InsightsInsight - Employment & HR - POSTED: September 24 2021
Grievance procedures – top five tips for employers
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On 16 September 2021 we partnered with Mid Kent CIPD to deliver a webinar for HR professionals on the subject of dealing with employee complaints effectively.
In the webinar, speakers Louise Brenlund and Sarah Wimsett covered the importance of fair and effective handling of complaints, key initial steps, effective investigations, dealing with a formal grievance and key problem areas.
The webinar recording and presentation slides are now available to view.
There is no denying that it is beneficial to both the employee and business if any concerns, problems or complaints, or ‘grievances’, can be dealt with informally. However, this is not always possible. Especially now, as we return to a new ‘normal’, many employers are seeing a growing number of formal, more detailed and complicated complaints.
This article highlights the top five tips for effectively dealing with a grievance procedure. We also summarise five key cases that highlight some problem areas for employers going through this process.
Getting to grips with an effective grievance procedure – top five tips
Choosing an appropriate investigator
Ideally the investigator should be a person not named in the grievance or have any personal involvement in the matter. This minimises arguments of conflict of interest or bias being raised.
Who should investigate will depend on the seriousness and complexity of the matter. For example, a day-to-day issue without facts in dispute could be investigated by an appropriate line manager. However, if the allegations involve bullying or discrimination, an appropriate investigator might be someone more senior, trained in this area and knowledgeable of how the organisation operates.
You should also consider the following practical issues:
- Do not appoint an investigator that is going on annual leave shortly and/or may be involved in a large work project and not have the time to deal appropriately or swiftly with the investigation.
- If there is an appeal, a suitable person will need to be available to consider the appeal. Ideally, they should not have been involved in the initial investigation and should be more senior than the original investigator.
- It may be appropriate for the investigator to also hear and decide upon the grievance but this will be fact specific and considered carefully from the outset.
Planning is key!
To ensure an effective investigation, it is essential to set out a plan at the start of the investigation.
The investigation should be a fact-finding exercise. The investigator should consider what needs to be established, what evidence should be reviewed to do this. This includes documentation, physical or visual evidence and witnesses.
The investigator should be mindful of any time constraints, including any provisions set out in the company grievance policy or procedure and practical issues such as if CCTV or email records are deleted after a set number of days.
They should also be open to the possibility of new information arising during the process. If this happens, the investigation plan may need to be continuously adapted throughout the process.
Witnesses and questions
Relevant witnesses should be identified before investigations commence. It is most effective to use a mixture of open and closed questions to get the most useful information from witnesses. Interrogative and leading questions should be avoided. Further, asking multiple questions can lead to the witness becoming confused so should also be avoided.
The investigator should consider how much detail the witnesses is told to allow a reasonable and comprehensive investigation. Witnesses should be reminded of their duties of confidentiality and you should make clear that any breach of confidentiality may be treated as a disciplinary matter.
If witnesses request complete anonymity, an investigator should give this careful consideration. The reasons for the request and the motives should be explored. Anonymity should only be granted in exceptional circumstances where a witness has a genuine fear of reprisals. Further, it should be explained to the witness that there is no complete guarantee of anonymity as the matter could go to a tribunal.
The grievance meeting
The meeting should be arranged without any unreasonable delay. The non-statutory Acas guide suggests that the meeting should be held within five working days of receipt of the grievance.
Ideally you should aim for this. However, it will not be appropriate in all cases, particularly where lengthy investigations might be required. In such situations it may be advisable to have an initial meeting with the employee then adjourn to investigate further.
Remember to take account of any adjustments requested by the employee for the meeting, particularly if they relate to a protected characteristic, such as disability, sex, maternity/pregnancy, and race. Failure to do so could result in further allegations of discrimination, which should be minimised as far as possible.
The focus of the meeting should be understanding the grievance and, if possible, reaching an amicable solution. It is important to ask what the employee would like to get out of the meeting and how they would like to resolve their grievance.
Setting expectations is also key. Make sure you discuss the next steps with the employee and the timeline anticipated to complete the process. Also keep them updated if there are any changes.
Decision and appeal
Even if the outcome of the grievance is communicated to the employee at the meeting or following an adjournment of the meeting, the decision must be set out in writing without unreasonable delay. Often your company policy will set out a specific timescale; if so, ensure that you comply with this.
The Acas Code requires an employee to be given the right of appeal. This is important as an unreasonable failure to do this could lead to an uplift of up to 25% in any compensation awarded to the employee should they bring a successful employment tribunal claim.
Dealing with employees complaints – five significant cases
Below we outline five key cases which highlight the dos and don’ts when handling grievances.
W A Goold (Pearmak) Ltd v McConnell and another
An employment contract contains an implied duty that an employer will provide and implement a grievance procedure, giving an employee a reasonable opportunity to obtain redress. Failure to do so may breach implied contractual terms. This could result in a repudiatory breach, allowing an employee to resign and claim constructive unfair dismissal.
In this case, two employees suffered a substantial reduction in their pay when their employer faced financial difficulties in 1992. They were dissatisfied with this and tried to pursue a grievance with the company, but were obstructed by their immediate manager.
The company did not provide and implement a grievance procedure. The employees decided to resign and were successful in claiming constructive unfair dismissal due to a finding of breach of the implied term of ‘mutual trust and confidence’ owing to the inadequate way the company dealt with their grievances after it was clear that the employees were aggrieved.
This case highlights the importance of investigating and handling a grievance reasonably and appropriately. Whether the steps taken will constitute a repudiatory breach sufficient to allow an employee to resign and claim constructive unfair dismissal will be fact specific and depend on all of the circumstances of the case.
Hargreaves v Wright Foundation Research Ltd and another
This case demonstrates that failure to deal with a grievance and the way in which it is investigated may lead to wider risks of allegations of discrimination or victimisation. In these circumstances there is also the risk that an employment tribunal may award higher compensation.
In this case, the tribunal found that the employer’s decision to dismiss an employee who had submitted a grievance was unfair and constituted victimisation. This was because the employer had only raised issues with the employee’s conduct and performance after receiving her grievance. They failed to investigate the grievance properly or invite her to a disciplinary hearing for the alleged performance and conduct issues.
The tribunal also awarded a 25% uplift to the compensation for the employer’s failure to allow the employee to put her case at a disciplinary hearing.
Martin v Devonshires Solicitors
This case has given employers the opportunity to argue that an employee was not subjected to a detriment or dismissed because of a complaint, but because of the manner in which the complaint was made (or another reason not relevant to the complaint).
In this case, an employee repeatedly raised grievances that she was facing sex discrimination and being harassed by some of the partners at the firm. The employer dismissed the employee on the basis that there had been a breakdown of the relationship of trust and confidence.
The Employment Appeal Tribunal found that the employee had not been dismissed for making complaints, but for repeatedly making serious false allegations (her conduct at work and the manner in which she had complained).
It is important to note that the employee refused to accept the claims were false and was considered likely to be disruptive in the future. In this case, the reasons for dismissal were genuinely separable from the protected act of bringing a grievance connected to alleged discrimination. Her appeal was therefore dismissed.
Woodhouse v West North West Homes Leeds Ltd
This case underlines the difficulties that employers might face when an employee makes persistent allegations of discrimination against the employer and fellow employees, potentially baseless grievances and tribunal claims.
In this example, the employee raised nine grievances and nine employment tribunal complaints against his employer over a four-year period. The complaints related to race discrimination and the handling of the grievances. The employee was eventually dismissed because the employer found the employee had lost trust and confidence in them and therefore the employment relationships was untenable. The employee brought a further claim in the tribunal.
The Employment Appeal Tribunal considered whether the dismissal amounted to victimisation of the employee. The Equality Act 2010 provides a defence for an employer facing a victimisation claim, which is that it is not victimisation if the protected act is false and made in bad faith.
However, in this case, although the employee’s claims were found to be without foundation, they were not made in bad faith. Therefore, the complaints were considered protected acts and the employee was found to have suffered victimisation.
This case serves as a warning to employers dealing with complaints of discrimination. It is important to remember the raising of a grievance will be considered a protected act, unless the allegations are found to be false and in bad faith.
This case makes it clear that even if allegations are numerous and appear unreasonable and without foundation, an employer who treats an employee less favourably because of these will be liable for victimisation.
Jinadu v Dockland Buses UKEAT/0434/14/LA
As discussed during the webinar, employers can experience particular problems when employees are involved in a disciplinary process and submit a grievance before or during the disciplinary hearing.
One of the key questions we are often asked by employers is whether it is necessary to put the disciplinary hearing on hold.
Whilst there is no legal requirement to postpone a disciplinary hearing, this is very fact sensitive. If you are in this position, you should ask yourself whether the complaint raised may have any bearing on the fairness of the disciplinary outcome. This is supported by this case.
In the case of Jinadu v Dockland Buses, the employee was a bus driver subject to a disciplinary for poor driving. During the disciplinary process the driver made various allegations against managers involved in the process. Despite this the employer continued the disciplinary process and dismissed the employee.
The Employment Appeal Tribunal addressed the matter of whether a disciplinary process must be put on hold pending the outcome of grievances raised at the same time. The idea that the disciplinary process must be put on hold was completely rejected.
If you want to know more about any of the issues covered in this article, book a free 30-minute virtual appointment with a member of our Employment team, at a time that suits you.
This content is correct at time of publication
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