By Sharokh Koussari, Partner, Howard Kennedy

‘In 2004 the Statutory Disciplinary and Grievance Procedures were introduced in the UK and created a ‘sea change’ in employer / employee relations.

Serious penalties were imposed on employers who failed to comply with their statutory duties in relation to grievances and disciplinaries, and employees were obliged to raise a grievance before commencing Employment Tribunal proceedings. The idea was to ensure that disputes remained confined to the workplace and that claims were not brought without employers having had prior notice of them. The intention of the legislation was for litigation to be used only as a last resort.

These rules were considered to be too onerous on both employers and employees, and in April 2009, the ACAS Code of Practice on disciplinary and grievance procedures introduced a new set of rules which have replaced the now defunct Statutory Disciplinary & Grievance Procedures.

A key change is that employees are no longer prevented from bringing Employment Tribunal claims if they have not previously raised a grievance. These new rules now govern the internal dispute resolution mechanism and can be found on the ACAS website www.acas.org.uk.

Should a Grievance be Raised ?

From an employee’s point of view it is always very difficult to decide whether to formulate a complaint in the form of a grievance. The problem is that the minute a grievance is raised, this will unleash a number of procedures which need to be followed by the employer involving investigating the grievance and arranging for a meeting to discuss it.

But an employee who does not necessarily want to ‘rock the boat’ might find that this means that the grievance can result in a matter going further than the employee initially wished. Unwittingly the raising of the grievance itself can result in a dramatic worsening of the relationship between the employer / employee.

However, there are also a number of advantages in bringing a grievance:

• An employee is able to create a paper trail of any disputes or issue which he will be able to rely on at a future proceedings. Even if in reality, the vast majority of grievances lodged by employees are not upheld by employers it is important that matters are put in writing.

• Grievances could help bring matters to a head which on many occasions lead to an eventual settlement.

• The ACAS code which now governs the issue of grievances allows Tribunals to reduce an employee’s compensation by up to 25% if a grievance is not raised before proceedings are brought.

• In specific cases, for example where matters involve ‘whistleblowing’ it is very useful to be able to refer to a grievance against the “unlawful” act of the employer against which the employee is complaining.

For all the above reasons, from the point of view of employment rights as soon as there is an issue of significant importance, it is essential that a grievance is brought. This is even though in practice the vast majority of grievances by employees are not upheld by their employers (for obvious reasons).

The timing of the decision to bring a grievance is also very important. The employee must do a balancing act between the disadvantages of bringing a grievance and the advantages.

Very often employees decide to bring a grievance when there is absolutely no other alternative, although tactically, it may have been better to bring the grievance before that stage.

What Happens after the Grievance is Raised ?

In accordance with the ACAS rules, once the grievance has been raised it is up to the employer to carry out a thorough investigation of the matters complained of and for a grievance meeting to take place.

The meeting is a formal one at which the matters complained of should be fully addressed. The employee is entitled to attend the meeting together with a colleague or trade union representative. The employer will then either investigate further or decide whether or not the grievance should be upheld.

If the employee is not happy with the result of the grievance, he or she can make an application for an appeal which will normally be heard by someone senior to the person who dealt with the initial grievance. The person hearing the appeal must investigate the grounds of appeal, hear from the employee at the appeal meeting and then reach a decision based on what he hears.

If an employee is not happy with the outcome of the initial grievance, it is essential that he appeals against it.

What Next ?

If the appeal decision is not positive, it would be open to the employee to either drop the matter or to bring proceedings. There is no other internal alternative, unless an employer’s own internal procedures allow for a 2nd stage of appeal.

Avoiding the Slippery Slope

As mentioned above, there are many employees who decide not to raise a grievance for office political reasons. Matters sometimes do blow out of proportion especially bearing in mind case law has held that any complaints put in writing could amount to a formal grievance even when not intended as such.

From an employer’s point of view it is essential to try and ‘nip the issue in the bud’ by dealing with concerns before they become important enough for the employee to file a grievance about them. In practice, this can be very difficult but having a good internal dispute resolution policy which is enforced fairly amongst the workforce can create the necessary atmosphere of trust in order for employees to discuss matters with the employer or its management.

Sharokh Koussari
Partner, Howard Kennedy

Tel: 020 7663 8672
Email: [email protected]