Guidance notes
A grievance procedure is a mechanism for employees to raise questions, concerns and/or grievances about their employment. First, it is important for good employee relations for employers to resolve grievances fairly and quickly. Second, there is an implied term in contracts of employment that employers must reasonably afford employees an opportunity to obtain redress for grievances. Breach of this term may entitle employees to resign and claim constructive dismissal. Third, the new statutory dispute resolution procedures (“the statutory procedures”) apply to certain grievances, which involve a complaint by an employee that could form the basis of a tribunal claim (see Chapter 3.3 of the Employment Guide). Failure to follow the statutory procedures can lead to an increase in the compensation awarded by a tribunal for a related tribunal claim. Fourth, the Employment Rights Act 1996 requires employers, regardless of size, to include within their written statement of terms and conditions the person to whom an employee can apply to raise a grievance and the manner in which such an application should be made. Some employers may need to amend their employment particulars to ensure that they comply with this requirement.
The following specimen grievance procedure takes into account the new statutory procedures and the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”), both of which come into force on 1 October 2004. For the reasons given in the above paragraph, we recommend that this procedure is followed even where a grievance does not trigger the statutory grievance procedure.
The ACAS Code recommends that in formulating or revising a grievance procedure, senior management should secure the involvement of employees and, where appropriate their representatives. It also emphasises the importance of ensuring that everyone in the organisation understands the procedure. It suggests that all employees should be given a copy of the procedure or have ready access to it, for instance by putting it on notice boards. In large organisations, the procedure could be included as part of the induction process. When an employee raises a grievance, whether formally or informally, the employer should check that the employee knows and understands the grievance procedure.
These notes and the footnotes should be deleted from copies given to employees.
Introduction
The purpose of this procedure is to ensure that you have an opportunity to raise formally with management any grievances relating to your job or complaints regarding the Company or any of its’ employees. The Company’s aim is to ensure that your grievance or complaint is dealt with promptly and fairly by the appropriate level of the Company’s management. The procedure does not confer any contractual rights. It only applies whilst you are employed by the company.[i]
It is essential to the proper working of this procedure that any employee raising a grievance should continue to work normally whilst the procedure is being followed.
[Where your complaint is of harassment or bullying, you should make use of the Company’s Dignity at Work/Harassment Policy.] [Where you wish to raise concerns about alleged wrongdoing that may amount to a protected disclosure under the Public Interest Disclosure Act 1998, you should make use of the Company’s Public Interest Disclosure Procedure.][ii]
Where the grievance relates to a disciplinary decision, the Company will usually ask you to use the disciplinary appeals procedure.[iii]
It will usually be better for all those involved if grievances can be resolved informally. This procedure should only be used where it is not possible to resolve an issue informally in discussion with your immediate manager.
[At each stage of the procedure, you may be accompanied by a fellow worker or trade union official who may address the meeting on your behalf but may not answer questions for you.] [iv]
Where a complaint or grievance relates to your immediate manager, the Grievance Procedure can be commenced [either] at the stage above that in which that manager would be involved [or by approaching the Personnel/Human Resources Department.] [v]
The Company will keep records of any action taken under this grievance procedure. These will be treated as confidential.[vi]
Stage 1[vii]
If you wish to raise a formal grievance, you should, in the first instance, raise it, in writing[viii] with your immediate manager. You must include a sufficient explanation of the basis for your grievance. Where a matter affects a group of employees, the Company may suggest that you use a spokesperson.[ix] You (or your spokesperson) will be invited to a meeting to consider the matter[x]. The meeting will normally be held within [5] working days of the formal grievance being raised[xi],[xii]. The manager will then normally respond to the grievance in writing within [5] working days of the meeting[xiii]. The manager will inform you in writing of your right to raise your grievance at Stage 2.
Stage 2
If the matter is not resolved at Stage 1, you or the spokesperson of a group may refer it in writing within [5] further working days to the next level of management [who may also involve a representative of the Personnel/Human Resources Department]. You or the spokesperson should set out the grounds for the complaint and the reasons for dissatisfaction with the Stage 1 response. You (or your spokesperson) will be invited to a meeting to consider the matter, normally within [five] [xiv]working days of the request being made. Following the hearing, the manager will normally respond to the grievance in writing within [10] working days of the meeting.[xv] The manager will inform you in writing of your right to raise your grievance at Stage 3.
Stage 3
If the matter is not resolved by a meeting at Stage 2, you or the spokesperson may refer it in writing within [5] further working days to the…[xvi] [who may also involve a representative of the Personnel/Human Resources Department]. You or the spokesperson should set out the grounds for the complaint and the reasons for dissatisfaction with the Stage 2 response. You (or your spokesperson) will be invited to a meeting to consider the matter normally within [10] [xvii] working days of the request being made. The decision of the… is the final stage of the [internal] [xviii] procedure and will normally be given in writing within [10] working days of the meeting.[xix]
[The external conference procedure may then be invoked].[xx]
Footnotes
[i] Whilst the statutory procedures continue to apply post-termination of employment, companies will usually prefer to follow the minimum statutory steps post-termination, rather than be bound by the more detailed requirements of this policy. For more information about the rules that apply post-termination, see Chapter 3 of the Employment Guide.
[ii] Ideally, at least in larger companies, there should be separate procedures designed specifically for complaints of harassment and bullying and complaints that might fall within the Public Interest Disclosure Act 1998, often referred to as the ‘Whistleblowers Act’. Where the Company does not have one or both of these procedures, references to the relevant procedure should be deleted.
[iii] In most cases, the statutory procedures allow grievances about disciplinary decisions to be dealt with as part of the disciplinary appeal process. However, if an individual were to raise a grievance that he/she was given a warning for a reason other than his/her conduct or performance e.g. because of his/her sex, race, trade union membership, sexual orientation etc., then it will not be enough to deal with the grievance at the disciplinary appeal hearing. The individual should either be allowed to pursue the matter through the grievance procedure or be given an opportunity to appeal the outcome of the disciplinary appeal hearing in so for as it relates to the grievance.
Although the statutory procedures only apply where a grievance is raised in writing, if an employee does raise a grievance verbally during a disciplinary hearing, it should be properly dealt with. Failure to do so could contribute to a finding of unfair dismissal, constructive dismissal or discrimination. Indeed, the ACAS Code provides that if an employee raises a grievance related to the manger handling the disciplinary case the employer should consider suspending the disciplinary procedure for a short period until the grievance can be considered and to consider whether another manager should handle the disciplinary case. It is recommended that employers seek the advice of their Association if an employee seeks to delay disciplinary proceedings in this or any other way.
[iv] The Employment Relations Act 1999 confers the right to be accompanied where the employee is required or requested to attend a grievance hearing and reasonably requests to be accompanied. A grievance hearing is defined in the Act as ‘a hearing which concerns the performance of a duty by an employer in relation to a worker’. Not all grievances will fall within this definition, for example a grievance about a pay increase is unlikely to be included unless there is a contractual right to a pay increase. Similarly, grievances relating to colleagues not getting on will not usually give rise to the right to be accompanied, provided that the grievance is not one of bullying or harassment. The right to be accompanied will also apply to any meeting to which the statutory procedures apply. Given the uncertainty of the statutory definition of a grievance hearing, it is best practice for employers to allow the right to be accompanied (if requested) at all stages of the grievance procedure, whatever the source of the grievance. However, employers should be aware that some unions might use this right as a tool to recruit members, with a view to obtaining statutory recognition for the union. Some employers may also wish to bear this in mind when deciding whether to refer to the right to be accompanied in the text of the grievance procedure. When considering whether to delete this clause, employers should note that, although there is no statutory duty to inform workers of the right to be accompanied, the ACAS Code recommends that employees should be advised of the right to be accompanied in advance of the hearing.
The definition of trade union official includes external officials of a union and shop stewards employed by other employers. (Lay union officials (shop stewards) must have received appropriate certification by their union.) The definition is not limited to unions recognised by the Company.
The companion may address the hearing, confer with the employee but not answer questions on the employee’s behalf. He or she can put the worker’s case, sum up and respond on the worker’s behalf to any view expressed at the hearing. He or she does not have the right to address the hearing if the employee does not want him or her to and cannot prevent anyone from making their contribution to the hearing. Details of a companion’s rights should be included in the body of the procedure. The ACAS Code states that it is good practice to let the representative participate as fully as possible in the hearing, including asking witnesses questions. The ACAS Code also suggests that employers should cater for any disability and, that if the chosen companion has a disability, this should be catered for.
[v] In some situations, workers may initially prefer to approach the personnel department rather than a senior manager about their grievance, particularly if they would like to discuss whether or how to take the matter further.
[vi] It is recommended that at all stages notes should be kept of the main arguments advanced and of any decisions made. If the parties were able to agree minutes of meetings under the procedure, such agreed notes would be of particular importance if an issue is unresolved and is taken to external stages of any collective disputes resolution procedure or to an employment tribunal. Where possible, it is a good idea to get employees to countersign any agreed minutes. If such records are held on a computer or in highly structured paper files, they are likely to fall within the scope of the Data Protection Act. Amongst other things, this requires that the records are accurate, up to date, relevant and held securely. This Act gives employees the right, on making a subject access request, to see records held about them, if they fall within its scope. The ACAS Code provides that copies of any meeting records should be given to the individual concerned though in certain circumstances some information may be withheld, for example, to protect a witness.
[vii] The statutory procedures only require one grievance meeting and one appeal. However, the ACAS Code states that it is good practice to allow a further appeal to a higher level of management, such as a director, in larger organisations. In small firms, the ACAS Code suggests that only one appeal is needed. Wherever possible, we would recommend that companies have two appeals, as set out in this specimen procedure.
[viii] Under the statutory procedures, generally an employee will be prevented from bringing a tribunal claim relating to the grievance until he or she has raised the grievance in writing and waited 28 days before presenting a claim. There are some exceptions to this rule, (see the EEF Guide, Dispute Resolution – a practical guide). However, even if the grievance is not raised in writing, the employer should still deal with it properly. The ACAS Code implies that the employer should inform the employee of the consequences of not putting their grievance in writing, but there is no statutory obligation to do so.
[ix] Both employer and employee are deemed to have complied with the statutory procedures if the grievance is brought by an appropriate representative (a trade union or other authorised employee representative) on behalf of two or more named employees, where certain conditions are met. Where the grievance concerns more than one employee, it may be advisable for the employer to suggest that an appropriate representative act as a spokesperson. If the employees then use an appropriate representative as spokesperson, the more onerous requirements of the statutory procedures fall away. The employer should insist that the spokesperson takes the necessary steps to take the grievance outside of the statutory procedures: he or she must write to the employer setting out the grievance and specifying in writing the names of two or more employees on behalf of whom he is raising the grievance. Of course, the employer should still deal with the grievance properly.
[x] Where the statutory procedures apply, a meeting must almost always be held. In exceptional circumstances, such as where either party believes that they might be exposed to a significant threat, such as violent, abusive or intimidating behaviour or they will be harassed, or where a step of the statutory procedures cannot be complied with within a reasonable period in circumstances beyond the control of either party e.g. where is long term illness, there will be no obligation to go through the statutory procedures, and therefore no obligation to hold a meeting. We recommend that you seek the advice of your Association before deciding not to hold a meeting. In addition, there is a modified statutory procedure which provides that, if both parties agree, no meeting needs to be held where employment has ended before the grievance has been raised or the procedure completed.
Where a meeting is held, it is good practice to confirm that the employee knows and understands the grievance procedure and to answer any questions the employee might have about it. It would be a good idea to give or send the employee a copy of the procedure when he or she initially raises the grievance.
For all meetings under this procedure, we recommend that the Chairman of the meeting introduces those present and explains their role. In particular, which member(s) of management will take the disciplinary decision . The rest of the meeting should be conducted in such a way as to allow both parties to explain their cases.
[xi] The objective of a grievance procedure is to resolve questions arising as speedily as possible and as near as possible to the point of origin. The time limits set for each stage should be as short as possible, bearing in mind the need for proper consideration of the issues, and for adequate briefing of management involved at the next stage. In addition, where the statutory procedures apply, each stage of the statutory procedures must be undertaken without unreasonable delay. If not, an employer will be in breach of the procedures. This will increase any compensation awarded in a subsequent successful tribunal claim by between 10 – 50%. In our view, the time limits (which are recommended by ACAS) proposed in this procedure will generally be reasonable, but the employer should always consider whether in the particular circumstances a shorter time limit would be appropriate. In addition, the meeting should be held at a reasonable time and place and it is good practice to agree the time and place with the employee where possible.
[xii] Where the statutory procedures apply, there are special rules about when an employer is obliged to rearrange a meeting, if an employee cannot make it for reasons unforeseeable at the time the meeting was arranged. For more information, see the EEF Guide, Dispute Resolution – a practical guide. In addition, the Employment Relations Act 1999 states that if a worker’s chosen companion is unavailable at the time appointed for the meeting but the worker proposes a reasonable alternative time in the next five working days, the meeting must be postponed to that time. If the worker is unable to propose an alternative time within the next five days, then the meeting may go ahead without the chosen companion after the five days. However, we recommend that you seek the advice of your Association wherever an employee does not attend a pre-arranged grievance meeting. There may be uncertainty as to whose fault it is that the employee was unable to attend e.g. was the location reasonable? The ACAS Code recommends that workers are told of their right to be accompanied when invited to attend the hearing.
[xiii] In our view, the specified time limits will normally be reasonable but the employer should consider whether circumstances require it to respond more quickly. If it is not possible to respond within the specified time period, the employee should be given an explanation of the delay and told when a response can be expected.
[xiv] See notes 11 and 12.
[xv] See notes 12 and 13.
[xvi] Except in very small companies, this senior member of management should be designated by job title, for example, General Manager, and not by name.
[xviii] Delete if the company does not have a collective procedure involving an external stage.
[xx] This should be deleted where there is no external procedure