We provide the tactical advice for senior executives using the grievance procedure to resolve disputes. Often the successful conclusion is a settlement agreement. A grievance is sensitive and the employee does not want to ask HR for help. To plug the gap we set out an overview for employees.
We look at:
A grievance can relate to any concern, problem or complaint that an employee or director wants to raise. Grievances are often raised in situations where there is:
The employee receives a disappointing or no bonus and considers this unfair;
The employee is being dismissed and considers his job should be preserved;
The employee considers the employer is treating him so badly that the conduct is equivalent to a dismissal as the employee is being forced out;
The employee believes that because of sex, race, disability or nationality he is receiving lower pay and or bonus payments than his colleagues in similar roles,
A very common cause of complaint commonly aired as a grievance.
A grievance sends a number of messages to the employer.
A grievance complaint sends a signal to the employer that action is needed. It is rare for an employer to uphold a grievance. But, in private the employer may make changes. Or, in many cases, compromise the employee out of the business. Usually the employer achieves its objectives via a settlement agreement.
The failure to raise a grievance in writing does not prevent an employee from bringing a claim in the Employment Tribunal. However, the employee may recover less compensation if he didn’t raise the grievance in writing before bringing a claim.
If the employer does not follow a fair procedure in dealing with the grievance there are repercussions for the employer. An Employment Tribunal may increase the employee’s compensation by up to 25%. The Employment Tribunal must decide what uplift would be just and equitable.
There are usually five stages to the grievance process as follows:
For senior level employees, thought and tactics are involved at the stage of drafting the grievance. The grievance has to refer to the personnel involved in the dispute. In practice who is referenced in the grievance is delicate. The choice of who to name in practice creates a pressure point. This is because the individuals cited in the grievance could find themselves giving evidence under oath.
The law is now established that covert recordings can be used by employees. But, the employer is likely to argue that the conduct of an employee in making the recordings is evidence of breach of trust and confidence and use that to challenge the credibility of the employee. Employment Tribunals can refuse to accept covert recordings. The decision is at the discretion of the Employment Tribunal chairperson.
The grievance must set out the employee’s proposals for how the employer can resolve the dispute. Even if the employee thinks the employer will take no notice he or she must still set down the steps for resolution.
The employer will be concerned about one or several of the following claims open to an employee. The actual claim or claims arising do depend upon the fact. The claims can range from:
Often employers fail to investigate properly. However, an employee should not interfere too much. This is because failure to follow a fair process includes investigation. Lack of investigation can be subsequently used by an employee as evidence of unfairness.
A meeting should be held between the employer and the employee. The purpose of the grievance meeting is to:
Once the grievance meeting is concluded, the employer should communicate its decision in writing. The decision should be given without unreasonable delay. The employee should keep the pressure up.
In our experience, most grievances are appealed. As mentioned, the employer has to work through a fair procedure. Part of this procedure is allowing an appeal. The appeal is another tactical document. We help employees execute the tactics.
The appeal should be dealt with impartially at a hearing, which should, if possible, be conducted by a manager who has not been previously involved. You should be informed in advance of the time and place of the appeal hearing and may bring a companion.
The employer should communicate the final decision in writing without unreasonable delay.
Employees can submit grievances during a disciplinary procedure. The grievance is usually regarding the disciplinary procedure. Or, the grievance relates to the circumstances leading up to the initiation of the disciplinary procedure.
The employer can decide to continue with the disciplinary. Or, the employer can suspend the disciplinary procedure in order to fully investigate the grievance.
We find that if an employer sees the inevitable as being the employee leaving the business, the employer can pay lip service to procedures. The reason being the employer knows it will settle the matter.
Employment Tribunals enjoy a wide discretion to decide:
This creates considerable uncertainty. We use our experience to make judgement calls.
The short time limit for bringing claims in the Employment Tribunal pressurises both sides. The pressure is to complete the grievance procedure. Both parties usually share the desire to avoid a claim in the Employment Tribunal if the only purpose is to preserve the Employment Tribunal time limits.
Tribunals keep the time limit in mind when considering if the employee has unreasonably delayed submitting their written grievance or appeal. Similarly, Employment Tribunals do consider whether the employer unreasonably delayed meetings or communicating the outcome of those meetings in writing. Employment Tribunals look to see if the intention of the employer was to cause the time limits to expire.
Matt Gingell is a member of the employment law team. He has the experience of having acted for employers as well as employees. This is a benefit for employees as he know what the employer is likely to be thinking and can anticipate next steps.