ATL

Grievances

If an employee has a concern about something connected with their employment they have the option of raising it as a grievance.

This is a serious step - do not do this without first consulting ATL for advice. There may be a meeting to discuss the problem informally, in which case you should be accompanied by a representative from ATL.

If you are not satisfied with the outcome of this meeting, you should seek advice from ATL once again - you may be advised to move onto the next stage and seek a meeting with the governing body/corporation sub-committee which deals with grievances (the procedure will vary somewhat from establishment to establishment).

Extremely serious matters - unfair dismissal, sexual harassment, racial discrimination - may be taken to an employment tribunal. The basic details of the process are also set out below.

Legislation

Current statutory dismissal, disciplinary and grievance procedures were introduced in 2004, and accompanied by a code of practice published by the Advisory, Conciliation and Arbitration Service (ACAS). This is in the process of being revised, with the revised code set to replace statutory disciplinary and grievance procedures from April 2009.

A draft version of the revised code of practice was published for consultation in May 2008.

The code of practice

The code provides practical guidance to employers, workers and their representatives on producing disciplinary and grievance procedures and on the right of a worker to be accompanied at a hearing.

It also gives guidance on the key issue of what constitutes reasonable behaviour in disciplinary and grievance situations. A breach of the code does not of itself make your employer liable in any case that you might bring.

However, an employment tribunal is required to take any such breach into consideration when, for example, assessing whether you have been unfairly dismissed.

You can obtain a copy of the code from your local ACAS office or the ACAS website.

FE guidelines on grievance procedures

ATL and the national colleges employers' body (the Association of Colleges) have agreed national guidelines for colleges and FE institutions on grievance procedures.

The right to be accompanied

A section of the Employment Relations Act 1999 introduced a specific legal right to bring a 'single companion' to formal disciplinary or grievance proceedings. This 'friend' can either be a fellow employee or a trade union representative or official although there is no requirement for the union in question to be recognised by the employer.

The employee can insist on bringing an unrecognised union representative, but she or he is not entitled to bring a relative or a high street solicitor.

The new entitlement also insists that the companion must be allowed to confer with the employee during the hearing (which in practice may entail adjournments) and can address the meeting on the employee's behalf.

However, they are not allowed to answer questions addressed to the employee. They are to be a representative and an advocate, not a proxy.

The legislation will also permit the companion to postpone the hearing if he or she is unavailable on that day provided the alternative date proposed is reasonable and within five working days of the one originally notified by the employer. Many existing procedures may need to be adjusted to take account of this development.

Employment tribunals

In recent years, the range in types of cases that may be brought before tribunals has increased, to include unfair dismissal, and discrimination on the grounds of sex, race, disability and, more recently, religion/belief or sexual orientation.

Certain procedures must be undergone before cases reach an actual hearing. In England and Wales, a claim should be brought in one of 21 tribunal offices, depending on the postal code of the employer/organisation.

A claim to the tribunal must be lodged within strict time limits; three months in most cases. For example, if one is dismissed on 31 August, the tribunal must receive the application on or before 29 November.

Lodging a claim

When lodging a claim, one is required to provide certain information, such as dates of employment, hours worked, earnings and reasons for the claim(s). On receipt of the claim, the tribunal will copy it to the employer/organisation and to the Advisory Conciliation and Arbitration Service (ACAS).

The employer/organisation (known as the Respondent) has 21 days to complete and return to the tribunal a form in which it will confirm whether certain details given in the claim form are correct and giving the reasons why it intends to contest the proceedings. ACAS is sent a copy of this by the tribunal.

Several types of hearings can take place before the main hearing, at which the tribunal decides where the claim succeeds or fails. 'Directions hearings' - normally held before a chairman only (a solicitor or barrister) - enable tribunals to clarify the issues on which decisions will be made, although evidence is not normally given at that point.

The chairman will usually make orders relating to the preparation of the case, for example, the dates by which the parties must

• disclose documents to each other

• complete the joint bundle of documents to be used at the hearing

• exchange the statements of their respective witnesses.

It is also common practice to fix a firm date for the main hearing. A 'preliminary hearing' may be fixed if there is some doubt regarding entitlement to commence or contest the case.

Preparing for the hearing

In preparing for the main hearing, the parties should agree and prepare a joint bundle of documents to which they intend to refer in support of their case. These should be indexed in chronological order, with the pages numbered.

It is advisable for written statements of witnesses to be prepared before the hearing, whether or not the tribunal has ordered this. At the hearing, each witness will give evidence on oath or affirmation and be asked to read out their statement; alternatively, the tribunal members will read the statement themselves.

The witness may then be cross-examined by the other party or their representative. Witnesses are usually allowed to sit in at the hearing before and after giving evidence. All unwilling witnesses can be forced to attend a hearing if the tribunal issues a 'witness order'. However, before agreeing to issue one, the tribunal chairman will need to know what the witness is likely to say and why s/he is unwilling to attend voluntarily.

After the witnesses have given evidence, both parties will be asked to sum up by explaining why the case should be decided in their favour. The tribunal then deliberates in private.

The decision

The decision and reasons are announced by the chairman in the presence of the parties. Where cases are complex or there is insufficient time to come to a decision, the tribunal will 'reserve' its decision. This means that the tribunal will send its decision in writing to the parties.

Many cases are settled through ACAS before the main hearing. In 2002-2003, nearly half of the 43,510 claims lodged for unfair dismissal were settled in this way. ACAS therefore has an important function in the process.

Need further advice?

Your first point of contact is your ATL rep in your school or college. Your local ATL branch is also available to help with queries, or you can contact ATL's member advisors on tel: 020 7930 6441 or email us. Please have your membership number to hand when telephoning and include it with any correspondence - this will help us to answer your query more quickly.