How to deal with a formal employee grievance

In the course of running your business, you will have to deal with a wide variety of different issues relating to your employees. Problems that arise at work are often resolved informally and an informal discussion is often all that is needed to resolve an issue. However, it is possible that you might receive a formal grievance from an employee if they have a concern, problem or complaint that they want to you to address. An employee could raise a grievance in relation to a variety of different matters and examples include: issues to do with terms and conditions, bullying and harassment and health and safety concerns.

DOES THE EMPLOYEE HAVE TO FOLLOW A GRIEVANCE PROCEDURE?

The employee raising the grievance should follow the ACAS Code of Practice (the Code), which sets out the conduct that employees should adhere to when they have an issue at work. It is advisable that you also have your own grievance policy in place and this is typically found in your Staff Handbook.

The employee should follow your company’s grievance policy and the Code and submit their grievance to you in accordance with them. It is likely that you will receive the grievance by email or by letter and this will contain information about the issue that is of concern to the employee. The Code states that the grievance should be in writing and set out the nature of the grievance.

WHAT SHOULD I DO AFTER I RECEIVE THE GRIEVANCE?

You should begin an investigation to look into the matter further and also arrange a grievance hearing with the employee as soon as possible. An alternative would be to hold an initial grievance hearing to speak to the employee, adjourn the hearing to carry out an investigation and following this, reconvene the grievance hearing.

The purpose of the investigation will be to gather as much information as possible so that the individual who holds the grievance hearing is in receipt of all the relevant information. The investigation could be carried out by someone from HR or another individual within the company but occasionally, external HR companies are retained to conduct investigations. Whoever is used to conduct the investigation should be impartial and not a subject of the grievance.

You may decide that it is reasonable to suspend the employee whilst the investigation is carried out. For example, if there is a risk that an employee could interfere with evidence. You should exercise caution when suspending an employee because if you don’t do it properly, the employee might resign and claim constructive dismissal for a breach of the implied duty of mutual trust and confidence.

WHAT HAPPENS DURING THE GRIEVANCE HEARING?

You should send a letter to the employee inviting them to a grievance hearing. The law states that employees have the right to bring a colleague or trade union representative so if they exercise this right, you should allow them to be accompanied. It is sometimes the case that the investigator also ends up being the person who chairs the grievance hearing.

In any event, it is paramount that the grievance hearing is carried out impartially. You must bear in mind that the grievance hearing is not a cross-examination of the employee but a dialogue and an important step towards trying to resolve the issue that is being considered. The person chairing the hearing will typically ask questions and the employee will respond. The employee may wish to call witnesses or may wish to challenge the witness evidence which has been obtained during the investigation.

WHAT HAPPENS AFTER THE GRIEVANCE HEARING?

The chair of the grievance hearing should reflect on what has been said and then inform the employee in writing about what you are going to do about resolving the grievance. It is good from an employment relations perspective for a second meeting to be held to inform the employee about how the decision has been reached.

The course of action that you are going to take will of course depend on what the grievance is about. For example, if the employee has alleged bullying by a line manager, it might be appropriate to give the employee a different line manager.

CAN AN EMPLOYEE APPEAL?

It is possible that the employee will not be happy with the outcome of the grievance. You should give the employee an opportunity to appeal the decision that has been reached. Whilst it is not always possible, if you have the administrative resources to do so, the appeal hearing should be conducted by a different person to the person who held the grievance hearing.

The right to be accompanied by a colleague or trade union representative also applies to appeal hearings. After the appeal hearing is held, you should write to the employee and give them the final decision of the company.

DOES THE COMPANY NEED TO TAKE ANY ACTION?

A lot of employers panic when they receive a grievance and think that it will definitely lead to an employment tribunal claim. Whilst companies should ensure that they manage their risk carefully, receiving a grievance from an employee does not automatically lead to a claim against the company.

It is often the case that an employee just wants a problem to be resolved and they feel that they can’t do this informally or feel that they have tried and the company has failed to address their concerns.

A grievance should be considered very carefully by the company as it can be an opportunity to amend policies or make organisational changes which may benefit the entire workforce and not just the employee who has submitted the grievance.

WHAT HAPPENS IF THE ACAS CODE IS NOT FOLLOWED?

If the employee decides to bring a claim, the employment tribunal will take into account the failure to comply with the Code when considering whether a fair procedure has been followed.

In addition, if there is an unreasonable failure to comply with the Code, the tribunal may adjust the compensation awarded by up to 25%. This means that if you fail to follow the Code, the consequence might be that you could end up paying more in compensation if the employee is successful in their claim against you.

If you are an employee who wants to file a grievance or an employer who has received one and would like further advice, please contact Shiv Raja at s.raja@rfblegal.co.uk.

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