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How to deal with an Employee Grievance
The issue of employee grievances has recently come to greater prominence. Largely this is because of changes in employment law and Tribunal rules which require an employee, who wants to make certain types of claim (particularly discrimination and constructive dismissal), to have tried first to resolve the matter through the prescribed Statutory Grievance Procedure. Claims, in these cases will be inadmissible if the employee has not lodged a grievance with the employer. Inevitably therefore many grievances are raised not with a real desire by the employee to reach a resolution but simply because it is a hurdle that must be overcome before a Tribunal claim will be allowed to proceed. A government change made in the hope of reducing the number of cases reaching Tribunals has in fact resulted in a huge additional burden on employers, and has considerably prolonged the time before an issue is finally brought to a conclusion.

However we have to work within the law as it stands. A grievance may of course be raised by an employee at any time, and there may be no thought of pursuing a Tribunal claim regarding the matter – nevertheless the same sort of procedure should be followed in all cases (with the minor variations mentioned below).

So what exactly is a ‘grievance’? The Dispute Resolution Regulations (2004) define it as “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him” – and “action” can be an omission (e.g. a decision not to give an employee a pay increase, or a failure to act on a complaint that an employee is being harassed). In many cases a grievance will of course be resolved relatively informally by line managers, but if the employee is contemplating a possible Tribunal claim (or has already resigned and intends to claim constructive dismissal) he or she must ensure that they follow the Statutory Grievance Procedure laid down in the 2004 Regulations. This means that they must set out their grievance in writing and send it to the employer. (This is usually referred to as the Step 1 statement).

Recent Employment Tribunal decisions have made it clear that this ‘statement’ does not have to specify that a grievance is being raised – nor does it necessarily have to come from the employee. An e-mail will count as a written statement. Any written communication from an employee or ex-employee (or from someone representing them) which sets out a complaint should be regarded as a potential grievance, even if the employee does not ask for the formal procedure to be invoked. On receipt of this statement the employer should then invite the employee to attend a meeting to discuss the grievance (the Step 2 meeting), following which he/she must inform the employee’s right to appeal against that decision. Not part of the Statutory Grievance Procedures, but under separate legislation, the employee has the right to be accompanied by a fellow employee or a trade union representative. It would be prudent to notify him/her of this. While it is not a legal requirement it is strongly advised that the decision should be given to the employee in writing. (The Step 2 meeting should be held within 28 days of the grievance being received – if it is not, the employee can bring a Tribunal claim without waiting for the employer’s response, and moreover the employer may, if that claim is won, be penalised for non-compliance with the procedure.)

The grievance meeting should be used to clarify precisely what the grievance is and to get from the employee any specific details (dates of incidents, names of witnesses, etc). The employer should then carry out a full investigation and reach a conclusion. This may be that the grievance is well-founded, in whole or in part, and the employer should indicate on what grounds he finds the grievance to be not substantiated. If the employee is not happy with the decision he or she can then appeal (Step 3 appeal). The appeal should be heard by a different manager, with the same right to be accompanied, and again a conclusion given to the employee in writing. This will complete the statutory procedure, but the employer’s own grievance procedure may have additional steps which must be complied with – there may for example be provision for a further appeal.

Where a former employee raises a grievance after their employment has ended (typically where they intend to bring a constructive dismissal claim), the Regulations provide for a ‘modified’ grievance procedure which can be used. The difference is that this does not require a Step 2 meeting to be held – the employer can respond in writing to the grievance as set out in the Step 1 letter. It is common for the ex-employee to request that the modified procedure be followed, but both parties have to agree to this. Thus an employer is within his rights to reject the request. Whilst it may be tempting for the employer to agree with such a request, in order to avoid having to arrange a meeting, it may in fact be in his interests to insist on a meeting. First it is easier to explore the details of the grievance (and challenge them) in a face to face meeting; secondly it should reveal the strength of the relative positions, thus leading to, finally, the opportunity to redress the grievance if the employer’s position is the weak one or to the withdrawal of the grievance if the (ex) employee’s position is without merit. Trying to conduct matters by correspondence is undoubtedly less effective in obtaining a satisfactory solution. A desire, on the part of the employer, to conduct a full meeting also indicates a serious intention to “get it right” which the modified procedure does not always do. However the employer’s insistence on using the full procedure must be reasonable – it is not yet clear how the courts will interpret this, but it is likely, for example, to be unreasonable to insist on a meeting where the ex-employee now has another job in a different part of the country.

Employees who have been dismissed often confuse grievances and appeals. They should of course have a right of appeal against their dismissal, but they do not have to exercise that right in order to bring a Tribunal claim. Many dismissed employees (in some cases through poor advice) submit what they describe as a ‘grievance’. If this relates to the reasons for their dismissal it is an appeal, not a grievance, and should be treated as such if it has been made within the time period set out for appealing and even if the appeal is late there are “house points and gold stars” to be won for allowing it anyway. If it concerns quite separate issues, the ex-employee may be preparing the ground for a claim, say, of discrimination and it is vital that prompt advice is sought on how to respond.

Failing to respond to a grievance in compliance with the statutory procedures will not in itself be grounds for a Tribunal claim – but it is important to remember that Tribunal awards for constructive dismissal, discrimination, etc., can be increased by up to 50% if the employer has not compiled with the relevant procedures. It should be noted that employers have lost Tribunals in the past, prior to statutory intervention in October 2004, for failing to respond/handle grievances properly. It is therefore potentially expensive to ignore or to mishandle an employee complaint. Moreover, although the basics of the statutory procedures have been briefly described above, the Regulations are in fact extremely complex and even confusing, and will require clarification by the courts as cases are heard.

It is worth noting also that the 2004 Regulations permit the time limit, within which an employee must bring a Tribunal claim, to be extended in order for a grievance to be lodged. These rules are complex and tax even the experts. What this means for the employer is that Tribunal claims can now be presented up to six months after a resignation or an alleged incident of discrimination – employers can no longer be assured after three months that no claim can land on their desk.

Besides the law that applies to grievances and grievance handling, there is a more fundamental reason for dealing with them promptly and efficiently – an aggrieved employee is a potential disaster waiting to upset a client, etc.
(Courtesy Peninsula Business Services Ltd)




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How to deal with an Employee Grievance
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