Posted: 04/07/2022
Handling workplace complaints or grievances in the UK can be legally risky and expensive if UK employment laws are not followed. This article highlights 10 dos and don’ts that an employer should bear in mind when embarking on a grievance or complaints process.
As a general point, before commencing any workplace complaint/grievance process, an employer should make sure they are familiar with the principles of fairness set out in the ACAS Code of Practice and the supporting non-statutory guidance, 'Discipline and grievances at work'. Employment tribunals must take the code into account where relevant in considering whether an employer has acted reasonably or not. Furthermore, if the employee subsequently brings certain successful claims, such as unfair dismissal, the employment tribunal can adjust the amount of compensation by up to 25% either way if the employer or the employee has unreasonably failed to comply with the code.
Encourage employees to raise concerns informally first with their line managers – many potential complaint/grievance issues can be resolved in this way
While employers have no obligation to respond to grievances raised by job applicants, if the grievance relates to unlawful discrimination, the employer may wish to deal with the grievance bearing in mind the job applicant's rights to pursue discrimination claims under the Equality Act 2010.
This is required by law unless the complaint procedure is already set out in the employment contract. The policy should ideally make it clear in a written procedure that informal resolution should be considered before raising a formal complaint/grievance. Offer alternative means of dispute resolution, such as workplace mediation, and consider building in the use of mediation as a voluntary step in the formal procedure. It is well established that an employer's failure to provide and implement a grievance procedure is a breach of an implied contractual term, on which an employee can resign and claim constructive unfair dismissal.
Be alert to situations where an employee raises a complaint/grievance issue within another document, for example in:
The ACAS code defines grievances simply as ‘...concerns, problems or complaints that employees raise with their employers’. If you are not sure whether an employee has raised a formal complaint, in most cases it is better to establish whether the employee wishes to pursue a formal grievance, rather than simply ignoring it and hoping it will go away.
Complaints which have a ‘public interest’ element may amount to ‘protected disclosures’ for the purposes of the whistleblowing legislation, and as such may be subject to certain protection. In particular, employees who are dismissed or suffer any detriment as a result of having blown the whistle can bring claims against their employer. We would always advise that advice is sought where a complaint may contain an element of whistleblowing.
Failure to investigate before making a decision could potentially make that decision unfair and leave an employer vulnerable to legal action. Once the investigator considers that they have established the facts surrounding the complaint/grievance, they will usually need to produce an investigation report that explains their findings.
Do not appoint someone who is personally involved in the matter being investigated, or likely to be influenced by people involved, otherwise the employer risks arguments of a breach of natural justice.
Remember that the way in which an employer carries out its investigation into a complaint/grievance alleging, say, discrimination or harassment, could in itself lead to a discrimination claim. Indeed, the action, or lack of action, taken by an employer following an employee's grievance regarding discrimination can also be relevant in its defence to any subsequent claim.
The content of an employee's grievance should only be disclosed to the subject of the grievance, to the extent that it is absolutely necessary in order to conduct a reasonable and comprehensive investigation into the grievance. If the written grievance needs to be shown to the subject of the grievance, it may be necessary to redact parts of the grievance to protect the employee who has raised the complaint.
There is no specific obligation requiring the employer to disclose any information or documentation that the employee requests during the grievance process, or indeed to disclose information that it gathers as part of its investigation. However, the employer should co-operate with the employee where possible.
Hearings should be held without unreasonable delay and all parties should make every effort to attend. Employers should consider adjourning a hearing if further investigation needs to be carried out, which may mean ending the hearing and reconvening another hearing at a later date, following the investigation.
The roles of grievance investigator and decision-maker can be combined, which can be helpful in small and medium sized businesses. This is in contrast to the investigation and hearing of disciplinary matters, where different people should carry out the investigation and hearing.
The ACAS code requires that the employee is offered a right of appeal. A failure to do so could lead to an uplift in any compensation subsequently awarded to the employee in an employment tribunal claim. If the employee wishes to appeal, they should set out their grounds of appeal in writing without unreasonable delay, normally within five working days of the decision. The mechanism for appeal should be clearly set out in the grievance procedure.
Remember that the chair cannot hear any subsequent appeal, and ideally the individual who hears the appeal will be more senior and will not have been involved in the complaint/grievance at an earlier stage.
Penningtons Manches Cooper has significant experience in advising employers at all stages of a grievance or complaints process. Taking advice at an early stage in the process can avoid problems, including litigation, at a later stage, and this is particularly important where complaints raised have a discrimination angle or could amount to whistleblowing. For further advice on how we can help please contact a member of the employment team.
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