Employee grievances: NHSScotland PIN policy

2 Main Report

2.1 Principles & Values

• Employers must have clear policies on how to deal with employee grievances. These policies must be driven by the principles of fairness, openness, integrity and promptness, setting out clearly the mechanisms that are available to staff;
• Employees should be encouraged to raise grievances without fear of penalty or victimisation. Key to this is a clear commitment by the organisation to operate in an open, consistent and fair manner with an aim to create a no-blame culture;
• Policies should be easily understood and should operate without detriment to any member of staff by virtue of their race, nationality, sex, sexual orientation, disability, age, religion or belief, marriage or civil partnership, pregnancy, maternity, gender recognition, political conviction, membership/non-membership of a trade union/professional organisation or work pattern;
• The approach to dealing with employee grievances should be founded on partnership at all levels within the organisation and should take advantage of local working relationships to achieve early and, if appropriate, innovative resolution;
• All employees have the right to be accompanied by a trade union/professional organisation representative or work colleague when raising grievances;
• The approach for dealing with grievances should always use the most appropriate best practice available - primarily internally, but also externally, to resolve or progress grievances most effectively;
• Where appropriate, the use of third party mediation - both formal and informal - is encouraged at every level and at every stage of the process. Employees and employers should be encouraged to make use of these mechanisms at any point, as agreed by the parties;
• Organisations should ensure that they communicate with their employees in writing without unreasonable delay, recognising that this will be dependent on the particular circumstances of each case, and that there may be a need for flexibility;
• Mechanisms for dealing with grievances must allow for early escalation to senior managers where this is required because of the seriousness of the issue;
• Any supportive documentation produced by an organisation for dealing with grievances must be clear and simple. Any forms that the employer requires the employee to complete must be written in clear and simple language;
• Employees who have difficulty expressing themselves on paper, or, for example, whose first language is not English, are encouraged to seek help from a work colleague, trade union/professional organisation representative, or a representative from the HR department in setting out their grievance;
• An employee who raises a grievance should have access to appropriate personal support and advice. Organisations must ensure that this is available to all staff, including those who are not members of trade unions/professional organisations. Given the potential sensitivity of some issues and the stress created, organisations may consider providing confidential counselling for individuals involved;
• Each organisation must establish systems for monitoring both the informal and formal mechanisms that are in place to deal with grievances. These should capture the numbers and the nature of the matters raised, and should record both those that are resolved, as well as those that are recognised but unresolved. A report should be presented annually to the Area Partnership Forum and/or Staff Governance Committee;
• The Area Partnership Forum should review the mechanisms for dealing with grievances at least annually. Review and evaluation will be required to ensure that the principles are being met and that any new standards or structures are incorporated where necessary; and
• Any investigation should be conducted in strict confidence. If a formal procedure ensues, the principles of confidentiality must be applied.

2.2 Legal Framework

Underpinning the approach to dealing with employee grievances are a number of statutory and regulatory requirements which Boards are obliged to comply with. This includes:

Employment Act 2008⁷

The Employment Act 2008 introduced new legislation pertaining to dealing with discipline and grievance. The Act is supported by the ACAS Code of Practice - Disciplinary and Grievance Procedures⁸.

ACASCode of Practice - Disciplinary and Grievance Procedures⁹

The Code sets out the principles employers should follow when dealing with disputes in the workplace. The Code encourages organisations to seek resolutions through informal means where possible.

The Code states that, whenever a disciplinary or grievance process is undertaken, the basic standards of fairness should still apply. For example, issues should be raised and dealt with promptly by both employers and employees, and employers should carry out any necessary investigations to establish the facts of the case.

Although a failure to follow the Code does not make a person or an organisation liable to proceedings, employment tribunals are legally required to take the Code into account when considering relevant cases.

More comprehensive advice and guidance on dealing with disciplinary and grievance situations is contained in the ACAS booklet, Discipline and grievances at work: the ACAS guide¹⁰. Unlike the Code, employment tribunals are not required to have regard to the ACAS guidance booklet. However, it provides more detailed advice and guidance that employers and employees will often find helpful both in general terms and in individual cases.

Employment Rights Act 1996¹¹

This legislation places a duty on an employer to provide written particulars to an employee within two months of commencement of employment. These written particulars must include details of any grievance policy or procedures which are applicable to the employee.

Employment Relations Act 1999¹²

This legislation accords employees the right to be accompanied at any grievance hearing by a work colleague or trade union/professional organisation representative. If the chosen companion is not available at the time proposed for the meeting, the employer must postpone the hearing to the alternative time suggested by the employee, provided that such alternative time is reasonable and falls before the end of five working days after the day proposed by the employer.

2.3 Mechanisms for Dealing with Employee Grievances

NHSScotland recognises that, from time to time, employees may wish to raise grievances or problems with their employer. Organisations must have local grievance procedures to address these issues as they arise and settle them at point of origin as far as is reasonably practical. These procedures must be consistent with statutory and regulatory requirements and in line with national terms and conditions.

Organisations should encourage staff to raise their grievances and wherever possible ensure these issues are dealt with promptly and as locally as possible. This will often involve a very informal approach to resolution. Where resolution is not reached, the organisation and employee(s) are encouraged to use third party mediation. In the event that there is still no resolution then the issue moves to a formal stage.

Work has been undertaken on behalf of the NHSScotland by the Dignity at Work Steering Group who have examined the use and benefits of third party intervention to resolve conflicts. They recommend that initially this can be achieved through facilitated discussions led by highly skilled managers or HR professionals, with the need for use of external mediators only in the most complex of cases. The report produced by this group can be found on the Staff Governance website¹³.

2.4 Induction & Training

• In line with the Staff Governance Standard¹⁴, all employees have the right to equity of access to training and appropriate induction that covers, as a minimum, partnership; staff governance; health and safety; and equality legislation;
• All new employees must be made aware of the local policy developed in line with this Dealing with Employee Grievances in NHSScotland PIN policy during induction;
• Current employees must be made aware of the local policy developed in line with this Dealing with Employee Grievances in NHSScotland PIN policy through current communication channels, including awareness raising sessions where appropriate;
• Employers should ensure that managers/supervisors are competent in handling grievances, and consideration should be given to joint training with staff-side representatives to ensure a consistent approach. Employees who manage staff must have appropriate training in handling grievances inbuilt to their Personal Development Plan; and
• Employers should ensure an appropriate organisational training plan on handling grievances is in place. This will be reviewed and evaluated according to local arrangements and overseen by the relevant organisational committee.

2.5 Success Indicators

• All employees are aware of the formal and informal mechanisms, including processes such as mediation, that are available for dealing with their individual and collective grievances;
• The organisation has recorded statistics pertaining to grievances and such statistics are reviewed on a yearly basis by the relevant organisational committee(s). This must include all informal processes that have been initiated. This has to be done in accordance with Data Protection Act 1998¹⁵; and
• As an element of the review of its local policy developed in line with this Dealing with Employee Grievances in NHSScotland PIN policy, the organisation undertakes an evaluation of its effectiveness, in both the application of, and the compliance with the legislation and principles set out within the PIN.
• The application of this policy will be monitored jointly by the Director of Human Resources and the Area Partnership Forum to ensure equitable treatment of employees.

2.6 Keeping Records

It is important, and in the interest of both employer and employee, to keep written records during ALL stages in the grievance process. Although it is not mandatory to formally document informal attempts to resolve the grievance, the outcome of the informal stage of the process should be noted so that details of the episode can be recorded for audit purposes.

Records are confidential and should be kept in line with the timeframes outlined in the Data Protection Act 1998¹⁶. Copies of meeting records should be given to the employee, but the employer might withhold some information in exceptional circumstances ( e.g. in order to protect a witness).

Records should include:

• The nature of the grievance raised;
• A copy of the written grievance;
• The employer's response;
• What was decided and action taken;
• Reasons for action taken;
• Whether there was an appeal and if so, the outcome;
• Subsequent developments; and
• Equality and Diversity Monitoring Information where available.