Grievances can be time-consuming and stressful for all concerned. As employers ask their employees to return to the workplace in the coming weeks and months we anticipate there will be many more complaints and concerns raised by staff. Successfully managing and concluding a grievance procedure can be tricky with any number of pitfalls along the way. It can lead to expensive legal claims that might have been avoided with a more careful approach during the grievance process itself. Employers should focus on resolving disputes quickly, pragmatically and with minimum damage to working relationships. Here we look at some grievance-related issues that you may face:
Who should investigate the grievance?
This will often depend on the seriousness or complexity of the matter. In the majority of cases, where the matter to be investigated appears to be clear and the facts are not in dispute, an appropriate line manager or someone from HR could carry out the investigation. However, if the evidence to be investigated is more serious or complex, such as allegations of discrimination or bullying, appointing someone more experienced or senior would be desirable.
Do we have to investigate a grievance that is vague or generic?
Yes. Ask the employee to clarify what their complaint is as soon as possible and ask for any additional information you require. You cannot simply disregard a complaint because it is brief or vague. Ask for specific details of who said what and when, and ask for any relevant documents such as emails. Let them know that not providing you with all the relevant details about actual incidents is going to prejudice your ability to ask the right questions of those concerned.
But what if the grievance is malicious or tactical, do we have to investigate it?
Yes, you should usually give the employee the benefit of the doubt and this approach will avoid the risk of any potential claims arising from a failure to deal with the grievance promptly or thoroughly. If the complaint was malicious, the investigator may recommend that formal or informal action is taken against the employee. Sometimes an employee will raise a grievance as a negotiating tactic to prompt settlement discussions or gain additional leverage in existing discussions. Again, the best approach is to follow your grievance procedure in parallel with any settlement discussions to protect your position should negotiations break down and a tribunal claim follows.
If a grievance is about health and safety concerns such as Covid-secure issues does it mean it is a protected disclosure for whistleblowing purposes?
There is a very real possibility that it will be a protected disclosure. Generally, for the individual to have the formal protections of the whistleblowing regime they will need to show that they reasonably believe their disclosure of information to be in the public interest. By contract, they do not need to show this with a grievance complaint. It's easy to see how an alleged health and safety breach could be in the public interest and so potentially be a protected disclosure. There are, however, other elements of the test that also need to be satisfied. This area of law is complex, and legal advice should be sought at the first opportunity. Certainly, with any grievance, you must not retaliate against or punish the employee (except where you have shown it to be baseless and malicious). If the grievance is also a whistleblowing complaint, any retaliation or punishment will provide grounds for a tribunal claim.
What if witnesses won’t give an account?
Some employees will be reluctant to give evidence to assist the investigation, either because of a fear of reprisals or because of a wish to "not get involved". The investigator should try to find out why the person is reluctant and explore ways to resolve the issue and reassure the witness.
What if someone raises complaints in their resignation letter?
Although there is no explicit requirement in law or the Acas Code of Practice on Disciplinary and Grievance Procedures for an employer to follow a grievance procedure in cases involving former employees, it can be sensible to do so. It is not uncommon for an employee's resignation letter to set out grievance issues, particularly in a constructive dismissal situation and, if you can resolve the employee's issues under the company’s procedure, it could avoid a future time-consuming and costly tribunal claim.
We are ready to support and advise your business with all grievance-related matters and will be hosting a webinar on managing grievances on Wednesday 16th June 2021. Please get in touch with your usual 3CS contact for further details.