Discipline and Grievance

by Kate Russell

Grievance

The ACAS Code describes grievances as ‘concerns, problems or complaints that employees raise with their employers’.

It is an employee’s right to air a genuine grievance. Every organisation employing staff, however small, must have a process by which staff can formally raise a grievance to the employer’s attention. Raising a grievance does not automatically entitle staff to have their own way, but any member of staff is entitled to be sure that a grievance issue will be properly examined and considered.

Employers are under a duty to properly explore grievances in a timely fashion with a view to reaching a suitable resolution.

Informal grievance resolution

Many grievances can be dealt with informally by an immediate line manager. Encouraging members of staff to raise their concerns in this way often leads to a quick solution. There is no right to be accompanied at an informal grievance meeting.

Make it clear that grievance proceedings and records will be kept in confidence. Employees have the right to be accompanied by a union representative or workplace colleague at formal meetings. Once the procedure has been agreed, make sure that your employees have easy access to a copy of it and that you explain the process to new members of staff, as part of their induction. Do remember to make special arrangements for employees whose first language is not English, and for those who have a visual impairment or some other disability.

Formal grievance hearing

If informal discussions are not successful, try the following process.

  1. The employee puts the complaint formally to the line manager, preferably in writing. If the grievance is against the line manager, the grievance should be raised with a more senior manager.
  2. The manager invites the employee to a hearing to discuss the grievance and informs the employee that he has the right to be accompanied. This can be a work colleague or an accredited trade union representative.
  3. At an early stage, the manager should ask the employee what his preferred outcome is. That way, he will have some idea of what it will take to resolve matters.
  4. At the hearing, the employee puts his views to the manager. The employee’s companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.
  5. The manager may need to adjourn to carry out further investigations after hearing the employee’s grievance.
  6. The manager responds to the grievance in writing by the deadline given in your organisation’s procedure. You might, for example, expect managers to respond within five working days of the hearing. If the deadline cannot be met, the manager should explain the reasons to the employee and say when a response can be expected.
  7. If dissatisfied, the employee can appeal to a senior manager named in the procedure. Depending on the organisation, this might be a director, the managing director or chief executive. The same principles of holding a formal meeting and providing a response by an agreed deadline apply. The request to appeal should be made in writing in a timely fashion and setting out the grounds for the appeal.
  8. At the appeal, the employee has a right to be accompanied by a work colleague or accredited union representative.
  9. The appeal officer should write to the employee as soon as he reasonably can to let him know the outcome of the appeal.
  10. It is a good idea to identify a third party to whom an employee can take their grievance if it concerns harassment or bullying and he feels he cannot take it to his line manager.

Employers, employees and their companions should make every effort to attend the meeting.

‘Nuisance’ grievances

Employers are under a duty to properly explore grievances, but what do you do if an employee keeps raising trivial grievances, grievances that have already been dealt with or grievances that relate to existing grievance, disciplinary or capability procedures? Make sure that grievance procedures are drafted in such a way as to allow an initial assessment by the employer before significant resources are allocated to deal with a grievance. For example, the procedure could state that the employer reserves the right not to pursue grievances that are frivolous or vexatious, or that merely repeat complaints that have already been made.

Where the initial reading of the grievance shows it to be concerned with a trivial issue, discuss with the employee whether or not there is a real need to pursue the matter through the grievance procedure. It may be that the employee has not realised that the issue being raised can be discussed on an informal basis without the need to invoke the formal grievance procedure.

If the employee indicates that he does want to continue with the formal process, the employer should move to the next stage of its grievance procedure.

False or malicious allegations

Where you have reasonable grounds for belief that an employee is using the grievance procedure to make deliberately false allegations, or as a form of bullying against a colleague or manager, it’s a misconduct matter. In serious cases, it can justify dismissal.

For example, in Bashir and another v Sheffield Teaching Hospital NHS Foundation Trust[2009], two employees were dismissed after making multiple grievances alleging race discrimination, which the employer found they had made in bad faith. The employees’ dismissals were found to be fair by reason of their conduct in raising grievances against colleagues in bad faith, and for ‘some other substantial reason’, in that there had been an irreparable breakdown in working relationships in the department in which the employees worked.

Only consider disciplinary action if there are clear grounds for a belief that the grievance was made in bad faith. In particular, be cautious where the employee makes allegations of discrimination, because action taken against him could amount to victimisation if the employee is acting in good faith in making the allegations.

Frivolous or trivial grievances

If the grievance is clearly frivolous, tell the employee that you will not be dealing with it in accordance with the grievance procedure, unless the employee can show that it is based on a legitimate concern.

If you believe that the grievance is too trivial to warrant a meeting, write to the employee and explain that this is why no further steps are to be taken. Make clear that the employee is entitled to resubmit the grievance together with any further evidence or explanation that throws new light on it and demonstrates that a substantive complaint is in fact being made.

Grievances that repeat earlier complaints

If the employee’s grievance restates a complaint that you have already dealt with, ask the employee to explain how the new grievance differs from the previous one, and either what new incident has occurred or what new evidence has come to light.

Where it is clear that there is nothing new being raised, you can reject the grievance without a hearing. In a situation like this, you will not be in breach of the implied term that you will address the employee’s grievances, because you will be able to establish that the grievance has in fact been addressed. There is no implied term in the contract to the effect that an employee will have multiple opportunities to have the same grievance reconsidered.

If you reject the grievance without a hearing, write to the employee and explain that no further action will be taken because the grievance has already been dealt with. Refer the employee to the previous correspondence and the outcome of the original grievance. Inform the employee that the matter will be considered again if new incidents occur or if new facts come to light.

Reopening previous grievances

Where the new grievance raises issues related to a grievance that has already completed the process, consider whether or not the new information justifies reopening the issue.

If you already conclude that the employee is not justified in objecting to certain behaviours from colleagues or management, you can reject a grievance that merely contains further examples of such behaviour, without the need for a full hearing.

Where the new allegation would, if true, shed new light on a grievance on which a decision has already been made, and might have led to a different outcome if it had been known about, you should make sure that the new allegation is properly considered.

In such circumstances, it may be necessary to allow the new allegation to go to a fresh hearing.

Grievances that relate to an ongoing complaint

Where an employee submits a new grievance that is closely related to an ongoing issue, tell the employee that, because the issues are linked, the new grievance will be dealt with as part of the existing process.

It is the substance of the grievance that the employer has a contractual duty to address. There is no obligation for you to run a separate grievance procedure every time an employee raises a fresh grievance, if the separate grievances are properly seen as part of an overall problem or concern and can be fairly dealt with together.

This is true even if the procedure to which the grievance is linked is a disciplinary or capability process – for example if the employee complains that he has been bullied by the manager who has initiated disciplinary proceedings against him. Unless the grievance throws doubt on whether or not that process can be conducted fairly, the employer can tell the employee that the substance of the grievance will be discussed in the context of the disciplinary or capability hearing. When that process has been completed, you can deal with any outstanding grievances raised by the employee under the organisation’s grievance procedure.

Where the fresh grievance is merely another example of the sort of incident that the employee is already complaining of, the content of the grievance can be forwarded to whoever is dealing with the existing grievance to be added to the bundle of evidence.

Overlapping grievance and disciplinary cases

Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently. However, there is no legal obligation to do so.

Example

Mr and Mrs Marshall managed a pub that was owned by Samuel Smith (the Brewery). The pub industry was facing economic difficulties at the time, so to cut costs, the Brewery reduced the hours of the staff (other than the managers) working at the pub from 84 hours to 45 hours per week in total.

The Marshalls were not happy about the decision and raised a grievance. The outcome was that staffing hours should be reduced to 52 hours, with immediate effect. The Brewery pointed out to Marshalls that their management agreement stated that the staffing hours could be altered at the absolute discretion of the Brewery. Mr and Mrs Marshall appealed against the outcome of the grievance. They did not reduce staffing hours, despite a number of requests to do so.

In the period before the appeal meeting they were once again told to reduce the staffing hours, and reminded that they were breaching the management agreement, which gave the Brewery the right to take disciplinary action against them.

The Marshalls ignored this and kept the staffing hours at 84 hours per week, causing additional expense to the Brewery.

The Brewery started disciplinary proceedings. Mr and Mrs Marshall refused to attend the disciplinary hearing because of the outstanding grievance (the appeal meeting had not been held at that stage). In their absence, the Brewery took the decision to dismiss them.

The Marshalls complained that they had been unfairly dismissed but the Employment Appeal Tribunal disagreed. It said that there was no provision in the disciplinary procedure stating that disciplinary procedures should be suspended until a grievance appeal about the same matter had been dealt with. There is nothing in the ACAS code to suggest this either.

In addition, the Marshalls could have raised the issues they would have raised in the grievance appeal hearing at the disciplinary hearing.

Collective grievances

The provisions of the ACAS Code do not apply to grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative. These grievances should be handled in accordance with the organisation’s collective grievance process.

What should be included in a grievance procedure

Your grievance procedure should be a formal written document. There is no generic procedure that is applicable to all organisations, but you should bear the following in mind when developing a grievance procedure.

Preamble

The majority of grievance procedures begin with a statement as to why a formal procedure is necessary.

Coverage

The procedure should describe the issues to be included – for example, safety – and what should be excluded.

Stages

Grievance procedures should set out the stages through which a grievance is heard within the organisational hierarchy. This recognises the authority and responsibility of the parties at the different levels within the organisation and allows for a structured approach to the situation. The number of stages in your procedure is, to some extent, determined by the structure of your organisation. In practical terms, three to four stages are the most appropriate. Any more than this can lead to a procedure that is unwieldy, slow and potentially confusing.

Investigation

At each stage of the procedure, the reviewer is likely to conduct an information search of policies, procedures, practices, collective agreements, operating instructions, interviews and so on. This involves defining the issue, ascertaining the facts and collecting any relevant records. If the case is to go to a third-party hearing, then you will have to consider preparing arguments, selecting a spokesperson and testing the strength of the case.

Levels

There are usually three levels for hearing grievances – supervisors, departmental managers and senior managers.

Outcome

The outcome of the grievance must be notified to your employee in writing, together with a statement of his right to take the grievance to the next stage of the procedure if he is dissatisfied with the reviewer’s decision.