This expanded factsheet goes into more detail about the procedures required under a new code of practice for managing grievances which came into force on April 6, 2009. The Acas Code of Practice on Disciplinary and Grievance Procedures replaces the old Statutory Dispute Procedures. There is no clean break with the old procedures and transitional arrangements may apply.
The purpose of a grievance procedure is to give employees a way to raise issues with their managers about their working environment or work relationships.
Transitional provisions for grievance procedures
Under the transitional arrangements, the old Statutory Dispute Procedures continue to apply in a number of situations. Employers who fail to follow the correct transitional arrangements could face financial penalties of up to a 50 per cent of the compensatory award.
The old Statutory Dispute Procedures continue to apply where the employee raises grievances about their employer’s conduct which:
- Started on or before April 5, 2009, resulting in a step one letter (see three-step Statutory Dispute Procedure) or Tribunal Claim on or before July 4, 2009 or
- Concern the employer’s conduct wholly before April 6, 2009.
The old procedures also continue to apply where the employee raises a grievance about equal pay or redundancy pay (and certain industrial action dismissal claims) which:
- Started on or before April 5, 2009, resulting in a step one letter (see three-step Statutory Dispute Procedure) or Tribunal claim on or before October 4, 2009 or
- Concern employer conduct wholly before April 6, 2009.
For more information on the transitional arrangements for grievances see Statutory Dispute Procedures.
Grievance procedures under the Acas Code
The Acas Code of Practice on Disciplinary and Grievance Procedures aims to simplify the much criticised Statutory Dispute Procedures. The Acas Code suggests parties ‘should’, rather than ‘must’ act in a certain way. The employer will no longer be found to have been automatically unfair if they do not follow the procedure. However, Employment Tribunals ruling on individual cases can:
- Increase compensation by up to 25 per cent where the employer has ‘unreasonably’ failed to follow the Acas Code.
- Reduce compensation by up to 25 per cent where the employee has ‘unreasonably’ failed to follow the Acas Code.
Key changes in grievance procedures under the new regime
There are some key differences between the old dispute procedures and those set out in the Acas Code:
- An employee who does not submit a grievance is no longer barred from bringing a claim in the Employment Tribunal.
- Submitting a grievance no longer entitles an employee to an automatic three-month extension of time for issuing certain claims in the Employment Tribunal.
- The Employment Tribunal has wider discretion to uplift or reduce compensation as it applies to any grievance where either party has unreasonably failed to follow the code. The Employment Tribunal can now choose not to adjust compensation at all, or adjust it by up to 25 per cent where either party unreasonably fails to follow the code (previously 10 - 50 per cent and less only in exceptional circumstances).
- The Acas Code does not apply to collective grievances - a grievance brought by an appropriate representative for more than two employees.
- Where an employee raises a grievance during disciplinary procedures the employer can decide whether to suspend the disciplinary proceedings or not.
Even though the Acas Code has now come into force, it is still not clear whether the code’s definition of employee covers the actions of employers towards former employees.
How should grievances be handled?
The Acas Code sets out steps employers and employees ‘should’ take when dealing with grievances. Employers should also follow their internal grievance procedure in addition to the steps outlined below. Employers should deal with all issues fairly and consistently to avoid claims of discrimination or unfair treatment and/or undermining the implied duty of mutual trust and confidence.
Employee raises grievance in writing
The employee should raise their grievance promptly and in writing. Failure to do so does not prevent an employee bringing a Tribunal claim about the matter. However, where the employee has not first raised the grievance in writing, compensation may be reduced by up to 25 per cent. Where the grievance is about their line manager, the employee may approach another manager or the HR department.
Employer carries out proper investigation
To establish the facts, the employer should collect documents, identify relevant people to interview and take statements before memories start to fade. Requests for anonymity and confidentiality should be taken seriously.
Employer calls a grievance hearing to investigate complaint
The grievance hearing should be scheduled without unreasonable delay. Both the employer and employee should make every effort to attend this meeting. Employees can request to be accompanied by a fellow worker or trade union representative where the complaint is about a duty owed by the employer. However, it is good practice to allow an employee to be accompanied at all types of grievance hearing. This request must be ‘reasonable’, ie the companion should not be someone who will prejudice the meeting or from a remote workplace if someone nearer is available. If the employee’s companion is not available to attend the scheduled date for the grievance, the employee can suggest an alternative time as long as this is reasonable and not more than five working days after the original date.
Grievance hearing
The purpose of the meeting is for the employer to establish the facts and decide whether to uphold the grievance or not. The employee should be sent copies of all relevant documents and statements before the hearing. Employees should be allowed to call their relevant witnesses and the employer may also choose to call witnesses if this is necessary.
The hearing itself should be in a private room with no interruptions. A full written record of the meeting should be prepared or a transcript if both parties have agreed to the meeting being recorded. The meeting should follow the following format:
- Introduce those present and the purpose of the hearing.
- Invite the employee to re-state their grievance and how they would like it to be resolved.
- Employee can submit supporting evidence.
- Witnesses can give their account of events and answer questions.
- Employee’s companion can asks question, address the hearing and confer with the employee, but is not entitled to answer questions on the employee’s behalf.
- Decision maker/s consider the employee’s evidence and sums up the main points.
- If new facts arise, the meeting can be adjourned for further investigations so all evidence is considered before making a decision.
- Where there is contradictory evidence, the employer decides on the balance of probabilities which version is true.
- Employer tells employee when they might reasonably expect a response if the decision is reserved.
- The decision can be given at the end of the hearing itself but should always be confirmed in writing.
Grievance decision and possible action
When the matter is concluded, the employer should decide on appropriate action. Where the grievance highlights procedural errors or a lack of policy, training or procedures, these should be addressed as soon as possible. The decision should take into account:
- Whether independent mediation might help.
- The gravity of the issues.
- The impact of the decision on other individuals who may feel aggrieved.
The employer should give the employee their decision without unreasonable delay. This should include details of intended actions. The employer must also notify the employee of their right to appeal.
Employee appeals in writing (where appropriate)
Appeals should be in writing and specify the grounds of appeal. If the employee brings a Tribunal claim without appealing their employer’s decision, their award may be reduced. The meeting should be arranged such that there is at least one, preferably more, senior person who has not been involved in the previous grievance to hear any subsequent appeal.
Employer calls appeal meeting
The employee has the right to be accompanied. The appeal meeting should carefully consider any new evidence.
Employer gives final decision in writing
The employer should communicate their final decision and the reasons for it in writing without unreasonable delay. Ensure any action is monitored and reviewed, so it deals effectively with the issues and prevents a further grievance being raised.
For more information see Discipline and Grievances at Work: The Acas Guide. If you would like to discuss the law in relation to grievances email Fiona Martin or call your local martin searle solicitors’ office on 01273 609911 (Brighton) or 0208 256 4490 (Croydon).
