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

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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

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