Grievance at work: Employer FAQs

    Grievance at work

    IN THIS ARTICLE

    Grievances at work can arise in various contexts and cover a variety of employment rights and issues. Employers and employees are expected to follow ACAS guidance on resolving grievance and disciplinary issues, but it can be easy to fall foul of best practice during such a stressful and complex process, which can make resolution less achievable.

    It is therefore important for both employers and employees alike to understand the basis of these rights and the circumstances in which a grievance can be raised. Equally, it’s important for the parties to know how best to approach a workplace grievance to ensure that the complaint is resolved quickly and effectively, and without recourse to legal proceedings, if at all possible.

    The following guide covers a sample of common grievance at work scenarios, as well as how workplace grievances should be approached and addressed by those directly involved.

     

    What is a grievance at work?

    A workplace grievance is where an employee has a problem or complaint arising out of a situation at work which they are unhappy with or is causing them undue concern — typically where their statutory or contractual employment rights have been breached in some way, or where they feel they are being treated unfairly — and that they wish to take this up with their employer on either an informal or formal basis.

    Grievances at work can arise over a wide range of employment issues, from the terms and conditions under which an employee is working to how they are being treated by their employer or co-workers.

    In the first instance, employees should be encouraged to raise any issues informally with an appropriate individual in the organisation. For example, a telephone call to someone from payroll over a salary discrepancy, or a chat with their line manager or HR over the alleged misconduct of others or about things they are being asked to do as part of their job.

    Where it is not been possible to resolve a grievance informally, or where the matter is especially serious, an employee can raise a concern or complaint formally and in writing. Once a written grievance has been lodged, the employer is then duty-bound to follow a formal grievance procedure — even absent any written policy or process — investigating the matter in full and providing the employee with a written outcome, with reasons why, and a right of appeal.

    If the grievance is upheld, the employer may need to take further steps to resolve the matter complained of. This could include taking disciplinary action against another employee where allegations have been raised and findings of misconduct made against them. It could also require the employer to take positive steps to address any matters for which they’re directly responsible, for example, discharging any arrears of pay in the context of a salary dispute, or making changes to the working conditions of the employee.

     

    Examples of grievances at work

    Some of the most common examples of grievances at work include:

    Pay disputes

    Disputes can commonly arise over late payment of salary, outstanding holiday pay, unpaid bonuses and underpayment of commission. In many cases, discrepancies may have arisen as a result of an administrative error or oversight that can be easily dealt with via payroll. However, where the matter cannot be resolved in this way, or there is a substantive disagreement between the parties as to what an employee is entitled to be paid, this type of dispute can quickly escalate into a formal grievance. Further, if the grievance cannot be resolved internally, this could result in a tribunal claim for unlawful deduction of wages or a breach of contract claim before the civil courts.

     

    Changes to the employment contract

    It’s not uncommon for an employer to want or need to change an employee’s terms and conditions, for example, their working hours or place of work. In some cases, there may be a flexibility or mobility clause within the employee’s contract of employment permitting certain changes to be made by the employer, although a failure to properly consult with the employee or provide sufficient notice before such changes take effect can often still give cause for complaint. In serious cases, where there has been an alleged fundamental breach of contract, this could even lead to an employee feeling forced to resign and claiming constructive dismissal before a tribunal.

     

    Discrimination

    Workplace discrimination is based on certain prejudices, and often occurs when an employee is treated unfavourably because they possess a protected characteristic, for example, their age, gender, sexuality, religion or beliefs. This is known as direct discrimination. In contrast, indirect discrimination is where there is a policy, rule or procedure in place at work that puts someone who possesses a protected characteristic at an unfair disadvantage when compared with others. A complaint about discrimination can arise in various ways, for example, where an employee is denied opportunities at work because of nearing retirement age. Unless the discriminatory conduct complained of can be resolved internally, for example, where it was unintentional or has been misconstrued, these types of allegations can often give rise to tribunal claims for unlawful discrimination.

     

    Bullying and harassment

    Allegations of unfair treatment at work very often stem from the conduct of co-workers, although the employer will still be responsible for taking reasonable steps to prevent or eradicate any unwanted conduct in the workplace. Bullying, of itself, does not give rise to a cause of action but can, where the conduct relates to a protected characteristic, amount to harassment for which a claim can be brought. Harassment is essentially a form of bullying and discrimination combined, and can often take place alongside other forms of discrimination. In circumstances where the matter is not resolved following a formal grievance, unwanted conduct may also be sufficiently serious to justify the employee treating themselves as having been unfairly dismissed.

     

    How should the employee raise a grievance at work?

    The nature and extent of any grievance at work will determine how the matter should be approached by an employee, both from a practical and legal perspective. If the concern or complaint is relatively minor, or a one-off incident, the employee will often be best discussing the matter informally with either their boss, line manager or someone from HR or, where relevant to a salary or expenses matter, a person from the payroll department.

    Many grievances at work can be resolved informally, where a quiet word is often all that’s needed. However, where attempts to resolve the matter on an informal basis are unsuccessful, or where the matter is too serious to be handled in this way, the employee will need to consider whether they want to lodge a formal written grievance.

    Where the employer has a written procedure in place for raising a grievance, the employee should follow this procedure so as to avoid any delay or difficulties in the matter being dealt with. Any grievance procedure can usually be found in the employee’s contract of employment or staff handbook, or on the staff intranet site. Absent any written procedure, an employee can still lodge a formal grievance, instead following the ACAS statutory code of practice. This sets out the procedure that both employers and employees should follow when raising and resolving a grievance, including the basic requirements of fairness and reasonable behaviour.

    Although an employee is not required by law to raise a formal written grievance before making a tribunal claim, any failure to do so may be construed as unreasonable, resulting in a reduction in any award of damages. As such, a formal grievance should always be lodged prior to instigating legal proceedings, where at all possible. By putting the complaint in writing, this will also help to support any claim made by the employee at a later stage.

     

    How should the employer handle a grievance at work?

    When a formal grievance is lodged by an employee, the employer has a duty to investigate the matter and provide the employee with a written outcome. As such, the employer should arrange for a grievance hearing without unreasonable delay, ideally within five working days.

    The grievance hearing will provide the employee with the chance to explain their complaint in detail and how they’d like the matter to be resolved. The employee has a statutory right to be accompanied at that hearing, on reasonable request, in circumstances where the employer is dealing with a complaint about a duty owed to the employee.

    Depending on the nature of the complaint and any evidence produced at the hearing, the matter may need to be adjourned for further investigation to take place. However, where the employer has sufficient evidence to make an informed decision, they should provide the employee with a written explanation of their decision as soon as possible, normally within 24 hours of the grievance hearing, together with details of any action they intend to take.

    Where further information is needed before making a decision, the employee should instead be informed of this and told of the likely timescale involved.

    If the employer has a written grievance procedure in place, they should closely adhere to that procedure otherwise risk being in breach of contract. In any event, the employer must follow the ACAS code of practice. Although any failure to follow the code does not, of itself, make an employer or organisation liable to legal proceedings, a tribunal will take the code into account in relevant cases and can increase any award of damages. A wholesale failure to deal with a grievance can also constitute a breach of the implied term of mutual trust and confidence between the parties, which could lead to a potential constructive dismissal claim.

     

    What if the dispute remains unresolved following the grievance procedure?

    If a formal grievance is raised and a full investigation undertaken, but the grievance is not upheld, the employee will have a right of appeal. The employee will need to set out their grounds of appeal without unreasonable delay. The appeal should also be heard as soon as possible, and at a time and place that should be notified to the employee in advance.

    Wherever possible, the appeal hearing should be dealt with by a manager or senior member of staff who has not previously been involved in the grievance process. Thereafter, the outcome of the appeal should be communicated to the employee in writing.

    If the employee remains unhappy with any final decision, they may want to consider lodging a claim before the employment tribunal or issuing a claim in the civil courts. The tribunal imposes a fairly strict time limit of three months less one day, typically from the matter complained about or when the alleged conduct last took place. This time limit applies, regardless of whether or not the employee has raised a formal grievance in writing.

    There is a more generous six-year time limit for issuing a breach of contract claim before the courts, although these types of cases can be much more costly. In any event, given the potential cost and complexity involved in employment rights cases, legal advice from an employment law expert should always be sought as soon as possible by either party who is contemplating or concerned about legal proceedings following a grievance.

    How do you conduct a grievance hearing?

    Conducting a grievance hearing can be a fine art form, requiring the right amount of fact-finding to get to the root of the problem, but with equal diplomacy, and sufficient sensitivity and understanding for all those concerned. It also requires a solid understanding of the law in this area, to ensure that the grievance process is followed fairly, in line with the official guidance provided by Acas ‘and’ in accordance with any workplace grievance procedure.

     

    Preparing for the grievance hearing

    When preparing for a grievance hearing much will depend on the nature and complexity of the complaint in question. However, in all cases, regardless of how complex the complaint, it is important for the employer to find out all they reasonably can about the issue beforehand. This is the investigation part of the process, prior to the hearing taking place.

    If the grievance is about someone else at work, rather than the employer, before getting more information and evidence, the employer should try not to assume anything about the grievance or those involved. They should also be sensitive to both the circumstances and needs of anyone the grievance is about, as well as the individual who raised the grievance.

    If there are concerns about employees within a grievance scenario working together whilst a complaint is being investigated, the employer should consider any suitable short-term measures. For example, where an employee is alleging that a co-worker is bullying them, the employer could see whether their respective work schedules can be temporarily rearranged so that they are not working alongside each other, although the employer must make it clear that this is not a punitive measure or any predetermination of the facts.

    The purpose of the investigation will simply be to establish if there is a case to answer, gathering evidence from all sides and helping the employer to decide what should happen next. In some instances, it may still be possible to resolve the issue informally whilst, in others, the employer may form the view that the formal procedure needs to carry on and a grievance hearing should be conducted. In the latter scenario, the employer should write to the employee, informing them of a date, time and venue for the hearing.

    The employee must also be informed of their right to be accompanied at a grievance hearing, on reasonable request, if the matter is about either a legal or contractual issue. In addition, the employer should arrange for an interpreter if the employee has any difficulty speaking English, and consider whether reasonable adjustments are needed for a disabled employee or anyone accompanying them. When an employee raises a formal grievance, ideally the employer should arrange to hold a grievance hearing within 5 working days, although the employer should allow the employee enough time to adequately prepare.

    Importantly, part of following a fair grievance procedure is to provide the employee with the chance to have their say before a decision is made. As such, even if the employer has formed a preliminary view at the conclusion of their investigations that there is no case to answer, and that the grievance should not be upheld based on their findings to date, they should still conduct a formal grievance hearing to listen to the employee’s version of events. This is because any failure to do so will be taken into account in a tribunal claim.

     

    During the grievance hearing

    The grievance hearing is an opportunity for the employee who raised the grievance to explain the full basis of their complaint and produce any evidence in support. However, it is also a chance for the employer to ask various questions, so they know what steps to take.

    Given that the person conducting the grievance hearing should be focused on what the employer is saying, and what grievance hearing questions to ask, it is often best to arrange for someone not involved in the grievance in any way to take notes and to act as a witness. Ideally, however, the grievance hearing should be held by two people to ensure that the hearing is conducted properly and fairly although, unlike disciplinary matters, the roles of the grievance investigator and decision-maker can be combined.

    After confirming the purpose of the grievance hearing, as well as introducing those present and explaining the reason for their attendance, the chair should ask the employee to restate their formal grievance and to provide more information about their complaint. They should also be invited to discuss how they would like their grievance to be resolved. The chair, or panel, will need to consider information or evidence from all sides gathered during the course of their investigation and the hearing itself, remaining impartial at all times.

    Those conducting the grievance hearing must do their best to understand the feelings of the complainant as they go through the evidence, giving that individual the chance to fully explain their side and express how they feel to ‘let off steam’, particularly if the grievance is serious or has persisted for a long time. The employee should also be allowed to ask questions, to present all of their evidence, and to provide details of any witnesses the employer should contact, who have not otherwise been contacted to date.

    Equally, the employee’s companion, where the employee has been accompanied to a grievance hearing, should be allowed to take written notes, set out the case of the employee raising the grievance if asked by the employee to do so, to speak for them and to talk with them during the course of the hearing. However, the companion cannot answer questions put to the employee or prevent anyone else at the hearing from explaining their account.

    Once a full opportunity has been given for both the employee and/or their companion to have their say, the employer should sum up the main points. However, in some cases, the employer may want to consider ending the hearing early, to be resumed at a later date, where it is apparent that they need to investigate any statements made or facts adduced.

    At the end of the grievance hearing, the employer should tell the employee when they will get a decision. Importantly, the employer will not need to make an immediate decision, although the time needed for a decision should be in line with any workplace grievance policy, if there is one. Ideally, this should be within no more than 24 hours, unless further investigations prove necessary.

    The employer should provide the employee with copies of the grievance hearing notes. The employer should also keep a written record of what takes place during the hearing. This will then form part of a full written record of everything that has happened, from the nature of the complaint lodged to any decisions or action taken in response.

     

    After the grievance hearing

    After the grievance hearing has taken place, the employer should decide on the best outcome based on their findings from the hearing and earlier investigations. This should be determined based on what is fair and reasonable, as well as what has happened in any similar cases before. The employer should notify the employee of the grievance outcome in writing, and as soon as possible, although they may need to conduct further investigations. In this case, the employee should again be informed in writing of how long these investigations are likely to take and whether a further grievance hearing will be held.

    In most cases, where further investigations are deemed necessary, the employer should arrange a second grievance hearing to provide the employee with a chance to have their say about any additional information or evidence gathered at that stage. However, where at all possible, the employer should make their decision as soon as they can.

    In cases where a grievance is upheld, the employer must explain their decision in writing, including what action, if any, is to be taken. This could include, for example, immediate payment of any outstanding wages in a salary dispute or bringing disciplinary proceedings against a co-worker where findings of misconduct have been made against that person. However, in some cases, even though a grievance is upheld, the employer may decide that no action is needed. In these scenarios, to ensure that there is no bad feeling, the employer might want to talk privately with the employee to reinforce their reasons for this. The grievance details and outcome must remain confidential although, where appropriate, it can be a good idea for the employer to also talk privately with anyone involved in the grievance to help avoid any negative effects on the business, such as bad feeling or gossip.

    Where the grievance is not upheld, the employee must again be informed in writing, and the reasons for this decision, as well as their right to appeal against the grievance outcome. This will need to include detail as to the appeals process and their deadline for appealing.

    An employee will have the right to appeal a grievance outcome if they feel that the outcome is wrong or that any part of the grievance procedure was unfair, including the way in which the grievance hearing was conducted or if they have new evidence to show. The employer will then be duty bound to look at the matter again to see if the procedure was followed in a fair way and the outcome is fair. Following any further investigations, where necessary, and an in-person appeal hearing, the appeal decision must again be given in writing.

     

    What if the dispute remains unresolved following the grievance procedure?

    If a formal grievance is raised and a full investigation undertaken, but the grievance is not upheld, the employee will have a right of appeal. The employee will need to set out their grounds of appeal without unreasonable delay. The appeal should also be heard as soon as possible, and at a time and place that should be notified to the employee in advance.

    Wherever possible, the appeal hearing should be dealt with by a manager or senior member of staff who has not previously been involved in the grievance process. Thereafter, the outcome of the appeal should be communicated to the employee in writing.

    If the employee remains unhappy with any final decision, they may want to consider lodging a claim before the employment tribunal or issuing a claim in the civil courts. The tribunal imposes a fairly strict time limit of three months less one day, typically from the matter complained about or when the alleged conduct last took place. This time limit applies, regardless of whether or not the employee has raised a formal grievance in writing.

    There is a more generous six-year time limit for issuing a breach of contract claim before the courts, although these types of cases can be much more costly. In any event, given the potential cost and complexity involved in employment rights cases, legal advice from an employment law expert should always be sought as soon as possible by either party who is contemplating or concerned about legal proceedings following a grievance.

     

    Grievance at work FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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