What are possible reasons why there may be a lack of employees using the grievance procedure

At Landau Law, we have advised on thousands of issues surrounding grievances at work. This includes when and how to lodge a grievance – and whether a negotiated exit is a better option. Please feel free to use the contact form or call us on 020 7100 5256

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Employment law- grievance at work

What is a grievance?

A grievance is any concern, problem or complaint that you may wish to raise with your employer. Your grievance at work could relate to just about anything, whether regarding working conditions, pay, failure of process, or any aspect of how your employer is treating you.

A grievance can be made at any time- even in response to disciplinary, redundancy or performance process against you if you consider your employers actions to be unfair, or unwarranted. You would usually be expected to lodge a grievance before claiming constructive dismissal, otherwise any damages you are awarded at an employment tribunal could be reduced.

Advantages of lodging a grievance

The lodging of a grievance enables you to protect your position by putting down a “marker” of why you are not happy. The timing of lodging a grievance is crucial. Whether you are in the midst of a redundancy process, facing poor performance allegations or suspect you are about to be dismissed on other grounds, the grievance process allows you to formally set out your complaints before your employer takes further action. This can often stop such further action by your employer in its tracks whilst your grievance is being investigated, and may frustrate your employer’s ability to proceed in the way they had originally intended. It can also act as a springboard for a negotiated settlement (see below).

What if you don’t lodge a grievance?

You don’t have to lodge a formal grievance, and a failure to do so does not prevent you from bringing a tribunal claim. It does mean any damages you are awarded at tribunal can be reduced by up to 25% if the tribunal believe that the dispute could have been avoided. If you can show that it would have made no difference, because the relationship had broken down beyond repair, then there may be a lesser percentage reduction, or none at all.

How do you raise a grievance?

If the complaint against your employer cannot be resolved informally, you should raise a formal written grievance without unreasonable delay in accordance with your employer’s grievance policy. This will usually provide that the grievance should be submitted to your line manager (or a more senior manager if the grievance relates to your line manager). The policy may provide that you should copy your grievance to HR, or only send it to the HR officer.  In the absence of a policy, you should simply lodge the grievance in any event with your manager and/or HR.

The grievance should set out in as much detail as possible why you are dissatisfied. You should:-

• start by setting out that you would like to lodge a formal grievance;

• set out the circumstances in chronological order (for example, bullying, or discrimination), which has led you to write the grievance. This should be with particular reference to relevant facts, including dates, times, parties to any discussions and reference to any relevant documentation. Whilst it is appropriate to refer to past events where appropriate in discussing the background and any underlying issues which have been building, it is important to highlight why you are raising the grievance now.

• explain why you consider any process (for example, in relation to redundancy or a performance improvement plan) is unfair, for example, unrealistic timeframes to improve, bogus allegations, no sufficient training or support;

• make reference, if relevant, to how your employer’s actions have affected your health.

• be wary of becoming too emotive or inflammatory. Even if you take issue with a particular individual or the way the business is run, try to be as diplomatic as possible whilst putting your point across. You want the grievance to cite your frustrations and highlight your ill treatment without crossing the line into a “slanging match.”

If we are negotiating a settlement with your employer, we will review your grievance as part of that process.

How should your employer deal with your grievance?

In accordance with the ACAS code of practice, your employer should acknowledge the grievance and carry out any necessary investigations in relation to your complaint to establish the facts of the case. You should then be notified of the grievance meeting without unreasonable delay.

You should also be given the opportunity to bring a work colleague or trade union official to the meeting. Such a person is entitled to fully participate at the meeting, providing support to you and putting questions to your employer.

What if my employer doesn’t deal promptly with my grievance (or at all)?

There is an implied term that an employer will reasonably and promptly in giving employees an opportunity to seek redress for any grievance. A failure to handle a grievance properly might amount to breach of the implied term as to trust and confidence if serious enough to amount to a claim for constructive dismissal.This would ultimately be a question for an employment tribunal to assess in each individual case.

What happens at the grievance meeting?

The grievance meeting is the opportunity for you to:

• explain your grievance;
• produce any evidence you have;
• answer any questions or clarifications by your employer.

If you have nothing further to add to your written grievance or you are nervous, then you can always simply refer to the written statement that you would have already submitted.

Your companion is allowed to take notes, explain what your grievance is about and talk with you during the meeting. Your companion cannot, however answer questions put to you directly or prevent anyone else at the meeting from explaining their side of events.

At the meeting, your employer:

• can ask you to provide more information about your grievance;
• give you the opportunity to explain your side and express how you feel;
• go through the evidence;
• discuss how it could be resolved;
• take notes, or appoint someone else to do so (as long as they are impartial and not named in the grievance).

Your employer should also take care in deciding on any actions. Usually your employer will not need to make an immediate decision and may consider ending the meeting and resuming it at a later date to allow for further investigation.

Can your employer anonymise witness statements gathered during the grievance process?

Yes, they can as there is no legal requirement to disclose the identity of witnesses, However, there does need to be a powerful reason not to do so, otherwise it would undermine your right to properly challenge the evidence. Employers, after all, have an obligation to undertake a fair grievance procedure, which will include attempting to obtain reliable, corroborated evidence. Your employer should therefore explore the witness’s reasons for wishing to remain anonymous, and decide whether or not it should disregard such evidence, or simply to give it less weight than statements from named witnesses.

If anonymous evidence is to be used, your employer should also seek to corroborate the evidence by establishing at least one identifiable witness. A failure by your employer to act reasonably in this regard could see them being penalised at any later tribunal proceedings.

Do you have to attend the grievance meeting, or can you request that it is dealt with in writing?

You should check your employer’s grievance policy to see what it says about having the option of dealing with it in writing. Whilst it is usual that an employer sets a meeting to discuss your grievance, if there were good reasons why you could not attend (such as illness, or anxiety), your employer would be expected to act reasonably. This means they should deal with the grievance in writing if there was sufficient information available to enable them to do so.

If there is no good reason why you do not want to attend the grievance meeting, your employer will be on stronger grounds. However if they could deal with the matter in writing, most would still choose to do so, in order than they cannot be later criticised for lack of process.

Are you entitled to see the minutes of the grievance, and what if you don’t agree with them?

You should be provided with a copy of the minutes or notes of the meeting. If you do not agree that they are an accurate representation of what was said, you are entitled provide a corrected version in the hope that these can be agreed. If your employer does not agree that your version is accurate, it should keep both versions on record. Should the meeting result in a dispute, for example a tribunal claim, both versions of the notes can be referred to, with acknowledgment that what was said at the meeting is not agreed.

Does your employer have to put a disciplinary process on hold to hear your grievance?

A dismissal will not necessarily be unfair if your employer does not put disciplinary proceedings against you on hold to address your grievance. Each case will depend on its particular facts and your employer would have to show that not suspending the disciplinary process to investigate your grievance was a fair and reasonable position to take.

Where the issues relating to the grievance and disciplinary are the same, it may be appropriate for both processes to be heard concurrently.

If your grievance is about the person investigating and/or hearing the disciplinary (for example, because they are not impartial or have been bullying you), then your employer may be at risk of having an unfair process if they do not consider suggesting alternative people to deal with the disciplinary.

What happens after the grievance is heard?

Your employer should write and inform you about the outcome as soon as is reasonably practicable (unless further investigations are necessary).

Am I entitled to appeal the grievance decision?

You should be given the opportunity to appeal if you are not satisfied with the outcome of your grievance. If you decide to do so, your employer should arrange a further meeting to discuss your appeal, which should be heard from a different and more senior manager.

Can my employer be penalised for not complying with the expected grievance process?

Yes, if your employer has unreasonably failed to follow the expected proper grievance process under the ACAS Code of Practice as set out above (including failure to hear the grievance whether in person or in writing), an employment tribunal can increase any damages awarded to you by up to 25 per cent.

What happens if the grievance is successful?

If your grievance outcome is upheld, you may feel able to carry on working (assuming that any additional remedy required is put into place by your employer). In fact, if the grievance is lodged and upheld before matters become to serious, your employer is likely to have some protection if you decided to subsequently resign and claim constructive dismissal.  Where your employer is guilty of a fundamental breach, however, they cannot mend that breach simply because they upheld the grievance or take other remedial steps. You would still in these circumstances, have the right to resign and make a claim.

What happens if the grievance is unsuccessful?

If your grievance is unsuccessful, then you can either appeal it, simply resign, or resign and claim constructive dismissal. This latter claim would be on the basis that you have been forced to leave because of a fundamental breach of contract on your employer’s part. Please click here to access the constructive dismissal page.

Can I raise a grievance after I have left?

Yes, you can. Some employers, however, take the view they do not have to engage in the process as you have already left, and also that they will not face any penalty at the tribunal for refusing to do so. Others will not want to take this risk, and will want to take the more practical step of trying to resolve the dispute, and so they will still hear the grievance.

Your grievance should ideally be lodged whilst you are still an employee and before you have submitted your notice.

Negotiating an exit

Whether or not the grievance is successful, there is always the option of trying to secure a negotiated exit with your employer under a settlement agreement, in which you would receive a lump sum financial package for giving up your employment rights. This happens very frequently in employment situations, not least because by the time the grievance is lodged, the relationship is likely to have broken down at that point in any event. The timing of negotiations does, however, need to be right and your legal case should be properly set out. This is a situation which have come across thousands of times, and where we have very successfully secured significant settlement packages for our clients.

It is often best to obtain early legal advice if you have a grievance at work. This is because the nature and form of the grievance has to be accurate and put across your position in the best light. There may be angles that you have not thought about and it is easy to either include the wrong thing, or omit something that should have been incorporated.  In many cases, employees are looking to exit the business whatever the outcome of the grievance, which is something we come across all the time.

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