This article was first published here in March 2021.
When you’re running a small business with a close-knit team, handling grievances can be challenging. Especially if you don’t have a dedicated HR department, the grievance procedure can feel overwhelming, and you might be worried about not doing the right thing or facing a claim which ends in an employment tribunal.
Don’t worry - our employment specialists from FSB Employment Protection explain what’s involved in the grievance procedure for employers, what you need to do and where you can find a template grievance procedure for your business.
Why would an employee raise a formal grievance?
In most cases, concerns or complaints relating to the workplace can be handled informally to reach a resolution. But, depending on the nature of the grievance, this may not always be the case, such as with harassment or discrimination.
An employee has the right to raise a formal grievance at any time, whether they’ve worked for you for two weeks or twenty years, and this triggers your internal grievance procedure.
What is mediation?
Mediation isn’t used when concerns are formally investigated, but it’s sometimes the next step if informal discussions haven’t been successful. An independent third-party will discuss the issue between you and the employee with the aim of both parties agreeing on a way to solve the issue. It can help to improve communication and avoid a more formal process.
What is the grievance procedure?
It’s a formal procedure that aims to resolve the matter through a detailed investigation into the issue by an impartial investigator at a grievance meeting. In some cases, there is also an appeals process. Having the right policies and procedures in place can protect your business.
What process should I follow in response to a grievance from an employee?
ACAS has a Code of Practice relating to disciplinary and grievance procedures as well as step-by-step guidance. There is additional guidance relating to the grievance procedure in Northern Ireland.
Your business should have an internal grievance procedure in writing. The procedure may be set out in full in the employee’s contract of employment (the grievance procedure may be contractual or non-contractual), or the contract may refer the employee to a document where they may find it. The grievance procedure is often included in your employee handbook so your staff and management are aware of the correct procedure too.
Typically, the process involves the following steps:
- The grievance is raised in writing by the employee in line with your procedure.
- As the employer, you must acknowledge receipt of the grievance.
- Information and evidence relating to the concern will then be gathered for an impartial investigator to review. The investigation into the grievance might include obtaining statements from any available witnesses.
- You notify the employee of a grievance hearing in writing. A template letter for notification of grievance meeting is available on the FSB Legal and Business Hub.
- At the end of the grievance hearing, a decision is reached by the investigator and the employee must be informed of this in writing. If it becomes clear at the grievance hearing that further investigation is necessary, the grievance meeting should be adjourned to carry out that further investigation.
- The employee has the right to appeal the decision in writing.
FSB members can contact the 24/7 legal advice line to speak to an employment solicitor for advice and guidance throughout the process. You should always call before you act.
Where can I find a grievance procedure template for my business?
You can find a template grievance procedure document on the FSB Legal and Business Hub.
If the employee has already left my business, do I still have to investigate the grievance?
You don’t have a legal obligation to investigate, but you may wish to do so to avoid any claims and/or for reputational reasons.
Employees and ex-employees generally have three months (minus one day) from the date of dismissal and, for unlawful discrimination claims, three months from the date of the alleged discrimination to bring an employment tribunal claim. If the grievance relates to a matter for which the ex-employee is still in time to bring an employment tribunal claim, then it is often advisable to respond to the grievance in an attempt to resolve it before it becomes a claim (albeit that claimants are required to use ACAS early conciliation (or Early Conciliation via the Labour Relations Agency if employed in Northern Ireland) prior to bringing an employment tribunal claim).
Even if the employee is no longer employed by the employer, a failure to hold a post-termination grievance hearing will risk a 25% uplift to any compensation awarded in the event of a successful employment tribunal claim, so following the grievance procedure will avoid this potential uplift.