How to file a complaint about discrimination or unfair treatment at work

Making a complaint to your employer about discriminatory or unfair treatment at work can be a risky business. If you’ve been passed over for promotion or have simply had enough of lewd comments from colleagues should you consider filing a grievance?

Most employers have a process in place for staff to report that they believe they are being wrongly or unfairly disadvantaged in the workplace. Handled well, it should be possible to resolve problems without the need take formal action. For example, it’s sometimes possible to arrange for an employee to avoid working in the same area as particular colleague.

However, if problems at work have reached a very serious state and the only route appears to be filing a grievance, be prepared; formal grievances often end with a negotiated exit. For this reason it makes sense to have a backup plan before formally raising your concerns.

The risk of losing their job can often deter employees from complaining about problems at work. However, if the matter later ends up at an employment tribunal and you have not filed a complaint, your claim (and compensation) could be affected.

3-month time limit

Anyone alleging discrimination at work has three months from the date of the discriminatory act to file a claim (this is subject to extensions where an ACAS early conciliation process has started). Filing a grievance does not ‘stop the clock’. However, drafting a grievance, filing it with your employer and then waiting until it has been investigated takes time - employees can easily find that they have overrun the 3-month limit.

However, if an employer reacts to a grievance in a way which is detrimental to the employee who filed it, this can give rise to a new claim and renew the 3-month time limit. Examples could be if, having filed a grievance, an employer stops giving you work or suggests you resign, you could argue this is the result of the grievance, giving you a possible claim for victimisation. The risk of victimisation is greatest in small organisations, where the grievance is against the ‘big boss’ – the CEO or Managing Director.

If, having filed a grievance, you’re made redundant, dismissed, or simply feel you have no option but to resign, the 3-month time limit for unfair or constructive dismissal claims begins on the last day of your employment.

If you have less than 2 years’ service

Filing a grievance at work is most risky for employees with less than two years’ service as they have less statutory protection from unfair dismissal. Unless the claim concerns factors such as discrimination, health and safety or whistle-blowing, new employees can often have little to gain from lodging a grievance. In such cases, informal resolution is often the best way forward.

Check your employer’s policy

If you decide to file a grievance, first check your employer’s policy on how to go about it. If the policy is unclear (or there isn’t one), follow the guidance provided by ACAS. Find out who to file the grievance with and avoid going ‘straight to the top,’ as any appeal would have to be heard by someone more senior than the person who first handled the complaint. Exceptions to this could be if you are in a senior position yourself or work in a very small organisation without layers of seniority.

Drafting a grievance

When drafting your grievance, stick to the facts and avoid emotive rants, conspiracy theories or anything which might irritate or offend someone - not ideal if you're hoping to stay in your job.

The role of HR

It’s a good idea to speak to your HR department (if there is one). The job of the HR team is to ensure a proper process is followed, not to make a judgement on your case. The HR team may also be able to help you to deal with some of the stress involved in fining a grievance, for example by arranging for you to work from home.

For expert employment law advice, contact James Hodgson at our Halifax office on 01422 339600 or email James at jdh@wilkinsonwoodward.co.uk