Looking back on 2009, one inevitably thinks of the abolition of the much hated mandatory dismissal and grievance procedures. There was quite a fanfare about this. They disappeared in April although some less than straightforward transitional provisions kept them alive into the autumn.
Has this made any real change in practice? The answer has to be no. Most employers have well established processes which mirrored or exceeded the former legal requirements, and they continue. Indeed any employer which took the opportunity to discontinue or modify the dismissal procedure, would be up against the risk of a finding of ordinary unfair dismissal, albeit the concept of automatcity (do you remember that ugly word in the run up to the Iraq war?) has gone. The only real difference is that when you get to the tribunal the automatic uplift of between 10 and 50% for breach of the compulsory procedures has been replaced by a possible uplift of between 10 and 25% where there is an unreasonable failure to comply with the ACAS code. So everybody should be reading the code and making sure their processes are compliant.
One marked phenomenon in the workplace over the last 20 years has been the rise of the grievance. I spoke to a director of a banking client recently who claimed that a grievance had been running on and off for just that period, 20 years, and was still not resolved. He commented that the head of HR was a splendid fellow but perhaps might have moved things along. It is unquestionably the case that employers spend huge amounts of management and HR support time on grievances. Relatively few are upheld. Many are roundly dismissed.
What are the legal considerations that must be borne in mind now that the mandatory grievance procedure has gone?
The first basic point is that there is no claim for failure to deal with a grievance per se. That was so even when the grievance procedure was a legal requirement. The only question is whether the failure will lead to another claim. There are two real possibilities. The first is that the employer, in disregarding or failing properly to handle the grievance, commits an act likely or calculated to destroy trust and confidence entitling the employee to resign and bring a claim in constructive dismissal. This is a high hurdle for the employee to climb. It is no means the case that a shortcoming (or dare I say shortcut) in the handling of a grievance necessarily justifies resignation and founds a claim. (Note there might also be the breach of an express term if a grievance procedure has been incorporated into the contract.)
The second point is that an employee could contend that the grievance failure is discriminatory . i.e. represents a detriment on account of race or sex or religion or belief or sex orientation or disability. But that claim may be inherently unlikely, more particularly since the House of Lords (not so long before its own disappearance in favour of the Supreme Court) favour the notional comparator test. In both cases, disregard of the ACAS code can lead to an uplift of between 10 and 25%, but of course, that is only in play if the case succeeds in the first place.
I think there is an irony that the rise of the grievance has little legal underpinning. Some line managers blame HR! No concept has emerged akin to wasting police time where an employee uses up endless management time over what turns out to be, and perhaps was always a non issue. I await the first case where the person making the grievance is dismissed as a result, and that is held to be lawful and fair because the employee had no basis for the grievance and had himself or herself destroyed trust and confidence.