Complaints raised at exit interviews
During an exit interview, a soon-to-be ex-employee tells you that they were upset by an incident which occurred recently. You’re concerned that this could amount to a grievance. So how should you handle it?
A problem shared
Let’s suppose that whilst conducting an exit interview an employee says that they’re unhappy with how a colleague spoke to them a short while ago. You can see they’re distressed by this but you’re worried that their comment could amount to a grievance. So how should you play it?
How do you know?
If the comment had been made before April 6 2009, you would have been right to be concerned: the old statutory grievance procedures would have been triggered in this situation. As case law had developed following their introduction, there were an increasing number of situations when a grievance could be raised.
Hidden risk. The courts had said that matters such as “passing comments” (including those made in exit interviews) and complaints written on Post-it notesamounted to grievances. Where employers failed to act on them, employees had the right to bring a claim and often did!
On your toes
This meant that employers had to be permanently on their guard for every little expression of dissatisfaction - an impossible task and rather unfortunate as this wasn’t the intention of the statutory procedures. Luckily, with the introduction of the new ACAS Code of Practice (the Code), which came into effect on April 6 2009, employers can now relax a little.
Not a problem. The Code doesn’t recognise grumbles and comments as grievances. What it says is that where an employee has a grievance, they should first try to resolve it informally. If this isn’t possible, theyshould put full details of their complaint in writing to their employer, making it clear that they’re raising a grievance.
Awaiting guidance
Until we start getting some guidance through from tribunals on this point (again, via case law), our advice is that the employee’s comment during the exit interview probably doesn’t amount to a grievance. There is a slight exception to this. If the complaint is about something which happened before the Code came into effect, you should play it safe and still follow the statutory procedures. It’s likely that this will be a situation caught by the “transitional provision” (see The next step).
Any action?
However, as your employee is clearly upset by what’s happened, you may want to look into the issue further - but you don’t have to. So ask them if they would like to try to resolve the matter informally. If it’s the underlying reason for them leaving, you may be able to stop them - saving yourself the cost of hiring a replacement.
Tip. If they decline, make them aware of your grievance procedure, which should be non-contractual (see The next step). This will help show that you’ve acted reasonably in the event that they later make a complaint to a tribunal, e.g. on the grounds of bullying.
For further information on the transitional provisions (PS 11.11.05A) and a free sample grievance procedure (PS 11.11.05B), visit http://personnel.indicator.co.uk.
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