EM Law are experts in advising on grievance investigations and hearings. We don’t simply advise clients on the law – we guide clients on the approach to take because how the parties approach a grievance process will very much dictate the outcome.
Acas Code of Practice
Before commencing any grievance process an employer needs to be familiar with the principles of fairness set out in the Acas Code and the supporting non-statutory guide,
The Acas Code is intended to provide practical guidance to employers and employees and sets out “the standard of reasonable behaviour” for both parties when an employee has a grievance that cannot be resolved informally. Although the obligations placed on employees are minimal, it is still important for them and their representatives to have regard to the Code if they wish to raise a formal grievance with their employer.
Consequences of failing to follow the Acas Code
Failure to follow any part of the Acas Code does not of itself make an employer liable to proceedings. However, employment tribunals must take the Acas Code into account where relevant when considering whether an employer has acted reasonably or not. Furthermore, if the employee subsequently brings certain successful claims, the tribunal can adjust the amount of compensation by up to 25% either way if the employer or the employee has unreasonably failed to comply with the Acas Code.
Raising a grievance
If it is not possible to resolve a grievance informally, an employee should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. The grievance should be in writing and set out the nature of the grievance. (Page 10, Acas Code.) Employers should be alert to situations where an employee raises a grievance issue within another document, for example in:
Drafting a grievance letter
The employee should provide as much relevant factual detail as possible and ensure that the information provided is accurate and correct. This will help the employer investigate and resolve the grievance as promptly as possible. Bear in mind that the letter may end up as evidence in a subsequent tribunal claim. If there are several aspects to the employee’s grievance, it will be helpful to set these out under separate headings. The employee should provide details of any relevant witnesses who may be able to corroborate facts in the grievance, where they feel comfortable in doing so.
An investigation is a fact-finding exercise to collect all the relevant information on the issues raised in the grievance. A properly conducted investigation will enable the employer to make an informed decision on the grievance after a full consideration of all the relevant facts. Making a decision on a grievance without first completing a reasonable investigation could potentially make that decision unfair, and leave an employer vulnerable to legal action.
Investigation meetings can be difficult and emotional, particularly for the employee who has raised the grievance. The Acas investigations guide suggests that, mindful of this, the investigator should follow a structured process and pre-plan their initial questions to help keep the interview on the right track.
At the start of the meeting, the investigator should explain:
During the meeting, the investigator should ask relevant questions to gather the facts about the issues surrounding the grievance and seek evidence that may substantiate the information provided. The guide suggests that it is good practice at the end of the meeting for the investigator to ask the interviewee whether there are other witnesses they think should be interviewed and why, and check whether there is anything else that the interviewee thinks is important to tell the investigator. The investigator should also explain that it may be necessary to interview the witness again.
Gathering the evidence
In addition to witness evidence, physical evidence, such as CCTV or computer or phone records may be relevant to the investigation. If physical evidence is collected, an investigator should document what it is, how it was collected and what it reveals. This can make it easier for an investigator to refer to the evidence at the conclusion of the investigation. Any physical evidence gathered should also be retained in case it needs to be viewed again at a later date.
Policies and employee contracts should clarify whether or not an employer may use CCTV recordings and personal employee data as evidence in disciplinary and grievance matters. Where this is not the case, an employer should only use such evidence where it is not practicable to establish the facts of the matter through the collection of other evidence only.
Once the investigator considers that they have established the facts surrounding the grievance, as far as is reasonably possible and appropriate, they will usually need to produce an investigation report that explains their findings. Although not essential, the Acas investigations guide suggests that a written report will be beneficial in many cases.
Procedure at the hearing
The meeting should be held without unreasonable delay and all parties should make every effort to attend (paragraphs 33-34 Acas Code). The Acas guide suggests that ideally the meeting should be held within five working days of the grievance being received, but this may not be appropriate in all cases, since it may not leave much opportunity for investigation. Indeed, the suggestion in both the Acas Code and the Acas guide seems to be that the employer should hold a meeting quickly and then adjourn for investigation, rather than embark on a lengthy investigation before discussing the matter with the employee. The meeting can then be reconvened days or even weeks later to discuss the matter in more detail in the light of that investigation.
Employers should consider adjourning a meeting where further investigation needs to be carried out (paragraph 34, Acas Code). In practice, this means ending the meeting and reconvening another meeting at a later date, following the investigation.
Right to be accompanied
A worker or employee has the right to be accompanied to a grievance hearing by a fellow worker or a trade union representative where:
Not every type of grievance will, therefore, attract the right to be accompanied. However, it is likely to be better in practice to allow all employees who have raised a grievance to be accompanied if they wish, since it may not be clear before the hearing whether the grievance falls within the statutory definition or not.
Role of companion
The companion should be permitted to address the hearing (including putting the worker’s case, summing up, and responding on the worker’s behalf to any view expressed at the hearing) and to confer with the worker during the hearing. There is no right to answer questions on behalf of the worker, address the hearing contrary to the worker’s express wishes, or act in a way that prevents the employer explaining its case or prevents any other person making a contribution to it. The Acas guide does say, however, that it is good practice to allow the companion to participate as fully as possible in the hearing, including asking witnesses questions.
The Acas Code recommends that employers keep a written record of all grievance cases they deal with. It is good practice to keep a written record of all stages in a grievance investigation and hearing, including notes of interviews with witnesses, minutes of meetings and notes of any discussions held to determine the outcome of the grievance.
Communicating the decision
The employee must be informed, without unreasonable delay, of the action the employer has decided to take to resolve their grievance and of their right of appeal. Although the Acas Code (at paragraph 40) requires this to be in writing, it is good practice, once the employer has reached a decision, to reconvene the meeting and provide the employee with a face-to-face explanation of the steps the employer intends to take.
Getting the grievance appeal right is important, not least because a failure to provide a fair and impartial appeal could lead to a constructive unfair dismissal claim.
The Acas guide suggests that larger employers may wish to consider having more than one appeal stage, the final appeal to be heard by a higher level of management such as a director. However, smaller employers are likely to have only one appeal stage to their grievance procedure.
Principles in the Acas Code
The Acas Code requires that the employee is offered a right of appeal. A failure to do so could lead to an uplift in any compensation subsequently awarded to the employee. While the Acas guide recommends imposing a time limit for disciplinary appeals and suggests that five working days is often enough to appeal a disciplinary decision, it does not make any similar suggestions in respect of grievance appeals. This does not mean that an employer cannot set a deadline in its grievance procedure for an employee’s appeal to be received. However, if the employee fails to meet the deadline, the employer should consider carefully whether it should still consider the appeal.
Grievance appeal decision
The employer should confirm the grievance appeal decision in writing to the employee as soon as possible after the hearing.
Claims arising from failing to deal with a grievance properly
Discrimination and victimisation
An employer’s failure to properly investigate or deal with a grievance alleging discrimination could , in itself, lead to a further act of discrimination and therefore an additional discrimination claim.
It was established in W A Goold (Pearmark) Ltd v McConnell and another  IRLR 516 that an employer’s failure to provide and implement a grievance procedure, as required the ERA 1996, was a breach of an implied contractual term on which an employee can resign and claim constructive dismissal.
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