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This edition’s FAQ’s address some of the tricky issues that can arise when employees raise grievances.

Q1: Who should deal with a grievance?

This will depend on what your grievance policy says about who will deal with grievances, who the grievance is about, the seriousness and complexity of the issues raised and whether the matter can be dealt with formally or informally. In many cases the employee’s line manager will deal with the grievance, with support from HR. If the grievance involves or is about the line manager, someone else should deal with it.

In complex cases you may need to appoint a separate investigator to carry out an investigation and prepare a report to be considered by the grievance hearer. In simple cases the grievance hearer can do the investigation, with support from HR. There are often benefits to appointing a grievance hearer who is outside of the employee’s team or department, as that person is more likely to be objective. Please refer to our FAQ’s on Investigations which explains who is the best person to carry out an investigation.

You should always tell the employee at the start of the grievance process who the grievance hearer will be. This enables them to raise any objections if, for example, they believe the grievance hearer is not sufficiently independent. If they do object to your choice of grievance hearer, consider whether it would be appropriate to change the grievance hearer, and provide reasons to the employee whatever your decision is.

In all cases the employee should have the right to appeal to a more senior and independent manager if they are not happy with the decision of the grievance hearer.

Q2: An employee has raised a formal grievance. We think it would be better dealt with informally. Can we suggest this?

Yes you can. You can’t force an employee to deal with a grievance informally however – if they insist that it is dealt with formally, you must do so.

When deciding whether to suggest that the grievance is dealt with informally, the main consideration is the type and seriousness of the complaint.

For example, it would be appropriate to suggest adopting an informal approach if an employee has been offended by an off-hand or stupid comment made by another member of staff, as an informal word with the employee in question may resolve the matter. It would not, however, be appropriate to suggest an informal approach if the relationship between the parties has broken down, or if the grievance raises serious issues such as bullying or harassment. In more serious cases a detailed and thorough investigation should be carried out and the employee should be invited to a formal grievance hearing.

Many issues can be dealt with informally even before a formal grievance is raised through the use of preventative measures such as:

  • Regular communication between colleagues – and in particular regular 121 meetings between employees and their managers, which give staff the opportunity to raise any concerns they may have quickly and informally.
  • Encouraging open dialogue and feedback between colleagues.
  • Publicising your policies on grievances and on resolving disputes in the workplace, so that employees are aware of them and know what to do if they are worried or upset about something.
  • Making it clear in the grievance procedure that informal resolution should be considered before raising a formal grievance.
  • Responding to any informal verbal grievances appropriately with a considered and balanced response. You should keep a written record of the response (such as a note on the HR file, or an email to the employee confirming what you have told them) in case there is any suggestion at a later stage that you have not responded.
  • Involving employees or their representatives when producing/updating the written grievance procedure.
  • Training managers in how to recognise and deal with grievance situations effectively.

If a formal grievance has been raised, or it is more appropriate to deal with a grievance under your formal policy you could consider using workplace mediation as an alternative form of dispute resolution. This can be a much more effective way of resolving conflicts and helping to rebuild relationships, as it focuses on the future and working together, rather than on who is right and who is wrong.

Q3: We have carried out an investigation into the employee’s grievance. Do we have to provide the employee with copies of our investigation notes?

No, but it is good practice to do so. The notes will have to be disclosed if there is a subsequent tribunal claim, and may also have to be sent in response to a subject access request. It is good practice to assume that any notes or other documents gathered or prepared during the investigation may be seen by the employee in the future, and to provide them to the employee. It is quite common for employees who are disgruntled with the outcome of their grievance to make a request under the Data Protection Act to obtain copies of information held about them in the expectation that these will reveal something relevant. If you receive such a request, you will have to disclose all documents relevant to the investigation (in so far as they identify the employee) unless you can rely on one of the exceptions.

Generally, you can only refuse to disclose these documents if they contain information about another employee or information about a third party that is confidential (unless that employee or third party has consented to the disclosure). Even so, you should consider redacting (blocking out parts of the document that are confidential) or editing the documents to conceal the personal details of others before refusing to provide documents.

Q4: What should we do if an employee’s grievance repeats issues raised in an earlier grievance?

Explain that the issues have already been considered as part of the earlier grievance, and that you will not ‘re-open’ the earlier grievance. You are under no obligation to hear the same grievance from the same employee more than once. You are entitled to treat the outcome of the original grievance as final unless the employee successfully appeals the decision, the new grievance relates to a different issue or new evidence has come to light.

You should not jump to conclusions, even if on initial reading it appears that the grievance covers the same issues as an earlier grievance. It is sensible to speak to the employee to find out what has prompted their further grievance and find out whether a new issue has arisen or new evidence is now available. If this is the case, you should invite the employee to another grievance hearing and investigate as normal.

If there are no new issues or evidence, explain to the employee that the issues they have raised have already been dealt with as part of the earlier grievance and that you will not be investigating again. It may be best to explain this to the employee face to face, and follow up in writing.

Q5: Do we have to deal with a grievance raised by an employee who has now left our employment?

In most cases – no. Before making a decision as to whether to deal with the grievance consider the risks and benefits of doing so. The factors that you may want to take into account in deciding whether to deal with the grievance include:-

  • Whether the employee was still employed when they raised the grievance (if they were there is a stronger case for dealing with it).
  • Is the employee likely to bring a claim?
  • The nature of the grievance.
  • Are the issues ones that need investigating to protect other employees and your organisation?

If the complaint is of bullying or discrimination and you think there may be some merit in it, consider investigating so that you can then use the findings of the grievance investigation in disciplinary action against the person complained about.

Q6: We are taking an employee through a performance management process and have issued her with a written notice. She has raised a grievance and is alleging that the manager is treating her unfairly. How should we proceed?

It is not uncommon for this to happen and you have a number of options open to you:

  • Deal with the grievance separately;
  • Temporarily suspend the performance management process to deal with the grievance; or
  •  Deal with the grievance and the performance management together.

If the grievance is unrelated to the performance management process, is straight-forward and the facts are not in dispute, deal with the grievance separately to the performance management process without suspending the performance management process. This should avoid delays to both processes.

Temporarily suspending the performance management process will give you time to properly investigate and consider the merits of the grievance. It will also mean that the outcome of the grievance will be entirely separate from the performance management process. The downside however is that the poor performance is likely to continue whilst the grievance is investigated, and employees may come to see raising a grievance as a ‘defence’ against performance management.

If the grievance is related to the way in which the employee has been performance managed it is often sensible to deal with both issues at the same time. This might arise, for example, where the employee argues that their line manager is being “too hard”, bullying them or is not providing them with adequate support to improve. In this situation, the employer should hold a meeting and allow the employee to set out the grounds for the grievance as part of the performance management process.

Whichever approach you take, make sure that you do properly investigate and deal with the complaint and have a written record of having done so.

Q7: Over the last two years an employee has raised a number of grievances against different members of staff. None have been upheld. Can we warn her that if she raises any further grievances without foundation she may be dismissed?

Possibly, but we would not recommend doing so unless you have taken legal advice, as this can be extremely risky.

Raising unfounded grievances can be treated as a disciplinary issue if the employee has acted dishonestly or maliciously. Proving that someone has acted dishonestly or maliciously is difficult. Often, employees genuinely believe what they are complaining about, and it is ‘their truth’ – in which case disciplinary action would be inappropriate. If, however, you have concluded (based on evidence) that an employee raised a grievance purely as an act of retaliation against a manager that the employee disliked, this would be dishonest and malicious and could be dealt with as a disciplinary issue.

Very few cases are this cut and dried. Often employees will raise issues in good faith (in the sense that they genuinely believe that they have been treated unfairly) and provided they have done so, you will not normally be able to discipline them simply because they raise further complaints.

That said, it does not mean that you have to put up with this indefinitely. A good starting point would be to suggest workplace mediation in the hope that the underlying issues or tensions causing the complaints can be dealt with. If this is unsuccessful, or the employee refuses to engage with it you may be able to discipline him/her if they then raise further unsubstantiated grievances. You will have to show that the trust and confidence between you and the employee had broken down to such an extent that you can no longer continue to employ him/her. Before dismissing you will need to follow a fair procedure which will usually mean that you must warn them first that they may be dismissed if they do not change their behaviour.

You must be particularly careful if the grievances raised by the employee are about alleged discrimination as the employee may be able to successfully argue that their dismissal is an act of victimisation (which is a separate category of discrimination) or the allegations raised amount to a protected disclosure (whistle-blowing).

Published: 2 June 2017

Employment Law Update - June 2017

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Kirsty Ayre