How Raising a Formal Grievance Affects a Later Employment Tribunal Claim

Many employees who are considering bringing an employment tribunal claim have already raised a formal grievance within their organisation. Understanding how that grievance, and the employer's response to it, affects a potential tribunal claim is an important part of building the strongest possible case.

Why raising a grievance matters

Tribunals expect employees to have attempted to resolve disputes internally before commencing external litigation. Where an employee has raised a formal grievance, this demonstrates that they gave the employer an opportunity to address the problem. Where an employee has not raised a grievance and there was a reasonable opportunity to do so, the tribunal may take this into account.

Under the ACAS Code of Practice on disciplinary and grievance procedures, both employers and employees are expected to follow a reasonable procedure. Failure to follow the Code can result in a tribunal adjusting the compensation awarded by up to 25 percent, in either direction, depending on which party has failed to comply. An employee who unreasonably failed to raise a grievance may therefore see any compensation reduced.

The grievance as evidence

The content of a grievance, the employer's response, and the outcome of any grievance appeal can all form important evidence in a subsequent tribunal claim. A contemporaneous written grievance setting out the employee's concerns clearly and factually creates a record of those concerns at the time they arose, rather than months or years later.

If the employer's investigation or response to the grievance is itself flawed, those flaws can be relevant to the tribunal's assessment of whether the employer acted fairly and reasonably throughout the employment relationship.

Our employment law barristers can advise on how to frame a grievance to protect your position in any potential tribunal proceedings.

What the grievance should cover

An effective grievance is specific, factual, and clearly identifies the conduct or treatment being complained about. It should avoid being excessively long or containing irrelevant material. It should set out clearly what the employee is asking the employer to do in response.

Where the underlying complaint includes a discrimination element, the grievance should make this explicit. Framing the grievance correctly at the outset helps establish that the discriminatory element was raised internally before the matter proceeded to a tribunal.

The grievance outcome and what it means

The outcome of a grievance does not determine the outcome of any subsequent tribunal claim. A grievance that is dismissed by the employer does not mean that the employee has no claim. Similarly, a grievance that is upheld does not prevent the employer from disputing the matter at tribunal if the employee proceeds with a claim.

What the grievance outcome does is add to the overall picture of how the employer handled the situation. An employer who dismissed a legitimate grievance without proper investigation, or who failed to offer an appeal, may face criticism at tribunal for that conduct.

The timing question

One practical issue that arises frequently is whether a grievance should be raised before or after ACAS early conciliation is initiated. The ACAS early conciliation process is a prerequisite for a tribunal claim, and the timelines for bringing a claim mean that decisions about when to act need to be made carefully.

Getting specialist advice on the timing of the grievance, the ACAS conciliation, and any potential tribunal claim is one of the most important steps an employee can take. Errors in timing can affect the claims available or the evidence base on which those claims rest.

You can read more about the tribunal process in our guide to using barristers in employment tribunals.

If you are ready to take the next step, contact us today and we will be happy to discuss your options.