Should I raise a grievance to help me to negotiate a settlement agreement?

Should I Raise a Formal Grievance or Not?

Raising a grievance with your employer is a difficult step to take. It means putting your head above the parapet and making your employer aware of serious issues. It will nearly always make you fear the repercussions, whether directly in terms of an immediate backlash, or indirectly in terms of future impact on your career.

In truth, employers very rarely react negatively to a grievance in the first instance, at least on paper. They will usually follow their grievance procedure, or the ACAS Code of Practice on grievances (see 4.2. below) and attempt to deal with your complaints. They will, however, very rarely find any of your complaints are justified on a formal basis.

Before raising a grievance, you should ask yourself: ‘what am I hoping to achieve by doing this?’  Below we consider circumstances where raising a grievance is a good idea, and indeed where is can be a bad idea.


General rule on raising a grievance

Our general rule is that if you want to remain in employment, then raise a grievance; if you want to negotiate a settlement agreement, then write a without prejudice letter (see chapter 6 part 1). This is because formally and openly raising issues with your employer by way of a grievance forces them to investigate the allegations, possibly instruct solicitors and then spend time and money in managing the process.

It also 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 whistle blowing, 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.


Interpreting the rule on raising a grievance

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 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 intend to make your employer aware of circumstances in which you have been subject to unlawful conduct, such as discrimination or other breaches of employment laws and you want to remain in employment, then you should almost always raise a grievance. 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. Raising a grievance may also sometimes be the first step to negotiating a settlement, but remember to take the first step yourself if this is your aim.

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 almost always raise 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.


When raising a grievance is the wrong thing to do

It is never a good 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 a disagreement with a colleague, you are likely to 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.


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, not an end in and of itself, so don’t think that raising a grievance will be the end to all your problems, it won’t be. 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.


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 work force. 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 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. The better the chance you have at tribunal, the more likely it is that you will be offered a decent settlement agreement (whether or not you actually have any intention of going to tribunal).