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

In some circumstances, employers should follow their grievance procedure to deal with a grievance raised by an ex-employee, to avoid the risk of additional compensation being awarded against them. The Acas code of practice on disciplinary and grievance procedures does not expressly state that it applies to grievances raised by employees who have already left the organisation. However, the Trade Union and Labour Relations (Consolidation) Act 1992, under which the code is issued, does apply to former employees. Therefore, it is arguable that employers should follow the code when they receive a grievance from an ex-employee.

In Base Childrenswear Ltd v Otshudi EAT/0267/18, the Employment Appeal Tribunal (EAT) upheld a decision to award a 25% compensation uplift to reflect the employer's unreasonable failure to comply with the code. In that case, the grievance and appeal against dismissal had been submitted post termination. While the EAT did not expressly deal with the issue of whether or not the code applied to the post-termination grievance, it appeared to accept that it did. Where an ex-employee submits a grievance about an issue that could lead to a tribunal claim, the employer could therefore avoid the potential for an uplift to any compensation by dealing with the grievance in line with the Acas code.

An employer may decide to investigate a former employee's grievance in any event, as engaging with the employee could help to resolve the issue and avoid a tribunal claim. Dealing with the grievance could also uncover serious issues that the employer needs to address and could avoid further disputes with other employees.

Employers should weigh up the risk of a potential tribunal claim against the time and resources that will be needed to investigate a grievance. If an employer responds to a grievance about a serious issue that could form the basis of a tribunal claim, it should take great care in how it deals with it, to ensure that it does not damage its chances of successfully defending a claim. For example, there is the risk of inconsistencies arising in the employer's responses.