Understanding Formal Grievances in the Workplace

Raising a Formal Grievance

What is a Formal Grievance

A formal grievance is defined by the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) as "concerns, problems or complaints that employees raise with their employers". It serves as a structured, internal process for addressing workplace issues that cannot be resolved informally.

Grievance Meaning

A grievance, as defined by the Acas Code of Practice on Disciplinary and Grievance Procedures, refers to "concerns, problems or complaints that employees raise with their employers".

The Debate

The role of formal grievance procedures in workplace disputes is a subject of considerable debate among employment law experts. While some advocate for their benefits as an internal mechanism for resolution, others argue they often escalate rather than mitigate conflict, pushing parties towards litigation. This article explores the pros and cons of raising a formal grievance and outlines circumstances in which an employee might consider bypassing the formal process or proceeding directly to an Employment Tribunal.

The Case for Formal Grievances

The formal grievance processes generally serve a beneficial purpose. A formal grievance as a "halfway house" between informal discussion and the more formal processes involving external parties, such as mediation or employment tribunals.

Key advantages and benefits of a formal grievance

• Internal Resolution Opportunity: A formal grievance does not prevent subsequent mediation or litigation; instead, it can be a valuable preliminary step before external parties become involved. It represents a final chance for parties to resolve matters themselves, particularly if an ongoing employment relationship is desired. Most grievances, are resolved without legal involvement, with only the "intractable ones" reaching legal professionals.

• Employee Voice and Non-Legal Solutions: It allows the individual to explain in their own terms what is bothering them, without a lawyer translating their concern into a legal complaint. This can increase common ground and lead to solutions not necessarily constrained by legal remedies. The process offers the employer an opportunity to consider solutions that may not be strictly legal, such as recognising an employee's contribution, offering an apology, or a simple thank you.

• Enhanced Understanding: The act of listening and responding during a grievance hearing can foster greater understanding between parties, which might be sufficient to resolve the issue.

• Employee Control: It is seen as the "last stage where the employee is asked to speak for themselves without their lawyer present," allowing direct dialogue between the employee and employer, similar to mediation but without an external party. This direct communication may reveal that an employee's true objectives are more reasonable than a lawyer's legal framing of the case.

• Support Available: Employees can bring a trade union official or work colleague to the hearing, so they are not alone. Employers are also generally aware that showing hostility towards an employee for lodging a grievance would be "very unwise".

• ACAS Code of Practice: The Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) defines grievances as "concerns, problems or complaints that employees raise with their employers". This can include issues such as terms and conditions, health and safety, work relations, bullying, harassment, new working practices, working environment, organisational change, and discrimination. The Acas Code is intended to provide practical guidance and sets out the "standard of reasonable behaviour" for both parties when a grievance cannot be resolved informally. Employers should acknowledge receipt of a written grievance, invite the employee to an initial meeting, and advise them of available support. A properly conducted investigation, which is a fact-finding exercise, is crucial for making an informed decision.

The Case Against Formal Grievances

A contrasting view, suggesting that grievances often "cement rather than resolve disputes". It is argued that while early resolution is ideal, formal grievances frequently set the stage for conflict rather than resolution.

Disadvantages and harms associated with formal grievances

• Conflict, Not Resolution: Grievances are often limited to detailing what went wrong, without focusing on potential solutions. When lawyers become involved, the grievance is phrased to clarify potential legal claims, compelling the employer to defend themselves without making admissions that could lead to liability. Palmer believes that legal arguments frequently lead to "battle, not resolution," and that solutions are often easier to find without lawyers directly negotiating.

• Rarely Upheld: Palmer's experience over 20 years includes knowing of only one grievance being upheld, and that was when an outside lawyer conducted the investigation. She primarily sees "failed grievances".

• Entrenched Attitudes: Grievances can serve as the "opening shot in the litigation," leading to entrenched attitudes and making subsequent negotiations more difficult. Employees can also incur significant costs during this process.

• Damage to Relationships: Grievances are particularly harmful when they involve allegations of discrimination or whistleblowing, as employers often become defensive. This frequently results in "irretrievable damage" to the employment relationship, with the employee often leaving the company. Employers admit that "the ‘shutters comes down’ when there are discrimination allegations".

• Stress and Time-Consuming: Litigation is described as "uncertain, costly, time consuming, career-limiting and stressful". Palmer advocates for constructive dialogue as a less stressful and time-consuming alternative.

• Confidentiality Issues: While confidentiality is paramount during an investigation, there is no specific right in the Acas Code for an employee to see all interview notes, witness statements, or other evidence. Employers must balance the need for disclosure with data protection obligations to other employees.

• Tactical or Malicious Grievances: Employees might raise grievances as a negotiating tactic or to gain leverage in settlement discussions. There are also instances of "unfounded," "vexatious," or "malicious" grievances, which, while still requiring employer investigation, are not aimed at genuine resolution.

When to Bypass a Formal Grievance or Go Straight to a Tribunal

While the there are differing views on the general utility of grievances (from experience), they also outline specific circumstances where avoiding a formal grievance process or moving towards external resolution might be more appropriate.

Will My Formal Grievance Be Upheld?

In recent times it is hard to imagine an employer will fairly deal with a grievance and admit they have done wrong and open themselves up to liability. There has been an increase in recent times where employers ask Employment Barristers, Solicitors or external HR to conduct the internal grievance procedure - to help insulate any claims that may arise. There is one way to prevent this and that is to have evidence for every allegation you make. Most employee do not realise this. We can help you and guide you through this process.

Circumstances to consider bypassing a formal grievance or going straight to a Tribunal include

Fear of Retaliation or Harm

If an employee is "in fear of harassment, discrimination or bullying," they should not be expected to go through a grievance process.

Failed Informal Attempts

If informal discussions have already failed, or if the employee feels uncomfortable addressing matters informally, then moving towards external options or considering a formal grievance as a stepping stone to external resolution is logical.

ACAS Code Compensation Uplift

A failure to file a grievance could lead to a reduction in compensation under the ACAS Code if the employee subsequently brings certain successful claims and the tribunal finds an unreasonable failure to comply. This suggests that a grievance is often a necessary preliminary step if a Tribunal claim is anticipated. Conversely, a grievance might be a "last resort to persuade an employer to take notice of a complaint" before pursuing a claim.

Employer's Defensive Posture

If the employer is likely to adopt a defensive stance, especially with allegations of discrimination or whistleblowing where "shutters come down," a formal grievance may be counterproductive and further damage the relationship.

Focus on Solutions and Amicable Resolution

Camilla Palmer advocates for "early resolution of workplace issues" and suggests that "airing the issues" (AIR) should be the first step to avoid a dispute. She recommends replacing the formal grievance process with a procedure "more akin to mediation," where solutions are discussed and employees feel listened to. Negotiating without reliance on grievances or aggressive legal threats can achieve "the best result for employees – and employers", being "more likely to be amicable," quicker, cheaper, and less stressful.

Maintaining Working Relationship

If maintaining an ongoing employment relationship is a priority, constructive dialogue and negotiations that focus on solutions are preferred over processes that "cement disputes".

Constructive Dismissal

An employer's failure to provide and implement a grievance procedure, or adequately deal with a grievance, can constitute a breach of an implied contractual term, entitling an employee to resign and claim constructive dismissal. In such cases, the grievance process itself (or its absence/failure) forms the basis of the claim, leading directly to a tribunal after resignation.

Grievances After Employment Has Ended

While there is no explicit requirement to follow the Acas Code for former employees, it is advisable for employers to do so for post-termination grievances. Tribunals may uplift compensation (e.g., up to 25% in the UK) if the employer fails to respond or follow the Code in such cases. If an employer ignores a post-termination grievance, a Tribunal claim would be the natural next step.

Grievances about Pre-Termination Negotiations (Section 111A)

If a grievance is solely about pre-termination negotiations conducted under Section 111A of the Employment Rights Act 1996, evidence of these discussions is generally inadmissible in an unfair dismissal claim unless there was "improper behaviour". While employers can deal with such grievances, they could also refuse to hear them on the basis of inadmissibility, though this carries risks such as a potential compensation uplift for not following the Acas Code or a constructive dismissal claim if it constitutes a repudiatory breach of contract. If the employer refuses to hear the grievance, the employee's recourse is likely directly to a tribunal.

Poorly Conducted Investigations/Decisions

If an employer's investigation into a grievance, particularly concerning discrimination, is inadequate or mishandled, it can itself lead to further discrimination claims. Similarly, an inconsistent approach to disciplinary action arising from a grievance can result in unfair dismissal claims. In these scenarios, the internal grievance process has failed to resolve the issue and instead created new grounds for a tribunal claim.

In essence, while formal grievances provide a structured internal mechanism for addressing workplace concerns, their effectiveness is hotly debated. The decision to raise one or to pursue alternative avenues, including direct recourse to an Employment Tribunal, hinges on the specific circumstances, the nature of the complaint, the employer's likely response, and the desired outcome for the employee.