Grievances
Introduction
Informal meetings
Formal procedures
The grievance hearing
Grievances relating to discrimination, bullying, harassment or victimisation
When statutory dispute resolution procedures “overlap”
Questionnaire procedure in discrimination claims
Introduction
All grievances should be treated seriously and dealt with as swiftly as possible. If this does not happen, an individual grievance can fester and become a much larger issue. In extremes, grievances can develop into collective disputes. It is also possible that, if an employee feels that a grievance has not been dealt with fairly, he/she could resign and claim constructive dismissal. The test for an Employment Tribunal considering such a claim is whether an employer has acted reasonably. Strong evidence of this will be if the employer has followed a well drafted and fair grievance procedure.
Under the Employment Act 2002 (Dispute Resolution) Regulations 2004, employers are required to adopt certain statutory procedures for resolving employee grievances. These statutory procedures are the minimum standard required under the law and are intended to complement rather than replace any other workplace grievance procedures which may already be in existence. The procedures are intended to encourage employees to resolve their employment grievances within the workplace, rather than before an Employment Tribunal. An employee who fails to follow the appropriate statutory grievance procedure will not be able to register a complaint with the Employment Tribunal. Where the grievance procedure has been initiated but not completed before a Tribunal claim is made, compensation may be increased (if the employer is at fault) or reduced (if the employee is at fault) by up to 50%.
Employers are legally required to provide employees with a written document which specifies the person to whom the employee can apply to seek redress for a grievance and sets out any further steps in the grievance procedure. This information may be included in the employee’s written terms and conditions of employment or employment contract. Alternatively, the written statement or contract may refer the employee to a separate document to which the employee has easy access.
Employers are also required to allow workers who raise a grievance to be accompanied by a work colleague or Trade Union official at each stage of the procedure.
For a more detailed summary of the relevant legislation, please see What The Law Says for this topic.
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Informal meetings
In many cases, employees’ grievances will be fairly minor, although important to them, and can be dealt with in an informal discussion with their supervisor or manager. Grievances specific to the immediate environment and working conditions can usually be resolved over a cup of coffee without anyone else being involved. The tone here should be one of listening and problem solving.
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Formal procedures
If the grievance cannot be resolved informally or the employee decides to escalate it, a formal grievance procedure, which complies with the standards set out in the Dispute Resolution Regulations, should be used.
The Dispute Resolution Regulations set out a standard 3 step statutory grievance procedure. These steps are the minimum legal requirements for dealing with employees’ grievances. They must be adopted by employers or incorporated into existing workplace grievance procedures. In principle, by following the statutory procedure and attempting to resolve the issue with the employer internally, the employee retains the right to bring a subsequent Tribunal claim against the employer and ensures that any compensation awarded by the Tribunal is not reduced. An employer who follows the procedure ensures that any compensation awarded to the employee by a Tribunal is not increased.
The statutory procedure applies where the employee has a grievance about an action taken by the employer (or by a colleague) in relation to him/her and the employee believes that the reason for the action is something other than the employee’s conduct or capability (for example unlawful discrimination). In particular, an employee must follow the statutory procedure before bringing a claim of constructive dismissal. In certain circumstances, such as when the grievance is about a dismissal, the employee is not required to raise a separate grievance before registering a claim with the Employment Tribunal. For further details of these exceptions, please see our advice and guidance on When statutory dispute resolution procedures “overlap” in this topic.
The standard statutory grievance procedure comprises three steps:
- the employee sets out the details of the grievance in writing and sends a copy to the employer
- the employer invites the employee to a meeting to discuss the grievance. The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. After the meeting, the employer notifies the employee of the decision in relation to the grievance and of his/her right to appeal against the decision if he/she is not satisfied
- if the employee wishes to appeal, he/she informs the employer who arranges an appeal hearing. The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. After the appeal hearing, the final decision is notified to the employee.
For a formal grievance procedure, please see Grievance procedure which incorporates the legal requirements of the Dispute Resolution Regulations. Include this procedure in your staff handbook or display it on notice boards. For further information about the staff handbook, please refer to the Staff Handbook topic.
For letters to confirm each stage of the grievance procedure, click here
Encourage employees to make use of your grievance procedure. It is better to deal with a complaint at an early stage rather than later when it has had time to fester or spread. It is important to note, however, that an employee does not have to comply with a Company’s formal grievance procedure for a written complaint to be a valid ‘Step 1’ grievance statement under the statutory procedure. For example, a valid grievance statement may be sent by email. It may be included in a letter that deals with another matter. A grievance statement does not have to contain the word ‘grievance’ or state that the employee is invoking the grievance procedure. Provided the substance of the complaint is clear, it does not matter if the statement does not include full details of the issue. A grievance statement may also be written by a third party, such a solicitor. A letter before action from a solicitor, even if it is adversarial in tone and marked ‘without prejudice’, may constitute a valid ‘Step 1’ grievance statement. Employers should therefore treat any written complaint from or on behalf of an employee as complying with the first step in the statutory procedure.
The Dispute Resolution Regulations also set out a modified 2 step statutory grievance procedure to be used after employment has ended and when the employer and the employee have agreed in writing that it should apply. In addition, the employer must have been unaware of the employee’s grievance before the termination or, if the employer was aware, the standard statutory grievance procedure had not started or been completed before the termination. The modified 2 step procedure is simply:
- the employee sets out the details of the grievance in writing and sends a copy to the employer
- the employer sends a written response to the employee.
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The grievance hearing
Once the employee has raised the grievance formally, the responding manager should reply within the timescales laid down in the procedure. If the manager cannot respond in this time, the employee should be informed of the reasons and the date by which he/she should expect to hear. The manager should invite the employee to attend a hearing and should inform the employee of his/her right to be accompanied by a colleague or Trade Union representative. It is also good practice to have another person from the senior management team (for instance the HR Manager) present to take notes and ensure that the meeting is constructive. For guidance on how to conduct the meeting, please see Step by step guide to conducting a grievance hearing.
A decision should be made and communicated to the employee within the timescale laid down in the procedure, unless circumstances prevent, in which case the employee needs to be made aware that there will be a delay.
Each stage of the procedure should be dealt with in a similar way, although wherever possible a more senior manager should conduct each successive hearing. However, in small organisations this may not be possible and there may only be one person who can hear grievances. In these cases, the person hearing the grievance should endeavour to act impartially.
In certain circumstances, with mutual agreement, it may be helpful to seek external advice and assistance during the grievance procedure. For instance, where relationships have broken down an external facilitator might be able to help solve the problem. Where the grievance is against the Chief Executive or Managing Director, an external stage using some form of alternative disputes resolution might be helpful.
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Grievances relating to discrimination, bullying, harassment or victimisation
Grievances relating to discrimination, bullying, harassment or victimisation need to be handled with particular care and sensitivity. As an employer, you are responsible for ensuring that your employees are treated with dignity and respect. You have a duty to investigate complaints of this nature and take disciplinary action if necessary.
Harassment is a form of discrimination. It is referred to specifically in the Policy Statement on Harassment at Work, which forms part of the Equal Opportunities Policy. Use the following link to view the Equal opportunities policy or the Equal opportunities policy (Northern Ireland). This policy should be included in your staff handbook or displayed on notice boards. For further information about the staff handbook, please refer to the Staff Handbook topic.
Sometimes in these cases it is difficult to follow the normal grievance procedure because the person who should hear the grievance is also the alleged perpetrator. It is therefore recommended that you have a specific procedure for handling discrimination allegations, which allows the employee to use alternative channels to bring the grievance forward. For a suitable procedure, please see Grievance procedure (sensitive issues) which complies with the legal requirements of the Dispute resolution Regulations. Include this procedure in your staff handbook or display it on notice boards, alongside your normal grievance procedure. For further information about the staff handbook, please refer to the Staff Handbook topic.
When dealing with a complaint of discrimination, extra care must be taken in the investigation and the grievance hearing (and later, if it comes to it, the disciplinary process). If an employee is dissatisfied with your handling of a complaint of this nature he/she may claim constructive dismissal and/or bring a complaint of discrimination before an Employment Tribunal. Unlike normal unfair dismissal claims, there is no upper limit to the amount of compensation that Employment Tribunals can award in discrimination cases, neither is there any qualifying period of employment. If, as a result of a failure by the employer, the statutory grievance procedure has not been completed before Tribunal proceedings are initiated, any compensation awarded to the employee may be increased by up to 50%. For guidance on how to deal with these sensitive cases, please see Step by step guide to dealing with allegations of discrimination.
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When statutory dispute resolution procedures “overlap”
Sometimes an employee may raise a grievance about the behaviour of a manager during the course of a disciplinary case. Where this happens, depending on the circumstances, it may be appropriate to suspend the disciplinary procedure for a short period until the grievance can be considered. You might also consider bringing in another manager to deal with the disciplinary case.
The Dispute Resolution Regulations, which set out statutory procedures for dismissal and discipline and grievances, also include provisions for when these procedures “overlap”. The Regulations aim to ensure that in situations where, for example, disciplinary action by the employer prompts the employee to raise a grievance, the parties do not have to go through any unnecessary repetition of procedures in order to fulfil the statutory requirements.
An employee does not have to follow the statutory grievance procedure where his/her grievance concerns a dismissal (for any reason other than constructive dismissal) or action short of dismissal taken by the employer on the grounds of conduct or capability. In such situations, the onus will be on the employer to follow the statutory dismissal and discipline procedure. The Regulations state that it is only necessary to follow one of the statutory procedures (either the dismissal and discipline procedure or the grievance procedure) but not both. An employee who is subject to the statutory dismissal and discipline procedure will be able to raise his/her grievance in the course of this procedure. However, if the employee considers that, contrary to what the employer asserts, conduct or capability are not the real grounds for action being taken and/or that the action is an act of discrimination or victimisation by the employer (on the grounds of sex, race, disability, age, religion or belief or sexual orientation), the employee must initiate the statutory grievance procedure in order to retain the right to bring a claim before an Employment Tribunal. If such a grievance is raised in writing at any time before the appeal stage of the statutory dismissal and discipline procedure, it can be discussed and dealt with at the hearing or during the appeal. The employee will be treated as having complied with the statutory grievance procedure. If the grievance is raised during or after the appeal hearing, the employee will have to complete the statutory grievance procedure in full before lodging an Employment Tribunal claim.
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Questionnaire procedure in discrimination claims
If an aggrieved employee decides to bring a claim for discrimination before an Employment Tribunal, or is considering doing so, you may be asked to complete a questionnaire.
Usually the questionnaire is sent to the employer before the claimant submits his/her claim to the Tribunal in order that the employer’s responses can be taken into account when deciding whether or not to bring legal proceedings.
The questionnaire must be sent to the employer within 3 months of the alleged discrimination or within 21 days after the claim has been lodged with the Employment Tribunal.
Questionnaires sent in connection with a discrimination claim contain standard questions about the employer’s policies and practices and also allow the complainant to include additional questions.
Great care must be taken with the responses to these questionnaires. The information given by the employer may be used in evidence in the Employment Tribunal. A Tribunal may draw an unfavourable conclusion if an employer fails to complete the questionnaire, replies evasively or delays unreasonably.
It should be noted that an employee who wishes to register a discrimination claim with the Employment Tribunal is required to give his/her employer a written grievance statement. This is the first step in the statutory grievance procedure, which is aimed at resolving such issues in the workplace without recourse to a Tribunal. Serving an employer with a questionnaire in discrimination claims does not count as a written grievance statement under the Dispute Resolution Regulations.
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