The Essential Elements of the Grievance Policy and ProcedurePosted in : The Essential Elements of the Employee Handbook on 28 March 2019
In this month's feature, we set out the key considerations when developing grievance procedures including why, even in the absence of statutory requirements, it is beneficial to have a clear procedure for handling employee complaints.
We include some suggested wording around specific areas which may help in drafting your procedures but as with all company policies, it is important that this reflects your own organisation's structure and values.
What is a grievance?
Employees may have concerns or complaints about aspects of their work – these are grievances. For example, organisational change, new working practices or the working environment may raise concerns. An employee may wish to raise issues with their employment terms and conditions, working relationships, health and safety, decisions taken or organisational policies and how they are applied.
Why have grievance procedures?
As an employer, you are legally required, through written employment particulars, to provide details of any procedure applicable to handling employee grievances. This must specify who employees can raise grievances to and cover the steps that follow a grievance being raised.
Unlike for disciplinary procedures (discussed in last month's feature), there is no statutory workplace grievance procedure in place in Northern Ireland. Previous statutory procedures were repealed and replaced with the requirements of the Labour Relations Agency (LRA) Code of Practice on Disciplinary and Grievance Procedures (the Code). A failure to follow the Code will not in itself make a person or organisation liable to proceedings. However, industrial tribunals will take it into account in relevant cases, and may impose additional financial penalties of up to 50% on an employer or employee who has unreasonably failed to follow the Code.
As reflected in the Code, attempting to resolve issues informally in the first instance will clearly be beneficial to all parties as it is often quicker, and can protect important working relationships before the problem escalates further. It is therefore recommended that you include some wording in your policy to encourage employees to raise grievances early and resolve them on an informal basis. For example:
"Most routine complaints and grievances are best resolved informally in discussion with your Manager. Dealing with grievances in this way can often lead to a speedy resolution to problems and your Manager may well be able to resolve the matter directly. Both you and your Manager may find it helpful to keep a note of each informal meeting. Where the grievance cannot be resolved informally it should be dealt with under the formal Grievance Procedure."
A formal grievance procedure provides a mechanism for raising complaints formally. Apart from meeting your legal obligations, it allows you to communicate how your employees can raise complaints and sets out clearly how your organisation will handle them.
Depending on the organisation it may be appropriate to tailor your procedures to also have separate defined policies for bullying and harassment. There is no specific legal requirement to do so, so this will be down to the structure, characteristics and resources of your organisation. However, it can be beneficial to adapt your approach to grievances of this nature as they will often carry a high degree of sensitivity and require urgent attention. Of course, all grievances should be dealt with without unreasonable delay, and you may wish to set out in your procedure specific timeframes in which you will aim to deliver an outcome to a grievance.
Regardless of the nature of the grievance, employees should have confidence that their complaints will be taken seriously by your organisation, be dealt with in a timely manner and receive the attention they warrant.
The provisions of the Code do not, however, apply to collective grievances. Complaints that are raised on behalf of two or more employees by a representative of a recognised trade union or another appropriate workplace representative should be dealt with in accordance with a collective grievance process if your organisation has one. If it does not, it may be beneficial to put together a loose procedure on an ad-hoc basis for handling such matters.
Overlapping disciplinary / grievance procedures
You may find during a disciplinary process that an employee wishes to raise a grievance. In these circumstances, it may be necessary to suspend the disciplinary process in order to deal with the grievance. However, in certain circumstances, it may be more convenient and time efficient to deal with both processes concurrently.
This decision should always be taken on a case by case basis. However, as a general rule, where the grievance being raised covers issues that could impact on the disciplinary process or the outcome of that process, it is recommended that the disciplinary process is suspended to allow a full investigation of the grievance.
Where possible, the individual in your organisation assigned to investigate the grievance should not currently have or have previously had any involvement in the disciplinary process.
When a grievance is raised a formal meeting should be held without unreasonable delay to allow the employee to explain their grievance and the resolution they feel is needed. Further investigation may then be required to assist your decision making.
Unlike in the disciplinary procedure, where it is best practice to have two different people carrying out the roles of investigator and decision maker, the roles in a grievance process can be combined. In fact, it can be more beneficial in these circumstances if the person investigating the complaints is also responsible for hearing the grievance and determining the outcome.
As above, the selection of an appropriate investigator should be carefully considered based on the nature of the grievance. For example, in cases of bullying and harassment where the line manager may be the subject of the complaint or required to be interviewed, it is beneficial to select a different manager from outside of the team in question, or where possible from another location. Depending on the severity of the allegations, it may also warrant bringing someone more senior or experienced in to carry out the investigation, or appointing someone external to the organisation, such as an independent HR consultant.
The proper investigation of grievances is important both in terms of building and maintaining employee trust and confidence in the company's structures, but also to protect the company in the face of employment litigation. Failing to investigate can lead to a breach of the implied contractual term of trust and confidence and leave your organisation exposed to claims, particularly for constructive dismissal.
In Abbey National v Fairbrother  IRLR 320 the Employment Appeal Tribunal (EAT) noted that in a case of constructive dismissal arising from allegations of a flawed grievance procedure, it is both appropriate and necessary to ask whether the employer's conduct of the grievance process was within the band of reasonable responses in relation to the nature of the grievance being raised by the employee.
The case highlights the importance of ensuring that first and foremost the complaints are taken seriously and that such investigation is carried out to respond to the grievance as the investigating manager believes is necessary, taking account of the allegations being raised.
Outcomes and solutions
There is clearly no one size fits all approach to handling grievances and solutions will depend on the specifics of each situation.
Sometimes it may be easily rectifiable or easy to prove there is no issue, for example when dealing with complaints regarding pay errors.
Resolving grievances dealing with working practices or relationships can, however, require some creativity and taking a step back to consider the bigger picture and what is best for the business overall.
Regardless of the outcome, going through a grievance process may reveal breakdowns in working relationships and rifts within teams that are difficult, or impossible, to repair. Considering creative solutions such as team reorganisation and moves between teams or business areas, may be advisable.
Where the process has led to an outcome one party may not be happy about (for example, an employee seeks disciplinary action against a colleague that your investigations do not support), independent coaching or mediation may provide a route to resolution.
External mediation provides access to services that are completely independent of the business, and can therefore be useful resources where issues of trust and confidence in management or the organisation's own internal procedure make a resolution otherwise difficult. The LRA, for example, offers mediation services to assist those involved in workplace conflict and try to help them settle differences.
Some organisations may build referral to external mediation into their policies and procedures. However, while this may work within certain organisational structures or indeed be as a result of collective negotiations with a recognised trade union, care should be taken if considering introducing this as a fixed stage of your grievance procedure. Alternative options such as mediation may not be useful in all circumstances and employers will want to have flexibility to propose it only if it is appropriate.
Following a grievance meeting and investigation an employer should communicate to the employee in writing the action, if any, they have decided to take. This should include an explanation of how the decision was reached and what the employer plans to do. The employee should also be informed that they can appeal the decision.
Your employees should have the right to appeal the outcome of any grievance process.
As with disciplinary appeals, and should your organisation's resources permit, it is advisable that the person who handles the grievance appeal is as independent as possible of the issues raised in the original complaint. The outcome of the appeal should be communicated in writing.
In Blackburn v Aldi Stores Ltd  IRLR 846, a former employee brought a claim for constructive unfair dismissal having resigned after submission of a grievance. They claimed that the denial of a grievance appeal was capable of amounting to, or contributing to, a breach of the implied term of trust and confidence. The EAT held that failure to adhere to a grievance procedure is capable of amounting to or contributing to a breach.
Grievances from former employees
Although the LRA Code does not guide specifically on grievances raised by former employees it may be sensible and pragmatic to conduct some investigation into the complaint(s), the form of which may be dictated based on circumstances at that time. There is no requirement to include any specific provisions in the grievance procedure to deal with post-employment grievances, and employers may wish to have a degree of flexibility as to what, if any, investigation they carry out in relation to complaints received after employment has terminated.
If you receive communication from a former employee raising an issue you should acknowledge receipt in writing and note in your response that no grievance was raised during their employment, if that is the case. If investigation is appropriate in the circumstances, you should offer them the opportunity to discuss the issue with you and investigate their complaint. It may not be practical or possible to investigate to the same detail and depth as you would with a current employee but looking into the issue can help protect the organisation if faced with subsequent legal proceedings by showing that you have taken it seriously. It can support what you would have done if it was raised during their employment.
In particular, complaints or issues raised by recently departed employees should be taken seriously given the potential live risk of a claim in the months immediately following departure and the time limits for raising a case to the tribunals.
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.