When is it unfair to follow a grievance policy?

Many employer grievance policies have a two stage process process requiring an employee to seek to informally resolve a grievance before it is registered as a formal grievance. Sometimes, as was the case in GMB v Brown [2007] the employer, a trade union, has a three stage process:

  • Stage 1 – Informal resolution with line manager
  • Stage 2 – Formal grievance with Senior Officer, usually regional secretary
  • Stage 3 – Independent review by panel.

This was a contractual agreement and each stage must be sequentially progressed

Ms Brown had a complaint that Mr Brennan, a union regional secretary and also her line manager that Mr Brennan was forcing her out of her role, this complaint was in part also a complaint of sex discrimination. Ms Brown’s complaint was against Mr Brennan personally and yet, under the grievance scheme, this would mean that at both stage one and stage 2 of the grievance process she was required to complain and expect an objective assessment of her complaint to Mr Brennan  … that Mr Brennan had acted unreasonably. Not surprisingly Ms Brown had concerns has to whether that would be a fair assessment! Although not referenced in the case (it was a breach of contract case) the effect of the policy as applied to this situation would be to place GMB’s policy in breach of the ACAS Code of Practice on Disciplinary and Grievance Procedures in that the complaint was not considered by a manager “who is not the subject of the grievance.”

The employer, and Mr Brennan specifically, demanded that Ms Brown comply to the contractual policy and refused to adjust to allow another senior official who was not subject to the grievance to hear the complaint or otherwise allow the grievance to bypass the first and second stages. The ongoing obfuscation by the employer caused Ms Brown ill-health.

In response to this refusal to fairly consider her complaint Ms Brown resigned and subsequently pursued a claim of constructive unfair dismissal which the tribunal upheld. The principle reason for this was that the employer knew the effect continued refusal to amend the grievance policy would have upon her and yet continued to do so anyway. This insistence was itself found to be a breach of the duty of trust and confidence the employer owed Ms Brown.

I suspect that were this case heard today (it is over ten years old) the decision of unfair treatment would be reached much more quickly. The case itself is a helpful one for reminding union reps that any grievance procedures should be fair and that fairness can trump a strict observance of a grievance policy – in this case fairness meant that the probably unintended consequence of the policy that an accuser must have their complaint determined by the accused up to two times before there was an independent review!