Grievances procedures

It is almost certain that in any business, no matter how well run it is, there will be a need for the employer to take disciplinary procedures against an employee or a need for an employee to complain about some aspect of his or her employment. For this reason, if no other, it is vital that businesses have written disciplinary and grievance procedures, that the employees and managers are aware of and that these procedures are followed when problems arise. In this item we will look at the duty generally and at the requirements of a grievance procedure in particular. Issues dealing with disciplinary procedures will be dealt with elsewhere in this section. For more information, contact employmentlawhelp on 084 4804 4800.

The legal requirements of a grievance and disciplinary procedures

It is a requirement of the law that an employer informs all employees about the disciplinary and dismissal procedures which apply within the business and about how the employee can raise any issues about which they are unhappy and seek some form of redress from the employer. It is usual for this information to be included in the written statement which the employer provides to the employee or included in some other document which the employee is likely to read, for example a staff handbook or business intranet.

So far as the employer is concerned, failing to provide this information can be a costly omission and could result in a higher award being made against them should the employee be successful in a claim made to the Employment Tribunal – although it should be borne in mind that the employee is not able to bring a claim solely based upon the fact that the employer has failed to implement the appropriate procedures.

The law requires that, at the very least, an employer’s disciplinary, dismissal and grievance procedures must comply with statutory requirements. Thus, the employer may choose simply to implement the statutory minimum or may go beyond this and additional steps and procedures not required by law. If the employer does follow the latter route then nothing added must be incompatible with the legal requirements and all of the legal requirements must be incorporated.

It should also be borne in mind that disciplinary and grievance procedures do not in law form part of the employee’s contract of employment. The effect of this is that failure to have procedures cannot be relied upon by the employee to found a claim for breach of contract. However, if the employer incorporates the provisions into the contract of employment then they could be used to found a claim for breach of contract.

Duties on Employees

Just as there are duties upon employers to put in place and then follow procedures for discipline and dismissal, so too must employees follow the procedures when bringing a claim against the firm. It should also be remembered that an Employment Tribunal will not usually accept a claim against an employer unless the employee has followed the grievance procedure and waited for at least 28 days before filing the claim at the Tribunal.

However, it should be noted that these provisions apply only to employees and not to those who are genuinely sub-contractors, casual workers or self employed (see the item on “Contracts of employment and section one statements” in the Contracts section of this web site for further information in relation to this).

The grievance process

Thus, if an employee has a grievance with their employer, the starting point should, except in exceptional circumstances, be to try and sort it out informally by raising the matter with the appropriate person set out in the grievance procedure. This will normally be either a line manager or, if the problem is with that person, the next most senior person or other manager in the business. It is advisable to keep details of all communication which take place as these may be needed at a later – for example if the matter proceeds to the Tribunal.

In the event that the approach to the line manager does not work then the employee will need to follow the statutory grievance procedure (or the employers own procedure if appropriate). The statutory process comprises three main steps:

Step one – submitting a written statement

The employee sends to the employer a written statement (which can take the form of a letter) setting out details of the grievance. This should be as clear and concise as possible, contain only the key facts (including dates and times where appropriate) and have on it the date upon which it was sent. This is an essential step since the employee will not be able to make a claim to the Employment Tribunal until at least 28 days after this statement has been sent.

It might be useful if you set out in the statement what result you want to receive from the grievance – for example a pay increase, a reduction in workload, a change to unfair working practices or an investigation into the behaviour of a colleague or manager. You should also separate out different aspects to the grievance and provide appropriate evidence and/or dates and times in respect of each one.

Step two – meeting with the employer

Having received the grievance, the employer needs to arrange a meeting with the employee to discuss the grievance. This may be best arranged at a time after the employer has had a chance to look into the complaint made. It is normal for the employee to be given the opportunity to have someone accompany them to that meeting – for example a colleague or union representative. Bear in mind, however, that if the issues which are being addressed are highly confidential the employer may wish to exercise some right of veto over who can attend.

The employee must attend the meeting, and it must be held at a convenient time and place. If the employee fails to attend the meeting then an Employment Tribunal may take this into account at a later date and reduce any compensation that the employee might receive.

After the meeting, the employer must inform the employee of the decision which they have reached.

Step three – appealing the decision

If the employee is dissatisfied with the outcome of the meeting then they must appeal against the decision before taking a claim to the Employment Tribunal since failure to do so could result in a reduction in any compensation awarded.

If an appeal is intended then the employee needs to inform the employer in writing of their intention to appeal and should keep a copy of the letter for future reference. A further meeting will then need to be arranged by the employer so that the matter can be further discussed. Again there is a duty upon the employee to attend and, where possible, a more senior manager should be involved in the process.

Once this meeting is concluded, the employer must inform the employee of the final decision. If the employee is still unhappy with the outcome, then they can consider taking the matter forward to an employment tribunal.

Post-resignation grievances

If an employee wishes to raise a grievance after they have resigned from their employment then, in most cases, they will still need to follow the established grievance procedure. This, however, will not apply in cases where the employee has been dismissed – in which case the dismissal procedures should be used.

In certain circumstances the former employee can use a shortened two step procedure. To be able to rely upon this:

• the usual three step procedure must not have been used before the former employee left and,
• the former employer must agree in writing for the shorter procedure to be used.

Circumstances in which the formal grievance procedure need not be followed

In certain circumstances it may be appropriate for the employee not to follow the formal grievance procedure. Those circumstances can include:

• where the employee has been dismissed (other than in cases of constructive dismissal where the employee is regarding themselves as having been dismissed on account of the employer’s behaviour)
• where the employee has been harassed at work and he or she believes that they would be subject to further harassment were they to raise a formal grievance
• where the employee genuinely believes that in raising a grievance they would leave themselves open to the possibility of violence being used or threatened against them
• where it is not practical to go through the process – for example because of ill-health possibly brought about as a result of the matters complained of
• where more than one employee is involved in the same grievance and the matter is being dealt with by a trade union or by an employee representative on behalf of a number of employees

Call our experienced team of Disciplinary Solicitors for more information on 084 4804 4800