- All employees must have a written statement of terms and conditions of employment which must contain certain information about grievances, namely with whom and how a grievance should be raised, but which can refer the employee to some other easily accessible document for information on any "further steps".
- Case law indicates that an employer has an implied duty to "reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance".
- The Acas Code of Practice on Disciplinary and Grievance Procedures provides basic practical guidance to employers, employees and their representatives and sets out principles for handling grievance situations in the workplace. Written grievance procedures, and grievance proceedings, should comply with the code.
- Although a failure to follow the code does not make an employer liable to legal proceedings in itself, employment tribunals will take the code into account when considering relevant cases.
- Many grievance issues can be resolved informally with a quiet word. However, where informal resolution is not possible, a grievance procedure should set out the appropriate way for an employee to raise the issue with management formally.
- A grievance procedure should allow for a right of appeal in case an employee feels their grievance has not been satisfactorily resolved.
- Employees (and workers) have the statutory right to be accompanied by a fellow worker or trade union official when they attend any formal disciplinary or grievance hearing.
The Advisory, Conciliation and Arbitration Service (Acas) has issued guidance on the best practise for dealing with disciplinary and grievance procedures in cases that may arise during the coronavirus pandemic.
Usual rules surrounding the right to be accompanied, the right to appeal and the right to bring a claim to the employment tribunal for unfair dismissal apply.
Going ahead with the procedure
Organisations should first decide if it’s fair and reasonable to carry on with a procedure while:
- people are on temporary leave because of coronavirus - for example, furloughed
- social distancing and other public health guidelines are being followed
- people are working remotely, meaning the procedure would have to be carried out remotely.
Any procedure needs to follow public health guidelines around social distancing and closing of certain business premises. Organisations will need to consider the health and wellbeing of employees, given that these procedures in normal times can be stressful.
Management should discuss options with everyone involved before making decisions on whether the procedure should proceed. This decision should also be clearly outlined to everyone. If the procedure is to take place in the workplace, it should be considered whether it can still be carried out in a way that is compliant with public health guidelines.
If some staff involved are either remotely working or furloughed, organisations should consider if the procedure would still be fair and if anyone would have a reasonable objection to it going ahead.
Participation of furloughed staff
Someone can still raise a grievance if they have been furloughed, but it is up to the organisation to determine if they can still carry out a fair grievance procedure.
Furloughed staff can take part in a disciplinary or grievance investigation meeting and/or hearing, such as if they are
- under investigation themselves
- the one who raised the grievance
- chairing the hearing
- taking notes at the hearing or in an investigation meeting
- being interviewed as part of an investigation
- a witness
- an employee’s companion
They must, however, be voluntarily doing this and this must be done in line with the current public health guidance.
Holding video conferences
If the procedure will involve video meetings, organisations should also consider:
- if everyone has access to the appropriate technology, including the internet
- if anyone has a condition or disability that may impact upon their use of this
- if any evidence or statements will be able to be clearly seen and fairly assessed
- if it will be possible to consider all evidence necessary
- if it is possible for the right to be accompanied to still be allowed.
Video meetings should only be recorded if this is done in line with data protection law.
Right to be accompanied
The companion must still be able to put and sum up the case, respond on behalf of the employee and talk privately with them. Usual rules surrounding their being unable to attend the meeting apply, however the coronavirus pandemic may impact upon availability. In this case, organisations should consider how long they should reasonably delay.