HR guide to a formal grievance procedure

A workplace grievance can be anything from a concern or issue to a formal complaint about the business, an individual or a group of individuals within the company.

Thankfully, many grievances can be resolved informally. However, if this is not possible, an employee may choose to raise a formal grievance to their employer in an attempt to resolve the situation.

Who can raise a grievance?

All employees have a right to raise a grievance at any point during their employment; no minimum level of service is required with their employer.

Employers have no explicit obligation to investigate grievances raised by workers or employees who have already left their employment.

However, to avoid possible costly and time-consuming employment tribunal claims and to help defend the employer in any potential employment tribunal claims, the majority of employers choose to investigate these grievances - this would be our recommendation.

The grievance process

ACAS Code of Practice

Before commencing any grievance procedure, employers should be familiar with the guidance in the ACAS Code of Practice on Grievances. This code provides practical guidance for employers on correctly and fairly dealing with a grievance.

Compliance with the code is not mandatory.

However, employers should comply with the code and demonstrate this compliance. If a matter progresses to an employment tribunal, the tribunal will consider whether both the employer and the employee complied with the code. It is important to note that if an employee wins their case at an employment tribunal and the employer has failed to comply with the code, the compensation awarded to the employee can be increased by up to 25%.

Internal grievance procedures

As well as the ACAS code, employers should review their internal grievance procedure, which should be outlined in a documented grievance policy accessible to employees at all times, usually on an intranet or shared document space. It is important that employers comply with any internal processes to avoid an employee becoming further aggrieved (i.e. because the employer is not complying with its own rules).

What should be included within a grievance policy?

Each company's grievance policy varies; however, as a minimum, we would recommend the following to be included:

• A point of contact for grievances to be submitted;
• Timescales of when the grievance shall be heard (usually within five working days);
• Timescales of when the grievance outcome shall be issued (this will not always be possible, but it is good practice to include);
• A point of contact of who the employee can appeal the outcome;
• Timescales of when the grievance appeal shall be heard (again, this is not always possible, but it is best practice to include)

Raising a grievance

An employee should raise a formal grievance in writing, known as a "letter of grievance", and without unreasonable delay after the incident to which the grievance relates.

The employee will need to raise their grievance in line with their employer's grievance procedure requirements. This will differ from one employer to another (or if an employer doesn't have a grievance procedure) but tends to follow a similar process to the one outlined below:

Employees should put their concerns in writing to their line manager, or if the complaint is about their line manager, to a member of the HR department.

The written grievance should describe the nature of the complaint (including any relevant facts, dates and names or individuals) and the employee's desired outcome, as well as include copies of any relevant documents or supporting evidence.

The grievance letter should provide as much factual evidence as possible to set out the nature of the issue to ensure it can be investigated as fully, accurately and promptly as possible.

It is important to note that not all employees will label a written letter as a 'letter of grievance'. In the absence of this, an employer should analyse the contents of the letter and make a judgement as to whether the contents of the letter constitute a formal grievance.

Examples of a grievance

The following points are some common examples of grievances raised by employees:

• An employee disagrees with a work colleague;
• An employee disagrees with a new policy or procedure implemented by the employer;
• An employee has been subject to discrimination, bullying and harassment by a colleague

HR grievance investigation process

Once an employer has received a grievance letter, they should acknowledge receipt to the employee as soon as possible.

Appointing a grievance chair

Once a grievance has been raised, an employer will need to determine who will chair a grievance hearing with the employee and investigate the complaints detailed in the grievance and/or discussed at the grievance hearing. The investigation process generally involves gathering all relevant information on the issues the employee has raised in their grievance. However, if the grievance relates to the behaviours of another employee then the investigation will also involve interviewing other employees who may have seen or heard the incidents complained as well as undertaking an investigation meeting with the person the employee has complained about.  

An appropriate grievance chair must be appointed. Whether a grievance chair is deemed appropriate will differ on the specific facts of the grievance.

Fundamentally, the grievance chair must be impartial. Therefore, anyone named in the grievance should not be the grievance chair. It is also advised that anyone close to the employee, e.g. their line manager, is avoided (if at all possible) as this may cause unnecessary tension between the individuals in their future working relationship.

The grievance chair should also be someone of sufficient authority to deal with the matter. Usually, grievances can be chaired and investigated by a member of the human resources department. However, it may be more appropriate to have a senior manager chair and investigate grievances with a high level of complexity and seriousness.

Please note: When deciding who should chair and investigate the grievance, an employer must consider who will deal with any appeal should the matter progress to this. The employer must ensure that a suitable individual is available, with sufficient authority and impartiality, to conduct any appeal hearing.

Action plan

The grievance chair must ensure that they undertake a thorough and detailed investigation to reach an informed outcome at the end of the grievance procedure.

At the outset, this may involve:

• Review of the letter of grievance;
• Checking relevant policies and procedures;
• Identifying potential sources of evidence;
• Identifying possible people relevant to the investigation;
• Deciding how and when to collect the evidence; and
• Deciding when and where the grievance hearing should take place.

Ideally, the investigator will devise a plan for how they will conduct the grievance before the investigation.

Grievance hearing

The grievance chair must   invite the employee to attend a grievance hearing in writing. The grievance hearing is an appropriate forum to discuss their grievance and obtain a full understanding of their concerns and where further investigation is required. In the written invitation to the hearing, the grievance chair should explain that they will conduct the meeting and confirm that another individual, usually a member of the human resources department, will be in attendance to take notes.

It is advised that all employees are provided with the right of accompaniment at the hearing. This should be stated in the invitation letter, noting that the employee is entitled to bring an authorised Trade Union representative or a colleague with them.

The grievance hearing should be held without unreasonable delay. The ACAS guidance states that the grievance hearing should, ideally, be held within five days. This is not always possible. If there is a more extended period before the hearing and the matter progresses to an employment tribunal, the employer may need to show the reasons for the delay.

From the start of the grievance hearing, if the employee has brought someone along, it is advisable to establish the identity and role of this individual.

This person can either be attending as a witness, in which case they will take notes for the employee, or they can participate as a representative. They can help the employee put forward their case if they are acting as a representative. However, in neither role does the person have the ability to answer questions directly addressed to the employee.

Furthermore, the employee should be made aware before or at the beginning of the hearing that they are forbidden from audio recording the hearing. It should be explained to the employee that the note taker is present to ensure an accurate reflection of the hearing. The grievance chair should confirm that the employee will be sent the meeting notes shortly after the hearing so that they can review and approve their contents. The employer should get the employee to sign and date the notes to indicate their agreement, which will help protect the employer's position in any potential employment tribunal claims.

Where witness evidence is needed as part of the investigation, this should be collected separately from the grievance hearing. The employee has no right to view any witness evidence collected as part of a grievance or cross-examine the witnesses. While the employer can technically allow witnesses to attend a grievance hearing, it is strongly advised that, for ease, this does not occur, and all other evidence is obtained separately.

Grievance investigation

The period following the grievance hearing is where the grievance chair will undertake most of their investigation. This may involve:

• Speaking to witnesses and obtaining witness evidence;
• Gathering evidence, e.g. CCTV footage; and
• Further meetings with the employee if necessary.

It is advised that the grievance chair completes an investigation report which documents their investigation and how they arrived at the ultimate grievance outcome.

Grievance decision

Once the grievance chair has completed a full investigation, they must, without unreasonable delay, inform the employee of the outcome of the grievance and the action, if any, that has been decided to resolve it.

The employee must be informed of the outcome of their grievance in writing. This letter should demonstrate how the final decision was reached. It will also need to give the employee the right to appeal the decision.

The grievance chair   can meet with the employee face-to-face to confirm the outcome of the grievance before sending the outcome letter if desired. However, this is not necessary.

Grievance appeals

If the employee decides to appeal the decision, the employer will need to select an impartial individual who will be able to manage this.

The employee must raise their appeal in writing. This must be without unreasonable delay. It is advised that the employer set a time limit for the employee to raise an appeal. If an employee raises an appeal outside of this timeline, it is up to the employer's discretion whether it wishes to investigate this further. In some circumstances, the employer may find it beneficial to investigate a late appeal to avoid further repercussions via a possible employment tribunal claim.

The employee's appeal letter should state, in detail, the grounds upon which they are appealing the employer's decision.

The appeal can either be heard as a review or a re-hearing. A review is where the appeal chair will go through the original grievance chair’s investigation   report and check that the grievance has been properly and thoroughly investigated and that, based on the review of the evidence available, the decision made was a reasonable one. A re-hearing is where the appeal chair will conduct their investigation into the grievance – i.e. a new investigation will occur. A re-hearing is only necessary if the employer believes there has been a fundamental procedural flaw in the original grievance investigation. The usual course of action will be a review.

Once the appeal hearing has been held, the appeal chair will need to communicate the final decision to the employee without unreasonable delay.

Once again, the outcome must be confirmed in writing. The appeal chair may wish to speak to the employee before sending this letter, but this is not necessary.

Overlap with disciplinary and grievances

Where an employee is the subject of a disciplinary procedure and raises a grievance, the employer must decide on the most appropriate cause of action for dealing with this.

Usually, it is customary to pause the disciplinary procedure until the employee's grievance has been fully dealt with. However, if the employer believes that it can deal with the grievance and disciplinary concurrently (i.e. alongside each other), ACAS guidance has stated this will be acceptable in certain circumstances.

It usually is best to seek legal advice from an employment lawyer if a grievance is raised during a disciplinary procedure.

Possible grievance outcomes

Below are some of the most common grievance outcomes:

• The grievance is upheld;
• The grievance is partially upheld;
• The grievance is not upheld

Each outcome will constitute different action depending on the nature of the grievance. For example, if an employee has raised a grievance regarding bullying against a colleague, the employer has subsequently investigated and upheld the grievance; the next steps may be to commence formal disciplinary action against the colleague.

FAQs

How long should a grievance process take?

There are no timescales as to how long a grievance process should take. An employer should use their initiative and try to deliver an outcome within a reasonable timeframe. Each grievance will, of course, have different timescales and may be further delayed by the following:

• A high volume of witnesses to interview;
• A witness is off sick or absent;
• The employer is short-staffed during this period;
• The employer is waiting for further evidence to be submitted by the individual who has raised the grievance

What does raising a grievance mean?

When an employee raises a grievance, it generally means that they have formally (or informally) raised an issue to their Employer. Thereafter, the employer would acknowledge their issue and investigate before providing an outcome.

Can I be sacked for raising a grievance?

If an employee raises a grievance that relates to discrimination and are subsequently dismissed as a result of raising the grievance, the employee will have a strong claim for victimisation.

Can you raise a grievance anonymously?

In theory an employee could raise a grievance anonymously depending on the nature of the allegations however it may difficult for the employer to investigate and provide a fair outcome based on the information available to them. For example, if an employee anonymously raises a grievance in respect of bullying, the employer has a duty of care to investigate such allegation. However, upon investigating, it may be difficult to speak with employees regarding the allegations as they may not know who the alleged bullying is against therefore unable to provide a clear answer.

On what grounds can you raise a grievance?

An employee can raise a grievance in the event they feel aggrieved. This can range from a dispute with their colleague or a disagreement with their Employer. The Employer will have an obligation to investigate into the allegations.

What is a malicious grievance?

A malicious grievance is a grievance raised by an employee which has the intention of being vexatious. It is intended to waste the Employers time or could be used to stall incoming disciplinary action. In this event, an Employer can deal with the grievance in the usual manner and notify the employee that they believe the grievance to be malicious and as such, may be subject to disciplinary action.

Who should deal with a grievance?

It is important for the employer to follow their internal grievance process which may address who will deal with the initial grievance and subsequent appeal. In any event, it should be an impartial individual who has not been involved in the allegations at any stage.

What do you write in a grievance?

An employee need not expressly state they wish to raise a grievance, although this would assist. They should address their Employer and list the issues that they are aggrieved with. It will be the employer’s obligation to initiate a meeting with the employee thereafter.

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