Unhappy at work? Overloaded with tasks and drowning under the pressure? Found out that a junior colleague or person of a different sex is being paid more than you? Line manager singling you out for personal attacks or bullying you? Even worse, you have tried raising your concerns informally, but no one seems to be listening?
Maybe you are facing a disciplinary or capability procedure that you believe is being carried out for unfair or discriminatory reasons and in an unfair way. What should you do?
First, take a deep breath.
Often the first thing clients say is, “I want to resign and take my employer to a Tribunal.” In the heat of the moment that’s entirely understandable. For many reasons, however, it is not the best immediate solution (even if it is ultimately the only one). The very first thing you need to do is to go through your employer’s internal grievance process.
The grievance process is a formal way to raise a problem or complaint with your employer, ensuring they are aware of your concerns and have the chance to put them right. Even if you believe that the situation cannot possibly be resolved without going to court, Employment Tribunals will expect you to have gone through the grievance process first and given your employer the opportunity to resolve the dispute.
There should be information about the grievance process in your Staff Handbook or in a separate document to your contract, but if your employer doesn’t have a documented process, they should act in accordance with the ACAS code.
You should try and be helpful within the grievance process, answering any questions or requests quickly. It may feel unpleasant to have to negotiate like this (and see our caveat below, if you are facing a serious situation) but it’s important that the Tribunal don’t see you as someone who isn’t willing to compromise and find a solution.
So what’s the best way to go about it?
How to Raise a Grievance
The first step is to write a letter or email setting out your complaint.
Explaining your problem can be difficult, and it may upset you to go over all the details in writing. It can help to write it down and then ask a friend to look over it to see if you’ve expressed yourself clearly. After all, you may eventually want to use your grievance letter in Tribunal proceedings, so think of how you can make it professional enough to become part of your evidence.
In general, our advice is:
• Keep to the facts; don’t make allegations or accusations you cannot prove
• Concentrate on the exact issue and don’t confuse the issue by straying into other complaints or opinions.
• Set out events in chronological order. Include the date and time of incidents, where they occurred, the names of people involved, and names of any witnesses, as much as you are able. Also provide any evidence you have, such as emails, notes, photographs or text messages.
• If your complaint relates to salary or wages, set out clearly how much you are owed and why.
• Don’t use abusive or offensive language
• It’s good to explain how the situation has made you feel, but try not to be too emotive.
• If you tried to seek out an informal solution, explain what happened.
• Advise your employer on what solution you would prefer, but be realistic. They probably won’t dismiss a person who is causing you problems, but they may be prepared to consider moving one of you to a different site or a different team.
If it is helpful you can use, or adapt the following wording:
Draft Grievance Letter
Dear (name of employer/HR manager/line manager)
I write to raise a formal grievance about several matters about which I am extremely concerned, as follows:
[Provide details of your complaint]
[Optional] I have already raised this issue informally with [give details- again, names, dates, times, and what response there was, if any]
[Optional] I have evidence in the form of [give details- payslips, emails etc].
[Optional] I would be grateful if you could resolve it by the following action [give details, for instance “to be paid on time in the future, in accordance with my contract.”
I therefore look forward to hearing from you with a date and time for the grievance hearing.
Who should I send my grievance to?
Your Employee Handbook will provide this information, but if not, then send it to your line manager or HR manager.
If you work for a very small company you may be raising your grievance with the very person who is responsible for the problem. There is no getting round this, but you can ask for the process to be carried out by an external party (such as an HR firm) and a Tribunal would usually consider that to be a fair request.
Keep a copy of your email or letter somewhere it can be easily accessed.
What happens next?
Your employer should respond to your letter and set out the next steps, which will involve investigating your allegations, and then conducting a “hearing” with you and anyone involved in your grievance, at which they will decide how to respond.
Do I have to go to the hearing alone?
It can be very helpful to have another person with you, as a grievance hearing can be an emotional experience, and you may not take in everything that is said or discussed. There are rules, however, as to who that person can be.
Under the ACAS code, you are permitted to bring a colleague or Union representative, and if your employer refuses that is something that could count against them. However, you are not allowed to bring any one else – including a solicitor – although if you ask in advance, and have a good reason, some employers may agree. It is entirely up to them.
Bear in mind that the role of that person is NOT to argue on your behalf or take part in the grievance. They are there only to witness the hearing and should remain silent, although they are allowed to take notes.
Should I raise a grievance if I am off sick?
We are often asked this question however whether an employee is well enough to participate in a grievance process is a medical question, not a legal one. So, you should ask your GP or other medical adviser this question. However, if at all possible, even if you are signed as unfit to work you should try and progress your complaint. Firstly, because there may be time limitation issues concerning your potential claims but also because in our experience health and wellbeing is often helped and improved by progressing matters with your employer and ideally resolving the issues, even if this means that your employment is ended, either under agreed terms or because you decide to resign and pursue your claims especially if you are not well due to work related stress. You can be unfit to work but still fit to attend grievance hearings, so check with your GP and take their advice. We always advise clients to ensure they have both legal and medical/emotional support when raising complaints at work.
What if my grievance is not resolved?
If the outcome is unsatisfactory, you should be given permission to appeal the decision. Your employer should ask someone else to hear that appeal, rather than the original individual or panel.
Often, however, the outcome will remain the same and it will then be for you to decide whether to make a Tribunal claim. You may want to take legal advice in making that decision.
If you have raised a formal grievance and it isn’t adequately dealt with (or dealt with at all) that will form a strong part of any Tribunal claim you make against your employer.
Finally, remember that the grievance process (which can take some time, depending on the employer’s competence and willingness to engage) does not “stop the clock” on taking legal action. Bear in mind that the last event you are complaining of is the start of your “claim” and you have three months from that date in which to apply to the Employment Tribunal (plus any time spent in conciliation through ACAS).
Caveat – Serious/immediate concerns
What if the problem is too immediate and important to be raised informally – a colleague making an unwelcome sexual advance, racist abuse, a serious health and safety failure? In that case, it may not be possible for you to return to the workplace, and if your mental or physical health have been affected you may need to be signed off. It is a judgment call as to whether you should resign and claim constructive dismissal (i.e. that you had no choice but to leave), or to raise a grievance. You may, for instance, find it impossible to attend a grievance hearing with someone who has sexually harassed you. A Tribunal should not penalise you for failing to follow the grievance procedure if you have genuine and compelling reasons for not doing so.
If you do decide to resign, make absolutely clear in your resignation letter the reasons why you are taking that action and that you consider yourself to have been “constructively dismissed” on the grounds that your employer has broken the terms of trust and confidence you have in them by not protecting you from serious detriment.
The grievance process is an important part of employment law and even if it does not achieve a resolution, it can help you make a successful claim by setting out the basis of your claim clearly and showing the tribunal you have taken every step to try and resolve the matter internally, before taking it to ACAS and the Tribunal. Any potential damages you receive as a result of a claim may be reduced by up to 25% and likewise if your employer fails to participate or conduct the hearing fairly it may be increased by 25%. It is therefore vital to take this step and participate fully.
Our solicitors are always on hand to give you friendly, professional advice. Please contact Zoe on 0203 858 9765 or email email@example.com. Mulberry’s has offices in Brighton and London.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.