Introduction
The ACAS Code of Practice on disciplinary and grievance procedures (the Code), which came into effect on 6 April 2009, introduced a simplified framework for dealing with grievances raised by employees. The previous statutory grievance procedure was abolished with effect from 6 April 2009.
Failure to follow the code
The Code has statutory force and, therefore, the Employment Tribunal is required to consider if the Code has been followed, when determining certain claims. The Employment Tribunal has discretion to increase or decrease compensation awards by up to 25 per cent if it finds that a party has unreasonably failed to follow the Code.
The code
Below is a summary of the main provisions of the Code (and the supporting guidance published by ACAS):
- The employee should let the employer know the nature of the grievance– this should be done informally, or if it is not possible to resolve the grievance informally, this should be done formally in writing. Once an employer has been given a written grievance, this must be treated as triggering the grievance procedure in the Code, even if the employee states that the grievance is being raised informally.
- The employer should hold a formal meeting with the employee to discuss the grievance – this should be done without unreasonable delay (ideally within five working days) and the employee should be allowed, on request, to be accompanied at the meeting by an appropriate person (e.g. a fellow worker or a trade union representative / official). Note that there the statutory right to be accompanied applies to formal grievance hearings and appeals only, and not to investigatory meetings. However, it is best practice to allow the employee to be accompanied at investigatory meetings too. The companion should be allowed to address the hearing to explain and sum up the employee's case, but not answer questions on their behalf. The employee, or companion, should be invited to provide suggestions as to how the issue can be resolved.
- The employer should decide on appropriate action – the decision should be communicated to the employee in writing, without unreasonable delay, setting out the action to be taken to resolve the grievance. The sample grievance procedures produced by ACAS recommend that a decision is communicated to the employee within 24 hours of the grievance meeting (although in many cases this will not be practicable, especially where further investigation or enquiries are necessary).
- The employer should provide the employee with a means to take the grievance further by way of appeal if not resolved – appeals should be heard without unreasonable delay, following a request in writing. Wherever possible, the appeal should be heard by a manager who has not previously been involved in the case. Employees should be allowed to be accompanied at any appeal hearing and the outcome of the appeal should be communicated to the employee in writing without unreasonable delay. The sample grievance procedures produced by ACAS recommend that decisions are communicated to the employee within 24 hours of the grievance meeting (although, again, this will often not be practicable).
The following circumstances require further mention:
- Cases where the employee does not follow the Code - As noted previously, parties who do not follow the Code run the risk of having its provisions taken into account to their disadvantage when employment tribunals determine claims. It is not clear how an employer should react where the employee does not follow part or all of the Code. It is recommended that the employer should strive to comply with the spirit of the Code as much as possible to avoid any risk of increased compensation awards, should an employment tribunal claim be successful.
- Grievances raised by workers who do not meet the criteria for being an ‘employee’ – the Code applies only to those who are ‘employees’ in the legal sense i.e. those who are employed under a contract of employment. Hence, grievances made by workers who are classified as independent contractors do not have to be handled in accordance with the Code, although it would be good practice to do so. However, note that the statutory right to be accompanied does extend to workers, and this is reflected in the Code. Where an employer is unsure whether an individual is an employee or not, it is recommended that the Code is followed. Bear in mind the risk that a 'blanket' application of company grievance procedures to all staff, including workers, may bring into question their employment status (as being subject to internal procedures of this type is sometimes seen as an indicator that the individual is an employee). If in doubt, please contact your HR Rely advisor.
- Collective grievances – the Code does not apply to grievances raised on behalf of two or more employees by a trade union or other appropriate workplace representative. These grievances should be handled in accordance with the employer's collective grievance process. It is unclear how an employer should proceed where such a process does not exist and, as such, the employer is advised to follow the Code.
- Former employees – There is no explicit requirement in the ACAS Code to follow a grievance procedure in cases involving former employees (for example grievances in relation to alleged post-termination victimisation). There are no reported cases clarifying whether failing to follow the Acas code in respect of a former employee would be considered a breach. However, is it not uncommon for a departing employee to raise grievance issues in their resignation letter. Seeking to resolve any issues at this stage may avoid a time-consuming and costly constructive dismissal claim later. It is usually possible for an employer to follow an abbreviated grievance procedure where the complainant is no longer employed. Please speak to your HR Rely advisor if you are unsure.
- Grievances against third parties who are not under the employer’s control – this may be a grievance in respect of a client or customer (for instance where an employee is working on another employer's site). These should be treated in the same way as grievances within the organisation. The employer should make it clear to any third party that grievances are taken seriously and action will be taken to protect their employees.
- Bullying and harassment – The Code notes that employers may wish to deal with issues involving bullying, harassment or whistleblowing under a separate procedure, for which ACAS have published separate guidance.
- Grievances raised during the disciplinary process - Where an employee raises a grievance during a disciplinary process, the Code states that the disciplinary process may be temporarily suspended in order to deal with the grievance. The Code states also that where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently. The employer is advised to follow the Code in all cases. If the employee raises a grievance after the disciplinary meeting, but before the disciplinary appeal meeting, it will be appropriate in most cases for the grievance and appeal to be dealt with simultaneously.