Can I Raise A Grievance Retrospectively After I Leave My Employment?

Employment law in the UK recommends that, if you experience misconduct or discrimination in the workplace, you should approach your immediate line manager, or HR department, and ask them to intervene.

It is the responsibility of the employer to listen to your grievance and take appropriate action.

There are various rules and regulations which deal with employee grievances during employment, butit is also important to know whether the same rules apply once the employee leaves the organisation.

To help, here is an insight into how you can raise a grievance after leaving your job and how employers must deal with such complaints.

Is an employer required to address a grievance raised by an ex-employee?

In the UK, most employers now have specific grievance procedures in place, in accordance with the “ACAS Code Of Practice On Disciplinary And Grievance Procedures” and are aware of the importance of such policies.

If an employer fails to follow the Code’s guidelines, they may risk facing an employment tribunal claim and paying as much as 25 percent more compensation to a claimant. The tribunal can make such increases in circumstances where it finds that the employer has unreasonably failed to follow the ACAS Code.

However, what happens if the grievance is raised by an ex-employee? Does the employer still have to follow the ACAS code? At the moment, there is no definitive answer to this, although many employers do not feel obliged to follow the code.

The Scope of the ACAS Code

Previously, the Code allowed for a procedure to be followed in case the person raising the grievance had left employment. However, this procedure no longer applies. The Code doesn’t clearly define an “employee” silent on grievances raised post-termination, implying the Code doesn’t necessarily apply to ex-employees.

The entire premise of the Code is to help organisations resolve grievances effectively so that the employee-employer relationships continues. However, the definition of “employee” specified in the Trade Unions and Labour Relations (Consolidation) Act 1992 includes ex-employees.

Consequently, you can make a reference to the Act to persuade an employment tribunal that the ACAS Code does apply to both former and current employees.

Currently, many employers have changed their grievance policies to ensure that there are no references to grievances made by ex-employees.

Identifying Genuine Grievance Issues

In general, there are many complaints that consist of random grumblings about the organisation and employer that are not worth the time, cost or effort of investigation. Furthermore, some employers also feel that by investigating the complaint, they will provide cannon fodder to an ex-employee who is looking to raise a claim.

However, there are some complaints that an employer will want to investigate, especially those made by an ex-employee saying that they have been discriminated against during their employment and cite a protected characteristic (for example, race, age or gender) as the reason.

Employers may also feel they have a moral responsibility of investigating certain complaints. If there are issues within the structure of the organisation that are causing employees to leave, then it becomes important to handle and remedy them.

However, it is not important for the employers to involve the ex-employee further in the investigation process. They may choose to use the complaint and complete internal investigations without needing to initiate further dialogue with the former employee.

Should Your Ex-Employer Hear Your Grievance?

Often, the employer’s decision on whether to hear a grievance made by an ex-employee is a tactical one. Therefore, in cases where employers refuse to deal with grievances raised post-termination, it becomes the responsibility of the former employee to take matters further.

They can first contact ACAS for early conciliation, prior to making an employment tribunal claim, which may resolve the dispute. While your employer may refuse to listen to your grievance, you can always lodge a claim at the employment tribunal if you feel there is merit in your case and a settlement can be negotiated.

Is Your Ex-Employer Liable To Deal With Your Grievance?

No. Grievance procedures usually focus on resolving disputes with current employees. As a former employee, you may have a dispute with your ex-employer that in turn, could form the basis of an employment tribunal claim, and your former employer may feel that it is appropriate to engage with you in a dialogue. However, this does not require using a formal grievance procedure and the right of appeal.

Further, the manner in which the discussions are handled doesn’t usually affect the outcome of the claim. For example, if an employee has submitted his or her resignation and claims constructive dismissal, the tribunal will investigate whether the resignation was the outcome of a fundamental breach of contract by the employer prior to the resignation. However, the employer’s behavior after the resignation will not affect the question of whether there was a constructive dismissal.