GRIEVANCES IN THE SPOTLIGHT

Published: 30th September 2008

One of the most frequent issues we advise upon is whether a particular complaint is a grievance and how should it be dealt with. This month we put the universally unpopular "Statutory Grievance Procedures" under the spotlight, have a look at current best practice, and see what the future holds post April 2009.

WHAT IS A GRIEVANCE?

The statutory procedures define a grievance as a "complaint by an employee about action which an employer has taken or is contemplating taking in relation to him". Beyond this, there is no further statutory definition as to what constitutes a grievance.

The case law has been very relaxed in accepting almost anything in writing as a grievance. In fact the following are examples of what will amount to a grievance:

• Complaints raised in a letter signed or unsigned
• Complaints raised in an e-mail
• Flexible Working Request
• Resignation Letter
• Complaints raised following Exit Interviews
• Solicitor's letter
• Without prejudice solicitor's letter

Therefore if the complaint is in writing it is likely to qualify as a grievance. The word "Grievance" does not need to be used when the individual makes the complaint.

Most recently the case of Procek v Oakford Farms Ltd has thrown up yet another interesting spin on handling a grievance. In Procek the claimant submitted a grievance expressly stating that it was "informal". The EAT said that the employer should have treated it as a formal grievance since it satisfied the necessary requirements that it be set out in writing and sent to the employer under the statutory procedures. The claimant's view that it was "informal" made no difference.

The case shows that an employer should not be confused by the label an employee attaches to any workplace concern he or she may have. Instead once the concern is raised by the employee, the employer should proceed on the basis that the minimum procedural steps under the statutory grievance procedure should be followed.

BEST PRACTICE: WHAT SHOULD EMPLOYERS DO?

To be certain, (especially in light of the Procek decision) simply treat each complaint in writing as a grievance and start taking the next steps in the grievance procedure - acknowledging receipt and inviting the employee to a grievance hearing. It is at this point that an employee may decide that they do not wish, or never intended, to take it any further, but at least as an employer you have met your obligations.

However, in practice it is not always that simple as employers could find themselves being overrun by employee complaints in the workplace if they follow this safety first approach. One key criticism of the procedures is that they have escalated minor complaints into something more serious. Employers need to make a practical decision - could the particular complaint lead to a claim? This requires careful consideration and good understanding of the legal implications, balanced with a knowledge of the individual and consideration of the likelihood of the complaint escalating.

When facing this dilemma it is good practice to consult with your legal advisor at an early stage. It is always beneficial to seek an independent view about the prospects and implications of any complaint and an objective view can help decide this careful balance of risk.

FOR BETTER OR FOR WORSE: THE NEW ACAS CODE OF PRACTICE

The Employment Bill, which is currently going through Parliament, will repeal the statutory grievance procedures, together with the statutory dismissal and disciplinary procedures, from April 2009 and replace them with a revised ACAS Code of Practice on discipline and grievance.

The new ACAS Code of Practice, together with non-statutory guidance, will establish what employers and employees should do regarding discipline and grievance issues. The Code sets out the basic key points for employees and employers when handling grievances in the workplace. They are as follows:

1. Let the employer know the nature of the grievance
2. Hold a meeting with an employee to discuss the grievance
3. Allow the employee to be accompanied at the meeting
4. Decide on appropriate action
5. Allow the employee to take the grievance further if not resolved

Practically, this is likely to mean that the new procedures are going to follow the basic statutory template of written complaint, meeting, decision and right of appeal.

Tribunals will be able to adjust awards by up to 25% for unreasonable failure to comply with the Code. It is hoped that the revised system will offer greater flexibility to solve problems informally and hopefully reduce costs as well. One of the stated aims is to remove the current problems with over-formalising minor complaints. We hope this will be the result.

However, it appears that the new regime fails to deliver in a number of areas such as: when is a complaint a grievance; how should an employer deal with grievances once an employee has left employment; and how to manage collective grievances. As awards may still be increased if an employer has not followed a grievance procedure following a complaint, the same dilemma that we have highlighted will be faced by employers and dealing with every written complaint as a grievance will still be the risk averse approach. We hope the final Act, the codes, or case law, may ultimately assist employers with this problem.

The statutory grievance procedures will shortly draw their last breath, but until then, employers need to ensure that they follow them. If you would like to discuss any of the above points please speak to your usual contact in the Mace & Jones Employment and HR Team.