Addressing workplace grievances is estimated to cost UK employers in the region of £356 million each year. This equates to 1.35 written grievances being submitted per 100 employees, which translates to an estimated 374,760 written grievances submitted by UK employees each year. When they do arise, grievances need to be handled well. Get it right and employers can often avoid issues from escalating, and in some cases can improve the relationship with that employee. Get it wrong and it can lead to a toxic relationship and possibly full-blown litigation.
During our recent HR Insight forum we considered the common pitfalls that can arise when dealing with grievances and how to overcome these issues. Notably 55% of the delegates that attended the forum have had to deal with a grievance in the last 12 months.
The top ten trips and tips!
- Delay – failure to deal with the investigation in a timely manner. It is good practice for employers to determine at an early stage who will be conducting the investigation process and any appeal in order to ensure their availability to manage the process swiftly. Also ensuring that any unavoidable delay is communicated to the individual together with an explanation and a revised timescale for completing the grievance process.
- Documentation – it is important that accurate records are kept throughout the process to evidence the process adopted and discussions had. However, it is also important to be mindful that internal documentation could be disclosed to individuals at a later date (as part of tribunal disclosure or data subject access request (‘DSAR’)) and as such all correspondence should be written with this in mind.
- Support to individuals – a grievance process can be stressful for the individual who has raised the grievance and also the individual who is the subject matter of the grievance. It is therefore good practice to offer support to all concerned. For example, internal support from HR or referring the employees to an Employee Assistance Program (‘EAP’) service. Depending on the circumstances assistance from occupational health may also be beneficial.
- Redress – claims of constructive unfair dismissal often arise when a grievance is not upheld. It is therefore important to recognise that even when a grievance is not upheld an employer should take steps to assist the employee resolve any perceived conflict in order to facilitate the working relationship.
- Training – many managers are competent in their day-to-day work, however they may lack knowledge and experience of how to conduct a thorough and fair investigation. Management training on how to conduct a grievance process is invaluable.
- Don’t be an ostrich! – there is no benefit in hoping an issue will go away. If an employee raises a concern, even when they state that they don’t want the matter to be dealt with formally, an employer has a duty of care to consider the matter. It may not always be necessary to invoke the formal process, but an employer should take steps to investigate and address the concerns raised.
- Confidentiality – whilst it appears obvious that any discussions with others about the investigation should be kept confidential, this is often not the case. It is therefore important that the investigator doesn’t discuss the investigation with anyone that does not have a need to know. Furthermore, any witnesses spoken to as part of the process should be reminded of their duty of confidentiality and the seriousness of any breach.
- Post-employment grievances – whilst there is no explicit requirement in the Acas Code for an employer to follow a grievance procedure where an employee raises a grievance after their employment has come to an end, it is sensible to do so and in doing so an employer may avoid litigation. In the case of Base Childrenswear Ltd v Otshudi the Claimant raised a grievance 5 days after her dismissal. The Tribunal awarded the Claimant aggravated damages (on top of the compensation award) as amongst other things the Respondent had failed to respond to the Claimant’s grievance. In addition, the Tribunal awarded an uplift of 25% to the compensation award for the Respondent’s failure to follow the Acas Code.
- The employee who goes off with stress – just because an employee is signed unfit for work it does not necessarily mean that they are unfit to attend an investigatory or formal meeting. Where an employee is suffering from stress related or depressive symptoms it is likely that the effects of an unresolved dispute on the employee’s mental health may be greater if the proceedings are postponed. The starting point is always to ask the employee to attend, and if they refuse an employer should seek to understand their reason for refusing and at that stage it may be appropriate to seek advice (with the employee’s consent) from their GP or Occupational Health.
- Where a grievance is submitted during a disciplinary process – whilst each case will depend on the fact as to how to approach this situation, in some circumstances an employer will need to put the disciplinary process on hold until the employer has considered the grievance. However, this may not always be necessary. For example, where the grievance is in effect a defence to the allegations being made against them, it might be appropriate to deal with those issues as part of the disciplinary process but ensuring that an outcome to the grievance is also delivered. In other cases, the grievance may be unrelated and should be dealt with entirely separately and could be considered concurrently (albeit deepening on the facts, it may be sensible to delay the outcome of the disciplinary process pending the outcome of the grievance).
Early intervention is key to managing workplace conflict, avoiding productivity issues, potential claims and minimising costs to the business. If you are interested in training your managers on how to conduct investigations, please do get in touch for details of our in-house training courses.
Save the Date
We very much hope you’ll be able to join us in person for our next HR Informed session on 9 June 2022 at the Ickworth Hotel in Bury St Edmunds. We also hope to see you at our next virtual session on 14 July 2022.
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This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.
Selene Holden ([email protected] ~ 01284 717436)