Do I need to hear a grievance raised by a former employee?

The ACAS Code of Practice defines grievances as “concerns, problems or complaints that employees raise with their employers.” These concerns may relate to:

• Hours of work;
• Work levels;
• Pay; and
• Treatment from customers.

Grievances which relate to issues of discrimination, harassment, or victimisation may also form the basis for a tribunal claim. All employers should have a grievance procedure which sets out what an employee must do to raise a grievance and what process will be followed to address the grievance. Employers may wonder, however, whether they need to follow their grievance procedure when they receive a grievance from a former employee. While there is no legal requirement to hear a grievance brought by a former employee, in most cases it would be advisable to do so.  

ACAS Code of Practice

The ACAS Code of Practice on disciplinary and grievance procedures (the Code) is a statutory code issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The Code provides guidance to employers on the best practice for dealing with disciplinaries and grievances. Employment Tribunals will have regard to the Code when hearing relevant cases and may award a 25% uplift in damages to an employee where they consider the employer has failed to follow the Code.

The Code does not state that employers must hear a grievance raised by former employees. However, section 295 of TULRCA defines an employee to include someone who has left employment. There is also some case law, discussed below, which suggests that an uplift in damages may be awarded against an employer who fails to follow the ACAS Code in respect of a grievance raised by a former employee. It would therefore be advisable for employers to follow the ACAS Code in responding to grievances raised by an employee after their termination.

Base Childrenswear Case

In Base Childrenswear Limited v Lomana Otshudi 2019 an employee was dismissed and subsequently raised a grievance alleging her dismissal was unfair and discriminatory. The employer failed to investigate her allegations or to respond to the grievance in any way. The Employment Tribunal found in favour of the employee in her discrimination claim and subsequently ordered a 25% uplift in damages for the employer’s failure to respond to the grievance.

The employer appealed the award amount but did not dispute the uplift itself. The Employment Appeal Tribunal did not state anything in its judgment which would indicate that the Employment Tribunal was wrong to award the uplift. Future tribunals may therefore follow this case and award an uplift in damages if it finds that an employer has ignored a former employee’s grievance.

What should I do if I receive a grievance from a former employee?

If a former employee raises a grievance you should not ignore it. Carefully consider the employee’s concern. If the grievance alleges discrimination, harassment, victimisation or any other conduct which may form the basis of a tribunal claim, failing to properly deal with the grievance may lead to increased damages being awarded against your business in a subsequent tribunal decision. You also should not assume that a grievance raised by a former employee is frivolous or vexatious. When reviewing the employee’s grievance consider whether their grievance points to a wider problem in your workplace. Sometimes current employees feel too intimidated to raise a problem with management, and it is only once they leave that they feel able to speak up.

Acknowledge receipt of the grievance and follow your procedures as appropriate. The steps to be followed may vary depending on the circumstances but the usual grievance procedure includes the following steps:

• Meet with the employee to discuss their grievance;
• Investigate their concern;
• Reach a decision within a reasonable time; and
• Notify the employee of your decision in writing, with reasons.

In some circumstances it may be appropriate to follow a condensed process, especially if the grievance doesn’t relate to an issue that could give rise to a separate claim, such as discrimination or unfair dismissal. Employers should remember that employees cannot bring an independent claim for failing to follow the ACAS Code. Any such claim must be brought along with another substantive claim. If you receive a grievance from a former employee and are at all unsure what steps to take, you should also take legal advice.

If you would like help reviewing your grievance policies or need assistance taking an employee through a grievance procedure, contact a member of the Employment Team by emailing employment@warnergoodman.co.uk or call 023 8071 7717.