Group grievance procedure, any advice please?

[TheLion]

Myself and several fellow workers are making a formal grievance as a group. Any advice as to the standard procedure that a 'group grievance' follows? For example, can they make each worker partake in an individual meeting or do they have to address the collective as a unit?

[SarEl]

It's up to the employer. There is no such thing as a collective grievance - I know that they "exist" in practice, but there is no law that defines a grievance as collective. So they can treat it is a series of individual grievances, or as one grievance from several individuals.

[TheLion]

Thanks for the quick response SarEl.

 

We have just been informed that our hours and pay are being reduced, and that we are going to be doing work that we were previously paid for, for free. We discovered this two days ago in an informal memo, no consultation or anything. A couple of us tried to informally resolve the change to our contracts but the manager is a complete t**t. He can't understand why he can't just change our contracts without consulting us, and to put the metaphorical cherry on the cake, he also finds it difficult to understand why none of us have ever complained when changes to the contract have benefitted us

 

Personally I am losing £28 per week, four hours of work and doing work that I was previously paid to do, for nowt It was only about four weeks ago that I received a £5.30 a week pay rise.

[rebel11]

Hi TheLion

 

http://www.acas.org.uk/index.aspx?articleid=2178

[SarEl]

UNilateral changes to contract are certainly not permitted - although that is not quite the same thing as "changes to contract are not permitted". BUt I think you already know that! You are quire correct to submit a grievance. If thie grievance does not resolve this, based on your post, you have a claim for unfair dismissal. Of course, that also isn't the same thing as winning one!

[TheLion]

Thanks once again for the advice. I have heard today that our boss has had his solicitor look at the situation, and the word going around is that the solicitor reckons the situation is a 'grey area'.

 

Should be hearing within the next couple of days about the date of the hearing. I will post again with the outcome.

[SarEl]

Huh. Well as a barrister I can say that there is utterly nothing "grey" about reducing pay and conditions, or changing contracts. The law is very clear on this. A change to contractual terms (which includes pay rates etc) must be consulted upon. If the employer decides to do this despite objections from the employees, they may impose the change. To do so they must give employees formal notice of termination, and must offer them their job back on the new contractual terms with full continuous employment. If the employee signs up, then they remain in post. If they do not then they are out of work, but may lodge a claim for unfair dismissal. Whether they win or not - that one I can't call. But there is absolutely not a damned thing "grey" in there - and that is the only way it can be done lawfully. The employer might want to get a solcitor who actually knows the law for any tribunals which ensue!!!

[TheLion]

Received a letter today from the idiot manager who myself and another employee tried to raise the grievance with informally, prior to putting in a formal grievance.

 

He has states that he feels sorry that we didn't raise the issue informally with him in the first place , and that we should arrange an informal meeting with him and another manager to do so. He also completely ignores the fact that we are at present working under protest, and states that if the issue cannot be resolved he will resurrect the formal grievance.

 

What I'd like to know is when did the formal grievance die!!!!

 

We cannot believe the arrogance of this t**t. I personally have two witnesses to him telling me to put my grievance in writing to the managing director or the employment manager. I think that he thinks it is a big joke, and I would not call a meeting with himself and the employment manager, informal.

 

Any advice?

[SarEl]

If you can prove that you have tried the informal approach - having two witnesses and them saying it is true are two different things - then wriite back and say that you have done so, and that you have submitted a grievance which you expect to be dealt with. That's the hard line approach.

 

Or you can go along for the ride - provided it doesn't put you out of time to make a claim to a tribunal. That's the soft approach.

 

Up to you!

[elche]

We have just been informed that our hours and pay are being reduced, and that we are going to be doing work that we were previously paid for, for free. We discovered this two days ago in an informal memo, no consultation or anything. .

 

Hi Lion

 

Sorry to hear about your problem. It seems that for now at least advice on enforced contractual changes would benefit you. ACAS produce a helpful guide to this http://www.acas.org.uk/CHttpHandler.ashx?id=316&p=0

 

Can we put some 'meat on the bones' of these facts?

 

1) How long have you worked there?

2) How many fellow workers are in this 'group' you refer to?

3) Are all employees in this 'group' impacted in a similar way i.e. loss of wages?

4) You say you have lost '£28 per week, four hours of work and now some working time is with no pay at all? Can you explain this in a bit more detail and also as a % (approx) how much has your salary decreased a week?

5) Has the employer given any reason for the change - if so what?

6) What do you have in writing that defines how much you should be paid e.g. is a contract that says X per hour, or do you have a letter after your recent pay rise - if so what exactly did the letter say as regards how your remuneration is calculated?

7) Any Union or legal expense insurance?

 

That should do for now!

 

Che

[TheLion]

We have just handed in another letter stating that we have already had an informal discussion and that we want our grievance hearing.

 

In reply to your questions Che:

 

1. 3yrs 7mths.

2. 8.

3. Yes. we are all losing between 2 and 5 hrs per week.

4. It's about 23% of my wage. We used to get paid £7.30 from 0300 to 0400 (Wed to Sun) specifically to cover the cost of packing magazines and newspaper supplements etc. From 0400 we get paid at a standard shift rate. This has been the case for many years. What management is doing is that they are removing said hour and pay, and that this extra work, that we were previously being paid £7.30 to do, is now part of our normal shift. They have said that they will pay overtime, but it's not guaranteed and you have to battle to get it, and they still owe me ten hours overtime from last year.

5. None at all. The office staff received a pay rise along with us about seven weeks ago. We are the only ones having a pay cut. Management have been trying for the last eighteen months to replace us with contractors.

6. I have consulted a solicitor several months ago. She informed me that my contract is what I do each week, and have done so for the last 3yrs 7mths.

7. No and no.

 

I hope this helps.

[elche]

Thanks for the replies Lion. On a practical note as their are 8 of you in the group why not club together and get some quality paid for F2F advice?

 

You have sufficient service to claim UD (or even constructive UD which may be more relevant in your case) BUT this is the big BUT

 

If your ER digs their heels in and imposes this change on all 8 EE's then you for example are left with the options of:

 

a) Staying and saying nothing in which case you keep your job

b) Staying but making it clear this is under protest by for example raising a grievance - but you have already raised a grievance

c) Resigning and claiming that your employer has unilaterally changed a fundamental term of your contract (one that relates to pay), and that in the face of this conduct you resign. This is the basis of a constructive (unfair) dismissal claim.

 

But option C and in particular the exact timing of your resignation and how it is 'handled' is such a risky option (due to the very small number of CUD claims that are successful at Tribunal), that I would very rarely advise an EE to do that and certainly would not on the limited facts we have on an open forum such as this.

 

In theory the changes to contract you describe could be repudiatory conduct by the ER but also you say they have given no reason for them - I'm sure they would have some reason \ excuse at any Tribunal.

 

Thus to conclude - 8 people in the group, all affected by same change - chip in and get some paid for (or even free) good quality F2F advice.

 

Have any of the 8 got any legal expense insurance?

 

Che

[SarEl]

There is an option D - which is actually the best option although it takes a thick skin. You stay working under protest and claim unfair dismissal (not constructive unfair dismissal - which is very hard to win). This isn't an option that many people take (due to the whole thick skin issue!0 so it is quite rare - but it is a perfectly legitimate action in law. It isn't something I would often recommend, and you would need to be sure of your ground, but with 8 of you in the mix it shouldn't be as difficult as it would be for a single person. The employer would have to be very careful of their conduct towards claiimanats in this situation - any action by them could be viewed as victimisation for taking out a claim, and tribunals tend to frown heavily on such things.

[elche]

There is an option D - which is actually the best option although it takes a thick skin. You stay working under protest and claim unfair dismissal (not constructive unfair dismissal - which is very hard to win).

 

Agreed and should have been made clearer in my post,. as, "....there may be a dismissal in law even where the employee remains in the employment of his employer if he does so pursuant to a new contract. This will arguably arise in a clear case where the employer in terms brings one contract to an end and offers to re-engage the employee under a new one. This will prevent any claim for wrongful dismissal arising, but the employee can then claim for unfair dismissal even if he accepts the re-engagement."

 

I would still advise raising the grievance first as per point B (as indeed Lion now says they have done). As even if the EE brings this claim the ET would still have to agree that there was a clear point where one contract was terminated (unfairly) and a new one came into existence. A legally not dissimilar burden of proof to a CUD claim where they would have to agree one contract was repudiated. Thus (in my humble opinion counsel) perhaps not a claim with an automatically greater chance of success?

 

That said, the main benefit of this course is of course that the EE remains in employment during the claim (in theory) and thus continues to be paid during the claim.

 

As to whether this is, "....actually the best option....", I would say depends on the personal circumstances of the OP e.g. can they afford to take the risk of being without wages for a period of time, as we all know in the 'real world' once you bring a claim the workplace becomes a considerably less welcoming environment - hence the need for a thick skin as Sarel points out.

 

As there are 8 of you with similar (potential) claims I still think you should get some good quality, indemnified and tailored personal F2F advice.

 

Feel free to come back when you have got an answer from your ER regarding the formal grievance.

 

Good luck.

 

Che

[SarEl]

I wouldn't disagree that legal advice would be a must in any case, but whilst it is true that I made an assumption, my assumption was that anyone working for a living needs to do so: so resigning is never a great option, and I would have to assume also that if there were other jobs to go to then the OP(s) would have voted with their feet.

 

But I do strongly disagree that there is not a greater chance of success in this type of claim. Resigning throws the claim into constructive unfair dismissal, which depends upon the employee having the burden of proof throughout the case, not only that there was a repudiatory act, but also that there was no other reasonable option than to resign. Given that less than 3% of CUD claims succeed, that pretty much says it all as far as how easy it is.

 

Remaining in work and bringing a claim does not require the employee to prove anything at all (which is the stronger position), and a claim can be brought for breach of contract and unfair dismissal. Breach of contract does not require any evidence of repudiation - only that the contract has been breached and it would be down to the employer to prove that they had not breached it rather than the other way around. It would then be open to the tribunal to determine, should they agree that a breach of contract has taken place, whether the breach was sufficient to constitute unfair dismissal, and if the breach was considered significant in terms of a reduction of pay and conditions, the chances of them agreeing that it is unfair dismissal are high. This construction of claim has the merit of relieving the claimants of the burden of proof and giving them "two bites of the cherry" in terms of the claim (both breach of contract and unfair dismissal), and (although thick skin is required) remaining in work rather than loosing their job or having to resign over this.

 

I would have to agree that there are risks in any strategy, and no such thing as a guaranteed win at a tribunal - but the odds of this type of claim winning over that of constructive unfair dismissal are significantly higher in any scenario, and, if the OP's evidence and understanding of the changes is accurate (which agreed, would require a face to face consultation and assessment of the paperwork etc) then it would stand a very fair chance of winning

[elche]

Remaining in work and bringing a claim does not require the employee to prove anything at all (which is the stronger position), and a claim can be brought for breach of contract and unfair dismissal.

 

So in this scenario OP stays in work, and no actual letter comes from the ER saying. 'Your contract is officially terminated you are given X weeks notice. Here is new contract please sign and return.”

 

Thus we are just left with the OP having been told in writing or verbally about the change in pay, the OP continues to work, but they have made it clear this is under protest and they do not agree to the change.

 

Then the EE submits an ET1 for Unfair Dismissal – the claim you suggest.

 

Which I assume we can both agree is predicated on there having been a 'dismissal' within the statutory meaning of the same.

 

Thus we have similar facts to two cases examining this legal argument in two EAT decisions Hogg v Dover College [1990] ICR 39 and Alcan Extrusions Ltd v Yates [1996] IRLR 327.

 

An excellent analysis of these cases is provided in the ILJ, vol 26, in particular the last paragraph on p.254 (my emphasis added) http://ilj.oxfordjournals.org/content/26/3/252.full.pdf

 

In Alcan and Hogg, on the other hand, the employees affected by the repudiatory attempted variation were seeking to establish a 'dismissal' for the purpose of bringing unfair dismissal claims. Therefore, it was necessary for the employees to establish.... that the repudiatory attempted variation by the employer could be interpreted as a termination of the 'old' contract combined with an offer to re-employ on the new terms.

 

Thus I humbly submit that to say an employee in the OP's position, taking the course of action you suggest, and then bringing an UD claim has nothing, “...to prove at all. (and that consequently) ...the chances of them [the ET] agreeing that it is unfair dismissal are high...”, cannot be reconciled with my understanding of the nature of this claim and what would need to be proved.

Unfortunately I no longer have access to some of my most reliable Employment Law resources and of course apologise in advance if any of the above is in any way incorrect.

Kind regards

 

Che

[SarEl]

I see no point in butting heads, which seems what you appear to be determined to do. Whilst I can see your argument, I disagree with your interpretation of the application of case law, and stand by my view. The law is never precise and that is why there is legal argument, so I accept that in an individual acse, either of us may be right, especially since the nature of our understanding of this specific matter is not complete. But I do not see how this is helping the OP. They have had a range of advice, including the area that we agree on - that they should make sure that they obtain legal advice before doing anything.

[TheLion]

Thanks for all the advice Che and SarEl.

 

Was informed today by two of my co-workers that the manager who I (and two other employees) raised the issue with informally has been phoning everyone, not me, and telling them that we did not have an informal discussion, that he told me to write to him and request an informal discussion and that all I wanted was a grievance hearing.

 

1. Well not only do I have two witnesses to said conversation, I also taped it. I know that it's not admissable in court as he was unaware of the taping but it proves that he is a liar.

It also proves to my co-workers that is is one.

 

2. On the tape he clearly states that I should write to the managing director or his wife and outline my grievance for their them.

 

3. Throughout the conversation I try to get him to understand that the company has breached the contract and what financial effect it is going to have on myself and my co-workers. He just states that the change is going to go through no matter what and that he is not interested in my concern for my co-workers. I'm not being funny but it's not a crime to be altruistic, is it?

 

4. His idea of an informal discussion is at a table with him and the managing directors wife taking notes. As far as I am concerned, and I'm sure a court would be concerned, the ten minutes on the phone was an informal discussion.

 

This guy is a nightmare. He has not contacted me about it, though I have a funny feeling that they will try to turn it into a disciplinary matter.

[elche]

This guy is a nightmare. He has not contacted me about it, though I have a funny feeling that they will try to turn it into a disciplinary matter.

 

Hi Lion, sorry to hear that it is affecting you so much. I'm not sure on what basis they could turn this into a disciplinary unless of course you refused to work the new hours - but you have not said that this is the case.

 

Have you got anywhere with getting F2F advice? If not why not consult together as a group of 8 - assuming there is no conflict of interest amongst the group and try to decide on a 'spokesperson' to represent all.

 

Then draft a formal letter to your ER requesting a grievance hearing. Explain that you have tried to deal informally and that has failed. Enclose with the letter signed forms of consent from the rest of the group allowing the spokesperson to speak on their behalf(s). You may also wish to include with the letter a brief statement or paragraph explaining exactly how the changes are / will affect each member of the group and why that person finds the changes unacceptable.

 

Then the spokesperson and one other colleague (presumably) one of the group attend the grievance hearing and we take it from there?

 

Sorry this thread has got a little sidetracked - a consequence of the complicated nature of this area of law (unilateral contractual variations). Hopefully it shows if nothing else how much you would benefit from tailored advice.

 

F2F for free at a Law Centre - http://www.lawcentres.org.uk/ or telephone advice from CLA (if eligible) 0845 345 3 345 - http://www.communitylegaladvice.org.uk/

 

Che

 

PS - Whilst (as has been stated) there would be no obligation on your ER to take this collective approach to the grievance process, as it saves all concerned time it should appeal to all involved

Edited February 1, 2011 by elche
PS

[Atlas01]

1. If they are going to change these terms and are determined to do so, they will, they simply have to do it fairly

 

In relation to the "free" work, if your employer can show that this work was achievable in the normal core working hours on top of the rest they can do this

 

For the grievance you must go through the procedure with your employer has and attempt to resolve the issue within it, even if your employer does not adhere to this.

 

Your looking more at the claim side than stopping them doing it unless it can be proven this work is impossible in normal hours (very hard to do) even then they can change the overtime payments as long as proper consultation and notice is applied

 

2. More of a question to Sarel

I've recently done one which went through our solicitors as breach of contract/unlawful deduction of wages for no notice and fundamental change of terms, it was settled via compromise agreement but this is how it went in, not unfair dismissal

[SarEl]

2. More of a question to Sarel

I've recently done one which went through our solicitors as breach of contract/unlawful deduction of wages for no notice and fundamental change of terms, it was settled via compromise agreement but this is how it went in, not unfair dismissal

 

To be fair, it depends on the strategy of the lawyer and the degree of change. As I think is obvious from elsewhere on this thread, it's a matter of perspective as to what a lawyer would assess something as. Given that I would never be dealing with smaller cases (not showing off - just that nobody pays barristers fees fro minor issues) it would rarely be a route that I would take - and differences of opinion aside I have had several successful cases of unfair dismissal where the employee was still in employment but had had enforced contractual changes without proper process. Which I guess simply points to the fact that the only accurate advice can be given by a lawyer with the full details.

[meekmeek]

if your contract is hourly based wage and not a salery [zero hour contract] then this means 3 things

1. you get an extra hour in bed in the morning

2. you do the prep work during work time causing delays in delivery - thus causing customer complaints

3. when you do get the overtime eventually paid would it be more then £7-30 an hour

 

it might be worth emphasising that his sudden wage change will affect

1. customer satisfaction where newsagents may find other delivery agents - thus losing business

2. when overtime eventually paid the costs of paying an hour after shift is not as economical as before the shift

3. the posibility of losing experienced staff and having to waste resources and training new workers - teaching them the journeys and processes will also impact the business

 

but this is just a idea feel free to ignore

[TheLion]

Still heard nothing about a grievance hearing, going to get some legal advice this week with regard to the next step.

 

Good ideas meekmeek.

 

We are taking our time and the customers are not happy and it will be even worse in the summer. Every drop on each delivery route has an RDT (Recomended Delivery Time), the latest time at which the customer should receive their papers. If said RDT's are constantly failed then there is a very good chanch that our company will lose the contract. The managing director seems ok with this, and this is where it all starts to get stupid...

 

The manager who I had an informal discussion with is stating that the change to our contract is for financial reasons, which doesn't make sense as the company is still paying the same money as before due to the fact that it takes us on average an hour longer to do the job. The 0300 - 0400 (magazine and newspaper supplements) is the same rate as the overtime payment. Also the company has just had it's warehouse extended, new leather suites, expensive specialised windows and a pay rise for the office staff.

 

Now, the managing director is stating that it's not for financial reasons and he does not mind paying any overtime that we incur. So if he's paying out the same as before and he does not mind doing so why bring in the change at all?!

 

Basically the manager who I had the informal discussion with wants to replace us with contractors. The company has already contracted out some of the routes and I am aware that a couple of said contractors have put in a tenders for mine and other routes. So, if you consider that most of us work part-time and receive Tax Credit, for which you need 16 hrs minumum. Then all you need do is cut said hours to make it financially unviable for us to stay.

 

Also, once we agree to having our guaranteed hours reduced and replaced by overtime, would it not be easier to remove said overtime altogether and employ someone else to pack any magazines and newspaper supplements during the daytime?!

[meekmeek]

i would say head office say they do not care about the swap between £7-30 unsociable hours pay for the intial hour and the same figure for the overtime as a way of avoiding telling the truth

[in my opinion only]

what they are hoping is that they can be rid of you within 2 months and so in that short period they can live with the finances the way they are.

it is hard to know a head office true end gameplan but i would suggest atleast getting it officially noted down on a grievance or something how these changes wont benefit employee - business - or customer as you can then refer to this later if dismissed that the company were fully aware of it but still sort to measures which would cause the employment termination

 

i can also see by you now starting an hour later due to their change they may cunningly try blaming the customer complaints and late arrivals on you by saying you arrived late which shows a lack of time keeping or lack of motivation as a possible excuse to then discipline you for something out of your control.

 

so again get it noted that the changes bosses make will cause issues to protect you against any other disciplinarys based around the late deliveries being blamed on you

 

i know you think the £28 is alot of money to lose but compared to government benefits keeping your job is a better idea - dont let them win - maybe cut out a little luxury in you homelife to not put as much strain on your finances and just protect your reputation incase they cant push you out for financial reasons and so begin trying disciplinary routes.

 

with the "taking our time" statement be careful. yes working extra slow is a form of protest but try not to be too slow as they may start doing time and motion studies on you and see that you are sat round or walking the warehouse for longer then it would normally take. or where for last 6 months it took you 30minutes to drive to customer 1 now takes 45-60 minutes so dont slow down your driving just ensure the prep work is not rushed. if you get my meaning.

 

again if you are on a hourly wage then by just turning up at the hour later due to not being paid for the prep hour would normally put strain on the delivery deadlines to cause customer complaints and you are left innocent as the delay is not caused by your misdoings.

 

i do not suggest slowing down on purpose to cause protest as your actions can cause further delays and impact to the business - but that being said in normal jobs there are always things that employees dont do to get a job done in a rush and over the years you might have learned a few tricks to speed up the prep work - a suggestion that is ok to use is to UN-learn these and just do the job fully and methodically at a active pace

eg if you are suppose to count the number of news papers individually as part of your job but have learned that a pile of news papers at knee height equals 100 papers [imaginary number] saves you time having to count them - just go back to counting them again - just unlearn any rush tricks

 

after all they are your tricks not the businesses and any new employees they may employ wont know them so it is fair to be active - just do it to the book to protect yourself

 

goodluck and lets hope in a months time the complaints and threads of losing customers gives the company enough stress to just pay you for a earlier start

 

goodluck

Edited February 8, 2011 by meekmeek