Handling Grievances [Video]

Posted in : Back to Basics on 24 May 2016
Jenny Walker
A&L Goodbody

In 2011, the statutory grievance procedure was repealed in Northern Ireland by our local government. The reason that this was done was twofold. Firstly to streamline the process and to make it more akin to Great Britain, and secondly to avoid unnecessary debate on whether procedure was followed by the respective parties to the grievance process.

The LRA Code of Practice on grievance and disciplinaries [sic] now stands in its place, and this is essentially guidance on policy and best practice approach for both employers and employees.

Transcript:

Notably, the code applies to employees only, not to workers, and to individual grievances, not to collective grievances. The collective grievance will be dictated by the employer's internal processes, for example, through collective agreements with unions.

What is a grievance then? Well it is essentially a complaint made by an employee to an employer, in respect of a matter that they are aggrieved about, whether that be a fellow-colleague's conduct, or whether it be a policy or a criterion or practice that has been applied by the employer.

The first port of call, according to the Labour Relations Agency Code of Practice, is to resolve the matter informally between the parties. Where that's not possible, the recommended procedure is a formal written grievance process. The formal written grievance lodged initially by the employee, the employer's then in receipt of that document, they schedule a meeting and the employee has their say.

There may be circumstances where the employer feels the need to investigate the facts that the employee has raised, or the allegations, in order to substantiate them, and will then write to the employee to give or deliver the outcome.

Through that piece of correspondence, the employee will be notified of their right to appeal, and that appeal should be, in most circumstances, held by a more senior member of management.

It goes without saying, of course, that if the employee is raising a matter that they are aggrieved about, in relation to their line manager, it should obviously not be their line manager who holds the appeal.

At the grievance meeting and appeal, the employee has the right to be accompanied by a colleague or a trade union representative, and this is something that we will deal with in a later video.

Notably the departure from the statutory grievance process, there is no requirement for an employee to exhaust the grievance process before they raise a matter with the tribunal. But it is recommended by the Labour Relations Agency Code of Practice.

Again, an important note for an employer, if an employee is deemed to be disabled under the legislation, then an employer should be sure to offer reasonable adjustments, and should defer to occupational health on that point.

Employers should be made aware that an unreasonable failure to follow the Code of Practice can amount to a reduction or an uplift, in any tribunal award made, by up to 50%. That's applicable to both the employee and the employer.

Notably, and a departure from the statutory grievance process that was repealed in 2011, there is no longer an automatic extension, to time limits, for exhausting grievance processes. So any proceedings must be lodged with the tribunal within three months of the act of causation.

Where an employee is unhappy with a disciplinary or dismissal outcome, the grievance process is not the appropriate forum in which to deal with this. The disciplinary process is statute-bound, and this still applies in Northern Ireland contrary to our counterparts in GB.

Just to look at the contractual status of the grievance then. If an employer chooses to make their procedure contractual they need to be careful, as an employee may have a breach-of-contract claim, if the employer fails to follow it.

Also by law, an employee must be informed of the name of the person to whom they should apply to seek redress to the grievance, and also how to make their application. That can be informed through the contract of employment or a staff handbook. Failure to inform can lead to a two- or four-week pay award by an industrial tribunal.

And finally then, dealing with the employer headache of delay and long-term sickness absence in relation to grievance processes. If an employee is genuinely unable to attend, then the employer should offer a reasonable date and time as an alternative. You should, as good practice, let your employee know of the consequences of them failing to attend. Basically the decisions can be made in their absence.

What if the employee's companion is unavailable? Well the employee must propose another date and time no more than five working days, as that that has been proposed by the employer, and that is a practice that is enshrined in the Code of Practice.

What about another no show then? Well the employer can legitimately make the decision in the employee's absence, but the employer should not forget about notifying the employee of the decision, and also their right to appeal.

Long-term sickness then, well you can defer it to the GP or an occupational health report. An employer should note that a fit note will state that an employee is not fit to attend work and discharge their normal rules and responsibilities. It will not state that an employer or an employee is not fit to attend a hearing, and therefore we should defer to a GP or an occupational health consultant on that point.

The wait can quite often be the stressor for the employee, and that should be made clear to them. We're only acting in their best interests in trying to expedite the process.

But the grievance process must be, at some stage, completed. Whether that be in the absence of the employee, or with them at a hearing. And we should tell the employee, if they choose not to attend, that they can make written representations to be taken into consideration.

This article is correct at 24/05/2016
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Jenny Walker
A&L Goodbody

The main content of this article was provided by Jenny Walker. Contact telephone number is +44 28 9031 4466 or email jwalker@algoodbody.com

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