Where possible, it is always best for employers to resolve any grievances informally. However, where this does not work, employers must ensure that they have a formal grievance procedure in place. Guidance in this area is given by the Code of Practice provided by the Advisory and Conciliation Service (Acas). This can be a complicated area of law and it is very important to ensure that your grievance procedures are well-drafted so that they are clear and transparent and our expert solicitors can ensure that your procedures are properly compliant. When faced with a dispute, you need to ensure you take expert advice to protect your company and our grievance lawyers can advise and represent you every step of the way.
Why should the Acas Code for Grievances be followed?
Employers should (rather than must) follow the Acas Grievance Code of Conduct. Although it is not legally binding, if it is not followed this can impact on the award given by an Employment Tribunal in that they can increase compensation by up to 25% for employers that “unreasonably” fail to follow the code or similarly decrease by up to 25% for employees that “unreasonably” fail to follow the code.
The Code does not apply to collective grievance procedures that are usually deal with in the collective bargaining agreements entered into by an employer.
An employee that wishes to bring a claim before an employment tribunal has a time limit of three months less a day from when the incident occurred that gave rise to the claim. This means that in order to allow time for the informal process, they need to raise this as soon as possible after the incident.
How does the grievance procedure work?
As with many areas of law, employees are encouraged to use informal action where possible. If this does not resolve the situation then it is highly recommended that mediation is considered at all times as opposed to the matter going to an employment tribunal.
Mediation allows the parties to appoint an independent third party to oversee conciliation efforts. This is a voluntary process and any decision given by the mediator is not binding. This method is very successful in resolving these types of disputes.
A company’s grievance procedure should be written down and easily accessible. Generally, it is referred to in the contract rather than being a part of it so that the employee knows how to access it but it can be easily updated over time. Employers should regularly review their grievance procedures to ensure that they are still valid and effective. Ensuring that the relevant levels of management are trained in this area will also ensure that matters are dealt with in a correct and compliant manner.
To start a grievance, the matter should be promptly raised in writing (sometimes known as an Acas grievance letter). This is not mandatory but if it is not followed and the employee initiates an employment tribunal claim in the first instance, this can lead to a reduction in their compensation award. The letter needs to give enough detail to allow the employer to investigate the claim in full. The employer must investigate the claim by taking statements, collating documents and interviewing relevant people.
The employer then calls a grievance hearing within 5 days (without reasonable delay is the requirement) where the issue can be discussed in an amicable way. The meeting is to allow the employee to put their case. The employee has to be given the right to be accompanied by either a colleague or a trade union representative where the grievance relates to a duty owed by the employer (though it is good practice to allow it in all cases). The colleague cannot have a vested interest in the outcome of the case but they are entitled to be paid for their time off to perform this role.
The employer must provide the employee with all statements and documents that are relevant before the hearing. At the hearing, the employee must be permitted to call witnesses (the employer can do the same). There must be a full written record of the meeting. This meeting is to allow the employer to establish what the facts of the case are and to decide whether they are going to uphold the grievance.
The employer must give their decision in writing to the employee after the hearing (usually within 24 hours). It needs to detail their decision, what action they are taking and how the employee can appeal. Again, the employee has the right to be accompanied at an appeal. If the employee fails to appeal the decision and takes the matter straight to an employment tribunal then this can be reflected in a reduced compensation award if they are successful. If the matter is appealed, it should be heard by a member of management that was not involved in the initial hearing and again a final written decision must be issued after the appeal.
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To avoid disruption of day-to-day business operations, it is always advisable to resolve issues through informal proceedings. If an employee eventually brings a claim before the employment tribunal, an employee can guard against an unfavourable ruling through adherence to formal grievance procedures outlined in the ACAS Code. It is highly advisable to consult an employment solicitor from the outset of a business undertaking to ensure that appropriate policies are in place and that employees are fully informed of their rights.
At Lewis Nedas, our Employment Law Solicitors have over 35 years ’ experience advising and representing national and international companies. Our employment lawyers have been appointed to the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues and contracts.