UK: Airing A Grievance

Last Updated: 17 January 2001

Are There Any Legal Obligations To Have A Grievance Procedure?

Whilst employers are not required by statute to have a grievance procedure, it is good employment relations practice to have one in place.

Employers are required by statute to specify, in the written particulars of terms and conditions, the person to whom an employee can apply if they have a grievance. However this duty only applies to those employers employing more than 20 employees.

If the contract of employment expressly provides for the operation of a grievance procedure then any departure from that procedure by the employer will amount to a breach of contract.

In the absence of an express term to that effect there is an implied term in every contract of employment that both parties will not act in such a way so as to breach mutual trust and confidence. It is thought therefore that this term can actually impose a duty on an employer to take any grievance raised by an employee seriously.

Indeed the case of WA Goold (Pearmak) Ltd v MC Connell illustrates this point. Two jewellery salesmen suffered a substantial drop in pay following a sudden change in sales methods. They discussed this problem with their manager but nothing was done. They then tried to speak to other senior people in the company including the chairman - but to no avail. Finally the men resigned and brought a claim for constructive dismissal in the Employment Tribunal. The case went to the Employment Appeal Tribunal (EAT) which held that the written statement required by section 1 of the Employment Rights Act 1996 should state to whom and in what manner an employee may apply for the purpose of seeking redress for any grievance. The EAT said that failure to provide and implement any such grievance procedure amounted to a breach of the implied term of mutual trust and confidence which was sufficiently serious to justify the employee resigning and claiming constructive dismissal.

So Why Have A Grievance Procedure?

Apart from what has been said above, a grievance procedure makes for the smooth operation of industrial and employee relations, enabling problems to be dealt with fairly and speedily before they develop into major problems which could be the source of serious disruption to an organisation.

What Should Be In The Grievance Procedure?

The recently revised ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) due to come into force on 4 September 2000, updates guidelines on disciplinary practice and procedure and provides additional guidance on good practice in dealing with grievances.

It suggests that grievances are dealt with quickly and fairly and at the lowest level possible within the organisation at which the matter can be resolved. It also suggests that there are several essential features of any grievance procedure, such as the terms and conditions of employment, health and safety matters and new working practices.

Management should take the initiative in formulating an effective procedure, involving both the workforce and any representatives, including trade unions.

Procedures should be simple, set down in writing and easy to operate. They should also ensure that confidentiality is preserved. All workers should be aware of the procedures, having easy access to copies of them, while all supervisors, managers and representatives should be fully trained in their use.

How Should The Procedure Operate?

Workers should, where possible, be provided with a copy of the grievance procedure or at least be told where he or she can have access to it. The employer must ensure that the procedures are fully understood. For new workers information about the grievance procedure could be provided on any induction course.

Any routine complaints should be discussed quite informally with the worker's immediate line manager. This will hopefully provide the worker with a quick and satisfactory solution, whilst still preserving the manager's authority. And it might be helpful for both parties to take notes of the meeting.

Where this cannot be done a more formal grievance procedure should be used. The number of stages involved will depend on the size and structure of the organisation and the resources available to it. For instance, a large organisation might adopt a three-stage approach following these steps:

  1. Workers should put their grievance preferably in writing to their immediate line manager, or to a more senior manager if the problem is with the line manager. If the grievance is contested then the manager should invite the worker to attend a hearing to discuss the grievance, reminding him of his statutory right to be accompanied depending on the nature of the grievance (see below). The manager should respond in writing to the grievance within a specified time.
  2. If the matter cannot be resolved at stage 1, the worker should be permitted to raise the matter in writing with a more senior manager. A hearing should take place, after which the worker should receive a response in writing and within a specified period.
  3. And where the matter cannot be resolved at stage 2, the worker should be able to 'go to the top' and take his grievance to the managing director or even the company chairman. Again a hearing should take place in which the worker will have the right to be accompanied and a decision communicated to the worker within a specified time frame.

Right To Be Accompanied At Disciplinary Or Grievance Hearings

As mentioned above, where a worker is required or invited by his employer to attend a disciplinary or grievance hearing and reasonably requests to be accompanied at the hearing then the employer must permit him to be accompanied by a single companion. This new right is due to come into force on 4 September 2000.

Other...

The Public Interest Disclosure Act 1998 provides protection for employees who make protected disclosures in specified circumstances. Any organisation which has a specific whistle-blowing procedure will need to take this into account when formulating a grievance procedure.

The Codes of Practice issued on the Sex, Race and Disability Discrimination Acts all state that employers should have an appropriate grievance procedure. Any action taken against an employee because they have raised a grievance may amount to unlawful victimisation and failure to deal with any grievance properly may in itself amount to discrimination.

Records should be kept detailing the nature of any grievance raised, the response to it and any action taken. Any records should be kept confidential and processed in accordance with the Data Protection Act 1998.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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