The Statutory Grievance Procedure

by Joanne Stronach

When the Government introduced the SGP their overriding aim was to resolve disputes within the workplace thereby reducing the number of Tribunal proceedings.  However, recognising that these procedures actually formalise disputes rather than dissipating them, the Government has now commenced a review of the procedures.  Commentators have indicated that greater use of ACAS and other mediation services would be a better way to achieve the Government’s aims but for the moment, employers must be aware of, and ensure that they use, the grievance procedure whenever employees raise a written complaint.

Since 1 October 2004, the statutory grievance procedure has been implied into every contract of employment meaning that all employee complaints must be dealt with in a specified manner.  The other side of the coin is that, apart from some rare exceptions (for example, where an employee is in fear of violence or will be subject to harassment), failure by an employee to comply with the SGP will result in him or her not being able to present a complaint to the Employment Tribunal.

Although the consequences of failing to follow the procedures are harsh for the employee, there are actually financial consequences for both parties if any step in the procedure is missed.  As a general rule, if the employer has failed to complete the procedure, then the Employment Tribunal must increase any award of compensation made in favour of the employee by between 10% and 50%.  Conversely, if it is the employee who has failed to complete a step in the procedure the Tribunal must reduce any award made in favour of the employee by between 10% and 50%. 

The SGP, like the statutory disciplinary and dismissal procedures, includes both a standard and a modified procedure.

Standard Procedure

The standard procedure should be used in most circumstances and has 3 obligatory steps:

1. The employee must write to the employer setting out the nature of the alleged grievance in writing.

2. The employer must invite the employee to a meeting to discuss the complaint.  Following the meeting, the employer must write to the employee advising them of the decision in relation to the complaint and notifying the employee of their right to appeal.

3. If the employee wishes to appeal, the employer must invite the employee to a further meeting, which should be heard by a more senior manager if possible.  After the appeal meeting, the employer must inform the employee of the decision in writing which is final.

Modified Grievance Procedure

This procedure should be used only when the employee is no longer employed by the employer and can only be used if both parties agree to it.

The modified procedure requires the following two mandatory steps:

1. The employee must write to the employer setting out the nature of their alleged grievance in writing.

2. The employer must consider the grievance and respond to it in writing.

On the face of it, these procedures should not provide too much difficulty but the last two years have seen an abundance of cases exploring exactly what is required from both parties in order to comply.  The most controversial of these issues (and the one generating the most case law) has been the required format of the employee’s initial written grievance.  The outcome of this case law has been that employers should consider any form of written complaint as a grievance.  The employee does not need to submit a specific grievance letter and can make a grievance from a throw away comment in any document.  Emails are particularly dangerous but also any documentation completed by way of an exit interview or employee survey or resignation letter. 

Employers need to be careful as the complaint may not specifically be worded as such.  The words “unhappy about”, “disappointed by” and “distressed by” should all be viewed as warning signs.  Employers must also be careful not to focus just on complaint words but should take a more general view of the nature of the correspondence.  As a rule of thumb, if in doubt, treat the matter as a grievance.  Following the procedure will do you no harm whilst a failure to do so could lead to a significant financial penalty.

Far from simplifying the handling of complaints the SPG merely makes dealing with complaints more formal, difficult and more bureaucratic for both parties.  It is to be hoped that the review will show that simplifying the procedure is the only way forward.  While we wait for this change, employers must continue to ensure that they are familiar with the procedures and should remain vigilant – being on the look out for potential complaints is the only real way to ensure full compliance.

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Mar 2007