Not every issue raised by unhappy employees can be resolved informally. And while every business should have a formal written grievance procedure, sometimes employers need more practical legal advice in handling employees’ grievances. Our employment law solicitors explain how employers can respond to a grievance sensitively, fairly and effectively at any level in the workforce.
In this article we’ll be covering:
- Types of grievance in the workplace
- How to reduce employees feeling the need to bring a formal grievance
- The grievance procedure – how to ensure a fair process
- Can an employer refuse to hear a grievance?
- Time limits on responding to grievances
- Grievances during notice periods or after leaving employment
- Possible grievance outcomes
- Handling grievances during a disciplinary procedure
- Grievance hearings, decisions and appeals
- Employment Tribunals and grievances
Types of grievance in the workplace
A grievance is a problem, concern or complaint made by an employee to their employer, relating to their employment. A grievance will generally be raised by an employee if they feel that they are being treated unfairly or something relating to their employment is not to their satisfaction and requires to be dealt with.
A grievance might relate to:
• The job role itself and what the employee is expected to do. This may range from a change in job description to issues with workload
• Terms and conditions of employment, which could be a change they are unhappy with, or the fact that there has been no change to benefits received by the employee where they feel one is warranted, or because they are unhappy with their working conditions; and
• The way an employee feels that they are being treated at work. which might include an employee feeling bullied, harassed, victimised or that they are in some way being discriminated against.
All grievances should be taken seriously, however they are presented. For example, a grievance may be set out clearly in a letter entitled ‘grievance’ or it may be contained in a letter or resignation, in comments relating to feedback on a performance review or verbally in conversation with a manager. In all such cases a manager should respond promptly and if unsure they should clarify whether the employee wishes to raise a formal grievance in respect of the remarks they made and provide the employee with a copy of your business’ grievance procedure.
How to reduce employees feeling the need to bring a formal grievance
Whilst there will always be some grievances which need to be aired, you can minimise the number of formal grievances brought by employees by implementing certain actions and having an open culture. For example:
- Your grievance procedure should always encourage informal conversations with the employee’s line manager, as the first step. If the employee’s line manager is the subject of the complaint, you could suggest that another member of staff of the same level of seniority or higher should be contacted, to see if the matter can be resolved without the need for a formal process. It will of course depend on the subject matter of the complaint as to whether this is appropriate. For example overtly discriminatory behaviour in the workplace would need to be dealt with formally, whereas a single unkind action or remark may be able to be discussed informally or mediation could be used to resolve the issue quicker and to rebuild working relationships and improve future communication.
- Verbal grievances should be taken seriously, and a measured and thorough response should be provided. Just because a grievance is not put in writing or a complaint in writing does not specifically state that it is a grievance, does not mean it does not require a response and/or investigation. If your response is verbal, a written note of your response should be made on the employee’s HR file.
- To reduce formal grievances, communicate clearly with employees. Specifically, this means giving reasonable notice of and where possible involvement in any changes which will be happening in the workplace. Having individual contacts (whether this be line managers or human resources) that employees can easily and confidentially approach to discuss any concerns, when they first arise and an open-door policy for informal discussion, can also be helpful to diffuse any tension at an early stage. This may all avert the need for formal action. Through clear communication you can easily establish whether an employee truly wants a matter to be investigated and resolved or whether they would really rather part company with your business under the terms of a settlement agreement. This can save time and resources and mean that you know what is motivating the employee’s actions.
Some grievances may be much more specific, so it pays to take the time to pre-empt potential dissatisfaction with clearly designed policies, procedures and documentation:
- Issues relating to remuneration – You can reduce grievances relating to employees seeking a higher salary, comparable salary to a colleague or complaint relating to benefits by clearly setting out in an employee’s contract of employment and policy documents how and when salary and benefits will be assessed and any increase awarded, as well as how expenses and bonuses operate. If there are particular salary bands within your business, these should be easily justifiable and circulated to staff at regular intervals. This transparency clarifies the situation and lets the employee know where they stand. Any update to policies should be provided promptly to employees and ideally have involved employee consultation at the planning stage. If you would like assistance in drafting a pay and benefits policy our specialist employment lawyers can help.
- Bullying grievances –clear anti-bullying and anti-harassment policies, which are distributed or made available to every member of staff and make clear that there is zero tolerance when it comes to bullying can assist in reducing this type of grievance. A clear and up-to-date disciplinary procedure that is consistently implemented if there is evidence of bullying or harassment, should also be made available to all staff so that it is clear what the consequences of breaching anti-bullying policies are.
- Working conditions grievances – As an employer you are required to maintain a safe and healthy workplace environment and conduct workplace risk assessments at regular intervals to ensure that the working environment remains safe and healthy and any hazards are dealt with quickly. Fire regulations must be abided by and you should have at least one first aider and may need more depending on the size of your business. Working areas should be kept as clean and tidy as possible and temperatures in the workplace regulated as far as is reasonably possible.
- Workload grievances – Employees often raise grievances about their workload, which can also sometimes be linked to remuneration. This is particularly common where an employee’s workload has increased due to another employee leaving, because a replacement is not found; or where an employee's workload increases because redundancies are made to save costs. Again, making employees aware of what is happening and being prepared to offer incentives to those employees who are remaining with the business, can help an employee feel more appreciated and less likely to lodge a grievance.
The grievance procedure – how to ensure a fair process
In order to ensure a fair grievance process, familiarity with and following the ACAS Code of Practice on disciplinary and grievance procedures (ACAS Code) is essential and reading the accompanying guidance is also strongly recommended.
The easiest way to make sure that the ACAS Code is consistently followed, is to have a clear written grievance procedure. It is mandatory to have a written grievance and disciplinary policy. If you would like this to be drafted or updated, please do not hesitate to contact our employment lawyers. It is critical that you not only have a written policy, but that managers and Human Resources are aware of the policy and how it operates in practice. This may mean that managers and Human Resources are provided with training and regularly tested on the policy to ensure their understanding.
You should make clear to all parties involved in the process that what is discussed will so far as possible remain confidential so that they feel able to safely share any relevant information they have. It should also be made clear to staff who are part of the process, that they should not discuss the matter with others outside of the meetings held with the business, so that you can get all accounts first hand without other staff having been influenced. It is important to have clear written notes of all meetings to ensure a contemporaneous, reliable record. More detail about meetings is set out below, but consistency, non-bias and fairness must prevail throughout the process. Grievances must always be dealt with sensitively and employees should be clear on the expected behaviours towards each other, clients and customers to reduce the instances of complaint.
Can an employer refuse to hear a grievance?
Generally speaking you have a duty to listen to any formal grievance raised by an employee and it may be worth taking legal advice from a specialist employment solicitor if you are thinking of not hearing a grievance. Having said that you do not have to hear the same grievance from the same employee, the original decision is final unless successfully appealed by the employee. If there is evidence that a grievance is being brought by an employee in bad faith against the business or another staff member, then you could refuse to hear the grievance. A full risk assessment of this should be carried out first and the evidence relied on, that a grievance is in bad faith, should be irrefutable, which could be difficult.
Time limits on responding to grievances
Whilst no statutory time limit is set, all grievances should be responded to ‘without unreasonable delay’ according to the ACAS Code. Even the Guidance to that Code does not provide explicit guidance on how many days this means. There is however, a suggestion, that a meeting should be arranged within five working days from receipt of a grievance. You may set out in your own grievance procedure the timescales for each aspect of the process, but you may want to allow for some flexibility as any stated timescales must be abided by. This is particularly the case where a grievance procedure is contractual, as failure to follow your grievance procedure in that case would be a breach of contract, which could lead to a breach of contract claim by an employee.
Grievances during notice periods or after leaving employment
When a former employee raises a grievance you do not necessarily have to hear it. There is no explicit requirement for an employer to follow a grievance procedure in cases involving former employees in the ACAS Code. Case law has also not clarified whether failing to follow the ACAS Code in the case of a grievance from a former employee is in breach of the ACAS Code. It is advisable to assess the risks and benefits of hearing the particular grievance in the particular circumstances.
You might want to consider whether an employee was still employed when they raised the grievance, whether that employee is likely and in time to bring a claim against your business and the nature of the grievance. If the grievance appears to relate to something which requires investigation to prevent a negative effect on remaining employees; a grievance should be heard. For example, evidence from a grievance could be used in disciplinary action against another remaining employee, if relevant and persuasive of wrongdoing by that employee.
Where an employee is still serving notice when they bring a grievance, it is more likely you will want to investigate it, as the grievance may have been brought as a pre-cursor to a constructive unfair dismissal claim. Also, if an employee is still serving notice, the complaints they make are likely to be more recent and relevant to the business, than those of someone who has already left the company and so more likely to be in the best interests of the business and remaining staff to investigate that grievance.
Possible grievance outcomes
Once a grievance has been heard, it will either be upheld or not and the employee should be informed of the outcome in writing without unreasonable delay after the hearing. If the grievance is not upheld, the employee should be offered the right to appeal and advised of the timeframe and method of doing this and to whom they should appeal, if they choose to do so.
If the grievance is upheld, or partially upheld, the employee should be informed of the action the company intends to take to resolve the grievance. If the grievance is not fully resolved, again, the employee should be informed of their right to appeal.
Handling grievances during a disciplinary procedure
Where an employee raises a grievance during a disciplinary procedure, the ACAS Code either allows for the disciplinary process to be temporarily suspended so that the grievance can be dealt with, or if the grievance and disciplinary cases are related both issues can be dealt with concurrently. Which option to choose is at your discretion, as the employer, but you must take action to investigate a grievance raised during disciplinary proceedings so as not to breach the ACAS Code, which will be taken into account when assessing compensation.
Grievance hearings, decisions and appeals
An investigation stage as the first formal stage in the grievance procedure is advised, so that an employer can have an initial discussion with an employee about their concerns and if required, adjourn the meeting and fully investigate the complaint. The employer and employee will then have the opportunity, to collect information including witness statements to fully prepare for the formal grievance hearing.
In terms of a first grievance hearing, a meeting should be held ‘without unreasonable delay’ and all parties should make every effort to attend. The employee should be offered the opportunity to attend with either a colleague or Trade Union Representative. There may be rare circumstances where an employer may allow a friend or family member to attend with the employee if this would help overcome any disadvantage in the process caused by a disability or if the employee is not fluent in English, for example.
Whilst there is no set timeframe for a reasonable period in which to hear a grievance once it has been received, the non-statutory ACAS guide suggests that the meeting should ideally be held within five working days of the grievance being received. However, if there is a lot to investigate and numerous witnesses to speak with, it may not be practical to hold the meeting so quickly and in that case the employer should aim to hold a meeting quickly and then adjourn for investigation, rather than finish a lengthy investigation before discussing the matter with the employee. It may be that an initial discussion can limit the scope of the investigation and save company time and resources and so an initial meeting is worthwhile.
Employees should be given a reasonable opportunity to call relevant witnesses and to respond and raise points about any information provided by witnesses. The ACAS Code does not mention that employers’ witnesses should attend the hearing, or that the employee has the right to question them directly, only that the employee must be given the opportunity to ‘raise points about any information provided by witnesses’. Therefore, if witnesses do not attend, the hearing may need to be adjourned so that any points raised by the employee can be put to the employer's witnesses.
Employers should keep a clear written record of all grievance cases, including notes of interviews with witnesses, minutes of meetings and notes of discussions to determine a grievance.
Minutes should be supplied to attendees following the meetings but providing these minutes to be ‘agreed’ by the employee could lead to further dispute. The employee could instead be asked to register any comments and points in dispute could be appended to the minutes.
GDPR compliance is an important consideration with grievance documentation. Employers must only retain and use the documents in connection with the purpose for which they were obtained, retained for no longer than is necessary and kept confidentially and securely in case required for a subject access request.
Covert recordings of grievance meetings may be against company policy and it is advisable that this be forbidden in the grievance policy. Otherwise, such recordings may be admissible in any subsequent Tribunal hearings if sufficiently relevant, according to recent case law. Recording of the private discussions of the employer's panel, however, will not be admissible on the grounds of public policy.
Employment Tribunals and grievances
Employees will generally be advised to pursue any grievance to the conclusion of the internal company procedure before pursuing through the ACAS Early Conciliation process and if required in an Employment Tribunal or County Court. Once a company’s grievance process completes, if an appeal does not overturn the original decision and the employee still believes that the matter has not been resolved to their satisfaction, the employee may choose to:
- continue working and drop the matter;
- ‘stand and sue’ whereby in some cases an employee can continue to work but pursue their claim externally through ACAS or the Employment Tribunal or County Court; or
- resign and perhaps also claim constructive unfair dismissal on top of any other claims they may have in respect of the grievance.
Whilst failure to follow the ACAS Code does not make an employer liable, such failure can be taken into account when considering if an employer has acted reasonably. Also, if the employee is successful in some claims, the Employment Tribunal can adjust the employee’s compensation by up to 25% for unreasonable failure to comply if it is just and equitable to do so (reducing employee compensation by up to 25% if the employee is at fault or increasing employee compensation by up to 25% if the employer is at fault). This only applies to certain claims (listed in Schedule A2 of Trade Union and Labour Relations (Consolidation) Act 1992 but including rest break complaints, most forms of discrimination, unfair dismissal, whistleblowing and breach of contract to name a few). This also only applies to claims brought by employees.
