Grievance Procedures Factsheet

The Employment Act 2008 (EA 2008) introduced a new regime affecting the vast majority of employment tribunal claims from 6 April 2009. It repealed the old statutory dispute resolution procedures which were widely viewed as problematic.

As such, employers are now expected to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code)

In the event an employer unreasonably fails to comply with the new ACAS Code then the Tribunal has the discretion to increase any compensation awarded to an employee by up to 25%

How should grievances be handled?

The employee should raise the grievance in writing.

A grievance can be any concern, problem or complaint that an employee raises with the employer. If a grievance cannot be resolved informally, the employee should raise it in writing with a manager (if the grievance concerns their line manager, the grievance should be raised with another manager).

A failure to raise the grievance in writing does not prevent an employee bringing a tribunal claim about the matter. However, the employee may recover less compensation if they have not done so.

The employer should hold a meeting and investigate the complaint.

A meeting should be held to allow the employee to explain their grievance and how they think it should be resolved. Managers, employees and their companions should make every effort to attend the meeting. If the matter needs further investigation, the employer should consider adjourning the meeting and resuming it after the investigation has taken place. When the meeting is concluded, the employer should communicate its decision in writing without unreasonable delay, including (where appropriate) details of any action it intends to take to resolve the grievance.

The employee may bring a companion.

An employee (or other worker) has statutory right to bring a companion (a fellow worker or a trade union representative) to a grievance meeting, where the complaint is about a "duty owed by the employer to the worker" (section 10, Employment Relations Act 1999). This right has its own remedy for breach, but it is also part of the ACAS Code.

The employee must make a reasonable request to be accompanied. What is reasonable will depend on the circumstances, but the ACAS Code suggests that it will not normally be reasonable for the companion to be someone whose presence would prejudice the meeting, or someone from a remote workplace if a suitable and willing companion would be available at the same site.

The employee has a right of appeal.

The employer should inform the employee that they have a right of appeal when they communicate the decision. If the employee is not satisfied with the outcome, they should appeal in writing, specifying the grounds of their appeal. If they bring a tribunal claim without appealing, any compensation they are awarded may be reduced.

The appeal should be dealt with impartially at a hearing, which should (if possible) be conducted by a manager who has not been previously involved. The employee should be informed in advance of the time and place of the appeal hearing and may bring a companion. The employer should communicate the final decision in writing without unreasonable delay.

How has the law changed?

The rules on admissibility, time limits and compensation have changed:

The consequences of failing to follow the correct procedure are different under the new regime. The key differences include the following:

• An employee who has not submitted a grievance is no longer barred from bringing a claim.
• The submission of a grievance under the old regime triggered a three-month extension of time to bring a tribunal claim. There is no automatic extension of time under the new regime.
• Under the new regime, the ACAS Code applies to any grievance and an "unreasonable" failure to follow it can affect compensation. This replaces complex provisions under the Dispute Resolution Regulations governing when the statutory grievance procedures applied and when they were excluded. Any breach of an applicable statutory grievance procedure would enable a tribunal to adjust compensation.
• Compensation under the old regime could be adjusted by 10-50%, although an adjustment of less than 10% was permissible in exceptional circumstances. The adjustment under the new regime is 0-25%.
  

The new ACAS Code does not apply to collective grievances - in other words, grievances raised by a recognised trade union or other appropriate representative on behalf of two or more employees.

There is no longer an explicit requirement to follow a grievance procedure in cases involving former employees. It is not clear whether the definition of "employee" in the new ACAS Code includes a former employee.

Handling grievances during a disciplinary procedure

Employees often submit grievances during disciplinary procedures, either regarding the procedure itself or the circumstances leading up to the initiation of that procedure. Under the statutory dispute resolution procedures, this gave rise to complicated legal and procedural issues, which no longer apply.

Now employers must decide whether to suspend the disciplinary procedure in order to fully investigate the grievance or, if the issues are related, deal with both of them concurrently.

The time limit for bringing claims is much shorter.

There will no longer be an automatic three-month extension of time for bringing a claim once a grievance has been submitted. Therefore, there will be additional pressure on both sides to complete the procedure in order to avoid the employee having to submit a claim just to preserve their position. Tribunals will no doubt keep the time limit in mind when considering whether there has been unreasonable delay by the employee in submitting their written grievance or appeal, or by the employer in arranging meetings or communicating the outcome of those meetings in writing.

Practical steps for employers

• Involve employees or their representatives in developing workplace procedures, and make sure those procedures are transparent and accessible to employees.
• Train managers how to handle grievances effectively, when to involve HR, and how to spot when there may be a potential legal claim.
• Encourage managers to resolve issues pro-actively and informally before they get to a formal grievance stage.
• Allow the employee to put their side of the story at a meeting before undertaking any necessary investigation and again before making any decision.
• Keep written records, including minutes of meetings.
• Communicate decisions effectively and promptly, setting out reasons.
  
  If you would like any further information about grievance procedures, please contact us.