There are practical and legal reasons why a company would wish to deal quickly and fairly with any individual grievances that its employees may have in relation to their employment. (Collective grievances affecting groups of workers are dealt with elsewhere in this Guide (collective grievances ) ).
From a practical viewpoint, a contented workforce is more likely to be a productive workforce. If grievances are not dealt with, they may not only affect individuals' work performance, but may also escalate into a larger problem or even a collective dispute. Further, all employees are legally entitled, under an implied term in their contract of employment, to have their grievances dealt with promptly. If a company refuses to address a serious grievance that an employee wishes to raise, it may find itself defending an unfair constructive dismissal claim. In particular, a failure to deal with a complaint that an employee is being harassed or otherwise discriminated against on the grounds of sex or race, or for a reason relating to his or her disability, may lead to a claim of unlawful discrimination.
It is also in employees’ interests to attempt to settle any grievance they have with their employer before launching a claim to an employment tribunal. This is because the Employment Act 2002 lays down a minimum grievance procedure that employees must follow before they have the right to make a tribunal claim, summarised in the box below. For these purposes, a grievance is any complaint that an employee has about action that his or her employer has taken or is considering taking in relation to him or her, and that could be the basis of a tribunal claim.
A tribunal will not accept a claim from the employee arising out of the employer’s action unless the employee has already submitted a grievance under the statutory procedure and waited at least 28 days. Further, if the employee did not complete the minimum procedure before launching his or her claim, the tribunal will usually reduce any compensation it awards by between 10 and 50 per cent.
It is also in an employer’s interests to observe the minimum grievance procedure: if it was the employer’s fault that the procedure was not completed before the employee’s claim was launched, the tribunal will usually increase any compensation it awards by between 10 and 50 per cent.
Minimum grievance procedure
In summary, the minimum grievance procedure is as follows:
- The employee must submit his or her grievance to the employer in writing. There are no technical requirements to be met: all that is required is that the employee should submit a written complaint to the employer. There is no need for the employee to state in terms that he or she is raising a grievance. Further, the complaint can be contained in any document, including the employee’s letter of resignation or a letter from someone acting on the employee’s behalf, such as a solicitor or trade union representative.
- The employer must then invite the employee to attend a meeting to discuss the grievance. The meeting must not take place until the employee has informed the employer what the basis is for his or her grievance and the employer has had a reasonable opportunity to consider its response. The timing and location of the meeting must be reasonable and the employee must take all reasonable steps to attend.
- After the meeting, the employer must inform the employee of its response to the grievance and notify the employee of his or her right to appeal against its decision.
- If the employee informs the employee he or she wishes to appeal, the employer must hold a further meeting, which the employee must take all reasonable steps to attend. As far as reasonably practicable, the appeal meeting should be led by a more senior manager than the manager who conducted the original meeting.
- After the appeal meeting, the employer must inform the employee of its final decision.
- The employee has the right to be accompanied ( the right to be accompanied ) at the grievance meeting and any appeal meeting.
- Each step of the procedure must be taken without unreasonable delay, and meetings must be conducted in a way that enables both employer and employee to explain their cases.
- If it becomes not reasonably practicable for the employer, the employee or his or her companion to attend a meeting for an unforeseeable reason, such as transport difficulties or illness, the employer is obliged to reschedule the meeting, but only once.
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In certain limited circumstances, the minimum procedure need not be followed. These include where:
- the employer or employee has reasonable grounds for believing that beginning or pursuing the procedure would be likely to result in a significant threat to a person or to property (beyond the usual stress and anxiety likely to be involved in any grievance);
- the employee has been harassed and has reasonable grounds to believe that beginning or pursuing the procedure would result in further harassment;
- it is not practicable for the employer or employee to begin or complete the procedure within a reasonable period because, for example, of illness.
Even individuals who are no longer employed by the employer are expected to follow the minimum grievance procedure before launching a tribunal claim.
In certain circumstances, however, a shorter procedure may be followed, which simply involves the ex-employee writing to the employer setting out his or her grievance and the basis of it, and the employer responding in writing. This modified procedure applies if the employer did not know about the grievance before the individual left, or the standard grievance procedure had not been started or completed before the individual’s employment ended, and, in either case, the individual and the employer agree that the modified procedure should apply. The modified procedure also applies if the ex-employee has not yet put his or her grievance in writing and, since leaving the job, it has become not reasonably practicable for him or her to do so.
The minimum procedure need not be followed if a written grievance has been lodged on behalf of two or more employees (whose names have also been supplied in writing) by an official of a recognised union or an elected or appointed employee representative who has authority to represent the employees in collective grievances. In this situation, the individuals’ grievance should be dealt with on a collective level.
In the light of the legal requirement for a minimum grievance procedure, it is advisable for a company to adopt a formal procedure for dealing with grievances. A specimen procedure is included in this guide.
Under the Employment Rights Act 1996, all employers must inform all employees in writing, within two months of starting work, of the person to whom they can apply if they have a grievance, and how the application should be made. If there are any further steps after making the application, such as an appeals procedure, employers must also inform employees of those steps, or refer them to a reasonably accessible document where they can be found. There is no obligation under the Employment Rights Act to give employees details of how to raise a grievance in relation to health and safety. It would nevertheless be advisable for a company to include these details, in order to meet its duties under health and safety law to provide a safe system of working.
A grievance procedure can form part of an employee's contractual terms. It might, for example, be set out in the employee's written contract or might be incorporated into the contract through a reference to the document where it can be found. It is, however, inadvisable for a grievance procedure to be contractual, for two main reasons. If the procedure is contractual, the company cannot amend it without the employee's consent, unless the procedure itself makes clear that the company may amend it from time to time at its discretion. Secondly, if a company failed to follow a contractual grievance procedure, the employee could resign and claim unfair constructive dismissal (constructive dismissal ), on the basis that the company had acted in serious breach of the employee's contract. As noted above, however, it is an implied term in every contract of employment that an employer will provide an employee with some means of raising a grievance, even if it has no express contractual procedure.
When drawing up a grievance procedure, it is worth noting the guidance given by the Advisory, Conciliation and Arbitration Service (ACAS) in its Code of Practice on disciplinary and grievance procedures ( Disciplinary and grievance procedures ). It is not unlawful for an employer to disregard this Code, but it must be taken into account by an employment tribunal if it is relevant to the claim that the tribunal is considering.
The Code suggests that employers involve workers and their representatives as well as all levels of management when drafting a procedure. All employees should have the procedure explained to them. The Code suggests that this is particularly useful for employees who do not speak English well or have difficulty in reading. Employees should either be given a copy of the procedure or be told where they can find it, such as on a noticeboard. New employees can be introduced to the procedure as part of their induction process.
Special steps may need to be taken to ensure that employees whose first language is not English are able to raise a grievance effectively, possibly by providing translation facilities. It may also be necessary to modify a grievance procedure to ensure that disabled employees have effective access to it. Employers who fail to consider making reasonable adjustments for disabled employees may be acting unlawfully under the Disability Discrimination Act 1995 (duty to make adjustments ).
For example, it may be reasonable to allow an employee with a learning disability to be accompanied by a friend from outside the company at a grievance hearing, even if this would not normally be allowed under the procedure. Or it may be reasonable to provide an employee with a sight impairment with information on the grievance procedure in an alternative format, such as large print or Braille. The ACAS Code advises that employers should also cater for any disability that an employee's companion at the grievance hearing may have.
Larger companies may wish to consider adopting a separate procedure for dealing with grievances relating to discrimination, bullying or harassment, as these subjects raise particularly sensitive issues. A bullying and harassment model policy and procedure is included in this Guide.
The EEF national procedural agreements for the avoidance of disputes provide a mechanism by which employees may raise issues of concern, if necessary through an external conference. Those companies that observe these national procedural agreements may wish to consider whether they should be the only procedure for raising grievances, or whether a separate avenue should also be provided.
As explained below, employment law gives special protection to workers who 'blow the whistle' on certain forms of wrongdoing ( Protection for 'whistleblowers' ) or who raise concerns about, or take action to deal with, health and safety hazards (health and safety concerns). Companies may wish to bear these special protections in mind when drafting or operating grievance procedures.
The ACAS Code suggests that most grievances are most effectively resolved informally, by the worker discussing the problem with his or her line manager. This informal approach can lead to a speedy resolution of the problem. As soon as the complaint is put in writing, however, you are required to follow the statutory minimum grievance procedure.
If the grievance cannot be resolved informally or if it is put in writing, then it should be dealt with under a formal grievance procedure. The Code's guidance is summarised below.
ACAS guidance on grievance procedures
- Raising a grievance: Employees should normally raise their grievance with their line manager. If the complaint is against the line manager, the employee should approach another manager, where practicable. Managers should deal with all formal grievances raised, even when they are not put in writing. However, if a grievance is not put in writing, the employee will not be able to bring an employment tribunal claim ( Minimum grievance procedures ). Employees who have difficulty in putting their grievance in writing, for example because their first language is not English or they have difficulty in expressing themselves on paper, should be encouraged to seek help from a work colleague, employee representative or Citizens Advice Bureau.
- Grievance meeting: On receiving the grievance, the manager should invite the employee to a meeting to discuss it as soon as possible, and tell the employee he or she has the right to be accompanied ( the right to be accompanied ). The timing and location of the meeting must be reasonable, and the Code suggests that they should be agreed with the employee. The Code also suggests that, where possible, the employee’s chosen companion at the meeting should also have a say in the timing. If the employee’s companion cannot attend on the proposed date, the meeting may be postponed to a date no later than five days after the original date. It is important that the meeting is not interrupted, and that the worker’s grievance is dealt with confidentially. The worker should be allowed to explain their complaint and say how they think it should be settled. The employer should then respond. If necessary, the meeting should be adjourned to enable the employer to get advice. After the meeting, the employer should put its response in writing within a reasonable time, normally within five days. The employee should be informed of the right to appeal against the decision.
- Appeals: If the employee lodges an appeal, the employer should arrange an appeal meeting with another manager, where possible a more senior manager than the one that conducted the original meeting. The employee should be reminded of his or her right to be accompanied ( the right to be accompanied ). The employer should write to the worker with its response as soon as possible, normally within five days. In large organisations, it is good practice to allow a further appeal to a higher level of management.
A worker has the right to be accompanied at a grievance hearing if he or she reasonably requests to be, both under the Employment Relations Act 1999 and the statutory minimum grievance procedure established by the Employment Act 2002. Details of this right are given elsewhere in this Guide ( the right to be accompanied ). A company is, of course, free to operate a grievance procedure that gives its employees a more generous right to be accompanied than that laid down in the statutory rules. It may, for example, decide to allow employees a wider choice of companion, or allow companions to play a fuller role in the hearing.
The ACAS Code suggests that a written record should be kept of the nature of the grievance raised, the company's response, any action taken and the reasons for it, whether there was an appeal and the outcome, and any subsequent developments. Since these records are personal data, they must be kept in a way that complies with the requirements of the Data Protection Act 1998. In particular:
- they must be accurate;
- they should be no more extensive than is necessary;
- they must be kept confidential;
- they should be retained no longer than is necessary; and
- the employee has the right to have access to them (except to the extent that they reveal personal information about another person who does not consent to disclosure).
The Code advises that copies of meeting records should be given to the worker although in certain circumstances, such as to protect a witness or comply with the data protection legislation, some information might be withheld.