Law guide: Employment

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Which grievance procedure must I follow?

Which grievance procedure must I follow?

Contents

Introduction

In April 2009, the statutory grievance procedures were repealed in England, Wales and Scotland. Before this date, there was a legal requirement for employers to comply with minimum procedural requirements. This means that you no longer have to follow the statutory grievance procedure when an employee raises a grievance with you.

In April 2011, the statutory grievance procedures in Northern Ireland were repealed and replaced with a code of practice issued by the Labour Relations Agency, which differs from the Acas code of practice used in England, Wales and Scotland.

The Labour Relations Agency's code of practice (Northern Ireland only)

The Labour Relations Agency's code of practice largely follows the previous statutory scheme, but there is a reduced emphasis on time limits and procedures.

Creating a grievance procedure

An employer must draw up a written grievance procedure and provide a copy of it to its employees. Where appropriate, management, employees and their representatives should be involved in drawing up the procedure. Management and supervisors should be aware of the contents of the grievance procedure.

Steps of the code of practice

The code of practice requires the following steps to be taken:

Holding a meeting

A meeting should be held with the employee to discuss their grievance. You should arrange for a formal meeting to be held without unreasonable delay after a grievance is received. Employees have a statutory right to be accompanied at the meeting by a trade union representative or colleague. All parties should make reasonable efforts to attend the meeting.

Employees should be allowed to explain their grievance and how they think it should be resolved. Consideration should be given to adjourning the meeting for any further investigation that may be necessary.

Communicating your decision

Following the meeting, you should decide on what action, if any, to take. The decision, and a full explanation of how you reached it, should be communicated to the employee in writing, without unreasonable delay. Where appropriate, the decision should set out what action you intend to take to resolve the grievance.

The employee should be informed that they can appeal if they feel that their grievance has not been satisfactorily resolved.

Permitting an appeal

If the employee feels that their grievance has not been satisfactorily resolved, they should have the opportunity to appeal.

An appeal should be made without unreasonable delay, advising you in writing of the grounds on which it is being made. You should hear the appeal without unreasonable delay and at a time and place which should be communicated to the employee in advance.

The appeal should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case. Again, employees have a statutory right to be accompanied at an appeal hearing by a trade union representative or a colleague.

The outcome of the appeal should be communicated to the employee in writing without unreasonable delay.

Where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance. There may be situations where you may find it more convenient to deal with both issues concurrently.

The code of practice does not apply to grievances raised on behalf of two or more employees by a trade unions representative.

Records

Written records should be kept including:

  • A copy of the written grievance
  • The employer's response
  • Action(s) taken
  • The reasons for action(s) taken
  • Whether an appeal was lodged
  • The outcome of any appeal

Records should be treated as confidential and kept in accordance with the Data Protection Act 1998, which gives individuals the right to request and have access to certain personal data. Relevant records should be given to the employee including any formal minutes that may have been taken. In certain circumstances, for example to protect a witness, the employer might withhold some information.

Sanction for failing to comply with the code of practice

If you fail to complete your side of the standard procedure, and the employee subsequently brings a claim before an employment tribunal and is successful, any award made in a tribunal case could be increased by up to 50 per cent.

The Acas code of practice (England, Wales and Scotland only)

When you are dealing with a grievance, you will have to follow a fair and reasonable procedure.

You will be expected to follow the good-practice advice set out in the revised Acas code of practice on disciplinary and grievance procedures. If you unreasonably fail to do so and the issue ends up at an employment tribunal, the tribunal could increase the employee's compensation by up to 25 per cent.

Visit the Acas website for information about the Acas discipline and grievance code of practice and the accompanying guidance.

Do I need to change my procedures?

If you already have grievance procedures which comply with the previous statutory requirements then it is unlikely that you will need to update your procedures. The Acas code largely follows the statutory procedure, although there is a decreased emphasis on time limits and an increased emphasis on trying to settle disputes informally.

However, one difference between the Acas code and the previous statutory procedures is that there are no specific rules explaining how to deal with grievances from ex-employees. Accordingly, where an ex-employee raises a grievance, you should follow the Acas code.

In appropriate cases, you may want to consider using mediation to resolve a grievance.

An independent third party or mediator can sometimes help resolve grievance issues. Mediation is a voluntary process where the mediator helps two or more people in dispute to attempt to reach an agreement. Any agreement comes from those in dispute, not from the mediator. The mediator is not there to judge, to say one person is right and the other wrong, or to tell those involved in the mediation what they should do. The mediator is in charge of the process of seeking to resolve the problem but not the outcome.

Mediators may be employees trained and accredited by an external mediation service who act as internal mediators in addition to their day jobs. Or they may be from an external mediation provider. They can work individually or in pairs as co-mediators.

There are no hard-and-fast rules for when mediation is appropriate but it can be used:

  • For conflict involving colleagues of a similar job or grade, or between a line manager and their staff
  • At any stage in the conflict as long as any ongoing formal procedures are suspended, or where mediation is included as a stage in the procedures themselves
  • To rebuild relationships after a formal dispute has been resolved
  • To address a range of issues, including relationship breakdown, personality clashes, communication problems, bullying and harassment

In some businesses mediation is written into formal grievance procedures as an optional stage. Where this is not the case, it is useful to be clear about whether the grievance procedure can be suspended if mediation is deemed to be an appropriate method of resolving the dispute.

Mediation may not be suitable if:

  • Used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation
  • It is used by a manager to avoid their managerial responsibilities
  • The parties do not have the power to settle the issue
  • One side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome

Contractual procedures

If you have a contractual procedure that provides rights above and beyond a fair and reasonable procedure as advised by Acas (whichever is applicable), you must follow it in its entirety. Where your employees are entitled to a contractual grievance procedure, if you fail to follow it correctly you may be liable for breach of contract.

Where no such contractual procedures exist, you must follow a fair and reasonable procedure as advised by Acas (as applicable).