Grievance policies

Grievances are normally concerns, issues or problems which are raised by an employee with their employer.

Such issues can range from allegations of unfair or discriminatory treatment, issues involving other colleagues or even complaints about a breach of the aggrieved employee’s terms of employment.

Employers will want to be able to effectively deal with these types of issues however they will need to ensure that in doing so they handle such matters in a fair and appropriate way.

We are experienced and able to assist your organisation with all aspects of employee complaints and grievance related matters. We can help by:

• Drafting grievance policies which reflect your organisation’s requirements
• Assisting and advising you on both informal and formal grievance procedures and how to minimise against any risks to the organisation
• Advising you on complex issues which may arise during the grievance process such as multiple grievances being raised or serious allegations of discrimination or whistleblowing
• Drafting letters, scripts for meetings (e.g. investigation meeting questions, grievance hearing points and appeal meeting points) and guiding you through the process
• Assisting and advising on any further action your organisation may need to consider as a result of the grievance process and outcome
• Negotiating and drafting exit packages
• Providing training to your organisation on dealing with employee concerns and grievance processes including how to carry out a grievance investigation and conduct a grievance hearing
• Assisting with ACAS and/or the Early Conciliation process
• Defending against claims for unfair dismissal and constructive dismissal, discrimination and breach of contract.

Grievance policy

A good starting point for an employer will be to have clear, comprehensive and non-contractual policies and procedures in place which demonstrate how grievance issues will be dealt with. By making such policies non-contractual this gives employers the ability to change content making it easier to update them from time to time although the employer should still ensure it complies with the ACAS Code (see section below). It also ensures that a failure to follow the grievance policy does not amount to an actionable breach of contract.

ACAS Code

The ACAS Code of Practice on disciplinary and grievance procedures (the Code) sets down the minimum requirements for both disciplinary and grievance processes. Employers should ensure, as an absolute minimum, their own grievance procedures reflect the provisions of the Code.

Whilst failure to follow any part of the Code does not make an employer liable to proceedings, if an Employment Tribunal claim is brought by an employee, the Tribunal must take the Code into account when considering whether an employer has acted reasonably or not. Additionally, if an employee is successful with their claim then the Tribunal can adjust the amount of the award by up to 25% if the employer has failed to comply with the Code. It can also reduce any award by up to 25% where the employee has unreasonably failed to follow the Code (e.g. if the employee unreasonably fails to appeal a grievance outcome).

Informal grievance process

In some instances, a grievance which is raised by an employee may concern a relatively minor issue. If so, it may be appropriate for an employer to deal with the issue or concern raised on an informal basis.

It could be the case that the employee may raise issues informally e.g. speaking to their Line Manager at an appraisal or other meeting. If an informal complaint is raised then the employer will still need to ensure that they take the matter seriously.

Dealing with the matter informally may involve:

• Setting up a discussion or meeting with the employee
• At the meeting, letting the employee explain their concerns and propose any solutions that they might have
• Look to agree what further action or steps will or can be taken and the reasons for taking such steps
• Arranging a follow up with the employee to check whether the problem is resolved or if the issue is still ongoing. If the matter persists then the employer should check that any steps/actions agreed at the previous discussion have been taken
• The employer should record or document the discussions with the employee in case the issue continues or a formal grievance is submitted

The idea of an informal approach is to enable both employer and employee to work together to find an acceptable and quick resolution to the issue. If it is not possible to resolve the matter this way then the employee may wish to proceed to raise a formal grievance.

Formal grievance process

Where an informal approach does not work, the employee has serious grievance concerns or they simply do not want to resolve the matter informally, an employee may submit their complaint via the formal grievance process.

Where an employee does this, they should raise their concerns as soon as possible and outline to the employer, in writing, what the problem is.

Once the employee’s complaint has been lodged, the employer must follow a fair procedure in line with the ACAS Code.

Dealing with a formal grievance will usually involve the employer:

• Carrying out a fair and reasonable investigation, considering all evidence and information available.
• Arranging and holding a grievance meeting with the employee to discuss their concerns and how they would like these to be resolved.
• Notifying the employee of their right to be accompanied at the grievance meeting in good time before the meeting so the employee can make necessary arrangements. The companion will normally be limited to a trade union representative or a work colleague however in some circumstances an employer may allow a family member or friend where the employee requests this.
• Carrying out any further investigation if required further to discussions at the grievance meeting. If this happens the employer should let the employee know and give a proposed timeframe of when it expects to come to a decision.
• Making a decision. Once the employer has considered all of the information, it should make a decision as to the outcome of the employee’s grievance and communicate this to the employee without delay. The employer should decide on the best outcome based on the findings from meetings and investigations, what is fair and reasonable and what the employer has done in previous similar cases.
• Offering a right of appeal. This is so the employee can raise an appeal against the outcome where they feel the outcome does not resolve the problem or if they consider that any stage of the grievance procedure was wrong or unfair.
• Considering further action as a result of the grievance outcome. Where the grievance is upheld, the employer may need to consider taking further steps to resolve the matter which could include, for example, taking disciplinary action against another employee.

After the grievance process including any appeal has been completed this will usually signal the end of the process. With that said, the employee may not be happy with the outcome of the appeal and depending on the circumstances, may end up bringing a claim in the Employment Tribunal. If the employee decides to do this then they will need to first notify ACAS and if agreeable, participate in a period of early conciliation which can in some cases bring about a resolution for both parties.

If both employer and employee are unable to reach an agreement whilst in ACAS conciliation, a certificate will usually be issued and the employee will then need to consider issuing a claim in the Employment Tribunal. There are strict time limits for bringing claims which the employee will need to observe and if a claim is submitted out of time then it is highly unlikely the Employment Tribunal will deal with it (unless the employee can show very good reasons for bringing their claim out of time).

Failure to deal with a grievance

Where an employer does not properly deal with a grievance or complaint raised by an employee then this can result in a number of problems for the organisation including reduced workforce morale, increased conflict in the workplace, increased sickness absence, increased employee turnover and an increased risk for the employer of having to defend Employment Tribunal claims.

Further, an employer needs to ensure that they deal with an employee’s grievance in accordance with the ACAS Code as if it does not then this can have an impact on the amount of compensation awarded to an employee where they are successful with their claim in the Employment Tribunal. An Employment Tribunal can award up to a 25% uplift on any compensation to an employee where an employer has unreasonably failed to follow the Code.