I have heard arguments against the need for a formal grievance procedure on a number of occasions, often from those who advise employees. It is much rarer to have similar arguments from those who advise employers or employers themselves.
I would undoubtedly agree with Camilla that if a matter can be resolved informally, without even the need to go to a formal grievance process, that is likely to be much better than a formal process. However, if the employee feels uncomfortable addressing matters on an informal basis, or the informal basis has failed and the employee wishes to pursue the matter, why would there be a disadvantage in a formal grievance process? It represents a halfway house between an informal discussion and the inevitable formality of a process which involves external parties, such as mediation or employment tribunal proceedings.
We are only talking about whether to have an extra stage in the process. A formal grievance does not preclude subsequent mediation or indeed litigation. Equally, as a fan of the benefits of mediation as opposed to litigation for many matters, I would agree that if the parties cannot sort things out between themselves, then mediation often has a valuable role to play. But the issue is whether a formal grievance process also has a role to play, and I believe it should normally form part of the process before external parties become involved.
On the assumption that it is the exception that proves the rule, let me deal with the obvious exception. There are clearly cases where an employee should not be expected to go through a grievance process, such as where he or she is in fear of harassment, discrimination or bullying. This was the problem with the late and unlamented compulsory statutory dismissal and grievance procedure. But in the real world how many times have grievance procedures by themselves resulted in further acts of unpleasantness (to put it as the most general)? The employee can take a trade union official or a work colleague into the hearing, so they are not alone in the process. Most employers, and certainly all of the ones we deal with, would know full well that hostility to an employee as a result of lodging a formal grievance would be very unwise. I can understand that some employees may not want to be seen as confrontational by using a grievance process, but then again, using a lawyer, tribunal (or even a mediator) to ventilate that grievance is more hostile.
I think there are very obvious benefits to an internal grievance process. First the individual is able to explain in their own terms what is bothering them. Naturally, clients will present a complaint or concern to a lawyer who will then usually translate it into something for which the law gives a remedy. A real sense of the grievance may not be equivalent to the legal complaint. In a internal grievance hearing, this split between the grievance and the legal remedy is irrelevant. The individual can say precisely what is bothering them and why. If the parties speak the same language, and are working in the same environment, this increases the degree of common ground from the start. Similarly, the solution is not constrained in any way.
If you miss out the grievance process, you miss the opportunity for the employer to consider the solutions which may have nothing to do with a legal solution. It may be a question of recognising the employee’s contribution even if it goes no further than that. Sometimes an apology or a thank you will be sufficient. Secondly, the point of a grievance is for the employee to be able to say what is bothering them and for them to be listened to. The simple act of listening and responding will by itself produce a greater understanding between the parties and may be more than enough to resolve it. Put simply, if the parties can come to a solution themselves, that is likely to be the best solution and the employee still has all their legal rights available to them.
So why might some claimants or claimant lawyers be opposed to the formal grievance process? On the one hand the employee, if they have taken legal advice, may be advised not to engage with the process, “to keep their powder dry”. A grievance process which is on the record may require them either to engage with the process or be seen to be unhelpful and negative. This brings me onto the other reason why there may be opposition to the grievances process. It is really the last stage where the employee is asked to speak for themselves without their lawyer present. Anything after that stage their advisor can control. To this extent the grievance process is like mediation but without the external party.
My experience of mediation, both from when I qualified as a mediator and for mediations in which I have been representing a party, is that a lot of the process is designed to enable the clients to speak directly to each other rather than through their lawyers and in terms that makes sense to them and to propose the solutions that will work for them rather than through a legal prism. The grievance process allows the employee and employer to speak directly to each other. It may well expose the gap between the way the case is being put by a lawyer, and what the actual grievance is. It may also reveal that the employee’s objectives, as a way of resolving his or her grievance, are rather more reasonable and easily achievable.
As the final chance for the parties to sort matters out themselves, particularly if there is going to be an ongoing employment relationship, I think it would be a shame if both parties did not see this as an opportunity to take control of their own destiny and see if matters can be sorted out or at the very least to gain a better understanding of the gap between the parties. I would agree that many formal grievance processes do not result in the resolution of matters. I have known concerns to be resolved, (sometimes) and others where the parties at least understood each other better after the process. But almost by definition, the formal grievances which come our way are much more likely to be the intractable ones I believe we only see the tip of the iceberg because most grievances are resolved one way or another without legal involvement.
