A CENTRAL LONDON LAW CENTRE PUBLICATION. Taking Grievances A GUIDE FOR EMPLOYEES AND THEIR REPRESENTATIVES

Transcription

1 A CENTRAL LONDON LAW CENTRE PUBLICATION Taking Grievances t s e c n a griev A GUIDE FOR EMPLOYEES AND THEIR REPRESENTATIVES x RA LEWIS BY TAMA m

2 Acknowedgments With many thanks to the Nuffied Foundation for funding this Guide. The Nuffied Foundation is an endowed charitabe trust that aims to improve socia we-being in the widest sense. It funds research and innovation in education and socia poicy and aso works to buid capacity in education, science and socia science research. The Nuffied Foundation has funded this project, but the views expressed are those of the author and not necessariy those of the Foundation. More information is avaiabe at Guides on ine A pdf of this Guide is avaiabe on Centra London Law Centre s website at For hard copies, teephone the Law Centre and speak to the administrator. Copyright Extracts from the ACAS Code are copyright ACAS, Euston Tower, 286 Euston Road, London NW1 3JJ. Tamara Lewis. 1 September 2010

3 contents Taking Grievances A GUIDE FOR EMPLOYEES AND THEIR REPRESENTATIVES Contents Introduction 2 Grievances: overview 3 Checkist: taking a grievance 7 The ACAS Code of Practice on Discipinary and Grievance Procedures 8 Grievance procedure 10 Reationship with discipinary action 14 Representation at the grievance hearing 16 Witnesses 18 Mediation 20 Why take a grievance? 22 Writing the grievance 25 Grievances and discrimination 32 Grievances about. fexibe working 36 Grievances about. uniatera variation 41 Grievances about. sickness absence 45 Tribuna time-imits 47 Books, guides and websites 51 1

4 Introduction This Guide is written for empoyees and their front-ine generaist advisers, to hep empoyees raise grievances appropriatey. Vountary sector and trade union advisers are often consuted by empoyees who are unhappy about some aspect of their working conditions. It can become a habit to suggest that the empoyee starts by taking out a grievance. This is not aways the best move. It may worsen a situation rather than improve it. The underying strength of the empoyee s position needs thinking about. Another temptation for busy advisers is simpy to expain what a grievance procedure is, sending empoyees away to write their own grievance and make their own way through the process. This can be disastrous. Empoyees who are emotionay invoved in their own circumstances can write unfocussed and aggressive grievances, raising far too many issues, incuding petty or unreasonabe points, and antagonising their empoyer. Many empoyees, if tod to write their own grievance etter, wi not do so at a because they wi not fee confident about writing etters. Or they may go to private soicitors for a forma etter written on headed paper, which is not necessariy the best tactic. A good adviser can: Îconsider the purpose of the grievance and whether it shoud be taken up at a Îhep write a sensibe and focussed grievance with an appropriate tone Îdecide on the underying ega strength of the empoyee s position Îif discrimination is a potentia issue, discuss whether and how it shoud be raised. Terminoogy Different empoyment rights have different eigibiity requirements, and sometimes it is necessary to be an empoyee whereas for other rights, it can be sufficient to be a worker. This makes it hard to choose a neutra term for this Guide. However, as the ACAS Code on Discipinary and Grievance Procedures ony covers empoyees, this guide uses the term empoyee except in the sections on discrimination and on the statutory right to be accompanied. Discaimer Whie every attempt has been made to state the aw accuratey in this Guide, it is primariy a practica rather than ega guide. Summaries of the aw in different areas are just that, and advisers need to research the precise ega rights with which they are deaing. No responsibiity can be taken for advice given on the basis of the contents of the Guide. 2

5 Grievance Overview What is a grievance? The purpose of grievances is to give empoyees a way to raise with management internay their concerns about their working environment or work reationships. Grievances tend to be about matters such as changes in terms and conditions, excessive workoads, being refused hoidays, unfair or discriminatory treatment by managers, and harassment from coeagues. Less commony, workers may get together and write a coective grievance. This is more ikey to happen in a unionised environment. The grievance procedure Empoyees shoud be tod the procedure for taking out a grievance. Under section 1 of the Empoyment Rights Act 1996, empoyers must give empoyees a written statement of the particuars of their empoyment no ater than two months after they started work. Under section 3, the statement must incude detais of a grievance procedure, ie how to start a grievance and who to write to. The ACAS Code of Practice on Discipinary and Grievance Procedures aso recommends that grievance procedures are set out ceary (see p8). Grievance procedures tend to be simpe with sma private sector empoyers, but can get quite detaied and compex in the pubic sector. Either way, the key eements are usuay: ÎOptiona informa stage ÎFirst forma stage ÎAppea stage For more detai of different grievance procedures and how to work through the stages, see p10. What is the point of a grievance? Empoyees need to think what they are trying to achieve when they take a grievance. It may not achieve anything other than antagonising their empoyer. For a further discussion of this, see p22. How to write a grievance How to write a grievance can invove tactica considerations according to what the empoyee wants to achieve. For a further discussion of this, see p25. 3

6 Statutory dispute resoution procedures From 2004 unti aboished in Apri 2009 (with some transitiona rues), statutory dispute resoution procedures appied. These made it compusory to send grievances before starting tribuna caims for discrimination and other matters. There were compex rues about what constituted a grievance, how the grievance procedure shoud be conducted and tribuna time-imits. Advisers shoud not get confused by any specia rues they remember from when those procedures appied, but which are no onger in existence. What happens if the empoyer won t isten to the grievance? Two different probems may arise in connection with use of the grievance procedure: ÎThe empoyer fais to take any steps to hear the grievance ÎThe empoyer istens to the grievance but fais to offer the empoyee the desired soution to the probem. An empoyee s reaction to the rejection of his/her grievance compaint is often to want to resign. S/he needs to be cear about what is prompting the resignation. Is it that the empoyer has not deat with the grievance in a proceduray fair way? Or is it simpy that s/he does not ike the outcome? Either reason causes probems in proving constructive dismissa. Can the empoyee resign if the empoyer won t hear the grievance? Ignoring a grievance competey or faiing to hear it within a reasonabe period may be a fundamenta breach of contract by the empoyer, entiting an empoyee to resign and caim constructive unfair dismissa. The EAT in W A Good (Pearmak) Ltd v McConne [1995] IRLR 516, said that faiure to provide and impement a procedure to dea with an empoyee s grievances can amount to conduct which entites an empoyee to resign and caim constructive dismissa. It is an impied contract term that empoyers wi reasonaby and prompty afford a reasonabe opportunity to their empoyees to obtain redress of any grievance they may have. There shoud be a procedure for deaing prompty with grievances instead of aowing them to fester in an atmosphere of prevarication and indecision. This is underined because it is a statutory requirement that detais of a grievance procedure are provided in the compusory statement of particuars under section 1of the Empoyment Rights Act

7 However, resigning for this reason is not recommended. Constructive dismissa caims are aways difficut to prove. In this context, there woud be the foowing pitfas: ÎIt is necessary to show the empoyer has acted so bady that it amounts to a fundamenta breach of contract. It is aways uncertain what amounts to bad enough behaviour by an empoyer or whether the reevant facts can be proved. Is it cear that the empoyer is refusing to hear the grievance or is the matter in hand? If the empoyer is dragging its hees, has it yet come to the point where the deay amounts to a fundamenta breach of contract? ÎThe empoyee needs to resign prompty in response to the fundamenta breach and not affirm by waiting too ong. There is no set time period for how ong an empoyee can wait, so the empoyee risks getting his/her timing wrong. ÎOn the other hand, the empoyee must not jump the gun and resign whie matters are pending. For exampe, if the empoyee wrote to the empoyer setting a four week deadine for the grievance to be heard, it woud be premature to resign before the four weeks was up. ÎThe empoyee needs to be cear whether s/he is resigning because of the deay in hearing his/her grievance and providing a decision, or because s/he does not ike the outcome of the grievance, which is a different matter. The atter is unikey to support a constructive dismissa caim uness it amounts to a fundamenta breach of contract in itsef (eg as in a uniatera variation case, see p41). ÎEven if the empoyer s actions were in fundamenta breach of contract, the empoyee wi ony win his/her case if s/he can show such actions were unfair (or discriminatory). This does not aways foow. ÎThe empoyee needs to be sure s/he is an empoyee with at east one year s service before resigning with an intention of caiming constructive unfair dismissa. ÎThe empoyee wi have ost his/her job and even if s/he goes on to win a tribuna case, s/he may not get compensation which makes up for his/her osses. In summary, it is usuay very unwise for an empoyee to resign because of an empoyer s faiure to dea with a grievance if s/he is intending to bring an unfair constructive dismissa case, except perhaps in extreme circumstances, eg Îs/he had a serious grievance Îthe empoyer competey faied to make any arrangements to isten to the grievance Îthe empoyee wrote severa chaser etters. 5

8 What if the empoyer hears the grievance but does not give the desired soution? If the grievance does not resove an empoyee s concerns, s/he needs to decide whether or not s/he takes ega action. This depends on the nature of the probem and the empoyee s ega rights. One option, if the empoyee is unhappy about the unresoved work situation, may be to resign and caim constructive unfair dismissa. As previousy mentioned, this is aways a dangerous option because such cases are hard to win. As mentioned above, to win a constructive dismissa case: ÎThe empoyer must have been in fundamenta breach of contract, eg by seriousy breaking a contract term or by destroying the impied term of trust and confidence. ÎThe empoyee must resign in response to the breach and not affirm by waiting for too ong because s/he can t make up his/her mind. ÎOn the other hand, the empoyee must not jump the gun by resigning prematurey, ie at a time when the empoyer has not concusivey broken the contract. It is usuay jumping the gun to resign during a grievance process which is being hed regarding the matter in question. This is because tribunas tend to say the fact that the empoyer is going through the grievance process shows its mind is open and decision is not yet finaised. ÎEven if the empoyee satisfies these stages, s/he sti needs to prove the constructive dismissa is unfair, which does not aways foow. S/he aso needs to be eigibe to caim unfair dismissa, eg have at east one year s minimum service (uness resigning because of one of the automatic unfair dismissa grounds which does not require one year s service). There may be other ega options, depending on the situation. For exampe, empoyees can bring discrimination caims without necessariy eaving the job. In most cases, empoyees do nothing and just carry on. At east they have partiay protected their position by recording their concerns in writing, athough there is aways the risk that they have escaated work tensions. 6

9 CHECKLIST: Taking a Grievance Deciding whether to take a grievance: ÎConsider the reason for taking a grievance and what the empoyee is trying to achieve (see p22). ÎDecide whether to take a grievance or whether to write a ess forma memo or etter. Note that the empoyer may we treat an informa etter as the first step of the grievance procedure even if it is not abeed a grievance. ÎConsider whether a etter shoud instead come from a ega or vountary sector adviser, athough this wi be unusua (see p25, who shoud write the grievance? ) ÎConsider whether to raise the issue verbay and informay before embarking on the grievance procedure (see comments on p10). Once it has been decided to embark on a grievance: ÎCheck whether there is a written grievance procedure. If so, foow those stages. Otherwise just write a etter raising the reevant issues and stating that it is a grievance. Decide who to address the grievance to and what to put into the etter (see p25). ÎIf the empoyee is concerned about discrimination, decide whether to raise this in the grievance (see p32). ÎConsider whether the empoyee needs any witnesses to support the grievance (see p19). ÎMake sure the empoyer sets a meeting/hearing within a reasonabe time. If not, write a chaser etter. ÎFind a companion to take to the grievance meeting/hearing (see p17). ÎRequest any reasonabe adjustments needed for the meeting/hearing (see p35). ÎEnsure there is a written outcome to the grievance. If no written outcome is provided within a reasonabe time from the hearing, write a chaser etter. ÎEnsure the written outcome, if unsatisfactory, sets out the empoyer s reasons for its position. If it does not, write for carification. ÎIf the outcome is unsatisfactory, write a etter of appea. Make sure this is written within any time-scaes set in the grievance procedure. If there are no time-scaes set for appeaing, write the etter prompty, eg within a week of the outcome, in any event. ÎIf the outcome of the appea is aso unsatisfactory, check whether there are any further appea stages under the grievance procedure. If not, consider what to do next, and in particuar, whether to take any ega action. Be carefu at a stages not to miss time-imits for ega action. These may expire before the grievance procedure is competed. Grievances and appeas do not extend time-imits regarding the origina action compained about. 7

10 The ACAS Code of Practice on Discipinary and Grievance Procedures ACAS (the Advisory, Conciiation and Arbitration Service) is an independent government-funded body. It has statutory authority to issue Codes of Practice containing practica guidance for improving industria reations. The statutory ACAS Code of Practice on Discipinary and Grievance Procedures provides basic practica guidance to empoyers, empoyees and their representatives and sets out principes for handing discipinary and grievance situations in the workpace. It does not cover redundancy or faiure to renew fixed-term contracts. The Code is intended to provide the standard of reasonabe behaviour in most instances. The Code is ony 10 pages ong. It is avaiabe on the ACAS Website: A faiure to foow the Code is not in itsef against the aw. However, empoyment tribunas wi take the Code into account when considering reevant cases. Tribunas wi aso be abe to adjust any awards made in reevant cases by up to 25 per cent for unreasonabe faiure to compy with any provision of the Code. This means that if the tribuna fees that an empoyer has unreasonaby faied to foow the guidance set out in the Code they can increase any award they have made by up to 25%. Conversey, if they fee an empoyee has unreasonaby faied to foow the guidance set out in the code they can reduce any award they have made by up to 25%. This rue is set out in section 207A of the Trade Union and Labour Reations (Consoidation) Act If an empoyee ater wins a discrimination case, for exampe, and either the empoyee or the empoyer did not foow the ACAS guideines regarding odging and deaing with grievances, the empoyee s compensation may be increased or reduced according to who is at faut. This ACAS compensation regime repaced the statutory dispute resoution procedures which were phased out from Apri Note that the Code appies to empoyees (as opposed to other workers). This is reevant to compensation because, athough ony empoyees can caim unfair dismissa, other types of worker can make discrimination and other caims. ACAS says in the foreword to its Code, but not in its body (so it is not technicay a Code recommendation) that empoyers and empoyees shoud aways seek to resove grievance issues within the workpace; where this is not possibe empoyers and empoyees shoud consider using an independent third party to hep resove the probem. The third party need not come from outside the organisation but coud be an interna mediator, so ong as they are not invoved in the grievance issue. In some cases, an externa mediator might be appropriate. 8

11 The Code does not cover coective grievances. Key Principes from the Code Grievances are concerns, probems or compaints that empoyees raise with their empoyers. Grievance procedures shoud be set down in writing, be specific and be cear. Empoyees and their representatives shoud be invoved in the deveopment of rues and procedures. It is aso important to hep empoyees understand what the rues and procedures are, where they can be found and how they are to be used. If it is not possibe to resove a grievance informay, empoyees shoud raise the matter formay and without unreasonabe deay with a manager who is not the subject of the grievance. This shoud be done in writing and shoud set out the nature of the grievance. Empoyers and empoyees shoud raise and dea with issues prompty and shoud not unreasonaby deay meetings, appeas, decisions or confirmation of those decisions. Empoyers shoud carry out any necessary investigations, to estabish the facts of the case. Empoyers shoud aow empoyees to be accompanied at any forma grievance meeting. Empoyers shoud aow an empoyee to appea against any forma decision made. The appea shoud be deat with impartiay and wherever possibe by a manager who has not previousy been invoved in the case. Overapping grievance and discipinary cases: Where an empoyee raises a grievance during a discipinary process the discipinary process may be temporariy suspended in order to dea with the grievance. Where the grievance and discipinary cases are reated it may be appropriate to dea with both issues concurrenty. References to other provisions of the Code are set out throughout this guide where reevant. Discipine and grievances at work: the ACAS guide ACAS has aso written a 70 page non-statutory Guide to good practice. It is avaiabe on the ACAS website. The Guide sets out extracts from the Code and expands it with more suggestions. It aso contains sampe discipinary and grievance procedures. Unike the Code, the ACAS Guide has no ega effect. It is therefore hard to predict whether it wi be referred to much in tribuna hearings. Nevertheess, ACAS has recognised status in the fied of industria reations, and its Guide sets out what is usuay regarded as good practice. It is worth knowing what the Guide says and in some circumstances, it may be usefu to quote sections in correspondence with the empoyer. 9

12 Grievance procedure Usuay there is a written grievance procedure as it is a ega requirement (see p3). It may be set out in the empoyee s contract of empoyment or section 1 statement of particuars or, more often, in a staff handbook. Some grievance procedures, especiay with sma private sector companies, are set out in just a few ines. Other procedures, particuary in arger pubic sector and unionised environments, can be very eaborate, and set out over severa pages. If there is a written procedure, empoyees shoud foow the steps of that procedure. If there is no written procedure, empoyees can simpy write a grievance etter to their immediate manager or, if they prefer, to someone more senior, eg the head of department or Human Resources manager. If this first stage of their grievance is unsuccessfu, they can write an appea etter to someone more senior. Written procedures, except where very basic, tend to incude the foowing eements: Scope: ie what matters the procedure covers and what it excudes There is usuay a genera statement, eg that a grievance reates to any matter that a member of staff may wish to raise in connection with his/her empoyment. In more detaied procedures, especiay those in the pubic sector, excusions are often set out, eg: Îdiscipinary or dismissa matters Îcapabiity issues where the empoyee has aready been notified of a pending investigation Îmatters reating to buying or harassment. Îissues of race, sex, disabiity, sexua orientation, reigion or age discrimination The procedures usuay carify whether they can aso be used for coective grievances. Buying/harassment and/or unawfu discrimination is sometimes deat with under the mainstream grievance procedure and sometimes has its own procedure. Where it is deat with under the mainstream procedure, there is nevertheess often a separate document with poicy guideines. Stages of the procedure Informa stage A procedures offer an informa first stage which is encouraged. This usuay entais the empoyee raising 10

13 a verba grievance with his/her immediate ine manager. If the atter is the source of compaint, this stage may be skipped or the empoyee may tak to someone ese. Sometimes this informa stage is referred to as Stage 1 informa stage. Sometimes it is simpy Informa stage. Whether or not an informa verba approach is sensibe depends on the issue and genera circumstances. In some situations, it may be usefu to say, Can I have a brief word about something which is worrying me? In other situations, the empoyee has aready unsuccessfuy tried to communicate with the ine manager or the issues are so serious, eg sexua harassment or discrimination, that a verba approach is unwise. The risk of an informa verba approach is aways that it wi not ead to a soution, but meanwhie it wi antagonise the manager. It is possibe that, in discrimination cases for exampe, the manager wi ater deny a compaint was even made. Forma stages and time-scaes There is no absoute rue about what the stages of a grievance procedure shoud be. As a minimum, there needs to be one forma stage and one appea stage. The ACAS Code sets out some basic guideines. Extracts from the ACAS Code If it is not possibe to resove a grievance informay, empoyees shoud raise the matter formay and without unreasonabe deay with a manager who is not the subject of the grievance. This shoud be done in writing and shoud set out the nature of the grievance. Empoyers shoud arrange for a forma meeting to be hed without unreasonabe deay after a grievance is received. Empoyers, empoyees and their companions shoud make every effort to attend the meeting. Empoyees shoud be aowed to expain their grievance and how they think it shoud be resoved. Consideration shoud be given to adjourning the meeting for any investigation that may be necessary. Foowing the meeting decisions shoud be communicated to the empoyee in writing without unreasonabe deay and where appropriate, shoud set out what action the empoyer intends to take to resove the grievance. The empoyee shoud be informed they can appea if they are not content with the action taken. Where an empoyee fees that their grievance has not been satisfactoriy resoved, they shoud appea. They shoud et their empoyer know the grounds for their appea without unreasonabe deay and in writing. Appeas shoud be heard without unreasonabe deay and wherever possibe, by a manager who has not previousy been invoved in the case. The outcome of the appea shoud be communicated to the empoyee without unreasonabe deay. 11

14 There are usuay two and sometimes three forma stages (incuding the appea stage). In oca authorities, the fina stage is usuay an appea to Counciors. In some procedures, one or more of the forma stages may invove a forma hearing with witnesses. This is most common in unionised pubic sector environments. In other procedures, a the forma stages simpy invove a meeting between the empoyee, his/her representative, the manager deaing with the grievance or grievance appea, and someone from Human Resources. The meeting with the empoyee takes the form of an investigation of the issues and discussion. In such cases, the manager deaing with the grievance makes his/her own enquiries and interviews other witnesses (incuding the person compained about) separatey. If there is no written procedure, it is highy unikey that the empoyer woud hod a forma hearing, and a meeting is far more ikey. Many written procedures set out time-scaes for Îthe ength of time between the empoyee s grievance or appea and any meeting / hearing Îthe ength of time between the meeting / hearing and the outcome Îthe time aowed to get in an appea or ask for the next stage Whether or not time-scaes are set out it may be a breach of contract if the empoyer sits on the grievance and fais to take any steps to ook into it (see p4). Procedure at forma grievance hearings If the grievance procedure gives the empoyee a right to a fu grievance hearing with witnesses present, the procedure wi often set out the steps which wi be foowed at that hearing. Where there are engthy grievance procedures, these steps are often set out in an Appendix. The most usua procedure is as foows: Îthe empoyee or his/her representative states the empoyee s case Îthis incudes caing witnesses Îthe management representative can question the empoyee s witnesses Îthe pane can question the empoyee s witnesses Îthe empoyee or his/her representative can re-examine their witnesses Îthe management representative presents management s case and cas witnesses Îthe empoyee or his/her representative question the management s witnesses Îthe pane questions the management witnesses Îthe management representative re-examines their witnesses Îthe management representative sums up Îthe empoyee or his/her representative sums up 12

15 This kind of procedure works fairy we in a unionised pubic sector environment where the empoyee has a trade union representative. It tends to be intimidating in a situation where the empoyee has no representative. Pro forma grievance forms Grievances are usuay just written as an ordinary etter. But some procedures have compusory or optiona grievance forms for the empoyee to compete. This is more ikey in a pubic sector unionised environment. Most of these require the empoyee to set out: Îdetais of the grievance Îsuppementary information / evidence Îdetais of action taken at informa eve / previous grievance stages Îdesired resoution: the outcome sought Even if there is no standard form, these are detais which the empoyee may want to put into a grievance etter anyway. See p25 regarding writing a grievance. The right of representation The aw gives empoyees the right to be accompanied by a work coeague or a trade union representative. (See p16.) The empoyee s own grievance procedure may simpy repeat the ega right or may give increased rights. Status Quo Some grievance procedures have a status quo cause, eg Unti a stages in the procedure have been exhausted, the status quo must be maintained, that is the working and management arrangements that appied before the dispute. This can be particuary important if, for exampe, the grievance concerns an empoyer s attempt to impose changes to terms and conditions. For more detai of the effect of taking a grievance in the context of uniatera variation, see p41. In the absence of a cear status quo rue in the grievance procedure, there is no rue that, just because a grievance has been taken out, the status quo must be maintained unti the grievance procedure is competed. In particuar, if the empoyee odges a grievance about a awfu instruction to which s/he objects, this does not necessariy mean s/he is entited to refuse to obey the instruction unti his/her grievance is decided. If s/he does refuse to obey the instruction and the empoyer dismissed him/her, whether s/he woud win an unfair dismissa case woud depend on a number of factors, eg what the instruction was; whether it concerned an urgent or irreversibe situation; how ong the grievance woud take to be heard; 13

16 whether it was reasonabe for the empoyer to await the outcome of the grievance, and whether a successfu grievance coud remedy the effect of the status quo not appying in the meanwhie. The foowing case provides a usefu warning: Samue Smith Od Brewery (Tadcaster) v Marsha & Marsha UKEAT/0488/09 The caimants managed a pub and coud take on staff up to a maximum weeky staff hours aocation which was decided upon by the empoyer. At the time the dispute arose, the weeky aocation was 84 hours. The empoyer was osing a ot of money, so in December 2007, it instructed the caimants to reduce the weeky hours. The caimants took out a grievance which was rejected and the caimants were instructed to reduce their hours with immediate effect, as they sti had not done so. The caimants appeaed. Meanwhie they said they woud work to the status quo. There was in fact no status quo cause in their grievance procedure. They were tod that if their grievance appea succeeded, their hours woud be increased at that point. After severa warnings, the caimants were dismissed for refusing to reduce their hours as awfuy instructed under their contracts. They had refused to attend the discipinary unti their grievance appea was heard. The empoyment tribuna thought the dismissa was unfair because it took pace ony one week before the grievance appea was due to be heard. But the decision was overturned by the Empoyment Appea Tribuna. This was not a case where the first grievance hearing had not been heard. It was ony the appea. There was no aw that empoyers must go through the whoe grievance procedure before they can dismiss. The caimants coud make the points they were going to make at the grievance appea at the discipinary hearing. It was aso reevant that caimants had not said at the time that, if they had ost the grievance appea, they woud have agreed to the reduced hours. Reationship with discipinary action Discipinary and grievance processes are usuay separate matters. If the empoyee is upset about discipinary action taken against him/her, the appropriate route is to appea rather than to take out a grievance. But sometimes the empoyee fees the bringing of the discipinary action is itsef part of a wider probem whereby s/he has been treated unfairy, and that the wider issue needs to be considered before the narrow discipinary can be fairy hed. This is most ikey to occur in discrimination cases. 14

17 The ACAS Code simpy says that where an empoyee raises a grievance during a discipinary process, that process may be temporariy suspended in order to dea with the grievance. Aternativey, where the grievance and discipinary cases are reated it may be appropriate to dea with both issues concurrenty. Athough the Code does not say this, in a discrimination situation it is even arguabe that the grievance shoud be heard first. Some written grievance or discipinary procedures expicity address this possibiity and say what shoud happen if the empoyee raises a grievance after discipinary action has been initiated. Many such procedures say that the discipinary wi be heard first, or even that the grievance wi not be heard at a. In some circumstances this wi be unfair, especiay in the ight of the guidance in the ACAS Code. The difficuty is that grievances do not naturay have a pace in the midde of a discipinary procedure. Otherwise it woud be too easy to disrupt the discipinary process. The forum for any compaints by the empoyee about whether the discipinary is justified shoud usuay be the discipinary process itsef. There ceary needs to be a wider issue to justify a grievance - eg, as aready stated, an aegation of a pattern of discriminatory treatment incuding, but not confined to, the current discipinary. ACAS says in its non-statutory Guide that when an empoyee raises a grievance during the discipinary meeting, it may sometimes be appropriate to stop the meeting and suspend the discipinary procedure, eg where the grievance reates to a confict of interest that the manager hoding the discipinary meeting is aeged to have, where bias is aeged in the conduct of the discipinary meeting or where there is possibe discrimination. See aso the case of Samue Smith Od Brewery (Tadcaster) referred to under status quo above. 15

18 Representation at the Grievance Hearing Check the grievance procedure in the empoyee s contract. This may give empoyees an express right to be represented at the grievance hearing by a coeague, trade union representative, or more rarey outside friend, reative or soicitor. Regardess of what the contract says, the aw gives a workers (not just empoyees) a right to be accompanied by a work coeague or trade union representative under section 10 of the Empoyment Reations Act 1999 (see beow). Section 10 does not give a right to be represented by anyone outside the organisation. The statutory right to be accompanied Section 10 of the Empoyment Reations Act 1999 Where a worker reasonaby requests to be accompanied at a grievance hearing, the empoyer must aow the worker to choose a trade union representative or another of the empoyer s workers to accompany him/her. This right appies to a workers, not just to empoyees. A grievance hearing for these purposes is one which concerns the performance of a duty by an empoyer in reation to a worker. This woud cover a contractua or statutory duty, eg a grievance about faiure to pay some due wages or refusa to aow hoidays. Hopefuy tribunas woud interpret an empoyer s duties as having a wide scope, but there coud be some situations which woud not fa within this wording, eg a request for a pay rise which an empoyer is not obiged to give under the empoyee s contract or under genera egisation. The companion may address the hearing and confer with the worker during the hearing. The companion may put and sum up the worker s case and may respond on the worker s behaf to any view expressed at the hearing, but s/he may not answer questions on behaf of the worker. The empoyer must aow a worker to take paid time off during working hours to accompany another of the empoyer s workers. If the chosen person cannot attend the proposed time for the hearing, the empoyer must postpone the hearing to any reasonabe time suggested by the worker within five working days of the origina date. 16

19 A worker can compain to an empoyment tribuna if s/he is not aowed this statutory right to be accompanied. The tribuna can award compensation of up to two weeks pay (subject to the upper imit appicabe to statutory redundancy pay). A worker must not be subjected to any detriment because s/he has tried to exercise this right or because s/he has accompanied another worker. Aso, it woud be automaticay unfair dismissa to dismiss an empoyee for this reason. What does the ACAS Code say? The ACAS Code of Guidance on Discipinary and Grievance Procedures refers to the statutory right to be accompanied at paras This means there may be a compensatory upift of up to 25% where, eg, the empoyee wins discrimination case and the empoyer did not grant the empoyee s request to be accompanied. The ACAS Code points out that the empoyee s request must be reasonabe. It may not be a reasonabe request to ask for someone to attend who is based at a remote ocation when there is someone equay suitabe on site. Or it may not be reasonabe to ask for a companion to attend whose presence woud for some reason prejudice the hearing. Comment: ACAS s exampes need to be treated with some caution. Tribunas are ikey to say that whether the empoyee s request was reasonabe is an objective test not simpy a question of what the empoyer decides is reasonabe. Empoyers do sometimes suggest that empoyees bring aong the nearest work coeague or avaiabe manager, and such companions are unikey to be as usefu as a fuy prepared and committed companion of the empoyee s choice. Is a companion or representative necessary? Empoyees may find it hard to persuade a work coeague to come with them to the grievance hearing and may fee there is itte point anyway in taking someone who does not have representative skis. The best use of an unskied companion is as a witness and a note-taker. Expain to them in advance what are the most important points and ask them to make sure they note down what everyone says on those points (see beow). Reasonabe adjustments A disabed worker may be entited to have a suitabe companion attend the grievance hearing with him/her by way of a reasonabe adjustment. See p34 for detais. 17

20 Minutes / Notes of the hearing As aready mentioned, some grievance hearings wi have the atmosphere of an informa meeting. Others may take the form of a forma hearing with witnesses. Either way, it is aways important to have a good note of the discussion in case issues arise ater. If the empoyer has a minute-taker, estabish in advance that the empoyee wi be given a copy of the minutes immediatey after the hearing so that their accuracy can be agreed whie memories are fresh. If the empoyee did not obtain agreement to this in advance, ask afterwards anyway. A tribuna woud expect such a request to be agreed to. If the empoyee is given written minutes to check, s/he must be carefu to check carefuy and ensure everything is noted before indicating s/he agrees it is an accurate note. There are sometimes disputes in the empoyment tribuna about what was said at a grievance hearing. The tribuna wi amost certainy assume the written note is more accurate that anyone s memory months ater particuary if it was signed by the empoyee at the time. During the hearing, the empoyee shoud ask his/her companion to take notes, at east of the key points, ie the important points made by the empoyee; any expanation given by the empoyer; any concessions made by the empoyer or occasions when the empoyer is unabe to give an exampe or answer a question from the empoyee; any unacceptabe comment by the empoyer which indicates hostiity or bias or intimidation; any mention by the empoyee of discrimination. Aternativey, the empoyee can ask in advance to be permitted to tape record the hearing, on the basis that the empoyer wi aso be given a copy. Some empoyers agree to this, though many refuse. Remember that a recorded meeting is a two-edged sword. The empoyee may not necessariy come across very we and the empoyer wi be on best behaviour. Recordings are often incomprehensibe with bad sound quaity and uncear communication (istening to words aone can be miseading without seeing the speakers). Aso, if the empoyee does produce a recording to be used at the tribuna hearing, s/he probaby wi be required to type it up and et the empoyer isten to the tape. This can be time-consuming and expensive. Secret recordings are not a good idea. Athough the tribuna may we aow them to be used at any ater tribuna hearing, they do not make a good impression. Aso, if the empoyer finds out, the empoyee coud probaby be fairy dismissed for that reason. 18

21 Witnesses Most grievances do not require witnesses, but in some circumstances they may be important, for exampe if the grievance is about buying or harassment. How evidence from witnesses is presented depends on the type of procedure. Where a fu hearing is invoved, witnesses may be caed to give ora evidence. But where the procedure simpy invoves a one-toone meeting between the empoyee and the person hearing the grievance, the atter may speak to witnesses in private as part of his/her investigation into the grievance. If the empoyee woud ike the procedure to be a bit more open, s/he coud ask for his/her witnesses to be caed into the meeting and questioned in front of him/her. But the empoyer may not agree to this. In appropriate cases, a manager deaing with a grievance shoud ask the empoyee whether s/he has any witnesses s/he woud ike to be interviewed, but this often does not happen. If the empoyee does have witnesses, s/he shoud take the initiative and provide a ist of names to the manager. The best thing to do where witnesses are important is to get a written statement from them first and give the statements to the manager hearing the grievance. This ensures the fu story is set out before the witness is put under any pressure. It is often a good idea to get the statements before the empoyee submits his/her grievance. Once a grievance is submitted, witnesses can get infuenced by workpace reactions to it. Aso, in some very serious cases, eg concerning sexua harassment, empoyers often instruct empoyees not to contact any witnesses once the grievance is odged. The ostensibe ground is to maintain confidentiaity or to avoid bias, but it can put the empoyee in a very weak position if s/he has not yet obtained statements. It is very important that the empoyee does not put undue pressure on reuctant witnesses to hep out or write statements. Not ony wi this be counter-productive, the empoyer coud in extreme cases use it as a ground for discipinary action. 19

22 Mediation What is mediation? Mediation is a form of dispute resoution. It is where an impartia third party heps peope in dispute try to reach an agreement. It can be usefu where two empoyees are in confict with each other or where there are probems between an empoyee and his/her ine manager. It can cover issues incuding reationship breakdown, personaity cashes, buying and harassment. The mediator does not judge the case. S/he simpy faciitates those invoved to reach their own soution. Some empoyers make mediation an optiona stage in the grievance procedure, or suggest it takes pace before the grievance procedure starts. Others offer mediation as a separate option. In many workpaces, the empoyers do not offer mediation at a. Who are the mediators? Mediators can be interna or externa. Some empoyers have trained and accredited certain staff to act as mediators. More commony, mediation is done by externa organisations. Some of these are in the not-forprofit sector, eg ACAS and the Centre for Effective Dispute Resoution. Others are private companies who must be paid, usuay by the empoyer. What is the mediation process ike? Mediation is usuay carried out face-to-face, though it can in theory take pace over the teephone or by e-mai. There are severa stages: Îstage 1: the mediator meets each party separatey, istens to their story and asks what they want out of the process. Îstage 2: the mediator brings the parties together and invites them to put their side of the story without being interrupted. Îstage 3: the mediator summarises the main areas of agreement and disagreement. The mediator encourages communication and joint probem-soving. Îstage 4: if an agreement is reached on steps to resove the confict, this is written down and a copy is given to each party. These stages can take anything from ess than a day to two or more days. Representatives are usuay discouraged, except in a sient support roe. The exception might be if the empoyee had a disabiity requiring assistance or if Engish is not his/her first anguage. Mediation is confidentia and it is intended that nothing said during the mediation can be used in future tribuna cases if it doesn t work out. 20

23 When is mediation suitabe? Mediation works best when it is done at a very eary stage, before positions become entrenched and working reationships competey break down. It is best used before forma grievance procedures have been started because, once that happens, differences tend to become more adversaria. ACAS says mediation may not be suitabe if Îit is used by a manager to avoid his/her manageria responsibiities Îa decision is needed about right and wrong, eg where crimina activity may have been invoved Îthe empoyee has a discrimination or harassment case which s/he wants investigated Îsomeone has earning difficuties or menta heath probems Îone side is competey intransigent so using mediation raises unreaistic expectations. Pros and cons of mediation The advantage of mediation over a forma grievance procedure is that no one makes a judgment on who is right and who is wrong. The aim is an agreed soution between the parties. This can be good for work reations. It is aso hepfu where, for one reason or another, the empoyee is unikey to get a positive outcome from a grievance. It coud be particuary usefu where the empoyee is unhappy about work reations but does not have soid evidence to prove his/her case. The disadvantage is that some managers may manipuate the process under the cover of confidentiaity. Without the protection of a representative and with no forma accountabiity, an empoyee coud inadvertenty make concessions and reach an unsatisfactory agreement. Athough mediation is supposed to be vountary, empoyees can sometimes be pressurised into going down that route by managers who are trying to avoid making decisions or being hed accountabe. There is aso the risk that what empoyees say during the process athough officiay confidentia wi be used against them in an indirect way in the future. Tribuna cases and judicia mediation Once an empoyment tribuna caim has been odged, eg for unfair dismissa or discrimination, an ACAS conciiation officer is aocated to the case. The ACAS officer offers his/her services free to the parties to hep them negotiate a settement. Such negotiations are off the record and their content is not brought to the tribuna s attention shoud no settement be reached and the case go ahead. ACAS s roe in tribuna cases is caed conciiation and is different from its roe in non-statutory mediation. Tribunas have power to offer judicia mediation in cases which seem suitabe, for exampe discrimination cases where the worker is sti in empoyment. It is purey vountary whether the parties want to accept. If it takes pace, the mediator is a trained empoyment judge who wi not sit on the hearing of the case if the mediation does not achieve a settement. The probem with judicia mediation is that it takes pace at a ate stage, by which time reations are damaged and agreement far ess ikey. 21

24 Why Take a Grievance? Shoud the empoyee take out a grievance? When empoyees are unhappy about some aspect of their work which they have been unabe to resove informay, they often think about making a written compaint. Before putting pen to paper, they shoud pause and consider whether this is a good idea and what they are trying to achieve. Seeking a soution Empoyees tend to hope and beieve that presenting a grievance wi ead to a resoution of their probem. But is that reaistic? If a ine manager has not soved the matter when approached informay, is s/he any more ikey to do so when confronted with a written grievance? If the compaint is about the ine manager, is a more senior manager ikey to overrue the ine manager? Experience suggests that is unusua. Moreover, if a senior manager uphods the grievance against the ine manager s wishes, this coud ead to probems for the empoyee with his/her ine manager in the future. Sometimes grievances can ead to some form of soution even if they are not uphed. For exampe, an empoyee may compain s/he is buied by his/her superviser and request a transfer. The empoyer may reject the suggestion that there was any buying but may nevertheess agree to the transfer request. In anticipation of a future tribuna case There can be a good reason to take out a grievance even if the empoyee knows the chances of it soving the workpace probem are sim. For exampe, if the empoyee fears s/he may be dismissed in the future, it coud be hepfu to put in writing his/her version of events now and to be seen to be co-operating or raising issues of concern. The content of the grievance and the way the empoyer responds may be usefu evidence in any future unfair dismissa case. If the empoyee fees s/he may have been subjected to discrimination and forsees that s/he may bring a tribuna case for discrimination in the future, it may be important that s/he raised the possibiity of discrimination at an earier stage. (See p32 for grievances and discrimination.) The effect of the ACAS Code aso needs to be taken into account (p8). The Code does seem to expect that empoyees attempt to resove workpace probems by means of a grievance. There is a risk that an empoyee s compensation wi be reduced if s/he brings a tribuna case, eg for discrimination, without having brought a reated grievance first. 22

25 Coective compaints Another reason to take out a grievance, even if it does not succeed, may be if there is a genera probem with a particuar manager. If severa empoyees independenty raise grievances against that manager over a period of time, the empoyer may eventuay take notice. However, it may be more effective and reduce the empoyee s risk of victimisation, if a the affected empoyees write a coective grievance together. This can be hard to arrange in a non-unionised environment. Parae to without prejudice negotiations Less commony, the reason for taking out a grievance might be as a precursor to or parae with initiating without prejudice negotiations, possiby invoving a financia package to eave. In this situation, the empoyee wants to negotiate a settement dea in return for vountariy eaving the job. Such negotiations are usuay off the record. However, an empoyee may decide to send the empoyer a grievance at the same time for these reasons: ÎThe grievance is on the record even if the negotiations are hidden, so that the empoyee has some sort of protection if the negotiations fa through, as s/he has put his/her concerns openy in writing before any action is taken against him/her. ÎIt gives the empoyer an incentive to reach a settement so as to avoid having to go through the grievance procedure. This does not aways work, however. Some empoyers take a very purist approach and once a grievance is initiated, insist on deaing with it propery, even if negotiations are meanwhie carrying on. Achieving nothing The downside of taking out a grievance is of course that the empoyee may achieve nothing but antagonise his/her ine manager or more senior management. There are some ways of writing a grievance which are ess confrontationa than others, but even then, the empoyee may be seen as a difficut empoyee because s/he has spoken out. To be avoided It is not a good idea for an empoyee to get into the habit of reguary taking out grievances regarding every sma probem at work. The empoyee wi end up with a personne fie fu of compaints and may be seen as a troube-maker by the empoyer. The impression given to an empoyment tribuna - shoud there ever be a tribuna case coud be that the empoyee is a seria compainer who is infexibe and does not get on with anyone. Empoyees need to exercise common sense. Work situations and coeagues are rarey idea. It is unikey to achieve anything to keep taking out grievances over minor irritations. If there is a serious ongoing probem, then an empoyee may be better off being decisive. If the situation is not serious enough to eave and/or take ega action, the empoyee may be better off etting certain things go. 23

26 Checkist when deciding whether to bring a grievance ÎWhat is the purpose of the grievance? ÎHow ikey is the grievance to succeed? ÎEven if it does not succeed, is there sti a good reason to take the grievance? ÎWhether or not it succeeds, what is the effect of taking a grievance ikey to be on future working reations? ÎIs the empoyee eigibe to caim unfair dismissa if it a turns nasty? (In discrimination cases, there is aso some protection against victimisation see p32 athough this is probaby ess effective than unfair dismissa protection.) ÎWhat wi happen to the empoyee s working conditions if s/he does not take a grievance? ÎWhat are the aternatives to taking a grievance? 24

27 Writing the Grievance How to write the grievance There are severa aspects to consider: Îwho shoud write the grievance Îthe tone and content of the grievance etter Îhow much detai to set out Îwho to address the grievance to Îwhat to ask for Who shoud write the grievance? If an empoyee intends to go through the stages of the grievance procedure, the grievance etter woud normay come from him/her, athough it may be drafted by his/her ega advisers. Aternativey, the empoyee may ask ega advisers to write to the empoyer on his/her behaf. A etter written by soicitors or an advice agency might just be a singe etter to the empoyer or it may deveop into extended correspondence. It is a question of tactics, whether the empoyee asks ega advisers to write directy to the empoyer. A grievance written ony by an empoyee is usuay the most attractive option for two reasons: Îit runs the east risk of upsetting the empoyer Îit puts the empoyer east on its guard. If there is no reaistic hope of a soution and the purpose of the grievance is simpy to record the empoyee s position with a view to future tribuna caims, the advantage of the empoyee writing his/her own grievance is that the empoyer may be ess carefu to disguise its hostie intentions. On the other hand, a grievance apparenty written by the empoyee is the one most easiy ignored by the empoyer and ess effort may be put into a resoution. It wi aso be harder to get the empoyer s fu reasoning set out in writing. Empoyers often prefer not to be pinned down with their reasoning and can insist on giving verba expanations and responses. If the empoyee keeps pressing for a written repy, this may eventuay have the same impact on the empoyer as getting awyers to write to the empoyer in the first pace. 25

28 A etter written by a firm of soicitors is inevitaby the most confrontationa, even if written in a carefu and reasonabe tone. Empoyees often beieve that a soicitors etter wi frighten the empoyer and ead to a resoution of the probem or perhaps some sort of settement. This is not necessariy true. A soicitors etter may annoy rather than scare empoyers, and put them on their guard, perhaps causing them to get their own ega advice. Matters can turn egaistic very quicky. A etter from a vountary sector agency such as a Citizens Advice Bureau (CAB) can be a midde ground. It usuay wi not appear as hostie as a soicitors etter but it may get a better response than an unsupported empoyee s etter, especiay with a sma empoyer who needs to be tod about certain statutory rights which the empoyee may have. Of course if a CAB or other externa advice agency writes to the empoyer, it must be ready to dea with the response or ack of response. Dipping in and out does not work very we and makes the empoyee ook as if s/he has been ditched. A CAB adviser needs to think about how much hep s/he wi be abe to offer. Remember that if an empoyer repies direct to the CAB etc, the atter wi be responsibe for keeping the cient informed. The empoyee aso needs to be carefu about etters written by a vountary sector organisation associated with discrimination aw, eg a disabiity organisation or a Race Equaity Counci. Even if the etter does not concern any aegation of discrimination, it may be understood to do so by the empoyer because of the source of the etter. This coud ead to unintended repercussions. The tone and content of the grievance etter The tone of the etter wi be affected by what the empoyee thinks s/he can reaisticay achieve, but it wi not be a good idea in any circumstances to be rude, accusatory or hostie. This wi antagonise the empoyer, making a satisfactory soution ess ikey and risking future working reations. Remember aso that the etter may be seen by an empoyment tribuna in any future case. The tone and content wi obviousy be affected by whether the empoyee thinks s/he has a reaistic chance of getting what s/he is asking for. If there is a rea chance of getting a request granted, a softy softy approach may be better. On the other hand, too unassertive a etter can achieve nothing and the empoyee ends up weakening his/her position by having made concessions or not having fuy stated his/her case. The content wi aso be affected by the nature and compexity of the grievance. Where a sma empoyer is not we-informed of empoyees empoyment rights, it may ony be necessary to encose an officia eafet setting out the reevant right, eg the minimum statutory hoiday entitement. Where the empoyee suspects the empoyer knows about the right or does not want to be tod, the etter may need to be firmer, reminding an empoyer not to victimise the empoyee for pointing out these rights. 26

29 Sampe etter regarding hoidays We are writing on behaf of your empoyee, Mr Eani, who has asked our advice regarding his hoiday entitement. We understand that your company has given Mr Eani three weeks annua hoiday entitement. Under the aw, Mr Eani is entited to a minimum of 5.6 weeks hoidays incuding bank hoidays, which in Mr Eani s case works out at 28 working days. We encose a eafet which expains the statutory rues regarding hoidays and hope this is of assistance in resoving this issue. Optiona: We shoud be gratefu if you woud confirm that Mr Eani wi be granted his fu 28 days annua hoiday entitement. We are sure that you woud not treat Mr Eani ess favouraby because he has raised this matter with you and indeed it woud be unawfu to do so. The empoyee needs to think carefuy about how many incidents to raise as a matter of compaint and how many peope s/he is compaining about. The danger of accusing too many managers is that it increases damage to work reations; it makes it harder for the grievance to be uphed internay; it makes it harder for the empoyer or a tribuna to beieve so many peope are in the wrong; and it can make the empoyee seem the common factor and therefore the unreasonabe one. How much detai to set out in the grievance Apart from some rare residua cases where the statutory dispute resoution procedures sti appy (see p4), there are no forma rues about how much to put into a grievance statement. The empoyee must be sure to compy with the ACAS Code of Practice because otherwise his/her compensation may be reduced by up to 25% if s/he wins any reated case. However, a the Code says is that the empoyee shoud set out the nature of the grievance. This is vague. Tribunas woud expect enough detai to be set out for the empoyer to understand the nature of the probem and be abe to investigate. Where there is a detaied written grievance procedure, it may be that the procedure states how much information shoud be set out in the written grievance. Usuay, however, it wi not be specific. Obviousy the eve of detai is greaty affected by the nature of the grievance and how many facts are invoved. But the essentia diemma is whether to simpy headine the probem, eg My manager is buying me. She imposes unreasonabe deadines and is inconsistent in her criticisms, saving the exampes for the grievance meeting, or whether to set out the exampes of such behaviour in the etter. The arguments in favour of a ot of detai are: a. It makes a strong initia impression to anyone who reads the document. b. There is a cear record of the empoyee s compaint. The empoyer cannot say ater that the empoyee did not draw certain points to its attention or omitted to make certain compaints. 27

30 c. This is particuary hepfu if the empoyee is not represented at the grievance hearing. d. More detai means there is more chance of convincing the empoyer that there is a genuine probem to be resoved. e. It ensures the empoyer propery investigates each issue and provides a response to it. f. If it ever gets to a case, tribunas woud expect a the key issues to be mentioned. g. Any crucia verba remarks or expanations shoud be mentioned at the outset in case the empoyee is accused of making them up ater. This is particuary important in discrimination cases (see p33). h. The discipine of heping the empoyee write a detaied grievance ensures the empoyee s adviser gets on top of the case at an eary stage and gives better tactica advice. i. In a pubic sector unionised environment with a fu grievance hearing, many of these advantages can be covered by providing a very detaied statement by the empoyee shorty before the grievance hearing. However, the advantage of providing detai at the earier stage of submitting the grievance is that the empoyer is ikey to respond with an equay detaied statement prior to the hearing. The arguments against giving too much detai are a. It gives management too much opportunity to cover their tracks or move the goa-posts. It is better to catch them off-guard at the grievance hearing. b. The empoyee may commit hersef too much to a particuar anaysis or strategy and eave hersef no room to respond to what management say. c. The empoyee may get some facts wrong in the written grievance and may discredit him/hersef. d. The etter may become over-detaied and confused, both for the empoyee and for any reader. The empoyee may ose sight of the wood for the trees. The empoyer may be abe to by-pass the most awkward content and dea with the easier issues. e. It is a ot of work for the empoyee s adviser at an eary stage to estabish a the detais and decide which are the most important. f. There may be some awkward aspects of the case which are better not committed to writing. Concusion: For most cases, the amount of detai depends on the number of incidents which need to be covered and the number of compaints. Generay, it is important to itemise the key incidents and the key compaints (see sampe, p31). Either way, if the grievance makes generaised statements, the empoyee must be in a position to back them up with exampes. 28

31 How ong after an event can a grievance be written? There is no ega rue about how ong after an event an empoyee can compain about it. Uness the written grievance procedure specifies such a time-imit, the empoyer shoud dea with a grievance whenever it is raised. It is sensibe for empoyees to take out a grievance fairy soon after the incident which is causing them concern. Otherwise it suggests they do not reay care about the matter. Usuay what happens is that there is a recent trigger event, but the empoyee aso wants to bring up oder matters which can revea a pattern. There is no reason why this cannot be done as ong as the empoyee does not go so far back in time that no one can remember what happened or it is no onger reevant because managers or circumstances have changed or so many incidents and peope are mentioned that it is the empoyee who sounds unreasonabe. Certain discrimination or harassment cases (see p32) do invove events over a ong period, even a few years. As ong as the incidents are reevant, and form part of a continuing discriminatory state of affairs, they may a need to be mentioned. Who to address the grievance to The grievance procedure usuay states who the empoyee shoud address the grievance to. If the compaint is about the empoyee s immediate ine manager, s/he shoud be permitted to go straight to the next eve. However, uness it is a very sensitive matter, such as a compaint about buying, it may we be sensibe to start with the ine manager. It is ikey to upset a manager immediatey to go over his/her head and can damage future reations. The immediate manager may aso in some circumstances be more fexibe. Whereas a higher manager may be anxious not to undermine the authority of the ine manager, the atter may be open to negotiation or discussion. If reations have broken down and it is pointess and even counter-productive to go to the ine manager in the first instance, the empoyee shoud be aowed to approach a more senior manager at stage 1. If the empoyee is anxious that his/her grievance etter may be overooked or treated with hostiity, s/he may wish to ensure Human Resources are invoved from the outset by copying them in on the matter. Obviousy the action of copying in HR adds a eve of formaity in itsef and may defeat the object if the idea is to make an informa approach to the ine manager first. On the other hand, if the ine manager is a major probem and acting outside the organisation s own guideines, it is better that someone ese knows about the grievance. Agency and contracted workers What happens when an agency worker has concerns about the way s/he is treated by the end-user, ie the organisation where s/he was sent to work? Sometimes agency workers can work for an end-user for a very ong time under cose contro of the end-user s management, with very itte invovement from the agency. So who does the worker raise his/her grievance with? 29

32 Simiary, workers empoyed by a private company in a contracted-out service may have probems with the way they are treated by the contracting authority. They coud raise these issues with their own empoyer through their grievance procedure, but their empoyer is not necessariy in a position to resove the matter. Sometimes there are written procedures to cover these situations, but usuay there are not. A the empoyee can do is raise the matter with the agency or his/her own empoyer, but s/he risks being removed from the pacement because of fear of an upset. This issue tends to come up particuary in the context of discrimination because the end-user or the contracting authority can usuay be taken to a tribuna for any discrimination they carry out (see p32). What to ask for It is a tactica decision whether to set out in the grievance etter what soution the empoyee is asking for. Some detaied written procedures ask the empoyee to spe this out, but others may not. The advantage of asking for a desired outcome at the outset is that if the request is unthreatening, it may ead to a quicker soution. It ays the groundwork for a grievance meeting to become a negotiation. The empoyer may accede to the particuar request, without admitting any manager has done anything wrong. The disadvantage is that the empoyee oses the fexibiity to taior his/her request according to how we the grievance hearing has gone. Depending on the content of the grievance, an empoyee coud ask for one or more of the foowing outcomes: ÎA finding / acknowedgement that a particuar manager or coeague has acted unreasonaby or unfairy or, if reevant, has discriminated. ÎAn apoogy. ÎA reversa of an unacceptabe decision, eg regarding when hoidays can be taken or regarding use of a car-parking space. ÎA change in working practices, eg a reduced workoad. ÎA review of poicies and procedures. ÎTransfer to another post. Apoogies and findings of unfair behaviour obviousy tend to be harder to obtain than agreements to reverse certain decisions. Do s and don ts of grievance etters Do Îceary set out the probem Îask for a written repy Îsound ike a generay committed and responsibe empoyee Îif possibe, identify a reaistic soution 30

33 Don t Îbe rude, accusatory or hostie Îaccuse too many different peope of treating the empoyee bady Îmake trivia compaints, so that the main compaints get hidden and discredited Sampe grievance etter to ine manager I woud ike to take out a grievance regarding the recent reorganisation of work duties, which has caused me great difficuties. I tried to resove the probems in informa discussions with you, but we have not managed to agree a soution. I am happy to work under the new systems, but there are two particuar probems: 1. We are expected to wash a the sheets by 3 pm. This does not give us enough time with one of the machines broken down and we have been short-staffed in the aundry since May. We need at east one hour extra or otherwise more staff and a the machines need to be working. Nina (the supervisor) shouts at us when we are not ready by 3, which puts everyone under stress and I am sure she fees under pressure too. 2. As I have expained, it is difficut for me to do the heavy duty ironing because of the RSI which I have deveoped in my shouder. I beieve this is a disabiity and empoyers are supposed to make reasonabe adjustments under the aw. I ony spend 10% of my time on ironing and the work coud be shared out between other staff. There are penty of other tasks I coud be given at the same time. I have worked as a housekeeper for the hote for 10 years. I work hard and I have never had any discipinary action taken against me. I enjoy my job and I hope we can find a soution to these difficuties. Sampe etter asking reasons for rejected grievance Thank you for sending me your etter teing me that you have rejected my grievance because it is not feasibe to extend the aundry times or reaocate my ironing duties. It is sti not cear to me why these changes cannot be made. I shoud be gratefu if you woud et me have a written response setting out a the difficuties which you forsee and the reasons why you have rejected my grievance. This wi hep me understand your position and aso enabe me to put forward any reevant suggestions. I woud ike to appea against the decision to reject my grievance and I need to understand the reasons so that I can put forward my appea propery. Pease coud you et me have this information this week so I can write a fu etter of appea. 31

34 Grievances and discrimination Under the Equaity Act 2010, it is unawfu to discriminate in reation to a number of protected characteristics. These are: gender, gender reassignment, marriage or civi partnership, sexua orientation, race, reigion or beief, age and disabiity. There are four main kinds of discrimination: ÎDirect discrimination ÎIndirect discrimination ÎHarassment ÎVictimisation. In reation to disabiity, there is aso ÎDiscrimination arising from disabiity ÎFaiure to make reasonabe adjustments. Direct discrimination is where an empoyer treats a worker ess favouraby because of a protected characteristic, eg ÎAn empoyer decides not to recruit a worker because he ooks too od. ÎAn empoyer issues a back worker with a first written warning for poor time-keeping but fais to warn a white worker whose time-keeping is even worse. Indirect discrimination is where the empoyer appies an unjustifiabe provision, criterion or practice which puts the worker at a disadvantage and puts others sharing the worker s protected characteristics at a disadvantage, eg ÎAn empoyer unjustifiaby refuses a woman s request to work part-time after she has a baby. A requirement to work fu-time puts some women at a disadvantage because of chidcare requirements. ÎAn empoyer unjustifiaby uses ast in first out as a redundancy seection criterion. As a resut, younger workers, women and back workers find themseves disproportionatey seected for redundancy. It can be justifiabe to appy a provision, criterion or practice if the empoyer proves it is a proportionate means of achieving a egitimate aim. Harassment occurs where, for a reason reated to a protected characteristic, an empoyer subjects a worker to unwanted conduct which has the purpose or effect of vioating the worker s dignity or creating an intimidating, hostie, degrading, humiiating or offensive environment for him/her. 32

35 Victimisation is where the worker is subjected to a detriment because s/he has previousy compained about discrimination in some way, either on his/her own behaf or on behaf of someone ese, eg ÎAn empoyer is made redundant on a fase pretext because she had brought a grievance compaining of race discrimination. Grievances about discrimination If a worker fees s/he has been discriminated against at work, s/he may choose to bring a tribuna case for discrimination. S/he can bring such a case whether or not s/he is sti empoyed. It is usuay a good idea to bring a grievance before taking any discrimination case because ÎThere is a chance of a resoution without the need to bring a tribuna case ÎA tribuna woud usuay expect a worker to have tried to raise the matter first in a grievance and, under the ACAS Code (see p8), may penaise the worker in compensation if s/he wins the tribuna case but did not ever bring a grievance. The worker needs to be carefu not to miss any tribuna time-imits whie bringing a grievance (see p47). If the worker is treated bady by the empoyer because the empoyer does not ike it that s/he has brought a discrimination grievance, the worker can bring a caim for victimisation. Whether to compain about discrimination When workers are unhappy about their treatment at work and suspect it may be discrimination, they may be uncertain whether to raise a grievance compaining of discrimination or whether simpy to mention unfairness. Unfortunatey, raising compaints of discrimination tends to upset the empoyer, but sometimes the worker has no choice. The worst thing to do is to compain about discrimination but ony verbay, so it cannot be proved that the worker did make such a compaint. Then if the worker is victimised, s/he cannot prove it was as a resut of mentioning discrimination. Reasons to mention discrimination if suspected by the worker are: ÎIt cannot be investigated and deat with if it is not mentioned. ÎIf things get worse, the worker may be chaenged on why s/he didn t mention discrimination earier, and it wi affect his/her credibiity. ÎIf the situation ends up in an empoyment tribuna, it may affect compensation if the worker s grievance did not mention his/her core compaint. ÎOnce discrimination is on the worker s mind, the worker tends to come out with it at some stage anyway. It is better to be consistent from the outset, as the worker can ose credibiity if s/he first mentions discrimination at the grievance hearing or appea. 33

36 Reasons not to mention discrimination are: ÎThe worker may upset the empoyer and get victimised as a resut. If the evidence of discrimination is not strong, s/he wi have itte ega protection if this happens. If a worker does decide to mention discrimination in his/her grievance, s/he shoud do so ceary and not fudge the issue by ambiguous wording such as referring to buying or unfair treatment. Discriminatory handing of grievances Sometimes the handing of a grievance is itsef discriminatory, eg ÎDirect discrimination: A manager rejects a grievance without giving it proper consideration because the grievance is brought by a young worker and the manager tends to think young workers shoud be seen and not heard. Had the worker been oder, the manager woud have propery considered it. ÎVictimisation: An empoyer takes 5 months to dea with a grievance about discrimination, whereas usuay grievances are handed in a few weeks. This is because the grievance raises issues of discrimination, which the empoyer tends to avoid facing up to. It is usuay difficut to show the handing of a grievance or the grievance outcome is direct discrimination or victimisation, as opposed to simpy unsatisfactory or unfair. It needs cear evidence to bring this type of case. If the worker does have evidence that the grievance outcome or handing is discriminatory in itsef, s/he needs to make this cear in any tribuna caim about the matter. It is important to distinguish a compaint about the grievance from a compaint about the origina matter. Note aso that the time-imit for a compaint about mishanding of a grievance or a grievance outcome woud be counted from the reevant mishanding or outcome. For exampe: On 15 February, a manager refuses a worker time off to take her chid to the dentist. On 20 February, the worker brings a grievance aeging sex discrimination to the head of department. On 3 March, the head of department rejects the grievance, teing the worker that if women want to work, they need to make proper arrangements. The worker s caims woud be: 1. Indirect sex discrimination: manager refusing time off to take chid to dentist. Time-imit: 14 May. 2. Direct and indirect sex discrimination: comment by head of department and rejection of the grievance. Time-imit: 2 June. 34

37 Reasonabe adjustments to the grievance process The worker may be at a disadvantage in participating in the grievance process because s/he has a physica or menta disabiity. If so, the empoyer must make reasonabe adjustments. Note that: Îthe worker must have a disabiity which is covered by the definition in the Equaity Act Îs/he must be disadvantaged by the way the empoyer is carrying out the grievance process. Îthe empoyer must be aware that the worker has a disabiity and is ikey to be at a disadvantage. Îthe empoyer ony needs to make reasonabe adjustments. For more detai on the aw, evidence and exampes regarding who is covered by the definition of disabiity and what kind of reasonabe adjustments shoud be made, see Proving disabiity and reasonabe adjustments: a worker s guide to evidence under the DDA (see Books, guides and websites, p51). Exampes of reasonabe adjustments What adjustments are reasonabe wi depend on the circumstances of each case, but the foowing are possibiities: Îworker with migraines: postponement of the meeting/hearing date at the ast minute because the worker wakes up with a severe migraine. Îworker with photosensitive epiepsy: hoding the grievance meeting/hearing in a room which has natura ighting and not in the usua office which has fuorescent ighting. Îworker with earning disabiities or dysexia: aowing the worker to be accompanied by a friend, reative or heper who is not empoyed by the organisation; aowing the worker s companion to hep the worker answer questions. Îworker with hearing impairment: arranging for an interpreter throughout the grievance stages. 35

38 Grievances about.. fexibe working Summary of the aw on fexibe working Overview Empoyees and other workers may need some fexibiity in their working hours for a number of reasons, eg Îto care for chidren or adut reatives Îbecause of the effects of a disabiity which they have Îfor reigious reasons If the empoyer refuses to make the needed adjustments, they may have ega rights, particuary using discrimination aw. In addition, there is a very specific statutory procedure whereby eigibe empoyees can formay request fexibe working in order to care for chidren or adut reatives. This right to request fexibe working simpy gives empoyees an optiona procedure where such a request must be formay considered and responded to. It gives no rights whatsoever to have the fexibe working granted. The right to request fexibe working Empoyees with at east 26 weeks continuous service can use a specia procedure to request fexibe working, eg a change or reduction in hours or working whoy or partiay from home. The purpose must be: Îto care for the empoyee s chid under 17 (or under 18, if disabed), or Îto care for certain reatives aged 18 or over (parents, chidren, grandchidren, sibings, aunts and unces etc). Caring appears to have a wide meaning and probaby incudes simpy spending more time with the chid or reative, as we as practica tasks such as setting a chid into a new schoo, taking a reative to a medica appointment or doing their shopping, baby-sitting etc The empoyee must make a written appication containing the required information. This must incude Îthe fexibe working pattern appied for and the date it shoud come into effect; Îan expanation of what effect, if any, the empoyee thinks the proposed change wi have on the empoyer and suggestions as to how the effect may be deat with. 36

39 The empoyer must hod a meeting to discuss the request within 28 days and provide a written decision. There is a right of appea within 14 days. The empoyer can ony refuse the request on one of the specified grounds, but these cover virtuay every situation. These are: Îadditiona costs; Îdetrimenta effect on abiity to meet customer demand; Îinabiity to recruit additiona staff or re-organise work amongst existing staff; Îdetrimenta impact on quaity or performance; Îinsufficient work during the periods the empoyee proposes to work; Îpanned structura changes. The grounds must incude a sufficient expanation as to why those grounds appy. If the empoyer fais to foow the procedure or refuses for a reason which is not within the isted grounds or gets the facts wrong, the empoyee can caim compensation up to 8 weeks pay. If the empoyer correcty foows the procedure and refuses the request on one of the specified grounds, the empoyee has no further ega rights under this procedure. It is important to remember the right to request fexibe working is purey a procedura right to have such a request considered. It does not give any right to have that request granted. Is there a right to be aowed fexibe working? Whether or not empoyees make use of the statutory right to request fexibe working, they may have other ega rights to change their hours or work from home. It is possibe, though unikey, that they wi have such rights in their contract of empoyment. Discrimination aw is more ikey to be hepfu. For an overview of discrimination aw, see pages Remember that it appies to a workers and not just empoyees. There is aso no minimum service requirement. If an empoyer unjustifiaby refuses a woman s request to adjust her hours or work part-time for chidcare reasons, this may be unawfu indirect sex discrimination. The woman needs to prove the empoyer s refusa is putting her at a disadvantage. If so, the empoyer needs to prove that its refusa is a proportionate means of achieving a egitimate aim. If an empoyer unjustifiaby refuses a woman s request to adjust her hours or have time off to care for a reative, this is aso potentiay indirect sex discrimination. The woman needs to prove that such caring duties tend to fa on women. Potentiay it may be indirect age discrimination to refuse an oder mae or femae worker an adjustment of hours to care for reatives. The worker needs to show that such caring duties tended to fa more on those of his/her age group than others. This type of case has not reay been tested yet. 37

40 If an empoyer unjustifiaby refuses to adjust a reigious worker s hours so s/he can attend prayers and/or avoid working on a reigious day or hoiday, this may be indirect age discrimination. The worker needs to prove that the empoyer s refusa is putting him/her at a disadvantage. If so, the empoyer needs to prove that its refusa is a proportionate means of achieving a egitimate aim. Refusing a disabed worker s request to ater or reduce his/her hours or to aow home-working may amount to a refusa to make reasonabe adjustments. The worker needs to prove s/he is put at a disadvantage by the current working hours or ocation. If so, the empoyer needs to prove why the proposed adjustment is unreasonabe. Taking a grievance In any of the above situations, the worker wi usuay want to request the adjustment to his/her hours or workpace in a ow-key friendy way rather than jumping straight to a grievance. If the request is refused, the next step wi be to use the grievance procedure. Where the request is for fexibe hours due to chidcare or care for adut reatives, it is optiona whether an eigibe empoyee just makes an informa request to work fexiby in the usua way or foows the forma right to request fexibe working procedure. Because the atter is a recognised procedure, it may be better received by the empoyer. It may aso be more successfu, because some empoyers may fee obiged to grant a request because the procedure exists or because they misunderstand the scope of the procedure. If an empoyee does start by using the forma procedure and his/her request is refused, it is optiona whether s/he goes on to use the grievance procedure. There is probaby ony any point in this if it enabes him /her to have access to a different and more sympathetic manager or if s/he wants to specificay raise the issue of discrimination, which s/he may not have mentioned during the forma statutory procedure. Otherwise it seems repetitive and excessive to go through a grievance as we as the forma request procedure and it is unikey a worker woud be penaised in compensation in any subsequent tribuna caim if s/he had not done so. What to put in the grievance etter The main eements to put in a grievance etter are: Îset out the changed hours or work arrangements which the worker woud ike. If the worker indicates a few different options, this may increase the chance of getting an agreement, athough on the other hand, the worker may end up with his/her east preferred option. Îexpain why the worker needs to adjust his/her hours or work arrangements. Îanticipate and address any obvious difficuties which the empoyer may encounter if it grants the request. The worker coud suggest a tria period if the empoyer has doubts whether the arrangement woud work in practice. Obviousy this carries the risk that the empoyer wi say no at the end of the tria period and may give the impression that the worker wi not press the matter. 38

41 If the empoyer or oca manager has aready verbay refused the worker s request, or if this is a grievance appea, the worker shoud try to get the empoyer to commit itsef on the reason for its refusa. As aready discussed (see p25), empoyers sometimes prefer not to be pinned down. However, if the worker is to have any chance of negotiating a better arrangement, it is important to understand the rea nature of the empoyer s objection. Aso, if the empoyer maintains its refusa and the worker is considering a tribuna case, it is important to be abe to assess the strength of the empoyer s defence. The worker aso needs to decide whether to mention that the empoyer s refusa may amount to discrimination. This may be something which s/he needs to raise if there has been an initia refusa, but not at an eary stage where his/her request might sti be granted. The difficuty, as with so many grievances, is whether to go for a gente persuasive approach or a firm assertive approach. Whether, when and how to raise discrimination in grievances is discussed in more detai at p33. Sampe grievance etter I am writing to you regarding my request to change my hours from to This is so that I can avoid traveing in peak rush hour. Due to my disabiity, I find it very hard to stand for proonged periods on crowded trains. I appreciate this invoves working 10 hours ess/week. Obviousy I woud not expect to be paid for those hours. Aternativey, I coud make up some of the hours by working haf hour unch breaks. The shop is quiet at each end of the day and I beieve the other staff woud be abe to manage without any difficuty when I am not there. I beieve that working haf hour unch breaks woud in fact be more hepfu, because that is when we are most busy. I was disappointed that, when we spoke, your first reaction was that such an arrangement woud not work. I am therefore raising the matter more formay through the grievance procedure, as this wi give us an opportunity to discuss it together more fuy. It woud be very hepfu if you coud et me have a note before we meet, setting out your concerns. I can then come prepared to discuss some possibe soutions. I ook forward to hearing from you. Optiona: I am sure you are aware that there is a ega requirement on empoyers to make reasonabe adjustments when working arrangements put a disabed worker at a disadvantage. 39

42 What if the grievance is unsuccessfu? As in a cases where a grievance is unsuccessfu, an empoyee needs to decide what to do. This incudes an assessment of potentia ega rights. Where discrimination is a possibiity, a worker can make a caim even if s/he remains in the job. Obviousy s/he needs to be carefu that remaining in the job whie bringing a case does not indicate that his/her current hours or working arrangements are not in fact a disadvantage for him/her. It is unawfu to victimise a worker because s/he compained of discrimination in a grievance or to subject him/her to a detriment because s/he appied for fexibe working under the statutory procedure. Time-imits Be carefu not to miss any time-imits if the empoyee intends to bring a tribuna caim. If the empoyee s compaint is for indirect discrimination in respect of the refusa to aow fexibe working, the 3 months is counted from the refusa of the request and not from the date of any subsequenty rejected grievance about the matter. In some situations, an empoyer s ongoing insistence that a job is worked fu-time rather than part-time, or on certain days and times, may amount to continuing discrimination, so that the time-imit continues to run (see Cast v Croydon Coege [1998] IRLR 318, CA). This possibiity can be difficut to argue and empoyees shoud never et more than 3 months pass from the origina refusa in reiance on it. Where an empoyer fais to make reasonabe adjustments for a disabed worker, the 3 months is counted from the empoyer s refusa to make the reevant adjustment or otherwise, from when a non-discriminatory empoyer woud have made the adjustment. The 3 months is not counted from the outcome of any grievance about the empoyer s inaction. Time-imits are expained in greater detai on pages

43 Grievances about.. the empoyer imposing contract changes Summary of the aw on contract changes The contract of empoyment is made up of many terms and conditions, eg regarding pay, hours, hoidays and work ocation. In theory, an empoyer cannot change any contractua terms without the empoyee s agreement. In practice, it is not so simpe. If the empoyer attempts to impose a change of contract term without the empoyee s agreement, this is caed uniatera variation. The empoyee needs to respond. If s/he does nothing, s/he wi eventuay be taken to have impiedy agreed to the change. An empoyee needs to record her objection to the empoyer s proposed change immediatey in writing. This wi not preserve his/her ega rights indefinitey, but it wi buy some time. The empoyee then needs to decide whether s/he wants to accept the change or to take ega action, eg Îresign and caim constructive unfair dismissa Îrefuse to go aong with the change and take an unfair dismissa caim if dismissed Îcaim unauthorised deductions from wages (if appicabe) Îcaim discrimination (if appicabe), whether or not s/he resigns. The empoyee needs to be very carefu. There is no guarantee s/he wi win such tribuna caims or, if s/he does win, that s/he wi get much compensation. If an empoyee wants to resign over the change: Îs/he must prove there was a fundamenta breach of contract, ie the empoyee needs to be sure what the true contractua position is, that the contract reay is being changed and that the change is serious. Îs/he must not affirm by waiting too ong before resigning. S/he can usuay wait unti s/he has a the facts, unti any negotiation has broken down or any grievance procedure is competed, but then s/he must decide. Îs/he must not jump the gun by resigning prematurey, eg whie an empoyer is sti consuting or negotiating over the proposed change or in the midde of the grievance procedure. Îeven then, a tribuna may say it is a constructive dismissa but not an unfair dismissa. 41

44 It is not necessariy unfair for an empoyer to impose a change of contract or to dismiss an empoyee for refusing to accept such a change. There is no absoute rue, but the tribuna wi consider and weigh up: Îwhether the empoyer foowed fair procedures, eg consuting empoyees over the change Îwhy the empoyer needs the change, the urgency of the situation, the aternatives, and whether a rea benefit can be proved Îthe impact of the change on the empoyee. If the change imposed by the empoyer invoves a pay cut and the empoyee is dismissed after opposing such a pay cut, s/he may be abe to caim that s/he was automaticay dismissed for asserting a statutory right, ie the right not to have unauthorised deductions from his/her pay. The advantage of such a caim is that it is unnecessary to prove whether or not it was fair in practice. Aso an empoyee requires no minimum ength of service to caim. However, empoyees shoud not over-rey on making such a caim. It is possibe that a tribuna wi say the true reason for dismissa was not that the empoyee compained about unauthorised pay deductions, but that it was in order to change the contract or for some other reason. Taking a grievance Rather than rushing to resign or take ega action, an empoyee shoud usuay first try to deter the empoyer from going ahead with the proposed change by insisting that the empoyer has no ega right to change the contract without agreement. If this doesn t work, the empoyee may want to try to negotiate a compromise. Instead of starting with a grievance, an empoyee s initia etter may simpy be a straightforward statement that the proposed change is a breach of contract and the empoyee does not agree to it. If the empoyer indicates it is going ahead with the change anyway, the empoyee s next step wi often be to take out a grievance. The advantage of a grievance is that it gives the empoyee some time to negotiate or attempt to resist the change before having to decide whether to resign. But if the empoyer wi not budge, the empoyee is sti going to have to decide what to do once the whoe grievance procedure has been exhausted. As we as the possibe effect on tribuna compensation (see p8), the disadvantage of taking a grievance is that it can take a ong time to go through a the stages of the procedure. Once an empoyee has embarked upon the grievance procedure, s/he cannot usuay risk resigning in case it is said s/he has jumped the gun. This can be a rea probem where the work situation is intoerabe in the meanwhie and the procedure is very drawn out, as can happen particuary in the pubic sector. It is ony in very rare cases that an empoyee can risk resigning on the basis that a grievance is not being adequatey processed (see p4). A proonged grievance procedure is ess of a probem if the status quo is maintained unti its concusion. The difficuty is where an empoyer has gone ahead and imposed the change anyway, with the ostensibe proviso that the change wi be reversed shoud the grievance succeed. This creates a momentum which makes it unikey that the grievance wi succeed in practice. 42

45 Time-imits Be carefu not to miss any tribuna time-imits whie going through a grievance procedure. For exampe, any caim for pay deductions or discrimination coud fa out of time whie the grievance is being heard. Time-imits are expained in greater detai on p47 onwards. What to put in the grievance etter The tone and content of the etter depends on the empoyee s bottom ine. Is s/he wiing to risk osing his/her job over this change? Subject to that, the main eements to put in a grievance etter woud be: Îassert that the proposed change is in fact a change to the empoyee s contract of empoyment (assuming this is correct). If uncertain, ask the empoyer to point out where in the contract it says the empoyer can make the proposed change. Îstate that contract terms can ony be changed by agreement and that the empoyee does not agree to this change. Îif the empoyer sti insists on the change, ask why the change is required. If this is asked in the first etter, it coud weaken the tone and sound ike the empoyee is wiing to negotiate from the outset. Îif any discrimination is invoved, this shoud usuay be mentioned (though see genera comments at p33). Îif the change invoves a pay cut, it may be worth stating that the pay cut woud be an unauthorised deduction from pay. This gives the empoyee a chance of caiming automatic unfair dismissa for asserting a statutory right if s/he is sacked as a resut of his/her etter. The empoyee needs to get the empoyer to commit itsef on the reason for its refusa. As aready discussed (see p25), empoyers sometimes prefer not to be pinned down. However, if the worker wants to try to negotiate a compromise, it is important to understand the rea nature of the empoyer s needs. Aso, if the empoyer maintains its refusa and the worker is considering a tribuna case, it is important to be abe to assess the strength of the empoyer s case. Sampe pre-grievance etter I am writing about your etter dated 9 August, where you said the company woud be withdrawing a petro aowances from 1 November. I am entited to a petro aowance under my contract and I am afraid I cannot agree to this change. If you go ahead with the change, it woud be an unauthorised deduction from my pay. 43

46 Sampe grievance etter Pease take this etter as a grievance regarding the company s faiure to pay my petro aowance ast week. I am entited to be paid this aowance under my contract of empoyment. If it is not paid to me, I wi have no option but to make a caim for an unauthorised deduction from my pay in the empoyment tribuna. Whie you are deaing with my grievance, I woud expect the status quo to appy and my aowance to be paid through that period. Otherwise it woud seem to me that the company has not entered the grievance procedure with an open mind. Optiona in this or a foow up etter: coud you pease set out for me in a etter why the company finds it necessary to cut aowances at this time. 44

47 Grievances about.. sickness absence The ega context An empoyee may be absent on ong-term sick eave for a variety of reasons, eg i-heath, accident or injury, pregnancy-reated sickness, or stress or depression caused by persona circumstances or by buying at work. Sometimes an empoyer wi initiate capabiity procedures or even discipinary action regarding the absence. Aternativey, it may be that the empoyee needs to take out a grievance regarding the arrangements for his/her return to work or concerning workpace actions which have caused the sickness. If the empoyee has been sick for a ong time, s/he may we meet the definition of a disabed person for the purposes of the Equaity Act. To be covered, the empoyee must have a physica or menta impairment which has a substantia and ong-term adverse effect on his/her abiity to carry out day-to-day activities. This can incude depression, if its effects are sufficienty severe and have asted or are ikey to ast at east 12 months. If an empoyee is disabed, and at a disadvantage as a resut eg s/he is unabe to return to work the empoyer must make any reasonabe adjustments which woud remove that disadvantage. For exampe, changing work arrangements to enabe the empoyee to do his/her job or, if the probem is buying, removing the work stresses, aowing a phased return to work etc. For more on disabiity and grievances, see p35 above. If the empoyee is not disabed, but nevertheess cannot face work because of workpace stresses, an empoyer shoud sti address any probems. An empoyer need not go quite as far to take positive steps if the Equaity Act does not appy, but there are sti the requirements of unfair dismissa aw if the empoyee were to resign because of mistreatment or be dismissed because of i-heath. Remember that, to caim disabiity discrimination, a worker need not be an empoyee and there is no minimum service requirement. But to caim unfair dismissa, a worker needs to be an empoyee and to have at east one year s continuous service. In imited circumstances, s100 of the Empoyment Rights Act 1996 may aso give some protection. Under s100, it is automaticay unfair to dismiss an empoyee for refusing to work in circumstances of danger which s/he reasonaby beieved to be serious and imminent. This can incude, for exampe, dangers caused by the behaviour of co-workers (see Harvest Press Ltd v McCaffrey [1999] IRLR 778, EAT). An empoyee does not need any minimum service to gain this protection. 45

48 Taking a grievance As with a grievances, the empoyee needs to decide what tone to adopt. If the empoyee is sick because of pressure from his/her manager, s/he needs to decide whether it is appropriate or tacticay a good idea to ca this buying. Many empoyees use the term buying very readiy, but if the matter ever ends up in a tribuna, it may be seen as an exaggeration, which discredits the empoyee. It wi aso antagonise the empoyer and make a resoution unikey. On the other hand, there are some circumstances where it is a correct description of what has happened and a more restrained approach soves nothing. If there is buying or unfair treatment because of a protected characteristic, then any grievance shoud ceary mention discrimination if the empoyee intends to foow up with a tribuna case (see p00 regarding Discrimination and grievances). Where the empoyee beieves his/her i-heath amounts to a disabiity, it is probaby a good idea to say so. This wi make the empoyer aware of its duty to consider reasonabe adjustments. Having said that, sometimes empoyers disagree that an empoyee s condition meets the ega definition. Stress is a particuar danger area because it may or may not be serious and ong-term enough to amount to a disabiity. If the empoyee thinks certain changes to work arrangements or a phased return to work woud be hepfu, s/he shoud say so in writing. It can be awkward if the empoyee is unsure when s/he wi be abe to return to work even if changes are made and s/he shoud discuss the matter with his/her doctor first. Whether taking a grievance or facing capabiity/discipinary procedures, empoyers tend to want to know when an empoyee is ikey to return. It is unwise to say, I don t know. Empoyees shoud at east set down some kind of marker, if ony to give the date of the next speciaist appointment. 46

49 Tribuna time-imits The empoyee may not have any intention of taking a tribuna case when s/he first comes to obtain advice. But the position may change ater. It is therefore important aways to keep timeimits in mind and warn empoyees that they exist and how they work. Tribuna caims are started when the standard tribuna form arrives at the tribuna office. It must arrive within the time-imit. This is caed odging or presenting the caim. Unfair dismissa time-imits An unfair dismissa caim must arrive at the tribuna within 3 months of the effective date of termination. This means 3 caendar months ess 1 day. For exampe: ÎEDT = 5 January; time-imit = 4 Apri of the same year. ÎEDT = 26 September; time-imit = Christmas day. ÎEDT = 30 November; time-imit = 28 February (uness a eap year). It is irreevant whether the time-imit fas on a week-end or Bank Hoiday. As it is hard to deiver tribuna caims on non-work days or to prove that they have been deivered, it is wise to ensure the caim is received (at the very atest) on the ast working day before the deadine. When is the effective date of termination? It is crucia to identify the termination date correcty - otherwise the empoyee may miss a time-imit. The EDT is not necessariy the ast day the empoyee worked, because s/he may have been off sick or taken hoiday or been on paid eave ( garden eave ). The best guide is usuay the dismissa etter. These are two different situations: 1. the empoyee is dismissed with immediate effect and paid, say, four weeks in ieu of notice. 2. the empoyee is given four weeks notice, but tod s/he does not need to come in to work. In the first case, the dismissa date is immediate. In the second, it is in four weeks time. But some etters are not even cear as between these two situations. Beware ambiguous wording. In such cases, another indicator may be when the empoyee receives the four weeks pay immediatey or after the four weeks or on his/her usua monthy pay day? The date on a P45 is aso good evidence. If in doubt, aways work from the earier date when considering time-imits. What if the caim is ate? The tribuna can aow in a ate caim where it was not reasonaby practicabe for the caim to be presented within the origina time-imit. 47

50 It is very difficut to convince a tribuna to extend time on this basis. An empoyee may be abe to show that she was physicay or mentay incapabe of keeping within the origina time-imit. Ignorance of the aw or of time-imits wi ony be a basis for a ate caim if a reasonabe empoyee woud have been simiary ignorant. Given the genera avaiabiity of advice agencies and information on the internet, this is hard to prove. It is not a ground for a ate caim simpy that the empoyee was awaiting the outcome of a grievance or appea. This means empoyees sometimes have to start tribuna caims when their grievance or appea sti has not been heard. Discrimination time-imits A discrimination caim must arrive at the tribuna within 3 months of the act of discrimination. As with unfair dismissa caims, this means 3 caendar months ess 1 day. If there are severa acts of discrimination, it must arrive within 3 months of the eariest of those, so that they are a in time. This means that the discriminatory actions must be carefuy identified. For exampe, if the act of discrimination is a discipinary warning, 3 months is counted from the date the warning was given. If the empoyee appeas against the warning, the time-imit remains 3 months from the warning. If the empoyee s compaint is that the appea outcome was discriminatory, then the 3 months regarding that compaint is counted from the date of the appea outcome. if the act of discrimination is a faied promotion, 3 months is counted from when the empoyer decides not to promote the empoyee. If the empoyee takes out a grievance regarding the faied promotion, the timeimit remains 3 months from the decision not to promote. If the empoyee s compaint is that the grievance outcome was discriminatory, then the 3 months regarding that compaint is counted from the date of the grievance outcome. Îdecision not to promote 6 March Îtime-imit to compaint that the decision not to promote was discriminatory = 5 June Îgrievance about non-promotion is rejected on 20 Apri Îtime-imit to compain that the rejection of the grievance was discriminatory = 19 Juy Îtime-imit to compain both about the non-promotion and about the rejection of the grievance = 5 June The empoyee must carefuy identify each potentia act of discrimination as s/he goes aong and make a menta note of the time-imit reated to that act. For comments regarding whether the rejection of a grievance is itsef an act of discrimination, see p34. 48

51 What if the caim is ate? A tribuna can aow in a ate discrimination caim if it is just and equitabe to do so. This is not such a strict test as the test for etting in ate unfair dismissa caims. But it is sti hard to get in a ate caim. The tribuna wi consider a factors, not simpy why the caim is ate and how ate it is. It wi aso consider the reative prejudice to each side of aowing in or refusing to aow in the ate caim. Even with this more generous test for aowing in ate caims, it is unikey to be considered a particuary good reason that the empoyee was awaiting the outcome of a grievance or an appea. An empoyee shoud never aow a time-imit to be missed for that reason. This means it may be necessary to put in a tribuna caim whie a grievance is sti unresoved. Lodging tribuna caims before the grievance or appea is heard As expained above, time-imits for both unfair dismissa and discrimination are not extended because the empoyee is going through a grievance or appea process. Empoyees therefore need to odge their tribuna Caim if they want to preserve their right to go to a tribuna if the grievance or appea fais. If the grievance/appea succeeds, the empoyee can aways withdraw the tribuna caim. Inevitaby, the fact that an empoyee has odged a tribuna caim wi affect how the empoyer sees the grievance/appea process. It may antagonise the empoyer and make matters worse. Or it may make the empoyer reuctant to make any concessions because they coud be used against the empoyer in the tribuna case. Aternativey, it may encourage an empoyer to resove the matter, provided there is an agreement that the tribuna caim wi be withdrawn. It is often a good idea, if the grievance/appea process is dragging on, to forewarn the empoyer that a tribuna time-imit is imminent and the empoyee wi be forced to put in a caim to preserve the position if matters are not resoved by that deadine. Psychoogicay, this is often the optimum time to secure an agreed settement. Discrimination Questionnaires An empoyee with a potentia discrimination case shoud use the specia questionnaire procedure. This enabes the empoyee to gather evidence which is difficut to find esewhere and can make a huge difference to the empoyee s chances of success. A questionnaire is usuay written on a standard form, where the empoyee writes a summary of the reevant incidents and, most importanty, asks the empoyer a series of reevant questions. The empoyee must send the form to the empoyer within strict time-imits. The time-imits depend on whether the form is sent before or after the tribuna case has been started by sending the tribuna caim form to the tribuna. If the tribuna caim has not yet been started, the empoyee can send the questionnaire to the empoyer any time within 3 months of the act of discrimination. But if the tribuna caim has aready been presented, the empoyee must send the questionnaire to the empoyer within 28 days of it having been presented. 49

52 The empoyee shoud not aow these time-imits to be missed, even if s/he is going through a grievance procedure which has not been competed. If the empoyee misses the time-imits, s/he needs to ask the tribuna s permission to send in the ate form. The tribuna wi consider what is fair in the circumstances and whether it wi save time and costs at the hearing. The empoyee can expain if the reason for the deay was an attempt to get as much carification as possibe from a grievance, but the tribuna may not necessariy think this was a good reason. When is it best to send a questionnaire tacticay? Obviousy a questionnaire shoud be sent within the time-imits aready mentioned. But subject to that, there are choices regarding how soon to send a questionnaire. Tribunas can draw an adverse concusion if empoyers don t answer questionnaires within 8 weeks. It is therefore usuay best to send a questionnaire as eary as possibe and we before a case starts. Ideay, the empoyee wi get a repy before the deadine for starting a case and it heps him/her decide whether or not to go ahead with the case. Even if the empoyee cannot get a repy before the tribuna time-imit, it is sti usefu to send an eary questionnaire. It means the empoyee wi get a repy eary on in the running of the case, which greaty heps case preparation. In some situations, empoyees prefer to deay sending the questionnaire unti they have competed a grievance (assuming they keep to the overa time-imit). For exampe, an empoyee may fai in her promotion attempt on 20 May, which gives her unti 19 August to odge a tribuna caim. She aso has unti 19 August to send the empoyer a questionnaire (or she can wait unti she has odged her tribuna caim and send the questionnaire within 28 days afterwards). The empoyee decides to take out a grievance regarding her faied promotion. She can do that soon after 20 May. It wi give her the chance to find out more about why she was unsuccessfu. Her diemma is whether to send a questionnaire at the same time or wait for a whie. The advantages of deaing with the grievance before sending a questionnaire (if it can be done before 19 August) are that: Îthe empoyee can obtain a certain amount of information without taking a more forma and confrontationa step (serving the questionnaire) Îher managers may be ess on their guard and therefore more truthfu in suppying information through a grievance procedure than in answering a questionnaire Îby getting a certain amount of information first, the empoyee can make a ater questionnaire more focussed on the key points Îempoyers often refuse to answer a questionnaire whie a grievance is pending. This means the empoyee has aid her cards on the tabe at an eary stage when the empoyer is not required to make a simiar commitment. The disadvantage of not sending an eary questionnaire is that there wi be no opportunity to get a repy before the time-imit for starting a tribuna case. 50

53 Books, guides and websites ÎEmpoyment Law: An Adviser's Handbook. By Tamara Lewis Pubished Lega Action Group. Te: Edition 8 (2009). Updated every two years. For workers and their advisers in unions / vountary sector. Guide to aw, evidence, tactics and tribuna procedure, with comprehensive check-ists and precedents. Covers a key areas of empoyment aw. Centra London Law Centre guides ÎFacing discipinary action: a guide for empoyees and their representatives. By Tamara Lewis. Practica guide with sampe etters, discussing common evidentia issues, tactics and other issues when facing discipinary action. Hard copies avaiabe from Centra London Law Centre. Pdf can be downoaded from the aw centre s website: ÎA caimant s companion: a cient s guide to cases in empoyment tribunas. By Tamara Lewis. Guide for advisers to hand out to their cients in empoyment tribuna cases to answer common queries and uncertainties. This is not a guide for cients to run cases themseves. Hard copies avaiabe from Centra London Law Centre. Pdf can be downoaded from the aw centre s website: ÎIdentifying empoyment cases: checkists for diagnosis and interviews. By Tamara Lewis. Pubished Centra London Law Centre, February Usefu guide on how to start investigating cases for generaist advisers or those new to empoyment aw. Discrimination issues woven into genera empoyment aw throughout. Cross-references to Empoyment Law: An Adviser s Handbook. Avaiabe at ÎIdentifying discrimination in empoyment a diagnostic and referra guide for busy advisers (Edition 1. June 2008) By Tamara Lewis. For generaist or inexperienced advisers, a very basic introduction to discrimination aw. The guide aims to enabe advisers to recognise potentia discrimination cases where these are not presented by the cient, and to ask sufficient questions to make sensibe referras to speciaist agencies. Avaiabe at ÎProving disabiity and reasonabe adjustments: a worker s guide to evidence under the DDA. By Tamara Lewis. Pubished by Centra London Law Centre. Updated (2009) version avaiabe on EHRC website, doc With specia focus on 26 different impairments. 51

54 ÎUsing the Data Protection Act and Freedom of Information Act in Empoyment Discrimination cases. By Tamara Lewis. On EHRC website, ÎDiscrimination Questionnaires: How to Use the Questionnaire Procedure in Cases of Discrimination in Empoyment. By Tamara Lewis. Pubished Centra London Law Centre. Updated (2009) version avaiabe on EHRC website. Guide to procedure and sampe Questionnaires for many situations. On EHRC website, Websites ACAS AdviceUK Citizens Advice Empoyment Tribunas Empoyment and Human Rights Commission Law Centres Federation TUC

55 Acknowedgments With many thanks to the Nuffied Foundation for funding this Guide. The Nuffied Foundation is an endowed charitabe trust that aims to improve socia we-being in the widest sense. It funds research and innovation in education and socia poicy and aso works to buid capacity in education, science and socia science research. The Nuffied Foundation has funded this project, but the views expressed are those of the author and not necessariy those of the Foundation. More information is avaiabe at Guides on ine A pdf of this Guide is avaiabe on Centra London Law Centre s website at For hard copies, teephone the Law Centre and speak to the administrator. Copyright Extracts from the ACAS Code are copyright ACAS, Euston Tower, 286 Euston Road, London NW1 3JJ. Tamara Lewis. 1 September 2010

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