Grievance procedures

Michael Corcoran, a solicitor in the Steeles employment team, offers advice on grievance procedures

Aims of the policy

The aim of a grievance procedure is to encourage consistency, transparency and fairness in the handling of workplace problems or complaints. It should allow the employer to seek an informal resolution where appropriate but allow for more formal proceedings should the circumstances demand.

Who is it for?

The statutory grievance procedures contained in Part Two Schedule 2 of the Employment Act 2002 set out the minimum requirements that apply to all employers regardless of size.

The grievance procedures must be followed in relation to "any grievance about action by any employer that could form the basis of a complaint by an employee to an Employment Tribunal".

A 'grievance' is "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him".

The Employment Tribunal can reduce the level of compensation in the event of non-compliance by the employee or increase the award should the employer fail to follow the procedure. Following the grievance procedure does not guarantee that a grievance is handled 'fairly', only that it is not dealt with in a procedurally unfair manner.

Section 35 of the Act requires all employers to provide employees with written particulars dealing with company grievance procedures. Failure to do so can result in the tribunal making an additional compensation award to a successful applicant.

How the grievance procedures interact with the statutory disciplinary procedures

In some circumstances it will not be immediately apparent whether the employer should be following the disciplinary or grievance procedures or both.

Where the employee's grievance relates to (contemplated) dismissal or disciplinary action, the appropriate forum for addressing concerns is the disciplinary hearing itself.

Where an employee claims that the relevant disciplinary action is itself an act of discrimination, it should be pursued under the grievance procedure as a separate cause of action.

Essential elements - the standard procedure

Below are the steps, which must be complied with when handling employee grievances and which must, as a minimum, be set out in the company grievance procedure:

Step one: statement of grievance

The employee must set out the grievance in writing and send it to the employer.

Step two: meeting

The employer must invite the employee to attend a meeting to discuss the grievance.

The meeting must not take place unless:

• the employee has informed the employer in writing, of the grievance
• the employer has had a reasonable opportunity to consider a response.

The employee must take all reasonable steps to attend the meeting.

The employer must inform the employee of his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.

Step three: appeal

If the employee wishes to appeal, he must inform the employer.

The employer must then invite him to attend a further meeting.

The employee must take all reasonable steps to attend the meeting.

After the appeal meeting, the employer must inform the employee of his final decision.

Essential elements - the modified procedure

The modified procedure is set out in Part Two Schedule 2 of the Act and should only be used where the employment has ended and the standard procedure has not already been completed. The obligation to investigate a grievance and follow a statutory procedure does not end with the employment. In such circumstances, the employee may not wish or be able to meet with their former employer, in which case the modified procedure should be followed subject to the express agreement of both parties in writing.

Many employers are reluctant to follow the modified procedures or accede to a request from a former employee that they be applied. The fact that the employee is seeking to dispense with the meeting suggests that they are not looking to resolve their problem or look for a compromise or solution, but are instead looking further down the line to a future tribunal claim Accordingly, employers should look to follow the standard procedures whenever reasonably practicable to do so.

Step one: statement of grievance

The employee must set out in writing:

• the grievance; and
• the basis for it,

and send it to the employer.

Step two: response

The employer must set out his response in writing and send it to the employee.

General requirements and underlying principles

Part Three Schedule 2 of the Act sets out the basic requirements that will apply at all stages of the procedures:

• Steps must be taken without unreasonable delay;
• Timing and location of meetings must be reasonable;
• Meetings must be conducted in manner allowing both parties to express views;
• Where there are appeal meetings, a more senior manager should represent the employer than the manager that held the first meeting.

Similarly, the underlying principles of the Act should be reflected in any company policy and apply at all stages of the procedure:

• No action should be taken against any employee until their case has been investigated;
• The parties should be advised in writing of the nature of the complaint and given the opportunity to state their case before any decision is made;
• The employee should have the right to be accompanied by a work colleague or trade union official;
• A grievance hearing should be adjourned if further investigation is required;
• An employee must have the right to appeal any decision reached at the hearing.

Best practice

Correct use of the procedure

Whenever an employer receives a letter from a (former) employee alarm bells should ring.

Handling grievances informally

The first priority should be to speak with the individual and informally resolve the problem, making sure they understand that the formal procedure is available if they wish to use it. Make a note of the date when the issue was discussed and what action was agreed. Confirm this in writing to the employee.

Handling grievances - formal proceedings

Step one - grievance raised by employee in statement of grievance

Employee must set out details of the grievance, informing the employer what the basis for raising the grievance is. This must be sent to the employer.

Step two - examining the evidence

Employer must carry out all reasonable investigations and take all necessary witness statements before considering response.

Step three - arranging the grievance meeting

• Provide employee with reasonable written notice of the meeting, together with all appropriate documentation.
• Inform employee of right to representation.

The employee must take all reasonable steps to attend the meeting.

Step four - conducting the meeting

Employee must state their case, commenting on all the evidence, calling any witnesses and challenging any evidence provided by the employer.

The company should put forward any explanation / evidence it may have concerning the grievance at the meeting.

Step five - informing the employee

Within a reasonable time, inform employee of decision in writing and their right to appeal against the decision.

Place ALL documents in the employee's personnel file as appropriate.

Step six - appeal

• The employee must notify the employer, in writing of their wish to appeal and provide the basis of the appeal.
• The employer must invite the employee to a further meeting.
• The appeal must be heard by a director of the company not involved in the earlier investigation and grievance proceedings.
• The director must inform the employee in writing of the final decision.

Grey areas

There remain many grey areas:

• At what point does an appraisal or review become a disciplinary meeting?
• What constitutes "reasonable" in terms of notice, timing, date and location of meetings, as well as reasonable attempts to attend arranged meetings?
• What constitutes an "unreasonable delay"?
• How will appeal hearings work in small, single director or owner managed businesses where that director or owner is directly involved in the incident?

Probably the most confusing aspect of the grievance procedure is the overlap it has with the new disciplinary procedures (see www.personneltoday.com/33394.article) and how the two separate streams will interact.

Employer protection

Follow the correct grievance procedure as described above.

Always keep accurate records of grievance matters as they may be needed at tribunal.

Ensure those who will deal with issues on the 'front line' are aware of the procedure and how to implement it.

Key legislation

• Employment Act 2002
• Employment Act 2002 (Dispute Resolution) Regulations 2004
• Employment Rights Act 1996 and 1999

Links

• ACAS www.acas.ork.uk
• Department of Trade & Industry www.dti.gov.uk

This note is for general guidance only and should not be relied upon without advice about your specific circumstances.