Can you be sacked for complaining at work?

The ‘art of complaining’ refers to the skill of expressing dissatisfaction in a way that is constructive and effective - but the reaction to an employee speaking out at work can vary depending on the nature of a complaint.

From time-to-time things will go wrong at work, it is inevitable, and all employers should have a policy and procedure in place that allows staff to report any legitimate concerns that they may have.

Taking the step to make any type of complaint at work is not one that most employees will take lightly.

The individual is likely to worry about doing it, possibly fear being alienated by colleagues depending on the nature of the complaint, and worry about the reaction and possibly retaliation in response.

The most obvious concern and panic will usually be about being dismissed, especially if the employer rejects the complaint or considers it unproven.

Employees should feel comfortable and confident to speak up and make a complaint about any work-related matter. There are guidelines and laws that require employers to act fairly in such a situation. This includes:

• The ACAS Code of Practice , which outlines the minimum standards of fairness for employers and employees when dealing with grievances [1] cited 4.11.24

• The Health and Safety at Work Act 1974, is the law covering the management of health and safety in any working environment [2] cited 4.11.24

• The Equality Act 2010 legally protects employees from discrimination at work. [3] cited 4.11.24

An employer should take any complaint seriously and investigate it thoroughly and fairly.

Problems can arise for an employee, and their role can be at risk, if it is reasonably established that a complaint they have made is malicious, or was made in bad faith.

This type of grievance can create a range of problems for both employer and any employee implicated in it due to the stress it can cause and damage to their reputation.

The consequences an employee can face after making a complaint, and if they can be fairly dismissed for doing so, remains  a contentious issue, and it is worth looking at in more detail here.

Understanding work-related complaints

Whether it is being spoken to in a disagreeable manner or a threat of physical violence, the reason why an employee may feel aggrieved and complain can vary from minor to extremely serious.

Things will go wrong at work. A member of staff being unhappy about something and feeling strongly enough to complain, is natural in any working environment.

Although the issue may be a one-off it can often be a sign of a bigger problem, which needs to be dealt with.

It is why any complaint should be taken seriously, managed carefully and handled properly. A failure to do so can create a toxic work environment and expose an employer to legal action.

Legal protection when raising a complaint

The Employment Rights Act 1996 is a key piece of legislation that sets out the rights of employees in situations such as dismissal, unfair dismissal, parental leave, and redundancy  [5] cited 4.11.24

The Act helps to ensure that employees are treated fairly at work, which includes important protection against being unfairly dismissed for raising a genuine complaint.

Making a complaint

Typically if an employee wishes to raise a complaint they will do so by submitting a formal grievance in line with an employer’s grievance policy

What is a grievance?

It is a formal complaint that an employee makes to their employer about a problem, complaint or concern they may have at work. After raising a formal grievance an employee will usually be invited to a grievance meeting. Following the meeting the grievance will be investigated and an outcome later provided in writing, which will confirm if the complaint has been upheld or rejected.

What happens when you disagree with a grievance outcome letter?

An employee has the right to challenge a grievance outcome by submitting a grievance appeal.  The appeal should set out the grounds for appeal.

Is it worth appealing a grievance?

If you are unhappy with the outcome and feel there is evidence to support that it is unfair or incorrect, then it is worth appealing. A successful appeal can result in the original outcome being overturned, or partly overturned.

Who can attend a grievance appeal meeting?

An employee has a statutory right to be accompanied at an appeal meeting by a trade union representative or work colleague. If the employee has a disability they can request to be accompanied by someone else e.g. family member or friend, as a reasonable adjustment An employer will usually be represented at the meeting by the manager who will hear the appeal, a HR advisor and possibly a notetaker. [6] cited 4.11.24

What happens if you lose an appeal at work?

It means that the original decision  will stand. You should not be sacked simply because your appeal is unsuccessful and was based on legitimate grounds and made in good faith.

Whistleblowing complaints

If you complain about health and safety or illegal activity at work or raise any complaint that can be considered to be a protected disclosure, you are protected as a whistleblower  [7] cited 4.11.24

That protection does mean that any employee who reports a matter deemed to be in the public interest e.g. a criminal offence such as fraud, health and safety risks or a cover up of wrongdoing, should not face retaliation or lose their job.

If an employee is sacked as a direct result of making such complaints, they can claim unfair dismissal regardless of their length of service.

When a complaint can justify dismissal

Every complaint will not be accepted and the reasons for legitimately rejecting it can differ. But if it is malicious or made in bad faith it can lead to disciplinary action up to an including dismissal.

If an employee makes false allegations or there is evidence of abusive behaviour in a complaint, it can be found to amount to an act of gross misconduct that can lead to dismissal.

It must first be established that the complaint is worthy of such action, with a determination  only being reached after a thorough and fair investigation to establish the facts and verify the intent.

Disciplinary action or dismissal after making a complaint will usually occur when the manner or content of it is found to have breached an employer’s policy, or it is spiteful or groundless.

This includes complaints that are made in a disruptive, frivolous  or unprofessional manner, or if the complaints process is being used to create problems for a colleague and making them feel harassed.

In a  case a policy advisor with the British Medical Association was dismissed for raising vexatious and frivolous grievances  [8] cited 4.11.24

The tribunal found the employee had been fairly dismissed, the employer had carried out a fair process, and the dismissal for gross misconduct was within the range of reasonable responses.

Any disciplinary action taken against an employee as a direct result of a complaint they have made must be proportionate. An employer should always give the employee an opportunity to respond to any concerns it may have about the validity of a complaint.

Unfair treatment after making a complaint

If an employee believes they have been treated unreasonably or unfairly dismissed after making a complaint, they can challenge it.

They should first seek advice and support to do so from a trade union if they are a member or from our Employee Support Centre by calling us today for a free initial consultation on 0333 772 0611

Finally

Employees have the right to raise legitimate complaints at work, and to do so without fear of being dismissed or subjected to any form of retaliation for doing so.

There are, of course, circumstances in which a complaint can justify disciplinary action in response, especially when it is malicious or made in bad faith.

There should be a culture of open communication in every workplace, which makes employees feel comfortable to raise genuine concerns, with employers dealing with them in a fair manner that helps to create a positive and productive working environment