This week the experts, Martin Brewer and Esther Smith consider what an employer needs to do to respond to a grievance raised by an employee - and in what timeframe?
The question: Grievance response time - how long do we have?
If you raise a grievance with your employer, how long do they have to respond? If they do not respond, what are the employee’s options?
Martin Brewer, partner, Mills & Reeve
Since the abolition of the statutory grievance and disciplinary procedures, there is no longer any statute law on dealing with grievances. However, in 2009, ACAS produced a Code of Practice and guidance for employers on handling grievances and disciplinaries.
In relation to grievances, the Code says that the employer should hold a grievance meeting "without unreasonable delay" following receipt of the grievance and everyone concerned should "make every effort to attend". The guidance, which accompanies the Code, is a little more explicit and says that employers should try to deal with grievances informally if possible, but if that's not possible, and a formal approach is necessary, then the employer must deal with the matter promptly, act consistently, hold a meeting to establish what the grievance is about, investigate the grievance, decide on appropriate action and allow an appeal if the employee doesn't think the grievance has been resolved. All of this is to be done without unreasonable delay.
Of course, most employers have a written grievance procedure and must follow that (but bear in mind the ACAS guidance).
If your employer fails to do some or all of this you could raise three possible arguments. The first is dependent on what is in your contract. If there is a contractual grievance procedure or if there is a term in your contract that says something like the employer will deal with grievances promptly or appropriately, and it doesn't, then you can argue that there is a breach of an express term. However, if you haven't suffered any financial loss it would be a rather pointless claim. Second, if there's nothing in your contract and no contractual procedure, you could argue that there is an implied term in your contract that the employer will deal promptly and reasonably with your grievance and has failed to do so. Again, in the absence of financial loss it is difficult to understand the point of such a claim. Finally there is the 'nuclear' option. If your employer has behaved so badly in failing to deal with your serious complaints that you want to leave, you could argue that the failure to deal properly with the grievance is not just a breach of an implied or express term about grievances, but is also a breach of trust and confidence entitling you to treat yourself as dismissed and claim constructive unfair dismissal. This is a big step and a difficult claim to make out, so do take detailed advice if you are considering this option.
Esther Smith, partner, Thomas Eggar
As there is no statutorily prescribed grievance procedure, the time frame to be complied with by an employer will either be that prescribed by their own internal procedures or alternatively a 'reasonable' time frame. What is reasonable will depend on the circumstances of each situation, the nature of the grievance raised, the level of investigation required by the employer, the absence of any relevant people for any reason etc.
If an employer does not reply to the grievance within the prescribed time frames of their own policy, or an employee feels their response is outside of a reasonable time period, the employee should raise this as and when the company does respond.
However if the employer fails to respond at all, the employee would be best advised to raise their grievance higher within the company. It is very rare in my experience for absolutely no one in the business to be concerned about what an employee is complaining about, even if the direct line manager is not interest. Ultimately the employee’s sanction if the employer continues to ignore the grievance, would be to resign and claim constructive dismissal (assuming they have a year’s service) but there may be other remedies depending on the nature of the grievance being raised. Advice should be sought on a specific situation, and always before an employee takes the step of resigning from their position.
Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.