This article explores the need for employers to have a grievance policy, the risks of not having a grievance policy (or not administering one properly), and some typical issues that employers face when navigating this area.
What is a grievance?
ACAS defines grievances as concerns, problems or complaints that employees raise with their employers. They can be about any subject-matter relevant to the working relationship – including pay, employment rights, or disputes at work.
What is grievance procedure?
A grievance procedure is a ‘complaints process’ that an employer sets out in writing. It governs all aspects of how the grievance will be dealt with.
As a first step, the grievance process might promote informal resolution by advising that the employee raise the issue with their line manager, or an alternative individual that has the means to resolve the issue in question, though clearly in more serious circumstances a formal, standardised process should be followed.
For employers, the most authoritative source relating to the key components of a fair grievance process is the ACAS Code of Practice on disciplinary and grievance procedures (Code of Practice), and the key steps include:
- The employee setting out the nature of the grievance.
- The employer holding a meeting with the employee to discuss the grievance (and allowing the employee to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union to such a meeting, and any further meetings – as is their statutory right).
- The employer deciding on appropriate action.
- The employer allowing the employee to take the grievance further by way of appeal if the grievance has not been resolved.
In carrying out the above, the employer is obliged to act promptly and consistently, and investigate the points of grievance where necessary.
Should our workplace have a grievance procedure in place?
Yes. There are a variety of commercial, regulatory and legal reasons why employers of all sizes should have some level of written grievance procedure. For instance:
- An effective grievance policy provides an 'Early-warning system' for employers – encouraging communication between the employer and the employee in question in the first instance (and reducing the risk of the matter being brought in front of a tribunal, a newspaper or another third party). This provides the employer with a chance to right any wrongs and take any necessary steps to protect its business. Early identification and resolution of problems can also help the employer to avoid bad feeling, loss of talent through staff departures, litigation, regulatory action, and reputational damage.
- The employment relationship between an employer and employee is principally governed by the contract between these two parties. The courts have implied a term into all contracts of employment to the effect that an employer will be expected to 'reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievances that they may have'. Similarly, neither employer nor employee must without reasonable and proper cause conduct itself in a manner that is calculated or likely to destroy or seriously damage the relationship of trust and confidence between them.
An employer’s failure to listen and take appropriate action via a proper grievance process may constitute a breach of these implied terms, and could lead to the resignation of employees (and costly constructive dismissal/constructive unfair dismissal claims).
- An employer is obligated to set out the key particulars of an individual’s employment at the start of the relationship. As part of this, a note specifying how grievances can be made, and the person to which grievances should be directed, must be included.
- Although breach of the Code of Practice (explored above) will not provide an employee with grounds for a stand-alone claim, a tribunal can take the Code of Practice into account when assessing the level of compensation to award following a successful employment tribunal claim such as an unfair dismissal claim. If an employer has unreasonably failed to follow the Code, a tribunal can increase the compensation award by up to 25%. Equally, if the employee has unreasonably failed to follow the Code, e.g. by submitting a grievance before bringing a claim, a tribunal can decrease compensation awarded by up to 25%.
Creating your workplace grievance policy
As seen above, the absence of a workplace grievance policy can cause or worsen a multitude of issues in the workplace. If you would like assistance in preparing a grievance policy specific to your business, please contact a member of our team.
Two common FAQs
This section explores some of the Frequently Asked Questions that our team receives from employers in relation to the operation of grievance procedures:-
Q: An employee has raised a grievance and wants to bring their partner/friend/lawyer into a grievance meeting. As an employer trying to undertake a fair procedure, but equally wanting to avoid getting 'ambushed', should we allow this?
A: An employee’s statutory right to be accompanied only goes so far as to allow a fellow worker, a trade union representative, or an official employed by a trade union to accompany the employee into grievance meetings. The employer should always advise the employee of this right (and do so in writing). In some circumstances, an employee may request to be accompanied by a different (or additional) individual and it is up to the employer to decide whether or not to allow this. The employer may consider that it will be beneficial to the process to have a different individual attend the meeting with the employee – or it may consider that having a different individual in on the meeting may be unhelpful to the process (e.g. by being disruptive, or inflaming the issues rather than encouraging resolution). In deciding whether to allow other individuals in on the meeting(s), the employer should act fairly and consistently, as per the ACAS code.
Employer should take particular care when dealing with such requests from employees that are 'disabled' within the meaning of the provisions of the Equality Act 2010. An employer has a legal duty to make reasonable adjustments to assist disabled employees when those employees are put at a substantial disadvantage by arrangements at work. As such, failing to allow a disabled employee to be accompanied by a carer, or by someone that may help them to 'make their case' in grievance meetings, may (depending on the circumstances) constitute a failure to make reasonable adjustments, which brings a risk of an associated claim being brought in the employment tribunal. Employers should be alive to this potential argument, even if it is not one that the employee raises in their initial request.
It is difficult to think of any circumstances where it would be sensible for the employer to allow the employee’s lawyer to attend a grievance meeting. This is likely to make the meeting more adversarial and lead to a legal ‘arms’ race’ since the employer is likely to want their own lawyer to be present as well.
Q: We are putting an employee through a disciplinary process, but they have raised a grievance. Do we need to put our disciplinary process on hold whilst the grievance is investigated?
A: The Code of Practice states that 'Where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.'
It all depends on the facts. In some cases, an employee will raise a grievance as a delaying tactic, and it may be preferable to deal with both the grievance process and disciplinary process at the same time to avoid delays. In other cases it will be right to ‘park’ a disciplinary pending following the grievance process. In yet other cases if the disciplinary process has begun it may be appropriate to complete it even if this means that the outcome is determined before a grievance is dealt with.
For further advice on the law surrounding recruitment or any other Employment Law issue, please contact a member of our Employment Law team. Girlings has offices in in Canterbury, Ashford and Herne Bay.
