Where an employee raises what appears to be a formal complaint to their Employer care should be made to establish whether the employee wishes for the issues raised to be dealt with as a formal Grievance under the Employers Grievance Procedure.
All employers should have a grievance procedure available to the employees to raise their concerns and they should follow at least the minimum standard as set out by ACAS in their code of practice.
Often when employees raise issues they simply want them to be addressed on an informal bases and swift and simple resolutions can often be made. However where the employee wishes for the issues raised to be dealt with a formal grievance the employer should take care to ensure that a fair and reasonable process is followed. This may involve carrying out a fair investigation, considering who would be the appropriate people in the organisation to investigate the grievance or chair any subsequent grievance hearings. It is usually not appropriate for the person who may have been the subject of the grievance to be involved in the investigation or overseeing the process or appeal.
Failing to fairly and reasonably address an employees grievance may constitute a fundamental breach of the implied term of trust and confidence and therefore could give rise to a successful constructive dismissal claim.
Grievances can often be difficult to manage and lead to a breakdown in the relationship at work. They can be an opportunity to resolve disputes which might otherwise go to an Employment Tribunal but handled badly can lead to damage to the business and subsequent litigation that could have been avoided.
It is no longer a statutory requirement that an Employee must raise a grievance before lodging a claim at a Tribunal but their failure to do so in some circumstances can give rise to a reduction in damages awarded if they have nt at first tried to resolve the dispute in this way. More recently the process of ACAS Early Conciliation has been introduced and therefore employees are still required to enter the process of Early Conciliation even if it does not result in successful or even useful conciliation taking place.
Care must also be taken if the substance of the complaint could amount to a protected disclosure where the employee is attempting to whistle blow on a breach of a legal obligation, a criminal offence or breach of health and safety. There are specific rules which apply to dealing with protected disclosures and failing to deal with them correctly can lead to uncapped damages for unfair dismissal and significant claims for damages for detriment which may be alleged to have been suffered as a result of making a protected disclosure.
If your organisation receives a complaint from an employee, a formal grievance or if you are contacted by ACAS it is time to seek specialist legal advice. This may serve to protect you against a claim but also could lead to disputes that otherwise may end up in litigation being resolved.
The Biscoes Employment Team can assist Employers put in place an appropriate grievance procedures and assist in the investigating and safely conducting the grievance process.