Grievance and Complaints

Grievance procedures can play a vital role in the workplace.  Not only do clear and consistent procedures foster better employee relations but if used and applied appropriately, either alone or coupled with mediation, they can significantly reduce the risk of Employment Tribunal proceedings as a result of workplace disputes.

This guide provides some information about workplace grievances:

If you would like advice in respect of these or any other issues, please contact:

Throughout this guide we have referred to legislation by its full title, but to avoid constant references to ‘him/her’ and ‘he/she’, or worse still ‘s/he’, which we think is irritating to read, we have used ‘he’ to refer to both male and female employees (sorry ladies!)

 

BRINGING A GRIEVANCE

What constitutes a grievance?

A grievance can be raised if you have any concerns, problems or complaints relating to your workplace. A grievance may relate to any aspect of working life, such as your contract of employment, salary/bonus pay, working conditions, or concerns regarding discrimination and harassment.

How should I bring a grievance?

Ideally you should initially try to resolve the grievance informally.  However, sometimes this is not practical or not appropriate.  Equally, if you are not happy with the response to an informal approach or the situation has not improved, you should raise your concerns in writing in accordance with your employer’s grievance procedure.  A grievance procedure will often provide that such concerns should be raised with your line manager (or another manager if the grievance concerns your manager).  If your employer does not have a grievance procedure you should put your concerns in a letter to your manager or the head of HR.

How much detail should I include?

You should include sufficient information to enable your employer to understand and investigate your concerns.  It often helps to give a brief summary of your complaint so that your employer can see at a glance what the issue is, and then provide background information, chronologically if possible.  Keep your examples relevant and succinct – you will have a further opportunity to add details at the grievance meeting.  A grievance the length of ‘War and Peace’ is likely to be met with a less sympathetic response than more succinct version.

 

RECOGNISING AND DEALING WITH A GRIEVANCE

Why is it important to recognise a grievance?

It is important for employers to recognise a grievance so that the appropriate procedure to deal with it is triggered.

In the event that matters are not resolved, the employee may bring a claim in the Employment Tribunal. The normal time limit for an Employment Tribunal Claim (which is rarely extended) is three months less one day from the date on which the act complained of took place.  Failing to recognise a grievance promptly may mean that the clock is already ticking!

What action should be taken if a grievance is raised?

Most employers have their own grievance policy and procedure.  This should follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, the main steps of which are:

  • A grievance should be raised in writing and should provide sufficient details of the complaint to enable the employer to understand and investigate the concerns raised.
  • The employer should arrange a meeting with the employee to discuss the matters raised. The meeting should be held without unreasonable delay, but may be adjourned if further investigations are required.
  • The employee has a legal right to bring a Companion (see below) to the meeting.
  • After the meeting the employer should decide on appropriate action and this should be communicated to the employee in writing (again without unreasonable delay).
  • The employee must be given the right to appeal the decision if he is dissatisfied with the outcome.

Right to be accompanied to the meeting

Under the Employment Relations Act 1999, employees have the right to bring a Companion to a grievance meeting. A Companion can either be a Trade Union Representative or a workplace colleague.

The request to be accompanied should be reasonable.  It may not be reasonable to bring a Companion who has a conflict of interest (i.e. a witness) or someone who may be prejudicial to the meeting (i.e. a co-complainant).

Employees do not have the right to bring a friend or a legal representative (save in very exceptional circumstances).  If an employee suffers from a disability it may be appropriate for him to be accompanied by another person by way of a ‘reasonable adjustment’ to the usual procedure, in accordance with the requirements of the Equality Act 2010.

Right of Appeal

Employees have a right of appeal if they are not satisfied with the grievance decision. If an employee wishes to appeal he should do so in writing detailing the reasons for the appeal.  If the reasons for the appeal are not set out in the appeal letter the employer should ensure that they are requested well in advance of the grievance appeal hearing.

A different manager should undertake the appeal hearing to ensure impartiality. Again, this meeting should be held without unreasonable delay and the employee will be entitled to bring a Companion to the meeting.

 

 WORKPLACE MEDIATION

Overview

Mediation is being increasingly used to resolve disputes in the workplace. A mediator facilitates and manages the process with the aim that the parties reach a solution that they are both happy with.

The mediator also acts as an information-gatherer in order to help the parties find common ground and to agree a plan of action to work co-operatively towards a solution that is mutually agreeable.

Why use mediation?

There are numerous benefits to using mediation:

  • Mediation works – the success rate is approximately 90%. The parties tend to find the dispute clarified and have a better understanding of the other party’s perspective.
  • Quick – litigation can be stressful, time consuming and expensive. Mediation can normally be arranged quickly and can usually be completed within one day.
  • Aids communication – in litigation parties often become intransigent and avoid communicating with each other. A face-to-face, less formal, mediation meeting can assist communication and clarify the issues, establishing common ground and helping the parties agree a plan of action to resolve the dispute and prevent similar situations arising in the future.
  • Repairs relationships – mediation focuses on resolving conflicts rather than apportioning blame.  It is therefore especially useful when employment relationships are continuing.
  • Flexible and proactive – the parties are in control of the mediation and a solution can be devised that is creative and specific to the personalities involved.  It can be empowering for employees as they feel they are having their say.
  • The solutions available in mediation are far greater than the solutions that can be ordered by Courts and Tribunals.
  • Non-binding – unless and until an agreement is reached. The parties can discuss potential settlement options without binding themselves or the other side.

The ACAS Code of Practice on Disciplinary and Grievance Procedures encourages mediation. Although there is no obligation to mediate, any failure to mediate can result in a 25% adjustment to an award made in subsequent Employment Tribunal proceedings.

When might mediation not be suitable?

  • To send a message to employees – the employer might decide to defend its position in an Employment Tribunal setting because it wants to send a message to the workforce that it will not settle claims which it regards as being without merit.
  • Line management should take action – mediation is not intended to replace normal work place interaction or frequent and appropriate discussions between line managers and direct reports.
  • One party is not committed – mediation only works when all parties are committed to the process. If a party is unwilling to compromise mediation will not be successful.

Types of mediation

  1. Workplace mediation – where the employment relationship is continuing at the commencement of the mediation.
  1. Employment mediation – where the employment relationship has broken down or ended at the commencement of the mediation, or where Employment Tribunal proceedings have already been commenced.

What happens during mediation?

Generally, mediation starts with a meeting where both sides have the opportunity to explain their view of the situation without interruption. An open discussion usually follows, with the mediator helping to decide what the important issues are. The mediator will then spend time privately with each side to help find their desired resolution and will then act as a broker passing on agreed information and any proposals for settlement between the two sides.

If an agreement is reached, it will be written down and signed by both parties.

 

SUBJECT ACCESS REQUESTS

Overview

The Data Protection Act 1998 requires employers to hold and process personal data in a fair and proper manner. There are stringent requirements in relation to the processing of personal data which, if broken, can ultimately lead to criminal sanctions.

Often Subject Access Requests (SARs) are used as a tool by employees who are in dispute with their employer as it entitles the person making the request to details of the information held about them, which could include information which may help their case, such as incriminating emails.  It also puts considerable pressure on the employer as dealing with a SAR is time consuming.

What is ‘Personal Data’?

Personal Data is information which relates to a living person, and which identifies an individual, either on its own or together with other information.  This covers information held on computers, paper filing systems, microfiches etc.

Case law suggests that data is only personal data if an individual, as the subject, is identified.  If the individual is simply named as the recipient of an email that does not make the contents of the email their personal data.  What is, and what is not, personal data is not always ‘straightforward’!

Making a Subject Access Request

The request must be made in writing. Employers are entitled to charge an administration fee of £10 and to request further information to satisfy themselves as to the identity of the person requesting the data and to assist in locating the information sought.

Request should be reasonable and proportionate to enable a sensible search for the information to be undertaken.  For example by limiting the request to a specific time period, and to emails between named individuals.

Responding to a Subject Access Request

Employers must respond promptly to SAR requests and in any event within 40 calendar days of the receipt of the request. This time-limit commences when the request, the £10 fee (if charged) and any information to assist in confirming the identity of the person making the request or the location of the information is received.

If an employee has previously made a SAR, the employer is only obliged to respond if a suitable interval has passed since the previous request. What is ‘suitable’ will depend on the circumstances, for example, if the nature of the data requested has changed or if the reason for making the request has changed.

Obtaining the Data

Once a request has been received, it is incumbent on the employer to locate the data, which can be a daunting task.  Personal Data can be found in a variety of sources including:

  • Databases
  • Word processing systems
  • E-mails
  • CCTV records
  • Telephone records both for landline and mobile phones
  • Internet logs
  • Automated payroll systems
  • Records of automated door entry systems such as swipe cards
  • Computer hard drives as well as intranet or document management systems.

If data has been deleted but is technically recoverable, it may still fall within the scope of the request. Employers will almost certainly need to ask IT staff to search company systems and individual hard drives, and may need to provide guidance on global searching of e-mails and word-processed documents to relevant staff members to ensure appropriate searches are undertaken to identify relevant data.

What information should be provided in response to a Subject Access Request?

The information provided in response to a SAR should be in a permanent form (i.e. paper) unless that would be too onerous in which case it may be easier to provide it on a CD.

When disclosing data pursuant to a SAR, the employer must not disclose information identifying any third party as that would breach that person’s rights under the Data Protection Act 1998, unless:

  • The third party agrees for the information to be disclosed, or
  • It is reasonable to comply with the request without the third party’s consent.

The third party’s identity is disclosed if they can be identified either from the information provided, or from that information and other information likely to be in the possession of the individual making the SAR.

What data is exempt from a Subject Access Request?

  • Personal Data held for personal, family or household affairs including recreational purposes.
  • Confidential references given by an employer for employment or educational purposes. References received by an employer are not exempt.
  • Personal Data processed in connection with management forecasting or planning to the extent that complying with a request would prejudice the conduct of the business.
  • Personal Data consisting of records of intentions in relation to negotiations between an employer and employee to the extent that the request would be likely to prejudice the negotiations.
  • Personal Data subject to legal privilege.
  • Health records where disclosure would be likely to cause serious harm to the physical or mental health of the person making the SAR or any other person.

What can I do if my employer will not comply with my request?

  • Make a request to the Information Commissioner’s Office to ask the Information Commissioner to carry out an assessment to determine if the request was complied with and if necessary, for an order for the employer to comply with the SAR.
  • Make an application to the court to seek an order for your employer to comply.
  • Claim for damages against your employer.

An employer will have a defence to a claim that it has failed to comply with a SAR if it can show that it acted reasonably and proportionately in dealing with the request.

 

WHISTLEBLOWING

Overview

Whistleblowing and the protection afforded to those who whistleblow in good faith is vital. For an employer it is important to uncover dangerous practices or wrongdoing in the workplace. For a worker it is important that they understand they are protected against reprisals from other members of staff should they report an incident or practice.  The protections afforded by whistleblowing legislation are designed to encourage workers to have the confidence to come forward.

Should an individual believe that he has suffered a detriment as a result of reporting workplace malpractice he may wish to bring a claim.

In order to be afforded the protection of the legislation, an individual must be a worker (i.e. not self employed) and must show there was a ‘qualifying disclosure’, and that it was a ‘protected disclosure’.

What is a qualifying disclosure?

The information disclosed must be more than mere allegation or a statement, it must convey facts.  A disclosure can be made verbally or in writing.

The information disclosed by the whistleblower to his employer (or to an outside party in exceptional circumstances), must be in relation to events he reasonably believes are occurring, have occurred or are likely to occur in the future, and must relate to:

  • A criminal offence;
  • Breach of any legal obligation;
  • A miscarriage of justice;
  • Danger to the health and safety of any individual;
  • Damage to the environment; or
  • The deliberate concealing of information about any of the above.

 What is a protected disclosure?

In order to be protected the disclosure must be made in good faith. Generally, the disclosure should be made to the individual’s employer.  However there are certain circumstances where the disclosure will be protected if disclosed to one of the following:

  • Responsible third parties – an individual can report to a third party without informing his employer if he reasonably believes that a third party (such as a client or supplier) is responsible for the wrongdoing.
  • Prescribed persons – the law lists “prescribed persons” to whom disclosures can be made, without the individual informing his employer if he believes the information is substantially true and concerns a matter within that prescribed person’s area of responsibility. These include: HMRC, the Health and Safety Executive and the Office of Fair Trading.
  • Government ministers – if the individual is employed by a person or body appointed under statute, he can report information to the relevant minister.
  • Legal advisers – matters can be disclosed to legal advisers in the course of obtaining advice.
  • Wider disclosure – disclosure to anyone else is only protected if the whistleblower acts reasonably, believes the information is substantially true, acts in good faith, and not for gain. Unless the matter is “exceptionally serious”, the whistleblower must have already disclosed it to his employer or a prescribed person, or believe that, if he does, evidence would be destroyed or he would suffer reprisals.

What protection is given to whistleblowers?

It is unlawful to subject any worker to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects) because he has made a protected disclosure.  If an individual is dismissed (including by reason of redundancy) following a disclosure, a claim under whistleblowing legislation is a real risk.  It is worth considering this, and if appropriate, addressing the situation in advance of any dismissal to minimise risk.

If you have made a protected disclosure and have subsequently been dismissed or made redundant as a result, the dismissal or redundancy will automatically be unfair and you may be entitled to bring a claim to the Employment Tribunal.

There is no financial cap on compensation that can be awarded in whistleblowing claims, and no requirement for a minimum period of service.

 

ACAS CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE PROCEDURES

Overview

The ACAS Code of Practice on Disciplinary and Grievance Procedures provides a legal framework in order to help both employees and employers deal effectively with grievances and disciplinary issues within the work place, particularly in cases where informal remedies have proved unsuccessful.

Why is it important to follow the ACAS Code of Practice?

If a grievance cannot be dealt with internally and a claim is brought in the Employment Tribunal, the Tribunal will consider whether the Code of Practice was followed adequately by both parties. Failure to do so may affect the level of compensation awarded in certain types of claims, including unfair dismissal, discrimination and breach of contract.

For example, if a claim is successful, but the employee has not followed the Code of Practice, any compensation awarded can be reduced by up to 25%. Conversely, if a claim is successful and the employer did not comply with the Code of Practice, compensation may be increased by up to 25%.

Time Limits

Employees must normally present claims to the Employment Tribunal within 3 months less one day of the date when the act complained of, or the dismissal, occurred.

Checklist for Employers

  • Make sure grievance procedures are transparent and accessible to employees.
  • Where practicable, consult the workforce and their representatives on the content of your grievance procedures.
  • Train managers how to handle grievances effectively, when to involve HR, and how to spot when there may be a potential legal claim.
  • Encourage managers to resolve issues pro-actively and informally before they reach the formal grievance stage.
  • Hold a meeting with an aggrieved employee to enable him put his side of the story before investigating. Then hold another meeting with the employee to discuss investigative findings before making a decision.
  • Handle appeals appropriately.
  • Keep written records, including minutes of meetings.
  • Communicate decisions effectively and promptly, setting out reasons.

Checklist for Employees

  • Seek to resolve matters informally but, if this is not possible, do not delay unreasonably before submitting a formal written grievance.
  • Make every effort to attend meetings and consider bringing a Companion.
  • Submit a written appeal if you are not satisfied with the outcome and set out the reasons why you are not satisfied.
  • Be aware of the time limit for bringing an Employment Tribunal claim if the appeal is not successful or if your employer does not resolve it promptly.

How can Magrath LLP help?

Our specialist employment lawyers advise employers and employees on all aspects of managing the employment relationship.  We are experts in advising on the resolution of workplace disputes and can assist employers introducing and operating fair grievance and complaints procedures.  We advise on all aspects of managing the employment relationship from workplace mediation through to bringing and defending claims in the Employment Tribunal, Employment Appeal Tribunal and High Court.

If you would like advice in respect of these or any other issues, please contact: