We are often called by people who ask us to draft a letter on their behalf for use at a grievance hearing. Sometimes we do. In most cases the letter is better coming from the employee themselves but they are unsure what to put- even though most people are very clear what their grievance is about.
ACAS encourage an informal approach to grievances and in most cases it will be appropriate to make a verbal approach first. If the response is not satisfactory the grievance should be put in writing (many employers have a procedure which makes this clear). In some cases though it will be clear from the start that a grievance needs to be in writing.
The letter should set out briefly what your grievance is with information such as names of any individuals the grievance is against and any witnesses, places, times and any supporting information mentioned. The best way of doing this is to use short numbered paragraphs. The letter should not be too long or make too many different points.
The purpose is to make clear to someone who knows nothing about your situation exactly what the complaint is about. The letter does not need to spell out all the arguments in your favour or give all the evidence. Detailed arguments are for the grievance hearing. It is for the employer to investigate the grievance, provide and deal with evidence. Your job is to provide enough information to enable them to do that.
A grievance letter will seldom need to be more than two pages long. We have seen grievance letters many pages long listing well over 100 complaints. This is hopeless.
Firstly if an employee has over 100 genuine complaints they should have filed a grievance long before.
Secondly- as with so much of English law the complex and technical rules related to employment have the word ‘reasonable’ buried in them at strategic intervals. This gives decision makers (ultimately employment tribunals and higher courts) a great deal of discretion.
It is never going to be viewed as reasonable to send an employer dozens of complaints out of the blue with grievances dating back months or even years- usually with a demand that each one be thoroughly investigated.
That is not to say that events from the past cannot be raised- eg ‘I am the only one who has not had a pay rise in the last three years’.
So the advice is- don’t delay- make your complaint clear, keep it relevant and relatively brief. Also bear in mind that even if you eventually win a case at an employment tribunal- the award you get may be reduced if you have not used the grievance procedure properly.
In my last blog I looked at drafting grievance letters. In this blog I will look at the next stage which is the drafting of letters for appeal hearings.
The decision to be appealed may be a decision in response to a grievance or it could be a disciplinary decision. It could be a decision to dismiss- either for a disciplinary reason or for some other reason- most commonly redundancy.
Although as I said in my last blog ACAS encourage an informal approach- the time for informality is now past. Only an appeal letter will do.
Most of what I said about how to draft grievance letters holds true for appeals. Enough detail for a stranger to understand what it is about but not too long and keep it relevant. I think it is even more important to use short numbered paragraphs in an appeal letter so that everyone is clear.
If the appeal is against a decision not to uphold a grievance- the parts of the grievance which are still relevant (perhaps all of it) should be repeated or restated. From there on all appeal letters should follow the same pattern.
You should state why you think the original decision was wrong (eg ‘It was not my oil rig- it belonged to Transocean’ or ‘I was only trying to help my friend pay for his flat’).
You should also say if you think there was anything wrong with the way the matter had been investigated or decided- if for example only witnesses against you were questioned and helpful witnesses were ignored or if you were not given enough credit for many years of good service.
If you think a previous hearing was not carried out properly you should include this in your appeal. Previous hearings could include grievance hearings, disciplinary hearings, redundancy consultations as well as hearings such as capability reviews. If you do not think evidence was properly considered or the correct weight was not put on it you should say so. Likewise if you do not agree with the minutes of the meeting or believe you made valid points which were ignored or relevant information was withheld- you should say so.
There is quite a bit of overlap between the factors discussed above. You might find yourself listing the same or similar points more than once in slightly different ways. THERE IS NOTHING WRONG WITH THIS.
One final point to bear in mind is that the idea of reasonableness stalks appeals and other hearings which lead up to them every bit as much as anywhere else. All that is expected of your employer is that they act as a reasonable employer- this means carrying out a reasonable investigation or enquiry and making a reasonable decision based on the information reasonably available. If your employer does this (or appears to) then their decision will be accepted by an employment tribunal no matter how wrong they may be or how right you may be.
Often we are telephoned by people under threat of dismissal who ask if we will represent them at a disciplinary hearing a redundancy ‘consultation’ or at an appeal following dismissal. Sometimes we are asked to attend grievance hearings too. The answer has always been the same- ‘no’.
Our refusal is not because we are unwilling to attend but because the statutory rules are clear. An employee is only entitled to be accompanied or represented by a colleague, a trade union official or someone certified by a trade union as a qualified companion.
Sometimes an employer will allow a family member or friend to accompany someone at a meeting but this is a concession and not a right. Employers will never allow a solicitor to attend. Perhaps employers imagine that solicitors know something they do not and will be able to stop them reaching the result they were probably hoping for.
Now there are signs that the situation may be changing. In two recent cases the Court of Appeal has decided that it might be possible in some circumstances for someone working in the public sector to be accompanied by a lawyer at a disciplinary hearing.
In the second of these cases the Court of Appeal decided that if there was more than just the job at risk- if dismissal might prevent someone working in their career at all- then legal representation should be allowed.
Both cases are on their way to the Supreme Court for a final decision so watch this space. It is possible that the Supreme Court will suggest that the right exists whether or not a job is in the public sector or not and equally possible that the ‘right’ will disappear altogether.