In the main, employees work without complaint. However, from time to time, issues arise where an employee feels the need to raise a grievance. Whether it's about the way the employer operates or how they've been treated by an individual or a group, the matter needs airing. Fortunately, most issues are dealt with informally, but some become regularised and may eventually proceed to an Employment Tribunal.
How a grievance is dealt with—and perceived by the employee—can make a huge difference to the outcome for all.
First positions
Every employee has the right to file a grievance at any time, regardless of what it relates to. Further, there is no minimum length of service required to make a complaint.
While management does not have any obligation to examine complaints raised by workers that have left, it often makes sense to do so to reduce the risk of legal action through the tribunals. Many employers choose to investigate claims made as it helps those still employed feel that they will be treated fairly.
Before embarking on an investigation, employers should take time to familiarise themselves with the ACAS Code of Practice on Grievances before beginning any investigation. This document provides employers with practical guidance on how to handle a grievance appropriately and fairly.
Even though it is not required, employers should show that they have followed the code. If a case goes to an Employment Tribunal, the tribunal will look at whether all parties—employer and employee—followed the code. It's important to note that an employee's compensation can be increased by up to 25% if they win their case at an employment tribunal and the employer has not observed the code. Similarly, an award can be downrated if the employee has not followed the code either.
Grievance processes
Every organisation will have a different view on the writing of a grievance policy. Regardless, it ought to at least include detail on how a grievance can be filed; when it will be heard; timescales for an outcome to be reported; a contact for lodging an appeal; and also, a timescale for when any appeal will be heard.
When an incident arises, in accordance with their employer's grievance procedure, an employee should first file a formal grievance in writing, known as a letter of grievance, as soon as possible.
Generally, employees should report concerns to their line manager, or if it's about them, to an individual from HR.
The grievance needs to outline the grievance (with facts, dates, and names) along with what the employee is seeking as an outcome together with any proof and supporting documents. It follows that to allow the matter to be investigated thoroughly and quickly, the grievance letter should include as much factual evidence as possible.
It should be remembered that not all complainants will label their letter as a letter of complaint. This means that employers should examine each letter to determine whether or not it constitutes a formal grievance.
The investigation procedure
After the submission of a grievance, an employer should promptly acknowledge receipt to the employee. The next step is to decide who will chair a grievance hearing with the employee and who will conduct an investigation into the complaints outlined.
The investigation process generally involves gathering all relevant information on the issues the employee has raised. However, if the grievance relates to the behaviours of another employee, the investigation will also involve interviewing anyone who may have seen or heard the incidents complained of, as well as holding an investigation meeting with the person the employee has complained about.
The grievance chair must be impartial and so not be cited in the complaint; the chair should be someone with sufficient authority.
Process
The grievance chair must start the process by conducting an in-depth investigation so as to be able to form a conclusion at the end of the grievance procedure.
Typically, this starts by looking over the letter of complaint; checking the organisation's procedures and policies; looking for sources of proof; identifying potential witnesses; determining when and how to gather the evidence; and choosing when and where the complaint hearing ought to be heard.
» Every employee has the right to file a grievance at any time, regardless of what it relates to. Further, there is no minimum length of service required to make a complaint «
» Before embarking on an investigation, employers should take time to familiarise themselves with the ACAS Code of Practice on Grievances before beginning any investigation «
The grievance chair is required to invite the employee—in writing—to a hearing to discuss their concerns. The invitation should state that the chair will lead the meeting and note that another, typically a member of the HR department, will be there too to record what was said.
Best practice demands that employees are granted the right to a companion at the hearing—this could be a colleague or an authorised trade union representative.
The grievance hearing ought to be held right away and according to ACAS guidance, the hearing should ideally take place within five days. However, this is not always possible, so if there is a long delay before the hearing, and the case goes to an Employment Tribunal, the employer will need to explain the delay.
If the employee has brought another along, their identity and role should be established. They may attend as a witness, in which case they will take notes for the employee, or they can participate as a representative and help the employee put their case forward.
The employee needs to be told, either prior to or at the beginning of the hearing, that they are not permitted to record the hearing—this is the reason that a note-taker is present as it's their role to ensure an accurate record of the hearing. The grievance chair should inform the employee that they will be sent the meeting notes shortly after the event so that they can review and make comments. Ideally, the employer should get the employee to sign and date the notes.
Any witness evidence needed to complete an investigation should be gathered outside of the hearing; evidence gathered as part of a grievance investigation cannot be viewed nor can any witnesses be cross-examined by the employee. While the employer may allow witnesses at a complaint hearing, it is recommended that this is not permitted and that evidence is gathered separately.
The investigation
The period following the grievance hearing is where the grievance chair should undertake most of their investigation. This may involve speaking to witnesses and obtaining witness evidence; gathering evidence—maybe CCTV footage; and further meetings with the employee if necessary.
The chair should subsequently submit a report detailing their investigation and how they arrived at an outcome. This must be communicated, without unreasonable delay, to the employee along with any action, if any, that is to be taken to solve the matter.
The employee must be told, in writing, of the outcome of their grievance. The letter needs to detail how the decision was reached and where appropriate, outline their right to an appeal. Some chairs elect to meet with the employee in person to confirm the outcome before sending written confirmation.
» The employee needs to be told, either prior to or at the beginning of the hearing, that they are not permitted to record the hearing—this is the reason that a note-taker is present as it's their role to ensure an accurate record of the hearing «
Making an appeal
Where an employee is unhappy with the outcome and chooses to appeal the decision, the process starts again with the employer appointing someone impartial to manage the appeal.
Any appeal must be submitted in writing and without delay—the employee should be given a deadline by the employer to file an appeal. If an employee files an appeal outside of this timescale, it's up to the employer whether they continue with the matter. An employer may find it better to investigate than not in case the employee decides to take the matter to an Employment Tribunal.
The employee's appeal letter should state, in detail, the grounds upon which they are appealing the employer's decision.
The appeal can be heard again as a review of the original case or as an appeal. The appeal chair will need to review the original grievance chair's investigation report to establish if the grievance was properly and thoroughly investigated and that the decision was reasonable based on the available evidence. A new investigation into the complaint is only required if the employer believes that the initial grievance investigation was flawed in some fundamental ways.
Once the appeal hearing has been held, the appeal chair must communicate the final decision in writing to the employee without unreasonable delay.
It should be pointed out that in the event that an employee is the subject of a disciplinary procedure and files a grievance, the employer must determine the best course of action for resolving the situation.
However, it is usual practice to halt the disciplinary process until the grievance has been resolved. That said, the ACAS guidance says that it is acceptable for an employer to investigate both disciplinary action and a grievance in tandem.
Summary
Employment law is complex and can trip up those unaware of its provisions. While the ideal is workplace harmony, the reality is that grievances can and do arise. Employers who investigate and handle issues correctly reduce the risk of an appearance before an Employment Tribunal.