Employment Webinar

The grievance process, workplace disputes and the use of mediation

An introduction to the legal framework

The legal framework for handling a grievance

• ACAS Code of Practice

• Abolition of ‘inappropriately inflexible’ SDRPs

• Best practice guide

• Contractual implied duties (WA Goold (Pearmak) Ltd v McConnell)

Identifying and handling a grievance

Identifying a grievance

• “Concerns, problems or complaints” (para 1, Code)

• Broader than merely contractual or statutory rights

• Code examples: – Terms of employment– Work relations, bullying, harassment etc– New working practices or organisational changes

Forms of grievance

• Verbal or written

• May be raised by employee, or someone else on his/her behalf– Former employees?– Collective grievances

• Need not state it is a grievance (e.g. resignation letter, request for flexible work arrangements, equality questionnaires)

• May be raised by employee, or someone else on his/her behalf

Failure to raise / handle a grievance in accordance with the Code

• Code’s admissibility in ET proceedings / ETs’ obligation to take into account where relevant

• No bar to an employment claim

• Time limits unaffected

• An upward or downward award adjustment– To compensation in respect of virtually all tribunal claims – Unreasonable breach of the Code– Adjustment is just and equitable in the circumstances– 0 – 25%

The Code’s procedure for handling a grievance

• Employees to seek informal resolution – Code requirement?

• Formal written grievance

• Meeting

• Appeal

• Six overarching principles of fairness

• Five key steps

General principles of fairness

• Promptness

• Consistency

• Investigation

• Provide information and opportunity to respond

• Right to be accompanied

• Appeal

key steps in handling grievances

• Employee: – Inform employer of nature of the grievance– Every effort to attend meeting

• Employer: – Convene a meeting and discuss grievance – Allow employee to be accompanied– Decide appropriate action– Allow an appeal

• Records keeping

The right to appeal

• Employee to inform employer of grounds of appeal

• Appeal to be heard without unreasonable delay

• To be dealt with impartially, ideally by a manager not previously involved

• Right to be accompanied

• Employer to notify decision without unreasonable delay

Special scenarios - pointers

• Overlapping grievance and disciplinary cases– Employer’s discretion how to proceed

• Grievance about a colleague– Risk of investigation turning into a disciplinary meeting– Confidentiality

Special scenarios - pointers

• Agreeing procedures with employees and / or their representatives

• Alternative dispute resolution methods

Privilege & mediation

Privilege

• Exposure through investigation

• Legal liability

• Documents created during course of investigation

• Grievance report

• Documents circulated internally

Privilege

• Use of external investigators

• Use of lawyers

• What is the role of the third party?

• Is there a dispute?

• Are the documents created in contemplation of legal proceedings?

Golden Rules

• Assume everything is discoverable

• Do not guarantee confidentiality

• Do not extract and circulate legal advice

Mediation

Pros

Private

Relatively cheap

Freedom of settlement terms

Speed

Cons

No “day in court”

Entire costs including claimant’s

All about the cheque book

Must be voluntary

Judicial Mediation

• More like a day in court

• Adversarial approach

• Exclusive attention of the Judge

• Free