Handling an employee grievance

Does an employer require a grievance procedure?

The Employment Rights Act 1996 Sect 3(1)(b) requires that the written statement of particulars of employment issued to employees must include a note giving the name or job title of a person within the organisation to whom they may apply for the purpose of seeking redress of any grievance relating to their employment and the manner in which it should be made. It should also explain any further steps consequent on any such application or refer them to a document that explains them and is reasonably accessible.

Can an employer deal with a grievance informally?

In the first instance and if it is appropriate in the circumstances, every effort should be made to resolve a grievance informally. Most complaints raised by employees should be dealt with by the employee’s line manager, without recourse to the formal grievance procedure. If the nature of the grievance is serious, or if an informal approach to resolving it is not successful, the employer should deal with the grievance under its formal grievance procedure.

Does an employee need to have raised a formal grievance before they can make a claim to an employment tribunal?

The statutory disputes resolution procedure requiring employees to present a written grievance to their employer before being entitled to bring various types of tribunal claim was repealed in April 2009. However, a failure by an employee to raise a grievance may still be relevant to a tribunal claim based on the complaint as the Acas code of practice on disciplinary and grievance procedures provides that employees should raise grievances formally and in writing with their employer. An unreasonable failure to comply with the code may result in a reduction to any compensation that the tribunal awards to the employee of up to 25%.

Who should deal with an employee’s grievance?

In most cases the employee’s immediate line manager should deal with the grievance, as he or she is likely to have an understanding of the issues. An exception to this is where the grievance relates to the line manager, in which case it should be dealt with by a different manager or someone from the HR department. If there is no alternative person to deal with the grievance, as may be the case in very small firms, Acas advise that the employer should make it clear to the employee that it will treat the grievance fairly and objectively.

What should an employer do if an employee retracts a grievance?

If an employee retracts a grievance, the employer should ask why he or she has done so. The employer should reassure the employee that the grievance will be treated seriously and that it will not lead to the employee being treated less favourably.

If the employee has concerns about the person who is the subject of the grievance, for example if he or she is being bullied by a colleague, the employer should advise the employee that any intimidation resulting from the grievance will be dealt with as a serious disciplinary issue. It should discuss with the employee whether or not there are steps that could be taken to enable him or her to pursue the grievance, for example ensuring that he or she does not come into contact with the colleague while the grievance is investigated, or ensuring that any allegations are put to the colleague on an anonymous basis.

It is ultimately up to the employee as to whether or not to pursue the grievance. If he or she does retract it, the employer could decide to follow up on the issues raised, for example by using its disciplinary procedure to investigate allegations of misconduct by another employee.

What if the employee cannot attend a meeting to hear a grievance?

Both parties are required to conduct themselves reasonably during grievance proceedings. The employee must make all reasonable efforts to attend a grievance hearing, but the employer must also make reasonable efforts to accommodate the employee if he or she has a genuine reason for not being able to attend. If the employee requests a postponement, the employer should enquire as to the reason for this and consider whether or not a postponement would be reasonable. In most situations, if the employee will have genuine difficulty attending the hearing, it will be reasonable for the employer to rearrange it to a time that is suitable for both the employee and the employer. The employer should advise the employee that it is important that he or she attend the rearranged meeting so that the employer can deal with the grievance properly and without unreasonable delay.

If the employee’s companion is not available at the time arranged for a grievance hearing, the employer must postpone the hearing until a time suggested by the employee, as long as the new time is reasonable and within five working days of the time proposed by the employer.

What if the employee fails to attend the meeting?

If an employee fails to attend a meeting under the grievance procedure, the employer should ask the employee why he or she did not attend and explain that it is important that he or she attend, to enable it to deal with the grievance fairly and promptly. The employer should rearrange the meeting, in consultation with the employee. If the employee fails to attend again, the employer should consider the reasons for the non-attendance and whether or not it would be reasonable to rearrange the meeting again. The employer should balance the need to allow the employee the chance to explain his or her grievance with the need to deal with the grievance without unreasonable delay.

The employer can make a decision on the grievance, based on the information it has available, without meeting with the employee, if it is reasonable to do so in the circumstances. For example, the employer may decide to proceed to a decision if the employee has repeatedly failed to attend a meeting without good reason.

Does the employee have the right to be accompanied?

Section 10 of the Employment Relations Act 1999 provides that, if a employee makes a reasonable request to be accompanied at a disciplinary or grievance hearing, the employer must allow him or her to be accompanied by a fellow worker or a trade union representative.

Situations where the request may not be reasonable include where the worker’s chosen companion will not be available to attend a hearing within a reasonable time, for example because of illness, holiday, work or other commitments. The issue of the reasonableness of the request is a matter of fact in the particular circumstances. Employers should carefully justify any rejection of a request by reference to the principles of the Acas code of practice on disciplinary and grievance procedures including the need to deal with matters promptly and without undue delay.

The code gives two examples of when a request may not be reasonable, which relate to the choice of companion rather than the request itself: first, where the chosen companion’s presence would prejudice the hearing or involve a conflict of interest (as would be the case where disciplinary action for the same facts is being pursued against the proposed companion, or where the proposed companion is involved in the proceedings as a witness); and second, where there are suitable colleagues available at the same site, but the employee requests the attendance of a companion from a remote geographical location.

Who can be chosen as a companion?

The companion must be chosen by the worker and can be a fellow employee or a trade union official who has been certified by the union as having experience of, or having received training in, acting as a companion at such hearings. There is no necessity for the trade union official’s union to be recognised in the workplace nor is there any obligation on workers or union officials to accept a request to act as a companion.

Unless employees have additional contractual rights they may not be accompanied by other categories of companion, such as a partner, spouse, or legal representative.

Can an employer reject an employee’s choice of companion

Under s.10 of the Employment Relations Act 1999, employees have the right to be accompanied at a disciplinary or grievance hearing if their request to be accompanied is reasonable. Therefore, an employer can reject an employee’s choice of companion if it is unreasonable for him or her to request to be accompanied by that person. This may be the case, for example, if the companion is involved in the proceedings, or because he or she will not be available for a meeting for a substantial length of time.

Does a 16 or 17 year old worker have the right to be accompanied by a family member?

Unless contractually entitled, no employees have a statutory right to be accompanied by a family member at a disciplinary or grievance hearing, unless the family member is a work colleague or trade union official, in which case he or she will be a permissible companion under the statutory right to be accompanied. However, there is nothing to prevent an employer from allowing a worker to be accompanied by a family member and it may be appropriate to allow this in the case of a very young individual.

What is a Companions role?

The companion must be permitted to address the hearing in order to put the employee’s case, sum up the case and respond on the employee’s behalf to any view expressed at the hearing. He or she must also be permitted to confer with the employee during the hearing. However, the companion has no right to answer questions on behalf of the employee, to address the hearing if the employee does not wish him or her to do so, or to prevent the employer explaining its case.

An employee acting as a companion is permitted to take a reasonable amount of paid time off during his or her working hours to accompany a colleague to a disciplinary or grievance hearing and to prepare and confer with the employee before and after the hearing. He or she may present a complaint to a tribunal if the employer fails to pay him or her for the time off.

What should happen if companion cannot attend the hearing?

If the companion is not available at the proposed hearing time and the employee suggests another time that is reasonable and falls within five working days of the original time, the hearing must be postponed until the new time proposed by the employee.

If the employer fails to comply with a reasonable request by an employee to be accompanied, or fails to postpone the meeting to a reasonable date when the companion is unable to attend the scheduled meeting, the employee can complain to an employment tribunal. Where the complaint is well founded the tribunal will order the employer to pay up to two weeks’ pay as compensation (subject to the statutory cap on the amount of a week’s pay).

How should the outcome of the hearing be recorded?

The employer should notify the employee of its decision on his or her grievance in writing, setting out the reasons for the decision. The employer would not usually include copies of notes on the investigation as a matter of course, but if the employee requests these, the employer may have a duty to disclose the documents in accordance with the Data Protection Act 1998.

The employee has the right to see personal information that the employer has about him or her held as a computer record, or in a structured paper filing system. This could include notes on the investigation into his or her grievance. However, before disclosing the data, the employer must assess whether or not disclosure will breach the confidentiality of others. If a third party is identified in the notes, for example a witness who was interviewed as part of the investigation, the information can be disclosed only with that person’s consent, or if it is reasonable in the circumstances to disclose it. Alternatively, the employer could provide the notes to the employee after removing the parts from which the third party could be identified.

The employer should also bear in mind that the purpose of the grievance process is to allow the employee to raise concerns or problems. The more transparent the employer’s process, the more likely it is that the employee will be satisfied with the way it has handled his or her grievance.

What is the appeals process?

The Acas code of practice on disciplinary and grievance procedures provides that an employee who is dissatisfied with the outcome of a grievance should appeal and provide the grounds for appeal in writing. If an employee raises an appeal verbally, the employer should ask the employee to put his or her grounds for appeal in writing.

Where the employee fails to provide adequate information, the employer should write to the employee and ask for the grounds for appeal so that it can properly consider, and if necessary investigate, the issues in advance of the appeal meeting.

However, where an employee refuses or fails to provide the grounds for appeal, it is advised that the employer still hears the appeal and notifies the employee of the outcome without unreasonable delay. Should the grievance become relevant to subsequent tribunal proceedings, and if the employee is successful with his or her claim, the tribunal could make a reduction to any compensation that it awards of up to 25% if it considers that the employee unreasonably failed to comply with the Acas code by not providing the written grounds for his or her grievance appeal.

There is no set timescale for lodging an appeal against a grievance decision. However, the Acas code of practice on disciplinary and grievance procedures requires employees and employers to raise and deal with issues promptly. Therefore, employers should advise employees to raise any appeal without unreasonable delay and should specify a timescale in their grievance policy. Employers should address all appeals that are raised within a reasonable time frame, even where they are raised outside of any time limit stipulated in their own grievance policy.

A grievance appeal should be heard, where possible, by a manager who is more senior than the person who dealt with the grievance, and who has not previously been involved in the proceedings. If there is no more senior manager, as may be the case in small businesses, another manager should hear the appeal. If there are no other managers, there may be another suitable person who could hear the appeal, for example the business owner. If it is not possible for another person to hear the appeal, the employer should make it clear to the employee that it will treat the grievance appeal fairly and objectively.

The number of appeal stages contained in a grievance procedure will depend on the size of an organisation, its resources and its management structure. For larger organisations with several tiers of management, the Acas guidance on discipline and grievances at work suggests a procedure with two appeal stages, while for smaller organisations one appeal stage will usually mark the end of the grievance procedure.

Does a former employee have the right to raise a grievance?

Grievance procedures should focus on resolving disputes with employees. A former employee might have a dispute with his or her ex-employer that could form the basis of tribunal or court proceedings, and the employer may feel that it is appropriate to engage in dialogue with the individual in the hope of resolving the issue. However, this does not require the use of a formal grievance procedure with a right of appeal.

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