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Grievance Overview

Grievances are problems or complaints raised by employees in relation to aspects of their work.  You should use grievance procedures to deal with grievances fairly, consistently and expeditiously.  Issues that may cause grievances to be raised by employees include:

  • Terms and conditions of employment.
  • Health and safety.
  • New working practices.
  • The working environment.
  • Work relations.
  • Bullying and harassment.

This list is not exhaustive.

Dealing with grievances in the workplace

In the first instance, employees should aim to resolve their grievances informally with their line manager.  However, if a grievance cannot be settled informally, the next stage is for the employee to raise the grievance on a formal basis. 

Fair procedure

The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the following general principles for dealing with grievances:

  • Issues should be raised and dealt with promptly and the parties should not unreasonably delay meetings and decisions.
  • You should act consistently.
  • Any necessary investigations should be carried out to establish the facts.
  • You should allow employees to be accompanied at any formal grievance meeting.
  • Employees should be allowed to appeal against any formal decision made.

Thus, it is recommended you go through the following five steps:

  1. The employee should let you know the nature of the grievance – if it is not possible to resolve a grievance informally, the employee should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance.  This should be done in writing, setting out the nature of the grievance.
  2. Hold a meeting with the employee to discuss the grievance – you should arrange a formal grievance meeting with the employee without unreasonable delay.  Both parties should make every effort to attend the meeting and the employee should be allowed to explain their grievance and how they think it should be resolved.  You should also give consideration to adjourning the meeting for any investigation that may be necessary.
  3. Allow the employee to be accompanied at the meeting – the employee is allowed to be accompanied at the meeting (and at any appeal meeting) by a fellow employee, a trade union representative or an official employed by a trade union.
  4. Decide on appropriate action – you should decide on what action, if any, to take to resolve the grievance and your decision should be communicated to the employee in writing without unreasonable delay.  You should also inform the employee that they can appeal if they are not content with the action taken.
  5. Allow the employee to take the grievance further if not resolved – the employee should let you know the grounds for their appeal without unreasonable delay and in writing and appeals should be heard without unreasonable delay and at a time and place notified to the employee in advance.  The appeal should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case.  The outcome of the appeal should be communicated to the employee in writing without unreasonable delay.

It is important that both employer and employee follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.  This is because if a claim that was the subject of the grievance comes before an Employment Tribunal and either party has unreasonably failed to comply with any of the provisions of the ACAS Code, the tribunal has the discretion to adjust any award by up to 25% (depending on which party was at fault).  However, the tribunal will only make an increase or a reduction to any award if it considers it is just and equitable in all the circumstances to do so.

In addition, case law has shown that when a grievance has been badly handled and it relates to an act of discrimination, the employee could successfully argue that the act and the grievance together form one continuing act of discrimination. This could also be sufficient to breach a fundamental term of the contract and result in a constructive dismissal claim.

Case law has also shown that any procedural flaws in dealing with a grievance can amount to a detriment in itself, for the purposes of a discrimination claim, even if the removal of the flaw would have made no difference to the outcome in any event.

Wherever possible, a grievance should be dealt with before the employee leaves employment.

Raising a grievance

An employee should normally raise a grievance with their line manager, unless someone else is specified in the employee’s contract of employment.  If the grievance is against the line manager, you should permit the employee to raise the grievance with that person’s manager or with another manager.   Sometimes, in very small businesses, it may not be possible to find an appropriate ‘independent’ manager to hear the grievance and/or to hear any appeal.  In these circumstances, the relevant manager must act as impartially as possible.  Independent arbitration, using an external arbitration organisation, is often an appropriate means of resolving grievance issues in small businesses if both parties expressly agree to this.

Managers should attempt to deal with all grievances that are raised, whether raised verbally or in writing, although only written grievances properly submitted in accordance with your grievance procedure invoke the provisions of the ACAS Code and need to be dealt with formally. 

For employees whose first language is not English or who have difficulty expressing themselves on paper due to a disability, you should encourage them to seek help in formulating their grievance, for example from a work colleague or trade union representative.  Alternatively, you may have to assist the employee to formulate their written grievance.

Grievance meetings

On receiving a formal written grievance, a manager should write to the employee inviting them to attend a formal grievance meeting as soon as possible.  The letter should also advise the employee of their statutory right to be accompanied at the grievance meeting (see below).  It is good practice to agree the date and time of the grievance meeting with the employee.  The timing and location of grievance meetings should also be reasonable.  Grievances should be treated confidentially.  The meeting should be conducted promptly.  One of the requirements of the ACAS Code is that each step in dealing with a grievance must be taken without unreasonable delay.

The grievance meeting must take place before any decision is made on the grievance.

At the grievance meeting, the employee should be allowed to explain in detail their complaint and say how they think it should be resolved.  There should be a meeting minute-taker present.

If it transpires that further investigation is necessary, the grievance meeting should be adjourned to carry out that further investigation.  Investigation might include obtaining statements from any available witnesses.  It is good practice to ensure that all witness statements are signed and dated by the person making the statement.

You must give the grievance careful consideration before responding.  You must not prejudge the situation.  Examples of prejudgment are:

  • Holding a grievance meeting only to hand a pre-written decision letter to the employee at the end of the meeting.
  • Handing down your decision at the end of the grievance meeting without going back to carefully consider and weigh up all the facts.

After the grievance meeting, you should respond in writing to the employee’s grievance within a reasonable time setting out what action you intend to take, if any, to resolve the grievance and letting the employee know that they can appeal against your decision if they are not satisfied with it.  What is considered reasonable will vary from business to business but, as a broad rule of thumb, five working days is normally long enough.  If it is not possible to respond within this timeframe, the employee should be given an explanation for the delay and told when a response can be expected.

Where the employee is unable to attend the grievance meeting for health reasons, consider presenting them with alternative options such as holding the grievance meeting on neutral territory or at the employee’s home, holding the meeting by telephone, permitting the employee to submit a more detailed written grievance statement and/or allowing the employee to send along a representative to act on their behalf.

It is worth noting that where an employer asks a third party, such as an HR Consultant, to deal with the grievance on its behalf, by giving the third party that authority (or merely holding out the third party as having that authority) this will bind the employer to the decision. This could be problematic if the third party agrees any contractual changes.

Appeals

If an employee informs you that they wish to appeal against the grievance decision, you should arrange an appeal meeting without unreasonable delay.  The appeal should be dealt with impartially and, where possible, by a manager who has not previously been involved in the grievance procedure in relation to the employee.  At the same time as inviting the employee to attend an appeal meeting, you should remind them of their right to be accompanied at the appeal meeting.

As with the original grievance meeting, you should write to the employee with a decision on their grievance appeal as soon as possible.  You should also advise the employee if the appeal decision is the final stage of your grievance procedure.

Some larger organisations may permit a further appeal to a higher level of management.  Always check the employee’s contract of employment and ensure you adhere to the grievance procedure contained therein.  If you fail to do so, you will be in breach of contract and the breach could be sufficiently serious so as to entitle the employee to resign and claim constructive dismissal if they have sufficient continuous service.

Employers are required to include details of their grievance procedures as part of the written particulars of employment, which must be provided to all employees within the first two months of their employment. 

The statutory right to be accompanied

Employees have a statutory right to be accompanied at grievance meetings, including grievance appeal meetings.

Where an employee is invited to attend a grievance meeting and the employee reasonably requests to be accompanied, you must allow the employee to be accompanied by an individual who is a fellow employee, a trade union representative or an official employed by a trade union. 

That individual must be:

  • Selected by the employee.
  • Permitted to address the meeting in order to do any or all of the following:
    • Put the employee’s case;
    • Sum up that case;
    • Respond on the employee’s behalf to any view expressed at the meeting.
  • Permitted to confer with the employee during the meeting.

However, the companion has no right to answer questions on the employee’s behalf, nor to address the meeting if the employee indicates at it that he or she does not wish the companion to do so.

Whilst you are free to select an initial date for a grievance meeting, you are required to re-schedule it where the employee’s chosen companion is not available on the date proposed for the meeting.  The employee must propose an alternative time which is reasonable and which falls within a period of five working days (excluding weekends and Bank Holidays), beginning with the first working day after the date proposed by you.  If the employee’s chosen companion is a fellow employee, they must be given time off work during working hours to accompany the employee.

Special cases

Grievances about bullying, discrimination, harassment and whistle-blowing are highly sensitive issues.  Larger organisations often have separate grievance procedures for dealing with these issues and, if you do have separate procedures, you should use them instead of the normal grievance procedure.  If you do not have separate grievance procedures for these issues, use your normal grievance procedure but take care to deal with complaints of this nature as sensitively and confidentially as possible.

Where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance.  However, where the two issues are related, it may be appropriate to deal with them concurrently.

Finally, the provisions of the ACAS Code do not apply to collective grievances raised on behalf of two or more employees by a recognised trade union representative or other appropriate workplace representative – those grievances should be handled in accordance with the employer’s collective grievance process.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.