First up, Employment Law solicitor, John Booth (pic r, below) looks at the thorny issue of workplace grievances…
What, exactly, constitutes a grievance? And then how do employers and employees prevent matters getting to that stage?
A grievance is simply a formal complaint about something which impinges on an employee’s ability to carry out his/her work duties. The grievance is then dealt with internally by work colleagues or management. Employees may be unhappy about any aspect of their work and/or their work colleagues. The ACAS Code of Practice on Disciplinaries and Grievances points out that where there is a problem, it is usually best to try to sort it out informally.
Sometimes matters are too serious to be dealt with informally, for instance if an employee is being discriminated against, or if the employer is breaching the terms of an employee’s contract of employment.
A wise employer will keep her/his ear open to what’s happening in the business. Are people always making jokes about one employee? Are any employees “loners” that other employees don’t speak to?
Similarly, employees should be made to feel that they will not be thought of as difficult for raising legitimate concerns. Such openness will result in fewer grievances.
In order to count as a formal grievance, the complaint must be submitted in writing, and must be done promptly so that the matter and the evidence don’t “go cold”.
Are you seeing a rise in workplace-related problems?
There is a gradual increase in workplace grievances as employees become more aware of their legal rights. Some typical cases are employees who believe their manager is putting them under too much pressure to reach unachievable targets; employees who are teased about something by other employees, or complaints about the failure or inadequacy of equipment.
Can all grievances be sorted out with a good talk – or is there a good reason to seek expert advice?
Most issues can be addressed informally as long as the issue is caught at an early stage. The real problems arise when that has not been done, and attitudes on both sides of the fence tend to harden. At that point, it may be a good idea for the employer or employee to take legal advice, because a badly planned and executed grievance procedure can actually make matters worse!
Is there a protocol to this – an agreed procedure to follow?
Yes. The procedure is outlined in the ACAS Code of Practice. It’s not a legal requirement to follow the precise procedure given in the code. Breaching the code is not in itself a breach of the law, but at a later stage, if the matter reaches an Employment Tribunal, the Judge will take into consideration the fairness of the procedure followed by the employer and the extent to which the employer and employee have followed the advice given in the ACAS Code.
The procedure involves the employee submitting a formal written grievance to the employer. The employer must then write to the employee inviting them to attend a formal grievance hearing. The employer should then end the meeting and investigate the issue. The employee should then be given a written response to the grievance, explaining whether or not the grievance is being upheld. If not, the letter should say on what grounds the decision has been reached, and the employee should be given the right of appeal. If the grievance is upheld, the employer should say what action will be taken to prevent the issue continuing or recurring.
If the employee does appeal the decision and is then unhappy with the outcome of the appeal, he/she has no further recourse, other than resigning and claiming that the issue constitutes a fundamental breach of the contract of employment (if in fact it does). That is known as claiming “constructive unfair dismissal”. If that looks a likely scenario, then regardless whether you are employer or employee, you need to take immediate legal advice.
If the appeal upholds the employer’s original decision, then unless the issue does constitute a fundamental breach of the contract of employment, the employee has little option but to accept the negative outcome of the grievance and the appeal, and get on with life. They can otherwise just leave to find employment elsewhere.
Can you give us some advice on how to avoid a difference becoming a grievance?
The main tip both to employers and employees is not to brush the matter under the carpet and allow things to fester. Deal with matters as soon as they arise.
And what about tips on how to ensure you’ve got evidence to support your claim?
That’s not always easy for the employee. Frequently there is no written evidence about issues which form the basis of grievances, especially if the complaint is that a line manager is bullying an employee. If there is written evidence, keep copies of relevant documents. Keep a diary to record events as they occur. If there are witnesses to specific incidents, ask the witness to write a statement about what they witnessed. That is of course not always easy, as witnesses may be worried that they may themselves become the target of their employer’s actions.
Canter Levin & Berg
(0151) 239 1000