Resolving workplace issues at an early stage ensures matters are dealt with amicably avoiding possible future problems. In the next of our ‘How To’ series, we focus on running an effective grievance hearing where a formal process is necessary.
If an employee raises a concern which cannot be resolved informally, they may make a formal grievance complaint to their employer. Ideally, a business will have a written grievance procedure in place which the employee can follow but if one is not in place, the ACAS Code of Practice for Disciplinary and Grievance Procedures (“ACAS Code”) should be followed.
Normally, an employee will be required to raise any formal grievance in writing setting out in detail the nature of their complaint. Where it is unclear if an employee has intended to raise a formal grievance, the employer should seek clarification as soon as possible.
Once a formal grievance has been raised, an employer should investigate the grievance. This will ensure a fair decision is reached. Making a decision without carrying out a reasonable investigation could potentially make the decision unfair, leaving an employer vulnerable to legal action. The ACAS Investigations Guide provides useful guidance on how to conduct a fair investigation.
The ACAS Code sets out that a grievance hearing should be held without unreasonable delay and the supporting non-statutory guide suggests that this should ideally be held within five working days of receiving the grievance. This may not be appropriate in some cases where further investigation is required. In such cases, it may be more appropriate to hold an initial meeting, adjourn for an investigation and then reconvene the formal meeting to discuss the matter in more detail taking into account the evidence obtained during the investigation.
Employers should invite the employee to the grievance hearing and provide enough notice of the meeting so that the employee can be fully prepared to present their concerns. Where possible, an employer should arrange for a note-take to attend the grievance hearing.
Right to be accompanied
An employee has a statutory right to be accompanied to a grievance hearing by a colleague or trade union representative. Whilst there is no statutory right for an employee to be accompanied to a grievance investigation meeting, it some cases it may benefit the investigation or it may be a reasonable adjustment which the employer should make for a disabled employee.
If an employee’s companion cannot attend at the specified time, the employee can suggest an alternative time. As long as this proposal is reasonable, and within five working days of the original time, an employer must accept this.
Who should chair the hearing?
Unlike disciplinary matters, the roles of the grievance investigator and decision-maker may be combined. Matters raised in a grievance may in fact be resolved more satisfactorily if the person investigating the issue also determines the grievance outcome.
The chair of a grievance hearing should be impartial and should not have been involved in any issues which led to the employee’s grievance. If it becomes apparent that the employee considers the chair is involved in the issues raised in the grievance, the chair should consider adjourning the hearing and a suitable alternative chair should be appointed to consider the grievance.
There is no set structure of how a grievance hearing should be heard, but the following may be helpful to ensure key points are addressed:
- Confirm the purpose of the hearing under the relevant grievance procedure;
- Introduce those present to the employee and explain the reason for their attendance;
- Introduce and explain the role of the person accompanying the employee (if any). If there is no companion, ask the employee to confirm that they have chosen not to be accompanied;
- Confirm what documents (if any) will be relied on and ensure copies are provided.
Content of grievance
- Invite the employee to re-state their grievance(s);
- Try to summarise the essence of what is being said and ask questions as required. The grievance hearing is essentially a listening exercise and so having some pre-prepared questions can be helpful to get into more specific understanding of what the grievance is about;
- It may be necessary to adjourn the hearing to carry out further investigations at this stage.
- Ask the employee how they would like their grievance(s) resolved.
- Summarise what has been said in the hearing, what resolutions are requested and when a decision will be made and how this will be communicated.
Reaching a decision
There is no set format as to how to decide the outcome of grievance. A decision should be communicated in a reasonable timeframe but this will depend on whether further investigation is required and how complex or straight-forward the proposed resolutions are.
Any decision should be confirmed in writing along with an explanation of the right of appeal including when an appeal must be made by and how to appeal. An employer may wish to communicate the decision in person first of all with the letter to follow.
If an employee fails to attend a rearranged hearing, or they are on long-term sick and unable to go to a hearing in the near future, an employer could make a decision without a hearing or ask them to supply written information instead.
It is important for an employer to keep the decision and outcome of the grievance confidential, as grievances generally involve sensitive matters.
Employees may feel reluctant to raise a formal grievance as they may fear this will impact their employment and relationships in the workplace. Employers should therefore ensure any grievance is dealt with properly, and appropriate measures put into place to mitigate any workplace tension or stress an employee may experience upon the outcome of a grievance.
The above guidance is in line with the ACAS Code. Parties are not obliged to follow the ACAS Code but are recommended to do so as this can have an impact on the level of compensation a judge may award at tribunal (subject to a maximum 25% uplift/reduction) if an employee subsequently brings a successful claim relating to their grievance(s).