One of the most common issues that employers and HR Managers have to deal with in their professional lives; handling a grievance submitted by an employee.
The purpose is to demonstrate how to handle such processes from the very beginning through to conclusion in order to avoid the risk of a claim being raised by the employee, but most importantly to ensure a harmonious and effective working environment following conclusion.
What is a grievance?
A grievance can be any concern, problem or complaint that an employee raises with their employer. Contrary to popular belief, a grievance does not have to be a formal letter nor does it, in fact, need to say it that ‘this is a grievance’. It could be raised in an email, wording contained in an appraisal form or a letter from an employee’s solicitor. All employers should be mindful of scenarios where an employee raises an issue about something they are unhappy with, and consider whether to invoke the Grievance Procedure.
A failure to raise a grievance in writing about a particular matter no longer prevents an employee bringing a tribunal claim about the matter. However, the employee may recover less compensation if they have not done so.
If an employee raises a grievance then this should be taken seriously by the organisation, this is not only because of the risk of compensation being increased, but also because an employee may resign in response to the employer’s actions in ignoring the grievance and bring a claim for constructive and unfair dismissal (the employee may also have a claim for discrimination).
How do I deal with a grievance?
There are two sources of reference you should consult when you receive a grievance as both the following procedures must be observed:
The ACAS code
It is important that the ACAS code is followed as, if the organisation unreasonably fails to follow the Code, the tribunal may increase any compensation awarded to the employee by up to 25%. If the employee unreasonably failed to follow it, the tribunal may reduce their compensation by up to 25%.
In summary, the Code suggests how grievances should be handled, namely:
- The employer should hold a meeting and investigate the complaint;
- The employee may bring a companion to the meeting;
- The employee should be told of the outcome of the complaint; and
- The employee has a right of appeal.
It is very important that you follow the Code for 3 main reasons:
- It could avoid a potential claim;
- It may resolve the issues; and
- It can affect the level of compensation in any subsequent litigation.
As well as following the ACAS Code of Practice it is also vital to follow any internal grievance procedures you may have in place. If you fail to follow your own procedures (or those you may have adopted from the Local Authority) this may lead to claims of unreasonableness and also claims of breach of contract.
If the organisation’s procedure imposes lower obligations than the Acas/statutory procedures then you should adhere to the Acas/statutory procedures, however, if the organisation’s procedure requires additional measures then you should ensure these are followed
At the start of the grievance procedure (before the first meeting)
Ensure that you are taking action under the correct procedure.
If the organisation has a grievance procedure (or adopts the local authority procedure) then ensure that you are familiar with this before your meeting with the Employee. If your organisation has other relevant procedures, for example, a bullying and harassment procedure, it may be more appropriate to deal with the complaint under those procedures instead.
It is vital you prepare thoroughly for the grievance meeting. You should:
- Ensure that you are familiar with the contents of the grievance letter and the background circumstances which have given rise to the complaint.
- Decide whether you are the appropriate manager to conduct the meeting or whether someone else needs to assume the role of Grievance Officer.
- You may not be appropriate if, for example, you are junior or on an equal level to the employee raising the grievance. It may be the case that you are involved in actions which led to the meeting (for example if you witnessed something connected to the grievance or are the subject matter of the grievance). Similarly, there should be a more senior and/or independent manager held in reserve to hear an appeal and, therefore, if you are the most senior manager on site when others could conduct the meeting it may be best for others to be involved at this stage.
- Gather all the relevant facts as appropriate such as the employee’s personal details and personnel record and any other relevant documents to the issues the employee is citing in their grievance letter.
- Where possible check any evidence, such as documents, for their accuracy.
- Consider whether you need any additional information before commencing with the meeting.
- Consider whether you need any information from witnesses (if any) before meeting with the employee, this could include obtaining information from the employee’s manager (if this is not you).
- Consider and pre-empt possible issues from an employee and, if possible, check them out in advance of the meeting.
- Arrange a time and place for the meeting, which should be held in a private and discrete location.
- Ensure that the employee has been sent the appropriate letter inviting them to the meeting, information regarding which procedure will be followed and that they have been provided with (or given access to) any information or documents they will need to prepare themselves for the meeting.
- Ensure the employee has been informed of their right to be accompanied to the meeting. The companion can be either a fellow worker or a union official.
- Ensure the employee has had sufficient time from receiving the invitation to the meeting to the meeting itself to enable them to prepare their “case”.
- Consider the structure of the meeting and the main points that need to be made.
- You may wish to make notes of any questions that you anticipate needing to ask or set out a rough agenda for the meeting to ensure you deal with all relevant issues. You should, of course, be prepared to ask additional questions and deal with any issues that arise in addition to those set out in any agenda. Please bear in mind any such documents would be disclosable at any later tribunal or court proceedings.
- Arrange to have someone present at the meeting to take notes.
All documents relating to a procedure (including notes taken during and in preparation for the meeting, the evidence relied on upon and copies of letters sent to employees) should be retained in an orderly fashion in case the organisation need to refer to them after the conclusion of procedures. This will also form your paper trail in the event of a claim being brought against the organisation. Be aware, when making notes, that they may later be reviewed by a Tribunal and/or the employee themselves so do not include inappropriate comments (or even doodles).
The grievance meeting
At the start of the meeting, the Grievance officer should introduce all those present and explain why they are there and check that all adjustments have been made if for example the employee is disabled or there are concerns about language barriers ensure check.
The Grievance officer should then explain what the purpose of the meeting is and that the employee will be asked to explain their grievance and most importantly, ask the employee how they think it should be resolved and what would they like to see as an outcome.
Where the employee is not represented, ensure that they are happy to proceed with the meeting without representation, and explain that if they do require representation you can adjourn whilst representation if found.
Make sure the employee and their representative have received the evidence which should have been sent to them prior to the meeting though take care with statements given in confidence, not to identify, or enable to be identified, the person has given the statement.
You should then proceed to go through each of the issues as set out in the grievance letter in detail.
When the employee is giving details of the grievance:
- Allow them to state their position in relation to each issue they have raised, ask questions, present evidence and call witnesses if appropriate.
- Allow them to confer with their companion (in private if required). The companion may also ask questions or make representations but should not answer questions on behalf of the employee.
- Listen carefully as this may make the employee more forthcoming and stay impartial. Do not get into an argument or discussion with the employee about the incidents they are discussing.
If there are any issues which require clarification or about which you need further information this is your opportunity to ask the employee about these issues to ensure that you do.
Finally, summarise the main points after questioning is complete. This allows all those present to be reminded of the reason for the meeting, the evidence submitted and helps to ensure nothing has been missed, so:
- Ask the employee whether they have anything else to say.
- Ensure that you have a full understanding of the issues that are being raised.
- On conclusion of the meeting advise the employee that you will look into and consider all of the points that they have raised as part of the meeting. Confirm the time frame for the conclusion of your investigation and when you anticipate providing an outcome to the employee (this should be within a reasonable period).
Potential problem areas:
- An employee may become upset or distressed so you should always allow them time to regain their composure.
- If an employee is too distressed to continue with the meeting consider adjourning and reconvening at a later time or date.
- Be aware that you may be discussing very sensitive issues with the employee and, therefore, you must be sympathetic to this.
- Allowing people to ‘let off steam’ can be a helpful way of finding out what happened.
- Abusive language or behaviour during the meeting should not be tolerated, the employee should be warned to stop the language/behaviour and s/he should be told that if it continues the meeting will be terminated and disciplinary action could follow.
Following the grievance meeting
You should consider whether you need to undertake any further investigation. If you need to investigate further you should do so and document any information (for example take further witness statements if you are speaking to other members of staff or third parties).
It is essential that any new information should be sent to the employee and the employee should be asked to comment on the information. Ideally, you should arrange an additional meeting to discuss this information with the employee.
Once you are satisfied that you have enough information to enable you to reach a conclusion (and you have received comments from the employee) you will need to make a decision about the employee’s grievance. For example, you may decide to uphold their grievance or not. You must ensure that this process remains independent and impartial.
Confirm your decision in writing to the employee and inform the employee, if not upholding or only partially upholding their grievance, that they have the right to appeal the decision.
It may be that the outcome of the grievance requires further action. For example, it may be necessary to amend organisation policies/procedures, provide further training to employees or even consider disciplinary action against an employee if they have been the subject matter of the grievance.
It is important to document any action taken both ensuring the employee has written confirmation of the outcome (and their right of appeal) and that any necessary updates are made to personnel files, for example, that warnings are properly recorded.
Bear in mind, however, that if the outcome is that action is taken against another employee:
- You must follow a fair disciplinary process before taking action against the employee (be wary of inadvertently merging the grievance by employee X with the disciplinary process against employee Y)
- Although you may want to tell the employee who raised the grievance what action has been taken you must remember that you owe duties of confidentiality towards both employees and so communication must be handled carefully.
If there is follow-up action to be performed by a certain date ensure that deadline is appropriately diarised and monitored.
Once you have confirmed your decision in writing, the employee will have the right to appeal against the decision.
The meeting should be conducted by a manager who is more senior to the manager conducting the original meeting (where possible) and should follow the process set out above.
Once a decision has been made in relation to the appeal you should write to the employee to confirm the outcome and that there will be no further right of appeal (unless your internal procedures allow this).
If you would like any further advice on any aspect of employment law, please contact a member of our Employment & HR team on 01332 226149 for a confidential chat.