Avoiding the pitfalls of employee grievances

Dealing with grievances promptly and fairly can prevent problems developing into major workplace issues. If the problem is handled badly or not dealt with at all, it is only likely to grow and may permanently damage trust and undermine the employer-employee relationship. This could result in resignations and the loss of good workers, disciplinary issues and poor performance, poor morale which could spread to other employees, and a claim being made against your organisation. The cornerstone to effectively handling a grievance is to follow a fair procedure through to the end, minimise any delays and keep a record of everything.

The process

It is important to recognise the Code defines a grievance as “concerns, problems or complaints that employees raise with their employers”. It is not necessary for the complaint to specifically state that it is a ‘grievance’ in order for the Code to be triggered. You should therefore treat all written concerns or complaints raised by employees in writing as a grievance.

In the first instance, organisations should see whether a grievance can be dealt with informally. An informal approach is unlikely to be appropriate for complaints of a serious nature. Minor issues need addressing quickly to avoid formal action being necessary and to avoid a small issue turning into a bigger one.   

If formal action is needed, organisations should follow their relevant grievance procedure and/or adhere to the Code and the following minimum steps should be carried out:

  • An investigation should be carried out reviewing any relevant correspondence, documents, and data, along with identifying and interviewing all relevant witnesses
  • A meeting should be held with the employee raising the grievance, without unreasonable delay. This may be before, during or after the investigation has been conducted.
  • The employee raising the grievance should be permitted to be accompanied by a colleague or trade union representative to any meeting
  • Your decision should be relayed to the employee in writing, outlining the procedure for appeal
  • If needed, an appeal meeting should be held and any necessary further investigations undertaken

After the formal procedure has been exhausted, employees may still be dissatisfied with the outcome, resulting in employees issuing proceedings in the Employment Tribunal (ET). Such claims may relate not only to the conduct complained about in the grievance, but the manner in which the organisation handled the grievance.

If an ET finds that the grievance procedure was not carried out in accordance with the Code, and the employee succeeds with their underlying claim, the ET has the ability to increase compensation by up to 25%. 

Top Tips

To minimise these risks you should consider the following:

1. Impartiality

It is imperative that a suitable member of staff handles each stage of the process. They should be impartial and of the correct seniority. A manager conducting an appeal should be senior to the manager conducting the original grievance meeting. Policies and procedures often address who will handle each stage of the process and these should be followed, unless it would be inappropriate to do so, if for example, the manager was directly involved in the dispute.

2. Delays - avoid or communicate

Often managers are busy and it can be difficult to find managers that are both suitable and who have the time to deal with the issue – this can result in long delays between the issue first arising and its conclusion, and this of itself can exacerbate the situation.

When delays become unavoidable, you must continue to communicate with your employee and keep them updated. Whilst the ET may be sympathetic to an employer having limited resources, they may lose sympathy when an employee has been left in the dark for months.

3. Documentation – keep a paper trail

Poor management of a grievance will result in a poor paper trail. It is good practice to create an indexed pack from the outset, which can be added to as the matter progresses. There should be clear evidence of the investigation, details of invitations to meetings, and detailed notes of all meetings and interviews with witnesses. Any electronic data from the investigation (e.g. CCTV or voice recordings) should be kept in an accessible format.

We recommend that the manager conducting the hearing reviews the minutes for accuracy and signs them to avoid problems later on. Some employers ask the employee to sign and agree to the accuracy of the meeting notes, but this can cause problems if they refuse, or wishes to change elements following the meeting. It is also advisable to send outcomes of meetings to the employee and summarise the next steps.

4. Always keep in mind GDPR and confidentiality

During the grievance process, you may share documents with both the employee raising the grievance and witnesses that contain the personal data of another person. In such circumstances, you should always consider how much detail they need to be told, whether it is absolutely necessary and appropriate to disclose that information and to redact any personal information. Despite requests from the aggrieved employee or witnesses wishing their evidence to remain confidential or anonymous, this is not always possible and as such, they need to be informed of this. 

All employees involved in the grievance process should be instructed to keep it confidential and warned that failure to do so may result in disciplinary action being taken against them. Whilst this should be contained within your grievance procedure, it is worth reiterating within any letters sent out and also at the end of any meetings.

5. Never do half a job

You should always finish any investigations in relation to a grievance, even if the person has resigned. Continuing in their absence, even if they refuse to cooperate, will show that you have taken all reasonable steps to consider the issue and will again ensure you have the evidence should a claim subsequently be made to the ET.

6. Training

In the wake of the #MeToo and Time’s Up movements, the spotlight is on sexual harassment and misconduct in the workplace. Employers should therefore ensure mandatory training on such issues be provided for everyone in their organisation. This should minimise the risk of an incident occurring and of ensuring that you have taken all reasonable steps to do so.

We also recommend that managers conducting investigations into sexual harassment allegations receive specific training on the conduct of such investigations along with the legal principles involved.

Comment

To avoid the escalation of a grievance and improve your ability to successfully defend a claim made by an employee, it is important that you can demonstrate that you have followed a fair grievance procedure. Should an employee make a claim against your organisation, you will be in a stronger position to defend any claim by following the Code, acting swiftly (or communicating any delays) and keeping a record of your investigations, as these steps will help demonstrate that you have taken all possible steps to address their concerns and acted reasonably.

Read other items in Commercial Brief - November 2019