Employers
Questions - Dealing with Grievances
Q1: What is a grievance?
Q2: One of
my staff says he wants to lodge a grievance - how should I deal
with this?
Q3: What
does a standard grievance procedure consist of?
Q4: What
could happen if I refuse to deal with my employee’s grievance?
Q5: What
if I want to follow the statutory grievance procedure but the employee
does not?
Q6: Does
an employee have to lodge a grievance with me first or can he go
straight to the Employment Tribunal with his claim?
Q7: I have
arranged a grievance meeting with an employee. She says she wants
to bring a friend who is a lawyer. Can I refuse?
Q8: I have
an employee who has resigned. Before he did so he was threatening
me with constructive dismissal and I have now received a letter
asking for a grievance meeting. I really do not want to meet with
him. Do I have to?
Q9: I
have dismissed an employee who has lodged a grievance against my
decision to dismiss her. Do I have to go through the grievance procedure
in such a case?
Did we answer your question? These questions will be updated periodically.
If you would like to see an Employers Question featured here, email
it to us at info@rawlisonbutler.com.
Please note, we cannot answer your specific legal queries by email.
If you require legal advice on this
or any other employment law issue, please contact Tony
Hyams-Parish or your usual contact
in the employment team at Rawlison Butler LLP.
This document is provided for information purposes only and does
not constitute legal advice. Professional legal advice should be
obtained before taking or refraining from taking any action as a
result of the contents of this document.
_____________________________________________________________________________________________________ Answers
to questions below, please click on the questions above to be directed to the
correct answer.
A1: A grievance can be anything that an employee is not
happy about, concerning his/her work or working conditions. Grievances
may therefore be about pay, duties or other terms and conditions
of employment, changes to those terms and conditions, bullying,
harassment and termination of employment, etc.
There is no obligation on an employee to set out a grievance in
any particular form, except that it must be set out in writing.
Therefore, a grievance can be a complaint by email, a letter of
resignation, a letter stating an intention to bring an Employment
Tribunal claim, a solicitor’s letter before action, a ‘without
prejudice’ letter or even a flexible working application.
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the questions
A2: Ideally you will have a grievance procedure which you
can follow. In any event, you must always follow the minimum statutory
grievance procedures. You may also have an equal opportunities and/or
harassment policy which provide for a certain procedure to be followed
where a complaint relates to discrimination, harassment or victimisation.
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A3: A standard grievance procedure tells an employee how
s/he can bring a grievance to your attention. Often the grievance
procedure will promote informal action as a first step whereby the
problem is raised ’off the record’ with a line manager.
If informal action does not work, or is inappropriate, and the
employee would like to make a formal complaint, s/he must put the
grievance in writing and send it to you. Ordinarily your procedure
will require a grievance to be sent to a named individual, e.g.
a departmental manager, but a grievance will usually still be valid
even if it is sent to another individual at your Company. Once you
receive the written grievance normally you must invite the employee
to a meeting to discuss the grievance and at the end of, or following
the meeting, you must make a decision as to how to proceed.
The procedure must provide that an employee is entitled to be accompanied
at any meeting(s) during the procedure, by either a Trade Union
Representative or a work colleague. If the employee is unhappy about
the way the grievance has been resolved, you must also allow him/her
to appeal and take the grievance one stage further, usually to a
more senior manager.
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A4: If a grievance procedure is contractual then a refusal
to deal with a grievance may leave you open to a claim for breach
of contract.
More importantly, you must follow a minimum statutory procedure
when dealing with an employee’s grievance. The significance
of failing to do so will be relevant where the matter is something
which an Employment Tribunal has jurisdiction to deal with e.g.
deduction from wages, discrimination, constructive dismissal, etc.
In such cases, if the employee successfully brings a claim in the
Employment Tribunal and the Tribunal finds that the employer has
failed to follow the statutory grievance procedures then it will,
in all but exceptional circumstances, increase an award of compensation
to the employee by between 10-50%. Thus, for example, if you failed
to follow the statutory grievance procedures in a case where the
employee was bringing a claim against you for constructive dismissal
and the employee won and was awarded £10,000, then the Employment
Tribunal would go on to increase that amount up to a maximum of
£15,000 due to your non-compliance.
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questions
A5: Quite apart from the fact that the employee may be prevented
from lodging an Employment Tribunal claim until such time that the
first step of the statutory procedure has been complied with (i.e
sending a letter of grievance to you), if the employee’s claim
is allowed to proceed and s/he wins the case, his/her failure to
follow the statutory grievance procedures will result, in all but
exceptional cases, in a reduction to his/her compensation of between
10-50%. Thus, for example, if the Employment Tribunal awarded £10,000
then the non-compliance with the statutory procedures will usually
result in the award being reduced by between £1,000 and £5,000.
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A6: Claims from employees for almost any type of Employment
Tribunal claim will not be allowed to proceed unless the employee
has first lodged a grievance with the employer and then waited 28
days. If the employee fails to raise a grievance, the Employment
Tribunal will reject the claim and tell the employee that it is
inadmissible. Where this happens, the time limit for lodging the
claim (in most cases three months) is extended by three months.
The employee can then bring a further valid claim provided that
he first lodges his written grievance before the expiry of one month
after the normal time limit for bringing the claim and then waits
28 days and lodges the claim again before the expiry of the new
extended time limit. There are exceptions to this general rule and
you should seek specific legal advice if you are unsure whether
the grievance procedure and normal time limits apply in your particular
circumstances.
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A7: Yes. Employees have a statutory right to be accompanied
to disciplinary or grievance meetings by either a Trade Union Representative
or a work colleague. Therefore, if the friend in question is not
either of these then you could turn down the request. However, as
a matter of good practice, it might often be sensible to let the
employee be accompanied by the person of her choice. However, it
should be remembered that the person accompanying the employee is
not there to answer questions for the employee. You would also be
within your rights to halt any meeting where the person accompanying
the employee becomes disruptive.
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A8:Possibly not. Where an employee has left your employment you could agree with him to use the “modified” statutory grievance procedure. This is a two step procedure whereby the employee first sets out his grievance in writing and the basis for it and you then have to respond to it in writing. There is no need to offer him a right of appeal against your decision.
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A9:The employee should have lodged an appeal against the dismissal rather than go through the grievance procedure. In such a case you should have gone through the statutory dismissal and disciplinary procedure in dealing with the dismissal in which you would have offered an appeal against the decision to dismiss. In the circumstances, it would probably be wise in this case to deal with the request for a grievance meeting as if it were an appeal against the dismissal. You will therefore need to invite the employee to an appeal meeting and inform the employee of your final decision.
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