McKinty and Wright Solicitors - Northern Ireland Based Solicitors, Lawyers Belfast.

The Statutory Grievance Procedures were introduced one year ago, together with the Statutory Dismissal and Relevant Disciplinary Action Procedures as part of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004.

Their aim is, if possible, to settle workplace disputes by conciliation and agreement rather than legal proceedings. The Regulations impose statutory requirements on both the employer and the employee to follow a three stage procedure. It is therefore imperative that employers do not fall at the first hurdle in failing to identify a grievance.

An employer issues a verbal warning to an employee. The employee complained of procedural defects in the disciplinary hearing. Rather than convene a grievance meeting the employer granted the employee an appeal under the disciplinary procedures. Did the appeal hearing satisfy the obligation to hold a stage 2 grievance meeting? No, held the Employment Appeal Tribunal in Galaxy Showers v Wilson

Cases such as Galaxy Showers and Shergold v Fieldway Medical Centre are indicative of the broad approach being taken by the EAT in Great Britain in their application of the legislation and the generous interpretation of what constitutes the form of a grievance for the purposes of the Regulations. The case law establishes that the requirement is not onerous. Whilst not binding in NI the recent EAT decisions are of persuasive authority.

· Although most Companies will have their own detailed procedure in place, a grievance need not necessarily follow those procedures.

· can be raised by email, in an informal note, raised in written communications dealing with another matter or making an application (eg a request for flexible working).

· The onus is on the employer to arrange a meeting with the employee and it is only before this meeting that the employee must inform the employer of the basis of the grievance.

· It is prudent for an employer to deal with a disciplinary appeal and an employee's grievance separately and to make the purpose of the meeting clear: ie to discuss the grievance.

There is a clear financial incentive for both sides- an increase or a reduction in compensation of at least 10% and up to 50% for failure to comply- to make themselves fully conversant with the detail of the Regulations. The Tribunals in NI have already shown that they are willing to exercise their discretion and uplift compensation by more than the base 10% in appropriate cases - a worrying thought for all employers who one year on may not yet have embraced the legislation.

Employers should therefore treat any letter, email or any other written document raising a complaint either from an employee or their representative with caution and arrange a meeting with the employee promptly to discuss the possible grievance.

Employers should ensure that they and all their staff, especially managers, are aware of the grievance procedures, their implications and how to identify a grievance. Time devoted to awareness training should avoid unnecessary expenditure of time, resources and money at a later stage. Encouraging the workforce to raise grievances in a standard manner as set out in the Company’s own procedure should help eliminate, if not remove, any grey areas. It is vital for both parties that accurate written records should be kept of all actions contemplated and taken.

Identification of the grievance is of course just the start. There are many more unresolved questions posed by the Regulations which have not yet been addressed by the Tribunal. Lack of case law on other issues such as what constitutes “the basis” of the grievance and what exactly are the “exceptional circumstances” under which the Tribunal can exercise its discretion to make a reduction or increase of at least 10% unjust or inequitable, ensure that management and staff should tread this minefield of Dispute Regulations with caution.

It is too early to say whether or not the Government’s aim to encourage settlement of disputes without recourse to the Tribunal will have the desired effect. However, whether or not this turns out to be the case, identifying a grievance when it is raised and dealing with it in accordance with the Statutory Procedures is imperative if the penalties are to be avoided.