Pitfalls to avoid when responding to a grievance

Formal grievances brought by employees can be disruptive and take up valuable management time, even when they seem relatively straightforward. But such disputes can often grow in complexity and danger, for example if there is a series of historic grievances, if new grievances are added during the process, or if the grievance is related to a manager’s actions to improve performance. While it may be tempting to an employer to ignore raised issues or to take short cuts or seek to brush complaints off, this could create far greater risks in the longer term. As the enhanced rights under the new Employment Rights Act 2025 come into force, these risks will only increase further.

‘Seeking an informal resolution to a grievance can be a proportionate and appropriate response in many cases, however misjudging this could be costly,’ says Matthew Chance, a solicitor in the Employment Team with Furley Page LLP. ‘Other pitfalls that employers sometimes fall into include trying to limit the scope of allegations that will be investigated or ignoring the grievance altogether.’

Matthew looks at pitfalls to avoid when identifying grievances, particularly when employers are looking for the most efficient way to respond to a grievance.

Failing to spot a grievance

A grievance is any complaint or concern an employee raises about something affecting them at work.

If an employee expressly states that they want an issue to be dealt with as a grievance, it should usually be treated as such. Exceptions to this could be where the issue is very trivial or a repetition of an earlier grievance.

There is no specific format for raising a grievance. Even if your grievance procedure asks employees to complete a form for raising grievances, an employee’s complaint can still count as a grievance if they do not use the form. It may be advisable to enquire with the employee directly as to whether they intend for the complaint to be handled as a formal grievance if there is any doubt as to their intent.

Failing to attempt informal resolution

The Acas Code of Practice on disciplinary and grievance procedures (‘Acas Code’) sets out the key principles and basic steps that an employer needs to follow, such as dealing with the grievance promptly and giving the employee the right to appeal the decision. The Acas Code suggests going down the informal resolution path first, where possible and appropriate.

Not every grievance has to take up lots of time and resources. It may be possible to deal with it informally and, in many cases, this is the appropriate initial response. This could just be a conversation between the complainant and their line manager, though of course it is advised to be sure that the matter has been resolved to the employee’s satisfaction before deciding to disengage with the formal grievance process.

Failing to formalise a recurrent complaint

Take care not to ignore an employee who continues to raise the same concerns, even after a manager has tried to resolve the issue informally.

It is often sensible to ask the employee if they wish it to be treated as a grievance if their concerns appear not to have been resolved by informal measures. If the employee does not engage with this, the manager should be in a good position to ask the employee to drop the issue. However, it remains advisable to see if the problem continues to recur – the employee may change their mind and wish to raise the issue as a grievance at a later date if the matter persists.

Failing to move into the formal grievance procedure

The informal route will not be appropriate for more serious allegations, particularly involving discrimination, harassment or other forms of unlawful detriment an employee claims to have suffered, such as that due to whistleblowing or union membership. Care should also be taken not to minimise the employee’s experience by deciding that the issue is too trivial to consider at all or under the full process – if the employee states that they wish for the matter to be treated as a formal grievance, the starting point for employers should be that it should be so. Managers should be particularly alert to any instinct to diminish the seriousness of the complaint, especially when dealing with complaints of discrimination which might be outside the manager’s own lived experience.

Failing to apply the grievance procedure consistently

When considering whether or not to go straight to the formal process, employers should decide on a consistently applicable approach or document the reason for taking a different approach. This should reduce legal risk if ever the organisation’s manner of handling the grievance becomes the subject matter of a Tribunal claim, either from the complaining employee or the subject of the grievance.

For example, a black employee may have a successful race discrimination claim if a grievance against them is dealt with under the formal process, but the employer took an informal approach in response to a similar complaint against a white colleague. Without a credible non-discriminatory explanation from the employer for different treatment, a tribunal can infer that the reason for this was discriminatory.

Failing to address old complaints

An employee may raise a grievance that covers a recent incident or concern and also include several complaints going back months or even years. The employer may be tempted to draw a cut-off point and say that the window for raising certain older complaints has closed. This could be based on concerns about the difficulty of establishing what happened; memories fade and managers may have left.

Before doing this – even if your policy allows it – we suggest speaking to us, particularly if the employee alleges discriminatory treatment. The employee may see these incidents as a chain of linked issues that extends up to the present day. Although the time limit to bring an Employment Tribunal claim is usually within three months of an incident, a tribunal may allow older allegations to be heard if they are part of a continuing course of conduct. Under the new Employment Rights Act 2025, the time limit for bringing a claim will increase to six months from a date either in late 2026 or early 2027.

Failing to allow an employee to add to their grievance

As the grievance process progresses, the employee may decide that there are other issues they want to add further complaints to their grievance, or they may raise a new grievance about related issues.

Although this can be frustrating for the employer, an Employment Tribunal would usually expect the employer to be flexible, particularly during the earlier stages of the process, and as such it’s strongly advisable to consider the new allegations.

Dealing with a connected grievance and disciplinary action

It is not unusual for an employee to raise a grievance about a manager taking action against them, for instance relating to poor performance or misconduct. It may be possible to handle the grievance as part of the other process.

However, we again suggest taking care and seeking advice before doing so, as the nature of the grievance could undermine the fairness of the other process. For example, if the employee alleges that they are being discriminated against by the disciplining manager, it will likely be safer to pause the disciplinary process until the grievance has been fully investigated.

Disciplining an employee for bringing a grievance

In rare cases, a grievance can be treated as vexatious and, if so, the employer may be justified in taking disciplinary action against the complainant.

We recommend taking extreme caution with this approach and taking advice from us first. Extra care needs to be taken if the grievance included allegations of discrimination, as this would protect the employee from being victimised in response to making the allegations. Employees are also protected from victimisation or less favourable treatment in other circumstances, for example if their grievance also counts as a whistleblowing disclosure under the definition provided by the Employment Rights Act 1996.

Disciplinary or other retaliation action, such as excluding the employee from meetings or denying access to promotion opportunities could allow an employee to resign and claim constructive unfair dismissal under the auspices of a breach of the implied contractual term of trust and confidence by the employer.

Failing to treat grievances seriously

There are plenty of reasons to treat grievances seriously and deal with them appropriately:

• Handling them thoroughly could resolve problems, which if left to fester, could ultimately manifest as a claim in the Employment Tribunal.
• Thorough grievance procedures can shine a light on poor management, a discriminatory culture or unfair treatment that needs to be addressed to minimise the business’ legal risks.
• Provided that a grievance has been dealt with fairly, if the outcome is to reject it, a line manager will be more likely to be able to close down the issue and ask the employee to move on;
• Employees have a right to redress for their grievances. If their grievance is not at least properly considered, the employer could be in breach of contract, allowing the employee to resign and claim constructive unfair dismissal. Employers should bear in mind that from January 2027, employees will be able to bring a standard unfair dismissal claim once they have only six months’ service, rather than the two years’ minimum currently required.
• If an employee brings a successful claim in the Employment Tribunal, the compensation awarded can be increased by up to 25% if the employer is found to have not complied with the Acas Code when responding to a grievance.

How we can help

We can provide you with a well-drafted grievance procedure, which is essential for dealing effectively with grievances. Different questions can come up for different grievances, that would not usually be covered by a procedure. We can advise you on these to establish a fair grievance process that would stand up to scrutiny by an Employment Tribunal, and thus minimise the legal risks to your business.

For further information, please contact Matthew Chance in the Employment Team on 01227 763939or email mjc@furleypage.co.uk.  Furley Page LLP has offices in Canterbury, Chatham and Whitstable, Kent.

This article is for general information only and does not constitute legal or professional advice.