Andrew Murphy gets legal guidance this week from Martin Brewer, a Partner with the employment team of Mills & Reeve and Sarah Bird, employment law expert, Browne Jacobson on how to deal with grievances raised following a redundancy programme.
The question:
Having been made redundant several of our employees have raised individual though identical grievances about matters raised during group consultations. These matters were around numbers to be made redundant and the method of their selection and were addressed as part of the consultation process.
At the final group consultation meeting the elected reps and Union even provided us with the names of those who would be “happy” to be made compulsory redundant. Should I inform these employees that they do not have a right to raise a grievance and treat their issues rather as individual appeal’s against the consultation process?
The answers:
Martin Brewer, is a Partner with the employment team of Mills & Reeve
The employees may raise grievances after the termination of their employment under the statutory grievance procedure. They cannot raise a grievance about the fact of dismissal, but the employees can raise a grievance about process.
I agree that this may have been dealt with in the dismissal procedure but you should err on the side of caution now and respond appropriately to these grievances. Effectively since you are prepared to treat these complaints as appeals I see no reason not to treat them as grievances since the process for dealing with them will be the same.
Unless there’s something in your employment contracts that requires you to use your normal grievance procedure for ex-employees, you can and should try to agree to use the statutory modified procedure rather than the standard procedure. This requires the agreement of both parties. If you cannot get agreement on using the modified procedure then use the standard procedure.
Be cautious about what you do and say from now on as these grievances may be a precursor to tribunal claims and documents you now create may end up as evidence.
Martin can be contacted at: martin.brewer@mills-reeve.com
Sarah Bird, employment law expert, Browne Jacobson
The employees’ grievances concern the termination of their employment by reason of redundancy. They cannot use the grievance procedure to challenge a dismissal – this includes redundancy.
The statutory dismissal procedure may apply, depending on how many redundancies there were. The statutory disciplinary procedure does not apply to collective redundancy situations (i.e. 20 or more proposed dismissals within 90 days). If there have been fewer than 20 redundancies, then this procedure must be followed.
You must invite any of the employees who have appealed to attend individual meetings. You should be aware of the following points in relation to each meeting:
- The employee has the right to be accompanied at the meeting.
- The timing and location of the meeting must be reasonable.
- You should, as far as possible, ensure that the meeting is chaired by a more senior manager than attended the meeting at which the employees were informed of the decision to terminate their employment.
- The meeting must be conducted in a manner which enables both parties to explain their case.
- The meeting should be held without unreasonable delay.
- Following the meeting, you should confirm your decision to each employee in writing.
The situation is not as clear-cut where there have been more than 20 redundancies. Employment Tribunals have not insisted on rights to appeal being given, but this may have changed with the introduction of the statutory dismissal procedure in October 2004. The safest course of action would be to allow the appeals to proceed.
In summary, your next step should be to write a letter to each employee, explaining that as their grievance concerns their dismissal, it will be treated as an appeal meeting, and setting out the arrangements for the meeting together with their right to be accompanied.
Sarah can be contacted at: sbird@brownejacobson.com
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2 Responses
modified = disabled
i have serious reservations about using a modifeied procedure.
I understand a solicitor’s concern about saying something which later prejudices your case ( I also sometimes fail to give my clients full credit for their abilities however well briefed)
if you do proper meetings you will accomplish one and or three things
you should better understand their semse of grievance which no amount of ‘further and better particulars’ prior to ET will ever do. You may persuade them that you have acted properly and they give up.
They may make you change your mind or modify your approach so that they are happy/happier.
perhaps Martin and I are jaundiced by the increasing number of ex employees ‘going through the motions’ of grievance/appeal prior to ET but i can stil remember the benefit of face to face dialogue as a HR professional
‘Happy’ redundancies
Another word of warning…An employee of ours was more than happy to be made redundant and had spent many years telling others that they were just waiting for the payment. Appeared overjoyed in accepting the payment…6 months later we were in Tribunal for unfair dismissal and disability discrimination. No matter that they had failed to follow the grievance procedure and we had consulted at every level. Turned out they had not realised how difficult it would be to get another job. People do change thier mind when faced with the reality of finding another job and paying the mortgage…