Grievances

A grievance is a form of complaint raised to your employer. The main purpose of raising a grievance is to try and resolve a problem. Sometimes, however, raising a grievance is a tactical step, which is considered further below.

Grievances are commonly raised where an employee feels that they are being treated unfairly, for example:

• They feel as though they are being discriminated against. This might be, for example, because they are female and have not been given a promotion that they deserved yet a less experienced/qualified male employee has been given the promotion instead or because they are being bullied by a colleague for reasons relating to a ‘protected characteristic’, such as their sex, race, disability or sexual orientation; 
• They feel as though they are being treated unfairly for ‘blowing the whistle’ e.g. making what is called a ‘protected disclosure’. This often includes disclosing breaches of legal obligations and health and safety related dangers that are a matter of public interest. If your employer has a specific whistleblowing policy, you may wish to raise your complaints through such policy, rather than as a grievance; 
• They feel a poor performance, disciplinary, absence management or redundancy process which has been initiated against them is unfair;
• They feel that they are not being paid properly; and/or
• They feel that their employer is not complying with their terms and conditions of employment.

We recommend that the grievance:

• is addressed to the person specified in the grievance policy/procedure. If the grievance concerns your manager, it should be addressed to your manager’s manager and/or HR; 
• sets out the background to the matter in as much detail as possible (what happened, when it happened, who was involved etc);
• sets out the attempts you have made to resolve the grievance informally; and 
• explains the desired outcome to be achieved. 

If you believe that your employer is in breach of your contract (which can be a breach of what is called the ‘implied term of trust and confidence’), and you plan to continue working whilst your grievance is dealt with, it is important for you to make it clear in the grievance that you do not waive the breaches relied upon and any work done thereafter is done under protest.

The procedure an employer follows in dealing with grievance issues is extremely important and would be taken into account if any concerns resulted in claims at an Employment Tribunal. 

Regardless of the size of an organisation, all employers should follow a full and fair grievance procedure. As a bare minimum they should:

• deal with grievances fairly and consistently;
• ensure the grievance is considered by a suitably experienced, senior and independent manager; 
• investigate any grievance issues as fully as possible; 
• allow the employee to be accompanied by a trade union representative or a colleague at any grievance meeting. Sometimes, if the employee is disabled and depending upon the impact of their disability, it may also be a reasonable adjustment for the employee to be permitted to attend the grievance meeting with a family member. Attending these hearings with a lawyer is rarely permitted; 
• give everyone a chance to have their say before making a decision;
• take actions and make decisions as soon as they can; and
• allow the employee to appeal against the grievance outcome.

The law protects an employee from being treated unfairly for raising a grievance that complains of discrimination in good faith. If this was to occur, the employee would be able to make a complaint of victimisation to be pursued at the Employment Tribunal.  This is because raising a grievance alleging discrimination in good faith is likely to qualify as a ‘protected act’. The anti-victimisation provisions prohibit employers from subjecting employees to detriments because they have some such a protected act. 

Similarly, if an employee makes a ‘qualifying protected disclosure’ in their grievance, they should not be treated unfairly. If this happens, they will have a complaint of whistleblowing detriment to be pursued at the Employment Tribunal.

If an employee is dismissed for raising a grievance, depending upon the contents of their grievance and the procedure followed, as well as their length of service, the employee is likely to have complaints of ordinary unfair dismissal (if they have at least two years’ service), automatically unfair dismissal and victimisation to be pursued at the Employment Tribunal. 

In this case, the Claimant raised several grievances which could not be resolved informally. The Claimant refused to progress or withdraw his grievances and refused to attend a grievance hearing, failing to comply with reasonable management instructions. 

A grievance hearing took place in his absence and concluded that the Claimant’s conduct had been vexatious. The Claimant’s repeated initiation of grievances, absent of any intention to follow these through, and his failure to withdraw them, amounted to a misuse of process. The Claimant was subsequently dismissed for gross misconduct. The EAT found this dismissal to be fair.

This is a very fact specific case and despite this ruling, an employer should be wary about taking any such action without first obtaining legal advice.  Equally, it is important that employees who raise grievances for tactical reasons are mindful of the risks of so doing. Employee should ensure their complaints are genuine and be prepared to see them through.  

We have written a blog about the case of Hope v British Medical Association: 

Read our blog Hope v BMA

If you wish to negotiate a settlement, raising a grievance can be helpful as to do so can often put commercial pressure on an employer to engage in a sensible settlement discussion involving the withdrawal of the grievance and the termination of employment. As mentioned above, the employer has an obligation to deal with the grievance reasonably, in accordance with its procedures and the Acas Code. This often takes up a lot of management time and potential cost. There is also legal risk arising from this process. If the grievance is accompanied by a ‘without prejudice’ settlement proposal, the existence of the grievance can sometimes push the employer in the direction of settlement. 

If you wish to bring a complaint in the Employment Tribunal, much will depend on the claim you wish to bring and what has happened immediately prior to your resignation. If you wish to bring a complaint of ‘constructive unfair dismissal’ it is important for you to resign promptly following the ‘last straw’ upon which you rely. Going through a grievance process can potentially hinder your arguments in this regard, particularly if the employer is well advised and manages to remedy their shortcomings during the grievance process. On the other hand, however, if you do not raise a grievance and your claim is successful, the Employment Tribunal has the power to reduce the compensation payable to you, if they consider your failure to go through the grievance process is unreasonable. There are tactical considerations to bear in mind here and, if you are in this situation, it is recommended that you obtain tailored legal advice first. 

Setting out an employee’s case effectively at an early stage can not only assist in resolving disputes swiftly but can also assist moving forwards if an amicable resolution cannot be reached and Employment Tribunal proceedings are subsequently commenced.

Equally, as an employer, it is advisable to consult a legal representative upon receiving a grievance to ensure that a proper process is undertaken throughout and no steps are missed or actions taken which could open them up to possible Employment Tribunal claims. A failure on the part of an employer to reasonably deal with a grievance can leave them vulnerable to potentially expensive claims for constructive unfair dismissal, in particular.