Grievances
For an employee a grievance procedure can be seen as a process that will ultimately bring a grievance to a conclusion. For employers it is a consultation and possible counselling process that will help to mend bridges and hopefully resolve a problem that might other wise end up as the subject of an employment tribunal hearing (e.g. for constructive dismissal or race, sex or disability discrimination)
Every employer should have grievance procedures in place and by law put those procedures in writing as part of the main terms and conditions of every employee's contract of employment. (see Standard PBS Staff Handbooks)
A grievance could be described as a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him and which could be brought before an employment tribunal. However, this still does not encompass all relevant complaints and employers should assume for practical purposes that any sensible complaint warrants attention as a formal grievance.
In Galaxy Showers Ltd v Wilson 2006 the Employment Appeal Tribunal (E.A.T) observed that the complaint about an action by the employer could also include a failure to take action. For example, there might be a failure by the employer to make reasonable adjustments in a case alleging discrimination under the Disability Discrimination Act.
Legislation
The Employment Act 2008 (the Act) introduced new provisions for dispute resolution in the workplace. As from 6 April 2009 employers and employees should comply with a relevant statutory code (the Code) or risk financial penalties if they end up before an employment tribunal.
The Code has been produced by ACAS and applies when disciplinary, dismissal or grievance issues arise. It can be viewed, together with guidance notes at www.acas.org.uk/dgcode2009-03-30
To encourage compliance with the Code the Act gives employment tribunals the discretion to vary awards for unreasonable failure to comply with it or any of it’s provisions – in the case of employers an increase of up to 25% on any awards made against them or in the case of employees a decrease of up to 25% from any award they receive.
The Act also amends employment tribunal powers by which they may reach a determination without a hearing, makes changes relating to conciliation by ACAS and allows tribunals to award compensation for financial loss in certain types of monetary claim.
Procedures
Procedures complying with the Code should be used in all grievance proceedings unless there are justifiable reasons for not doing so. Each step should be taken promptly by the relevant party and the employer should not unreasonably delay meetings, decisions or confirmation of those decisions.
The formal framework of the procedures contained in the PBS standard staff handbooks can be modified by employers so long as they meet at least the minimum requirements of the Code.
In the Employers General Rules set out in the P.B.S staff handbooks employees are encouraged to use the standard grievance procedure in cases of discrimination or sexual harassment. In larger organisations more specific and detailed procedures may be needed for these matters in which event the Employer should contact the Helpline.
Grievances concerning Health and Safety matters should be dealt with in consultations and/or meetings with employee Health & Safety representatives as well as with the individual employee.
Informal procedure
The Code encourages employers and employees to settle grievances informally in the workplace whenever it is possible to do so. If this process is used successfully following a written complaint by the employee it is important that the employer obtains written confirmation that the complaint has been resolved to the employee’s satisfaction and no further action is required.
Formal procedures
Written notice of grievance
If it has not been possible to satisfactorily resolve a grievance informally the employee should set out the nature of the grievance in writing and send it to the employer without unreasonable delay.
It is clear from recent cases that there is considerable flexibility about the form of the written grievance. It may be raised in a resignation letter. It can be raised by someone on behalf of the employee such as a solicitor and can even be raised after dismissal has taken effect.
All that the employee has to do initially is to identify his complaint in writing. He doesn’t even need to indicate that he wants or expects the complaint to be dealt with. He doesn’t need to actively invoke the grievance procedure.
The safest course for employers is to give careful consideration to any ‘moan’ that has been put in writing by an employee or someone on their behalf and that could give rise to a claim before an employment tribunal. The employer should treat it as a formal grievance unless he can get written confirmation from the employee that it is not intended to be such. The employer should not allow a ‘grievance’ to go unattended and only when he has written confirmation from the employee should he treat the grievance as at an end.
Grievance hearing
Following receipt of written notification of a grievance the employer should arrange a formal meeting without unreasonable delay. The hearing should be conducted properly and fairly. At the meeting the employee should be allowed to explain the nature of the grievance and how it might be resolved.
The employee must be given the opportunity to be accompanied to the meeting as outlined in the Code.
At the hearing the employer should:
1 introduce all those present
2 ensure that if accompanied the parties understand the extent to which the companion can address the hearing (see the Code)
3 ask the employee to explain the grievance and how it might be resolved
4 go through any evidence that supports the complaint
5 make written notes of relevant oral evidence and invite the employee to read and sign them as being a true record
6 consider if the meeting needs to be adjourned for any investigation that may be necessary
7 inform the employee that the decision will be notified in writing together with details of an appeal procedure
Employer’s decisions
Following the hearing the employer should consider the issues fairly and impartially before deciding on what action to take, if any, to resolve the grievance.
Without unreasonable delay the employer should notify the employee of his decision in writing and, where appropriate, what action he intends to take to resolve the grievance. The process for appealing against the decision should also be clearly explained.
Appeal hearing
Where employees wish to appeal against the employer’s decision they should do so without unreasonable delay by putting their grounds in writing and complying with the appeal procedures notified to them by the employer.
The employer should convene an appeal hearing without unreasonable delay and notify the employee of the time and venue. The employee should also be reminded of the statutory right to be accompanied to the appeal hearing in the same way as applied to the grievance hearing (see the Code)
Ideally the appeal should be heard by a manager who was not involved in the earlier grievance proceedings. Where this is not possible, however, the manager must clear his/her mind of what went before, concentrate on the grounds of appeal and reach an impartial and fair decision.
The employer’s decision on the appeal should be notified to the employee in writing without unreasonable delay.
Conciliation by ACAS
Where the above procedures have failed to resolve a dispute between the employer and employee and a tribunal claim seems likely it may be suitable for pre-claim conciliation. This is a free service provided by ACAS and is available to either employer or employee.
The first step is to contact the ACAS helpline on 08457 47 47 47 and an adviser will be able to identify whether the case is suitable for referral to the pre-claim conciliation service. If so you will be put in touch with a conciliator.
All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation.
grievances