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Grievance
[ch 10: pages 318-319]Employees should generally follow their employer’s grievance procedure before resigning and claiming constructive dismissal. Reps should also pay close attention to the Acas Code of Practice on disciplinary and grievance procedures. The Code, along with supporting Guidance, can be downloaded from the Acas website.
Unjustified failure by either side to follow the Acas Code can result in an increase or cut to compensation of up to 25%.
Employers often have other more specific procedures in place to deal with particular types of complaint, such as those involving bullying, harassment or whistleblowing. Where a procedure is available, both sides should follow it.
The Acas Code on grievance procedures
• Here are the most important features of the Code:
• the employee should set out their grievance in writing;
• the employer should arrange a meeting to discuss it;
• the employee should make every effort to attend;
• the employee has the right to be accompanied by their chosen companion, who can be a union rep or existing work colleague;
• both sides must avoid unreasonable delay;
• employers must act consistently;
• employers must carry out all necessary investigations to establish the facts;
• employees must be given the right to appeal; and
• employees should be given a copy of the meeting record and any minutes.
For more information, see the LRD booklet, Disciplinary and grievance procedures — a practical guide for union reps, updated in 2015 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1790).
Serious failure to investigate a grievance can be a fundamental breach of the duty of mutual trust and confidence. Every employee has an implied fundamental right to have their grievance properly dealt with (W A Goold (Pearmak) v McConnell [1995] IRLR 516). It is important to take legal advice and to watch out for time limits.
A claim for constructive unfair dismissal must be launched within three months of the resignation date, whether or not the grievance process has been completed, and regardless of whether any appeal is still outstanding.
An employee who resigns (constructive dismissal) with “immediate effect” in response to a fundamental breach of contract will bring the employment contract to an end straightaway. There is no need for the resignation to be accepted by the employer for it to be effective. For example, in Secretary of State for Justice v Hibbert [2013] UKEAT/0289/13/GE, an employee wrote to her employer, using the words “I have no alternative but to resign”. The EAT said the effect of these words was to bring the contract to an end immediately.
A tribunal has discretion to extend time where it was not reasonably practicable to issue the claim in time, but the fact that the employee delayed because a grievance process had not been completed is not regarded by tribunals as a good excuse for missing the deadline for an unfair dismissal claim. (See: Extending time to bring a dismissal claim on page 348).