What Is A Grievance?
What is a Grievance? A grievance is when an employee has a problem or concern about their work, physical working environment, pay and benefits, working hours, health and safety, working relationships or general treatment at work that they wish to raise and have addressed. The potential that grievances have for damage means that they cannot be ignored. If they are dealt with inappropriately, they are likely to manifest themselves in some other guise, which will make a satisfactory resolution much harder.
The purpose of a grievance procedure is to allow employees to raise genuine workplace grievances and have them dealt with fairly and objectively without fear of recrimination.
ACAS Code of Practice on Disciplinary and Grievance Procedures
The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out principles for handling disciplinary and grievance situations in the workplace. The Code came into effect by order of the Secretary of State on 6 April 2009 and replaces the previous Code that was issued in 2004.
A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases. Tribunals will be able to increase awards by up to 25% for unreasonable failure to comply with any provision of the Code. They can also decrease awards by a similar percentage if the employee does not comply with the procedure.
Key Points of the Code
Grievances are concerns, problems or complaints that employees raise with their employers.
Fairness and transparency are promoted by developing and using rules and procedures. The Code states the rules and procedures for handling discipline and grievance situations should be set down in writing, be specific and clear. Employees and, where appropriate, their representatives should be involved in the development of the rules and procedures. It also stresses the importance of helping employees and managers understand what the rules and procedures are, where they can be found and how they are to be used.
There are a number of elements to ensuring a situation is dealt with fairly:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
- Employers and employees should act consistently.
- Employers should carry out any necessary investigations, to establish the facts of the case.
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
- Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
- Employers should allow an employee to appeal against any formal decision made.
Employment tribunals will be allowed to take the size and resources of an employer into account when deciding on relevant cases and the Code identifies it may not always be practicable for all employers to take all the steps set out within the Code. If however you are considering missing a step you are strongly advised to contact Kea HR Solutions for advice and guidance before taking any action.
The ACAS Code of Practice on Discipline and Grievance Procedures recommends that employers develop procedures to deal with grievances that are “set down in writing, specific and clear”.
The Importance Of Managing Grievances Effectively
An employee who holds a grievance is unlikely to be working efficiently. They are also likely to share it with colleagues who, even if they do not share the problem, will probably be distracted from their own work. Unresolved grievances may also manifest themselves in sickness absence.
Employees who believe that their complaints are not being listened to, or who fear that voicing them will attract a detrimental response, may choose to leave and then claim compensation for constructive unfair dismissal by arguing that:-
- the cause of the grievance made working life impossible
- realistically, there was nothing they could do about it.
If a clear and well-publicised grievance procedure is in place employees might have a claim for constructive dismissal rejected if they chose not to use the procedure.
Dealing With Grievances
A grievance should be seen primarily not as a complaint but as a form of communication. Minor problems between people are usually resolved during normal conversation. Issues are raised quite casually, heard by the other party and dealt with appropriately. However in work environments problems are often stored and repressed until the employee presents the issue as a grievance.
Knowing about a problem is much better than remaining ignorant of the fact that an employee is unhappy or disgruntled about some aspect of their employment.
Once you know that an employee has a grievance, you can discuss the matter with them, take on board there point of view and, if possible, provide a solution or part solution.
It is therefore more constructive to view the raising of grievances positively rather than as a nuisance, since adopting a positive attitude may facilitate a satisfactory resolution.
A negative attitude towards the grievance, on the other hand, is likely to alienate the employee and aggravate the situation.
If, for example, a manager refused to listen to an employee’s grievance or declined to take it seriously, or if they treated the employee as a troublemaker, the employee may end up with two grievances. The original grievance will remain unresolved and the employee may have a new grievance in respect of the manager’s unreasonable and unhelpful response.
Handling Formal Grievances
Receiving a formal written grievance triggers the need to hold a meeting at which the employee may be accompanied. The intention of the employee must, therefore, be carefully considered as the employee must not be “blocked” from pursuing a grievance formally. Failure to hold the meeting after a written request for a grievance has been made could, if the employee pursued a Tribunal claim, lead to an increase to the award by up to 25%.
The onus is on the employee to raise the matter in writing with a manager who is not the subject of the grievance.
The Importance of Acting Promptly
If an employee raises a grievance, it will be important for the manager to deal with it promptly.
Dealing with grievances can be time consuming and sometimes not easy, but any delay in tackling and resolving a grievance is likely to make matters worse.
An employee may be experiencing stress as a result of what they perceive as a problem at work. This in turn might disrupt working relationships. The existence of the grievance is likely to have an escalating negative impact on the employee’s performance and productivity.
Conducting a Formal Grievance Hearing
On learning that an employee has a grievance, the manager should arrange a hearing.
The aims of the meeting are to:
- ensure that the employee is given the opportunity to fully explain their grievance; and
- seek a means of resolving the grievance to the employee’s satisfaction if this is possible, taking into account company policies, procedures, rules and the need for consistency and fairness.
At the hearing, the manager’s main role should be to listen to what the employee has to say. The aim will be to achieve a full understanding of the grievance and how the employee thinks that it should be resolved.
Everyone involved in the process should make every attempt to attend formal meetings.
Following the hearing, the manager should give the grievance careful and thorough consideration before coming to any conclusions or making a decision about what to do.
Right to be Accompanied
Any employee who raises a formal grievance has a statutory right to be accompanied at any formal meeting arranged to discuss the grievance.
The entitlement is to be accompanied by a work colleague or trade union representative (either a full time official or a lay representative) of their choice. This is regardless of whether or not the company currently recognises the union in question. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker.
The employee should tell you before the hearing whether they intend to be accompanied and if so who by. It would not be reasonable for the employee to be accompanied by someone whose presence would prejudice the hearing.
If the companion is a work colleague they should be allowed paid time off work to confer with the employee, prepare for and attend the meeting. During the meeting the companion has the right to address the hearing, ask questions and to participate fully. They do not have the right to answer questions on behalf of the employee, address the hearing if the employee does not wish it or prevent the employee from explaining their case. Adjournments to confer with the employee should be given when requested.
If the chosen companion is unable to attend the meeting the employee should suggest an alternative date and time, which should be within 5 days of the original date, beginning with the day after the date originally suggested. In this case, the original meeting must be postponed as requested.
The employer should consider whether the employee might have difficulty presenting a grievance, and therefore perhaps allow the companion to play a more active role for instance if the employee is disabled, has difficulty of expression or is frightened.
The right does not apply to meetings outside the formal grievance procedure such as informal hearings or enquiry interviews.
The worker raising the grievance has the right to determine, within limits, the role that they wish the companion to play at the hearing. If the worker wishes, the companion must be allowed to:
- address the hearing on behalf of the worker, ie put their case;
- confer with the worker during the hearing;
- sum up the worker’s case; and
- respond on the worker’s behalf to any views expressed at the hearing.
The manager is, however, entitled to expect the worker, and not the companion, to answer any questions asked.
In some cases, the worker may wish to bring the companion along simply for moral support rather than for representation.
Adjournments to Investigate the Grievance
It may be necessary for a grievance meeting to be adjourned if there is a need for an investigation into any allegations raised by the employee. Any such investigation should be impartial and thorough.
The chair of the meeting may need to check policies or procedures, discuss what the employee has raised with other employees (confidentially where appropriate), or access the employee’s file to check out the history of their employment terms or general background.
The manager should remain open minded when looking into the substance of the employee’s grievance.
Resolving the Grievance
Once the grievance has been investigated, where necessary, and conclusions drawn, the employee should be given feedback on the outcome. Of course, it will not always be possible for the manager to resolve the grievance to the employee’s satisfaction, perhaps because giving the employee what they want would breach company policy, cost too much money or be impracticable.
The feedback should consist of an explanation of what action has been taken or will be taken, or an explanation that no action can be taken, together with the reasons for this. This feedback should also be confirmed in writing.
The employee should be informed that they have the right of appeal in accordance with the organisation’s grievance procedure. Any appeal should be dealt with impartially and, wherever possible, by a manager not previously involved in the case. Where possible, this should be a more senior manager.
Failure to Resolve a Grievance
Although a satisfactory answer to a problem may be found it may not be practicable to implement it immediately. Care must be taken that this is not construed as a form of rejection and the manager will need to explain the rationale to the employee. Not all problems may be resolved to the satisfaction of employees, and the manager therefore needs to be able to deliver unfavourable replies without aggravating the situation.
Access to the grievance procedure is the right of every employee, and that must be made clear. However, care must be taken that the manager does not use the procedure for all problems raised by employees, or the system will become overloaded and the procedure devalued. Equally, the grievance procedure must not be offered as a threat.
Following the meeting the employee should be given written confirmation of the outcome of the meeting including any action the employer intends to take to resolve the grievance. The written notice should confirm the employees right of appeal should they not be satisfied with the outcome of the first stage meeting.
Once the grievance procedure, including the appeals stage, has been exhausted, the employee should be informed clearly that the grievance procedure is at an end and that there is no further right of appeal. The matter will be closed irrespective of whether the employee accepts the outcome.
Grievances and GDPR
Full confidential records should be kept of all grievances raised, including a record of:
- the substance of the grievance
- all interviews conducted in relation to the grievance
- the employers response to the grievance
- any actions taken as a result of the grievance
- the reasons for such actions
- details of any appeal and its outcome
- any subsequent developments
In line with the General Data Protection Regulation (GDPR), these records should be held confidentially and kept for no longer than necessary, i.e. until there is no possibility of the matter flaring up again. In some cases, data collected may include special categories of data (e.g. information about an employee’s health), in which case more stringent rules apply. Line managers should seek further advice about their duties under the GDPR from the Data Controller or HR department.
Copies of the records of meetings should be given to the employee, although certain information may be withheld (e.g. to protect the identity of a witness).
Confirmation of Receipt of Grievance and Invitation To Attend a Grievance Meeting
My Letter to Confirm Receipt of a Grievance is designed for you to acknowledge receipt of an employee’s formal grievance. The letter also confirms the date and time of the formal meeting to discuss the grievance.
This Grievance Meeting Letter complies with the ACAS Code of Practice.
If a grievance investigation is necessary, acknowledge receipt of the grievance and confirm the date and time of the meeting once the investigation is completed. In this situation you should carry out the investigation quickly and arrange the formal grievance meeting without unreasonable delay.To download the Confirmation of Receipt of Grievance and Invitation To Attend a Grievance Meeting complete your details below and an email containing the document will find it’s way to your inbox: