procedure.
However, if the employee has unreasonably failed to follow the provisions of the 2009 Acas Code of Practice, the Tribunal may reduce any award made against you by up to 25%.
Under new rules, employees bringing a claim will now have to pay an up-front fee, with further charges payable if the case goes ahead (unless they meet eligibility criteria for remission). An employee will also have to comply with the latest Acas compulsory mediation.

8. What if the person raising the grievance is no longer an employee?

You do not have any statutory obligation to hear a grievance filed by a former employee after they have left.

9. What should we include in our grievance procedure?

The procedure should let employees know how to make a grievance and how you will deal with it. The following are crucial elements:

  • The word ‘grievance’ did not have to be used in a document.
  • A resignation letter setting out problems could be considered a grievance.
  • An employee did not have to follow the grievance procedure their employer had established when submitting a grievance.
  • The grievance did not have to come directly from the employee – for example, it could come in the shape of a letter from their solicitors or notes made by a manager following a meeting with an employee to discuss allegations that they have been bullied.
  • Employees should let the employer know their grievance, in writing.

10. How do we go about drawing up and introducing a grievance procedure?

It is advisable to get it drawn up by specialist employment lawyers. However, you can find the crucial elements set out in the 2009 Acas Code of Practice on Disciplinary and Grievance Procedures and sample grievance procedure for small organisations in the guide to the Code.
The Code recommends that employees (and their representatives, if appropriate) should be involved in the development of the grievance procedures. If your rules are seen to be sensible and necessary to the success of the business, they are likely to be observed anyway; but if employees have had a chance to discuss the reasons for them and the way in which they will work in practice, they are much more likely to buy into them – and much less likely to condone other employees breaching them. You do not need consent, however, for your procedures to apply.

Include training of managers (and any employee representatives) as part of your introduction process. Ensure they are familiar with the procedure, and can conduct (or represent employees at) grievance hearings. Training them jointly may be appropriate, if you think it will result in a common understanding and approach on both sides that could help make the procedure run more smoothly in practice.

11. A grievance has been raised in the middle of a disciplinary procedure – what do we do?

If an employee raises a grievance during a disciplinary process the, disciplinary process can be suspended temporarily while the grievance is dealt with.

Alternatively, if the grievance is related to the disciplinary matter, you may want to deal with the grievance concurrently with the continuing disciplinary process.

12. An employee is saying he is going to file a grievance. Can we settle matters without going through the formal procedure?

Yes, the Acas Code of Practice on Disciplinary and Grievance Procedures (see 3) positively encourages you to. It says, many potential grievance issues can be resolved informally, particularly in smaller firms. The Code aims to stop grievances escalating, and stop acrimony in the workplace because matters get too formal too quickly. It points out that a quiet word is often all that is required to resolve an issue, especially those involving friction in working relationships.

However, where an issue cannot be resolved informally then it may have to be pursued formally.
Another possibility before resorting to a formal procedure is mediation, where an independent third party is brought in to help resolve the problem. The third party could be someone within the business who is not involved in the issue complained of, or it could be an external mediator.

13. An employee who has lodged a grievance says he has a right to a ‘companion’ at the meeting.
Is that true and what does the companion do?

Yes, it is, if the grievance meeting is about a duty you owe to your employees, whether contractual or because of a statute.

So any issue regarding your duty to honour their contract of employment or your duties under health and safety law would be Employers should carry out any necessary investigations, to establish the facts of the case.

Employers should hold a grievance meeting, to give the employee an opportunity to put their grievance, and their suggested solutions.

Employers should allow employees to be accompanied at the meeting.

Employers should allow an employee to appeal if not satisfied with the outcome.

The companion can be:

The union does not have to be recognized, and the employee does not have to be a member of it.

The employee must make a “reasonable request” first, saying who they want their companion to be. This can be given orally. Take advice if you think your employee’s request might be unreasonable – for example, the companion’s presence would prejudice the hearing, or they are from a remote geographical location even though someone on site is suitable and willing to act. Your rules may give employees the right to bring other companions, such as a legal representative.

Consider special provisions for disabled workers, allowing them to bring a companion (such as a support worker) with knowledge of their disability and its impact, so you meet the requirement to make “reasonable adjustments” for disabled workers.

The Acas Code of Practice (see 3) recommends a companion be allowed to participate as fully as possible in the hearing – to confer with the employee, address the hearing to put and sum up the worker’s case, to respond on behalf of the worker to any views expressed at the meeting and to ask questions of witnesses. The companion does not, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it, or prevent the employer from explaining their case.

If another of your employees acts as companion, you must give them a reasonable amount of paid time off to allow them to brief themselves on the case, attend the hearing and confer with the employee before and after it. Make sure you hold the hearing so the companion can attend. If he cannot, the employee is allowed to suggest a reasonable alternative within five days of your proposed date and you must comply or face a penalty of two weeks’ pay in an Employment Tribunal.

There is nothing to stop the person who will be conducting the meeting from contacting a companion they do not know, in advance.

14. We are going to have to conduct a formal grievance procedure. What do we have to do?

A formal meeting must be held as soon as possible after you receive a grievance – the Acas Code on Disciplinary and Grievance Procedures (see 3) recommends that it be held within five working days. The manager who will conduct the meeting (or you) and your employee (and any companion – see 13) should make every effort to attend the meeting.

Before the meeting, research whether similar grievances have been raised in the past, and how they were dealt with, to ensure consistency. Consider administrative arrangements – does the employee need an interpreter, or special arrangements because they (or their companion) are disabled, for example.

You may want to carry out an investigation into the facts behind the grievance, or adjourn the meeting to carry it out, particularly if the grievance concerns another employee. In that case the investigation will usually start with a discussion with that other employee about the issues raised. If that does not resolve them, you may wish to involve an independent mediator. Take care that any discussion with the employee being complained about does not inadvertently turn into a disciplinary meeting, at which they have the right to be accompanied. Also remember that grievances should be kept as confidential as possible.
At the meeting, your employee should have an opportunity to explain their grievance and suggest how they would like it resolved. The meeting is not a disciplinary hearing, and the aim is to reach a solution through discussion and dialogue.

The employee should also feel they have had a proper opportunity to get their grievance heard. Close the meeting by a colleague a trade union representative who is not employed by the union but has been certified in writing by it as competent an employed official of a trade union summing up the points made and telling the employee when they can reasonably expect a decision (given any time limits in your procedure). The suggested procedure for small organisations in the guide to the Acas Code (see 3) suggests that this should be within 24 hours.

Resist the urge to give your decision immediately, at the meetings, as this can give the impression you had made up your mind beforehand, or are making a snap judgement.

Once you have decided on the action you need to take (if any), tell the employee in writing, as soon as possible. Your letter should tell the employee that they can appeal if they are not happy with the action you are proposing, and how and when the action will be taken, monitored and reviewed. If you are not proposing to take any action, explain the reasons why.
Ask an employee who is not connected to the case to keep a record of the meeting and act as witness to what is said.

15. We’ve given our decision but an employee says they want to appeal. What happens now?

An employee can appeal against the action you propose to take by giving you the grounds of their appeal, in writing, as soon as possible.

You should then hear the appeal without unreasonable delay, telling the employee where and when it will take place, and reminding them that they have a statutory right to be accompanied at the hearing. The appeal should, if possible, be heard by a manager who is more senior than the manager who made the decision being appealed (or, if that is not possible, by a different manager), and who has not previously been involved. In any event, the appeal must be conducted impartially.

As soon as possible, notify your decision on the appeal to the employee in writing. If this is the end of the grievance procedure (and, in the case of a small firm, it usually will be), say so in your letter. However, in larger firms there may be a further right of appeal – to a director, for example. If so, notify them of their further rights.

For further advice contact Adrian Berkeley on 0161-371 0011 or Remember, we’re on your side!

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