It is always advisable to strive to resolve workplace disputes through informal means, such as discussions in private, in order to ensure continuity in good working relationships and avoid disrupting the day-to-day operations of a business. Where issues cannot be resolved, resort can be had to more formal proceedings, including grievance procedures.
All employers should have a grievance procedure in place to properly handle formal complaints lodged by employees. The UK’s Advisory and Conciliation Service (ACAS) provides a Code of Practice that should be adhered to by employers. The Code is not legally binding but if a dispute leads to a claim being brought before the employment tribunal, a judge will look favourably upon an employer’s efforts to meet the recommendations in the Code when reaching their decision.
An employer’s grievance procedure should detail how employees can lodge formal complaints in writing, to whom formal complaints should be sent to and the process of meeting with the employer to go over points of contention. Information on the appeals procedure should also be provided.
Components of grievance procedures
The ACAS Code has two core recommendations. The first is that informal action should be prioritised “wherever possible”, and the second is that mediation should be considered at all stages of the formal process.
It is important to make clear where informal proceedings have ended and more formal proceedings have been entered into, so as not to infringe on an employee’s rights, including the right to be accompanied at a grievance meeting.
Written notice to employer
Formal proceedings are commenced through a written grievance letter to the employer with a statement of facts. The facts should be sufficiently detailed to allow the employer to investigate the matter.
The employee may wish to request personal information about them held by the employer. This is done by means of Subject Access Requests (SARs), which features a written request accompanied by a small administrative fee. Such a request must be reasonable and proportionate. The employer will have a maximum of 40 days to respond to the request.
Upon receipt of a grievance letter, the employer should endeavour to hold a meeting without unreasonable delay. Up to five working days is usually considered reasonable. The tone of the meeting should be one that fosters an amicable agreement between the parties.
Right to be accompanied
When attending a grievance meeting, and an appeal, the employee has the right to be accompanied by either a colleague or a trade union representative. The right will apply where the meeting concerns “a complaint about a duty owed by [the employer] to a worker”. The employee’s request to be accompanied must be a reasonable one, and the individual sought to accompany cannot have a vested interest in the outcome of the proceedings.
A colleague who is requested to accompany is entitled to paid time off in order to fulfil their duty. If the employee is disabled, they can be accompanied by a further person to assist them as a reasonable accommodation under the Equality Act 2010.
Upon conclusion of the meeting, the employer must provide written notification of their decision as to what action they are taking and how the employee can appeal their decision. This is usually done within 24 hours of the grievance meeting.
Employers must have an appeals process in place and fully inform employees of any time limits for making their appeal and their right to be accompanied. An employee will appeal the written decision of the employer in writing.
It is highly preferably for a member of management who has not been involved in prior proceedings to consider the appeal. Upon conclusion, the employer must issue a final written decision on the outcome.
Mediation is the process of appointing an independent third party, a mediator, to the employer and employee who oversees the parties’ conciliation efforts. The process is done on a voluntary basis, and the mediator does not issue a binding decision. Mediation is a highly successful method of resolving workplace disputes.
Collective grievance processes
Employers should note the difference where more than one employee raises grievance procedures at the same time. In such instances, recourse should be had to collective grievance processes. Collective grievance procedures are normally accounted for in collective bargaining agreements entered into by the employer.
Claims before the employment tribunal
If an employer does not adhere to the ACAS Code in conducting formal grievance proceedings, the employment tribunal has the power to upwards adjust compensation awards by 25%.
Time limit for claims
If an employee wishes to resort to a claim before the employment tribunal, they must do so within three months less one day of the date of the incident giving rise to the claim. An employee does not have to exhaust grievance proceedings before making such a claim, but opting out may result in a reduced award to the employee if their case is successful.
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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.