Should I raise a formal grievance or not?
When to raise a grievance and when not to
Our general rule is that if you want to remain in employment, then raise a grievance. If you want to leave and negotiate a settlement agreement, then write a without prejudice letter first, and only if that doesn’t result in a decent settlement should you raise a grievance.
Raising issues with your employer formally and openly by way of a grievance forces them to investigate the allegations, possibly to instruct solicitors and then to spend time and money in managing the process. That is time and money which could have been spent by them in negotiating a fair deal for you.
Raising a grievance places a legal obligation on your employer to act fairly and not do anything in reaction to the grievance that may be seen as victimisation. For example, if you raise a formal grievance regarding discrimination or whistleblowing, an employer will almost never propose a settlement agreement with termination of employment for fear of being held liable for victimisation. Whereas if you raise the same issues on a without prejudice basis and suggest termination and a settlement agreement, they are free to negotiate, as you have made the first move regarding settlement.
This rule isn’t always to be followed as there are circumstances in which raising a grievance and then starting settlement negotiations can apply pressure on HR to look at settlement rather than having to conduct a potentially disruptive grievance investigation. However, if a settlement is what you actually want, then don’t sit and wait for your employer to make an offer of settlement as it is unlikely that it will be forthcoming. Instead, be proactive and initiate without prejudice discussions towards a settlement alongside a formal grievance procedure.
When raising a grievance is the right thing to do
If you want to make your employer aware that you have been subject to breaches of contract, including breaches of ‘trust and confidence’, and wish to start negotiating an exit package, it can be a good idea to raise a formal grievance. Constructive dismissal is not seen as being as serious as, for example, discrimination, and so an employer will sometimes be willing to negotiate an exit package once these issues are raised.
If you have been subject to unlawful deductions of wages, your contract has been breached or changed and you wish to work under protest, then you should consider raising a grievance if informal efforts, such as raising the issue with your line manager, have failed.
If you have been the victim of harassment or illegal or unlawful behaviour, it is usually best to raise a formal grievance as these are serious issues which your employer needs to be aware of, especially if you wish to remain in employment. This not only makes your employer aware of the issue, but also can afford you protection from victimisation and also, in some circumstances, from unfair dismissal.
When raising a grievance is the wrong thing to do
It’s not a great idea to raise a grievance about trivial matters, especially when those matters could have been resolved through informal channels via your line manager or HR.
If, for example, you believe that your manager is not affording you proper opportunities to progress, or is not crediting you properly for your achievements, then this is not the sort of matter which should be the subject of a grievance. Likewise, if you have had a disagreement with a colleague, you may be seen as disruptive if you raise a formal grievance rather than attempting to resolve the matter informally or via your line manager or HR.
Advantages of engaging in the grievance process and not just resigning
It’s a chance for your employer to suggest a settlement agreement
During the grievance procedure is the perfect opportunity for your employer to offer you a settlement agreement. They will be forced to think about your case at the time, and will not want to spend unnecessary hours doing unproductive grievance hearings. In addition, they probably don’t really want employees who submit grievances as it could affect the rest of the workforce. What better timing for them to offer you a settlement agreement?
It helps to set the record straight
When the letters go back and forth, it makes both sides think about exactly what has happened and to set out their explanation for it. So your employer will have to nail their colours to the mast. This could prove very useful later on in a tribunal. It also gives you the formal opportunity to have your questions answered in writing rather than being fobbed off in endless meetings.
It may result in additional compensation
If you do go to tribunal and win, the tribunal can award you additional compensation if your employer has failed to follow the grievance process correctly. Similarly, if you have failed to follow it then your compensation can be reduced. The range of possible adjustment is 0-25%.
It helps prove procedural unfair dismissal
If you are dismissed, it will help you to prove a claim for unfair dismissal if you can show that the proper procedure was not followed. So by doing this now you are helping yourself later on. If your employer sees that you have a good chance of succeeding at tribunal, the more likely they are to offer you a decent settlement agreement, whether or not you actually have any intention of going to tribunal.
To sum up on raising a grievance
You should see raising a grievance as a tool to get you what you want, be it a resolution so that you can continue working, or the first stage of negotiating a settlement agreement. A grievance is a means to an end and not and end in itself. By raising a grievance you may think this will be the end to all your problems, however this is unlikely. Indeed it may just be the start of them, so be smart and know what you want to gain from this process before even sitting down at your computer and starting to type. If you can’t think of a resolution, then you shouldn’t be raising a grievance in the first place.