The legal situation regarding employee grievances, including tribunal outcomes

In preparation for the release of our updated ‘Practical Guide to Managing Grievances’ which will be available in a week or so, this article looks at the legal requirements for handling grievances and then a couple of tribunal cases that are useful in justifying why care needs to be taken to treat employee complaints seriously and follow a structured process that complies with the Acas Code.

Legal requirements

As with disciplinary action there is very little employment law that is specific to grievances. However, Acas (see www.acas.org.co.uk) have produced a ‘Code of Practice on Disciplinary and Grievance Procedures’ and when deciding on the merits of any cases that involve grievances, tribunals generally expect employers to have followed it.

Therefore, although it is not an explicit statutory requirement to follow the Code, failure to do so would likely result in the employer losing a tribunal. They also risk any compensation awarded to the Claimant being uplifted by up to 25 percent for a ‘failure to follow a reasonable process’.

The Code is not too onerous and, in my opinion, simply mirrors how I’d expect any good employer to approach employee complaints.

As you will be aware from previous articles there is a legal requirement that employers must issue all employees with either a contract of employment or, as a minimum, a ‘written statement of terms and conditions of employment’. 

If you have not done this please contact 186hr and we will be pleased to support you to do so on a consultancy basis, or you can purchase our ‘Practical Guide to Employment Contracts and Written Statements of Terms and Conditions of Employment’. Please see our website www.186hr.co.uk for further details.

Whichever contractual document has been issued the law requires that it must contain certain information about grievances, namely ‘with whom and how a grievance should be raised’. Thankfully it is acceptable for the document to ‘refer the employee to some other easily accessible document’ such as a grievance policy and this is our recommended approach for all organisations we work with.

This position is confirmed by Case law, that states that an employer has an implied duty to ‘reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance’.

So in summary, all employers need to give every employee a contract and a means of raising a complaint if they are unhappy with how they are being treated.

If, as we advocate, you issue a grievance policy we strongly recommend that you ensure this and all other employee policies e.g. for disciplinary action are non contractual.

If you don’t do this and the policies are deemed to be contractual you will suffer two unnecessary disadvantages:

• If you don’t follow a contractual policy to the letter then even a relatively new employee, who cannot normally apply to an Employment Tribunal unless they have two full years’ service, can sue the company in court for a breach of contract for failing to follow this term of their contract.
• Also, if you wish to change the policy at some point then, as it is contractual, to do so you’d need to consult with all employees regarding the changes, a time consuming and easily avoided process. Non-contractual policies can simply be amended and employees informed of the changes.

When introducing a grievance policy, clearly it should comply with the Acas Code. However, there is some latitude when it comes to their supplementary ‘guide to discipline and grievances at work’, which gives more detailed practical advice and guidance but, unlike with the Code, tribunals do not take its contents into account when deciding on the merits of a case. That is a good thing, as Acas documents can be a little cumbersome, and difficult for smaller companies to comply with due to a lack of resources and a more entrepreneurial culture.

We prefer to follow the CIPD’s guidance (see www.cipd.co.uk), which fully complies with the Code. We advise that employers either adopt the CIPD approved grievance policy in full or adapt it to their specific needs. Please contact us for more details if you would like a copy of this document.

Representation

Legally, employees (and workers) have a statutory right to be accompanied by a fellow worker or trade union official when they attend any formal grievance hearing or grievance appeal hearing.

Fellow workers and trade union officials are not obliged to agree to accompany the employee at the hearing, and should not be pressurised into doing so. 

Some employers have a policy of allowing individuals other than the above to accompany an employee at the hearing and this has some merit especially if, for example, they need more personal support than a work colleague or trade union official can offer. Under such circumstances you may wish to allow the employee to bring a partner, spouse or carer. 

If an employee wishes to bring their legal representative to the hearing please take advice from us at 186hr, Acas, your legal adviser or other trusted source. We will normally advise organisations to refuse such a request but there are certain circumstances where it may be allowed such as doctors, solicitors and certain individuals in the public sector where dismissal may be an outcome of the process.

Informal grievance meetings and grievance investigation meetings do not attract the right to be accompanied in the meeting.

A previously grey area has recently been clarified at tribunal in that employers are not entitled to reject an employee’s choice of companion if that companion is drawn from one of the above statutory categories, namely ‘a fellow worker, a trade union representative, or an official employed by a trade union’ as long as the request itself is made in a ‘reasonable manner’. 

In Toal v GB Oils, the employer refused Toal’s request to be accompanied by his chosen union representative but, as the request fell within the above requirements, he won the subsequent tribunal. 

Interestingly, after the refusal Toal chose to be accompanied by a different union representative and so GB argued at tribunal that he hadn’t been denied his statutory right to be accompanied by a union representative at the meeting but that argument failed.

The decision for the tribunal to make was whether an employer has the right to decide whether the person chosen is suitable and it decided that they do not.

There was also a relevant secondary issue considered by the tribunal. GB had argued that as Toal had agreed to a different representative when his first choice was rejected there had, in fact, been no breach of a statutory right so the claim should be dismissed. The tribunal disagreed and clarified that neither employers nor employees can waive a statutory requirement. Any such agreement will be void and unenforceable.

According to the CIPD, at the hearing the employee’s companion must, if the worker wishes, be allowed to:

• address the hearing,
• put and/or sum up the worker’s case,
• respond on behalf of the worker to any views expressed at the hearing,
• confer with the worker during the hearing.

The companion may not answer questions in place of the employee i.e. the employer has the right to expect the employee, and not his or her companion, to answer any questions put directly to them during the hearing.

Finally, if the employee’s chosen companion is not available on the day the hearing is scheduled to take place, the meeting should be re-scheduled for a future date up to 5 days later. If the companion is not available at the rescheduled date and time it may be possible to go ahead with the hearing in their absence. Please take advice from 186hr, Acas, your legal adviser or other trusted source if this happens.

What constitutes a grievance?

Clearly a complaint requesting the employer to treat the matter as a formal grievance must be treated as such. However, many employers do not seem to be aware that in general an employee’s letter or other written complaint does not need to state that it is a formal grievance for the Acas Code to require that it be dealt with as such. 

Tribunals often find that any written complaint from an employee is in fact a formal grievance and should have been treated as such. 

Therefore, any complaint received in writing from an employee e.g. in an email or a resignation letter must be treated like a grievance. In our Practical Guide to Managing Grievances we advocate arranging an initial meeting to discuss any written complaint received and the following 4 options explained, with the employee having the choice of which option they wish the company to follow:

• Information only
• Mediation
• Informal grievance
• Formal grievance

We find that most grievances can be handled informally if they are taken seriously by the employer.

Failure to check whether the employee wishes the company to formally investigate the matters they have complained about in writing, and whether they wish the organisation to treat the matter as a formal grievance may be very costly and can ultimately lead to the employer losing a tribunal due to not doing this even though the employee may never have stated that their written complaint was a formal grievance. 

We’ll now look at 3 cases that we feel are helpful when deciding how to manage grievances.

Who can investigate then decide the outcome of a grievance appeal?

There are various cases covering this issue including Watson v University of Strathclyde if you fancy doing some homework! But the case we are going to look at is Blackburn v Aldi Stores. 

The principle here is that the individual who decides the grievance outcome should not then be involved in any appeal against that decision. 

Aldi’s policy, which mirrors Acas requirements and best practice, stated that the manager hearing an appeal should be at least one level higher than the manager who decided the grievance outcome. However, in Blackburn’s case a very senior manager decided the grievance outcome and the same person then heard the appeal. Unsurprisingly he agreed with his original findings!

Blackburn claimed constructive dismissal at tribunal on the grounds that the appeal process had not been impartial and had breached his implied term of ‘mutual trust and confidence’.

The evidence showed that the original grievance seems to have been handled well, with the manager agreeing with some of Blackburn’s complaints. But Blackburn wasn’t satisfied fully by the outcomes and took his case to tribunal.

For such a large organisation with vast resources and a large HR function it is surprising that Aldi did not follow its policy and allowed the same person to hear the appeal. In fact the tribunal commented that it was difficult to understand in this case why an organisation the size of Aldi could not have made provision for an impartial manager to hear the appeal. I suspect they won’t make the same mistake twice!

There were certain other legal, contractual aspects of the case that we won’t go in to in this article. 

‘Protected’ and ‘without prejudice’ conversations

We have written several articles on this subject but in this one we will focus on whether an employee can include such conversations in a grievance or tribunal claim.

The answer is that, if done properly, the content of ‘Protected’ and ’without prejudice’ conversations are legally privileged and may not be included in either a grievance or tribunal claim. Please contact us if you would like to discuss this further as they can both be an excellent tool, especially for parting company with difficult employees safely or resolving a difficult dispute where it is clear the individual will not be able to continue to work for the organisation.

In BNP Paribas v Mezzotero, BNP didn’t get this right.

Mezzotero had raised a grievance complaining, among other things, that she had been prevented from returning to her old job after maternity leave. 

BNP then held a meeting with Mezzotero, which they told her was on a ‘without prejudice’ basis, and offered her a settlement to leave immediately.

The guidance regarding such conversations is that they can only be classed as ‘without prejudice’ where there is already a genuine disagreement between the two parties.

Most of the time a grievance would qualify as a ‘genuine disagreement’ but on this occasion the tribunal decided it did not. According to the CIPD they surprisingly ruled that ‘raising a grievance did not necessarily indicate that there was a dispute between the parties’. It decided that the employer’s comments surrounding the offer of settlement were therefore admissible and that significantly weakened their case as it would normally be viewed as a slam dunk unfair dismissal.

It seems that the tribunal’s decision was influenced by the fact that the employer explained that the discussion was ‘without prejudice’ only after the meeting had begun, a meeting that presumably Mezzotero felt was going to be about her grievance.

Our advice regarding both ‘without prejudice’ meetings and also ‘Protected Conversations’ is to explain beforehand that the meeting will be held on that basis and at the start of the meeting to explain the implications of the meeting being legally privileged i.e. that details of the discussion are inadmissible, and ask the employee to confirm that they accept those terms before proceeding.

We have always advocated such an approach. It seems that this would be acceptable to tribunals and we will continue to advise employers accordingly. 

The meeting where a without prejudice offer is made should certainly not be part of a grievance discussion, it should be a specific, separate meeting arranged to discuss an offer for the employee to leave the organisation in return for a sum of money and signing a Settlement Agreement.

Please note also that whereas a Protected Conversation can be held where no dispute exists between the two parties, it is not as wide-ranging as a without prejudice discussion as it does not protect the employer against claims for discrimination and certain other claims. It only applies to unfair dismissal claims. 

The bar for a tribunal case to succeed is quite high

Employees often think they have a good tribunal case for pretty much anything an employer does wrong. Also, all they have to do is say something happened and an employment judge will believe it to be true. However, in reality – despite what you may have read about some very rare cases that employees have won against the odds – there has to be quite a fundamental breach of an employee’s rights in order for them to win at tribunal.

Employers can take comfort from knowing that unless they are extremely unlucky, if they follow my employment judge mentor’s advice from a few years ago they should be fine. He said:

‘If you want to win a case in my tribunal all you need to do is follow the law, follow your company policy, and act reasonably.’

This advice is as relevant today as it was over ten years ago, as proved in Claridge v Daler Rowney Ltd where Claridge, a Supervisor, was spoken to informally by his manager about some minor breaches and told to ‘buck up his ideas’ or he may be demoted. 

Following this, Claridge took a period of sick leave which caused the company difficulties and so they appointed an internal person to cover Claridge’s absence. Claridge issued three grievances, all claiming that he had been demoted. 

The company offered Claridge a meeting to discuss his grievance, but due to his continued ill-health the meeting did not take place for several months.

At the eventual grievance meeting, Claridge was told he had not been demoted and that the person currently doing his role was simply covering his absence. They wrote to Claridge informing him that his grievance had not been upheld because he had not been demoted. 

Claridge resigned and lodged a claim to the employment tribunal alleging that he had been constructively dismissed on the basis that he had been demoted and his grievance had not been dealt with properly or within a reasonable timeframe.

The employment tribunal rejected the claim and considered that the company’s actions fell within the band of reasonable responses. Therefore, Claridge had not been constructively dismissed.

We hope you enjoyed this article. If you would like to discuss managing grievances, or any other HR issues, further please contact us