From the start of employment, every individual wishing to make a complaint about his or her employment has the right to raise a grievance. As an employer, it is your duty to handle any grievance appropriately and in line with the ACAS Code of Practice. Unfavourable treatment of an employee that has raised a grievance, whether formal or informal, may be considered victimization and could result in them making a claim to the Employment Tribunal.
It is essential, therefore, that employers treat complaints seriously, checking with the complainant themselves if they wish their concern to be managed formally or informally. ACAS recognises that grievances can be formal or informal in nature and, where possible, will always encourage an employee to resolve a grievance with their employer informally.
TOP TIP: An informal grievance provides an excellent opportunity for an employer to try and resolve a matter without the need for formal prescriptive procedures. Always communicate clearly to the employee the action you will take to investigate their complaint, as well as when they can expect to receive a response, ensuring that you keep to this agreed date. Meet with them again at this time to outline your findings, express your thoughts and seek their views.
Please don’t hesitate to contact us directly if you are seeking advice on a formal or informal grievance. Even at the informal level it can be useful to prevent grievances from escalating unnecessarily by ensuring that all requirements have been met.
Whether you wish us to conduct all of the above on your behalf or assist you in undertaking the grievance investigation by yourself is up to you – we are guided by your needs.
First and foremost, any advice you receive from us is legally privileged, enabling us to carefully discuss and advise you on your case without any concerns that the information might be requested under a Data Subject Access Request or as part of the required disclosure under the Rule of the Employment Tribunal.
We’ve also had numerous successes advising, and conducting grievances on behalf of, businesses of various sizes – particularly where grievances have been made against senior executives, directors and business owners.
Consulting us for advice from the outset allows us ample time for producing robust evidence that complies with your obligation of a fair investigation. It may not stop an employee from claiming constructive unfair dismissal but we will be able to fortify you against any such claims and reduce the figure of any commercial settlement.
Investigating grievances can be time-consuming and are often frustrating – especially if you feel them to be unfounded – but we will do all we can to reduce the impact on your business.
Every employer is required by law to ensure that employees are aware of the procedure for raising a grievance. This must be outlined at the outset of their employment and readily available as their employment continues.
ACAS have determined a standard which employers must adhere to when conducting a formal grievance investigation and which ensures that you, as an employer, do you all you can to reasonably deal with any complaints made against the company by an employee. Failure to follow the ACAS Code when handling employee grievances can result in an uplift of compensation, sometimes as substantial as 25%.
If an employee feels that their grievance remains unresolved, or that it is simply too serious for the informal route, they may lodge a formal grievance. This is usually in writing (we recommend that your policy states this) but can sometimes be verbal. It is essential that you clarify with an employee if they intend to lodge a formal grievance for a serious matter that has previously been reported to you verbally.
TOP TIP: We highly recommend that a short record be made of any conversation or investigation relating to minor grievances as this can later provide grounds to evidence the steps you took to deal with the grievance. This is also essential when an employee raises a serious complaint verbally but declines to make a formal grievance.
Always write immediately to any employee that lodges a formal grievance, acknowledging their concern and enclosing the grievance policy for their reference. You should then commence a formal investigation in which all relevant evidence is gathered and interviews witnessed. It is customary for organizations to ensure fairness and independence by having a different person investigate the grievance than they who will later undertake the formal grievance hearing.
The primary purpose of a grievance investigation is to utilise a number of perspectives in establishing the facts of events that have occurred. A final outcome should not be decided at this point but reasonable conclusions can be drawn to assist the individual chairing the grievance in their decision-making. It is usual, but not essential, at this point for the investigating officer to summarise their findings and offer some sort of conclusion.
The employee should receive a formal invitation to the grievance hearing in writing and be provided with a copy of the investigation report on which their views can be sought. The person chairing the hearing should also review the report and determine if the employee wishes any other questions to be asked.
The employee is entitled by law to be accompanied by a colleague or trade union representative at the hearing. Individual circumstances, such as the need for an interpreter or any disabilities, should also be considered and catered for. In certain circumstances, employees may be permitted to bring their own legal representative. You should always seek advice where an employee requests to bring someone other than a colleague or trade union representative.
The employee’s representative is permitted to carry out several actions throughout the grievance hearing, such as putting forward the employee’s case, summarising their point of view and conferring with the employee. They cannot, however, answer questions on behalf of the employee.
Nowadays it is unusual to have witnesses attend the hearing. Your policy should, however, specify if witnesses are likely to attend, as well as the procedure for managing them if they do. It is, however, more likely that witness evidence or statements will be contained clearly within the investigation report.
It’s important that the employee is given an opportunity to raise any concerns about the investigation and its conclusion during the grievance hearing and that these concerns are considered carefully by the chairperson.
Minutes should be taken during the grievance hearing to ensure an accurate record and the minute-taker given express permission to interrupt the hearing if necessary to ensure accuracy.
If further evidence needs to be gathered, or witnesses questioned further, the hearing should be reconvened at a later date.
At its conclusion, the person chairing should always adjourn the hearing before arriving at a decision regarding an outcome. Contrary to committing to a decision during the hearing, taking the time to deliberate the conclusion will show, if the matter does proceed to Employment Tribunal, that what the employee had to say was carefully considered.
The employee is entitled to receive the outcome of their grievance formally and in writing, with reasons the decision was arrived at clearly outlined. The outcome letter is an essential part of any grievance process as it exhibits what evidence was considered, what witnesses said, what the employee’s defence was, and that the chairperson considered all facts whilst they made their decision.
Finally, the employee has the right to appeal the decision. Your policy should state the timeframe within which they must lodge their appeal. If the appeal is made on the grounds that the grievance process was not followed fairly, employers have the opportunity to put right any procedural defects and, if necessary, should ensure that they do so. Other grounds might include new evidence that has come to light or situations in which the employee does not agree with the decision arrived at.
Time and time again, we see informal complaints escalate where employers fail to deal with them correctly or neglect to respond to the employee within the appropriate amount of time. Make sure you communicate clearly with the employee about when will you respond and ensure you fulfill this commitment.
The ACAS Code of Practice does not prescribe a specific timescale for the formal grievance process; though please be aware that your internal policies may have set deadlines for each stage. Where there are no timescales, always ensure that you follow the investigation and hearing process in good time, keeping the employee updated at regular intervals as to their progress.
Employees that raise grievances frequently, both formal and informal, are nonetheless entitled to the same levels of protection; they cannot be victimised and their grievance must be investigated within the appropriate timeframe.
If, however, an employee has made a grievance that you feel to be vexatious or malicious, this might be considered a disciplinary issue.