GRIEVANCES - 15.02.2018

Tackling tricky grievance scenarios

WHAT’S A GRIEVANCE?

The Acas Code of Practice on Disciplinary and Grievance Procedures (see Follow up ) defines grievances as “concerns, problems or complaints that employees raise with their employers” . Issues that may cause grievances include employment terms and conditions, new working practices, work relations, health and safety, and bullying and harassment, but this list isn’t exhaustive. It’s important you’re familiar with the provisions of the Acas Code if you’re to conduct a grievance investigation or chair a grievance meeting as it sets out basic principles of fairness and standards of reasonable behaviour, and employment tribunals can take it into account when considering relevant cases. In addition, if the employee subsequently brings a successful tribunal claim in relation to the subject matter of the grievance, the tribunal has the discretion to increase the amount of compensation awarded by up to 25% if you’ve unreasonably failed to comply with the Acas Code . Also make sure you’ve read, and comply with, your own grievance procedure.

Pro advice. How you approach the grievance process may dictate the outcome. Keep an open mind throughout and always respond in a balanced manner.

A DUAL ROLE?

Whilst you know you need your investigating manager to be impartial and not to be personally involved in the matter being investigated, can this be someone from HR and could the investigating manager also go on to chair the grievance meeting? The answer to both questions is “yes”. Firstly, it’s acceptable for HR to carry out a grievance investigation. However, if the allegation is particularly serious or complex, you might want to ensure that it’s someone sufficiently senior with experience of, and training in, conducting investigations. Secondly, the roles of investigator and decision maker may be combined. In fact, it often helps if the person investigating the grievance also hears it.

Pro advice 1. The position on grievances is different to the investigation and hearing of disciplinary matters, where the Acas Code states that, where practicable, different people should carry out the investigator and decision-maker roles.

Pro advice 2. You still need to ensure someone else chairs any grievance appeal meeting. This should ideally be someone more senior than the original decision maker. The Acas Code states that the appeal should be dealt with impartially and, where possible, by a manager who’s not previously been involved in the case. This could be the business owner.

RELUCTANT WITNESSES

What should you do if one or more employees are reluctant to give evidence to assist the grievance investigation? This may be due to a fear of reprisals or simply because they’d rather not get involved. If this happens, find out why they’re unwilling to assist, e.g. are they genuinely worried about speaking out against a colleague? Then consider whether they have essential evidence to give and, if so, whether there’s a way to resolve the issue. Talk them through the grievance process and explain why you need their help, but do ensure you protect confidentiality for the other parties involved, i.e. the complainant and any employee who is the grievance subject. The more senior the employee, the greater the duty on them to co-operate.

Pro advice 1. One option is to arrange for their witness statement to be limited to the evidence they are willing to give, or to provide that certain parts of their statement will be redacted if it’s to be disclosed at a later stage to the grievance subject as evidence to support disciplinary action. Do bear in mind though that a redacted statement can undermine the basic principles of fairness and reasonableness.

Pro advice 2. Only in exceptional cases, where a witness has a genuine fear of reprisals, should you agree that their witness statement can be given on an anonymous basis - and only offer this as a last resort.

Pro advice 3. Where a statement is anonymised, consider whether the witness may have an ulterior motive for giving you the information and how reliable they are, and always look for other corroborative evidence to verify what you’ve been told.

RECORDING MEETINGS

If the employee asks to record the grievance meeting, how should you respond? Your knee-jerk reaction is probably to say “no” because you’d rather just have written meetings minutes (see Follow up ) as those can reflect your version of events and say that which you want to have occurred at the meeting. However, if you say “no”, it could later make you look like you had something to hide if the case should end up at employment tribunal, and there’s a risk the employee could covertly record the meeting anyway.

Pro advice 1. Instead, offer to record the meeting yourself and to supply the employee with a copy of the recording or a transcript.

Pro advice 2. If you do allow the employee to record the meeting, require them to assign copyright of the recording to you. In addition, make your own simultaneous recording and arrange for a transcript to be produced. You can find online transcribers for less than £1 a minute, e.g. http://www.rev.com .

Pro advice 3. Be aware that the covert recording of a grievance meeting may be admissible in subsequent tribunal proceedings if the employee can show it’s relevant. Ensure your grievance procedure prohibits the covert recording of meetings (see Follow up ).

OVERLAPPING DISCIPLINE ISSUES

What action should you take if an employee raises a grievance during a disciplinary process? The Acas Code says that the disciplinary process may be temporarily suspended to deal with the grievance. However, where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.

Pro advice. It’s up to you to decide which option is appropriate and this will depend on the circumstances of the case. What you mustn’t do is take no action at all to investigate a grievance raised during a disciplinary process.

UNFOUNDED GRIEVANCES

If you suspect an employee has raised an unfounded or false grievance, what do you need to be aware of? It may be grounds for disciplinary action if the employee has behaved dishonestly or maliciously. However, if they were simply mistaken about the subject matter of their grievance, you shouldn’t discipline them.

Pro advice. If you do think the employee is behaving dishonestly or maliciously, give them the benefit of the doubt until the investigation process is complete. At that stage, the investigating manager may decide that the grievance was clearly dishonest or malicious and may recommend formal disciplinary action be taken.

GRIEVANCES DURING SICK LEAVE

If an employee raises a grievance during stress-related sickness absence but says they’re too unfit to attend a grievance meeting, how should you deal with the issue? First, present them with alternative options rather than putting the grievance on hold, such as holding the meeting at a neutral venue or at the employee’s home, holding it by telephone, permitting them to submit a detailed written grievance statement or allowing them to send along a representative to act on their behalf. You have an implied duty to offer prompt redress of their grievance. Secondly, if you are considering delaying the grievance meeting until the employee is well enough to participate, obtain a medical report to ensure you have medical evidence to support their assertion that they’re too unfit to attend.

Pro advice. Don’t just conclude a grievance without giving the employee the opportunity to explain their complaint(s).

SPECIAL CASES

What if the grievance is about discrimination, harassment, whistleblowing or bribery? As these are all highly sensitive and complex issues, it’s best to deal with them through separate procedures if you have them, instead of using your standard grievance procedure, i.e. under the terms of an equal opportunities, dignity at work, whistleblowing or anti-bribery policy.

Acas Code of Practice on Disciplinary and Grievance Procedures

Minutes of grievance meeting

Grievance procedure