Grievance Procedure
An employer’s guide to taking grievances seriously
Grievance Procedure
Dealing with employee grievances can sometimes seem like a thankless drain on a business’s management and resources. But a prompt investigation could uncover inappropriate behaviour or poor management that needs to be nipped in the bud, avoiding bigger problems down the line and reputational risk for the organisation.
Employers must comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code), which sets out the basic steps and principles for dealing with a grievance.
‘While this encourages employers to ‘have a quiet word’ or to use mediation where appropriate, investing time and resources in dealing with a grievance can pay off in the longer term,’ explains Annalie King head of the Employment Law team with Kerseys Solicitors. ‘An informal approach could backfire as the employee may feel their concerns have not been taken seriously and this in itself could be an act of discrimination.’
Annalie King sets out why employers should take grievances seriously from the outset and how to take a proportionate approach, as well as highlighting the legal protection given to some employees who raise a grievance.
When is a grumble a grievance?
If an employee raises a grievance, the employer should not dismiss it just because it may seem petty or insignificant. Generally, any grumble raised as a grievance should be treated as a grievance. In rare cases, it may be legitimate to not look into a grievance if it is vexatious or in bad faith, but please speak to us first. If the grievance seems like a minor grumble that could be resolved informally, employers should try this first.
Care should be taken if the allegation is potentially serious, for example sexual harassment. How the employee perceives the behaviour is an important factor in considering if conduct is harassment or not. Just because it appears to the employer to be a ‘bit of harmless fun’ does not mean a tribunal will agree. Employers should err on the side of looking into the grievance and hearing from the employee how they have been affected. Care should also be taken if the employee is raising an issue that could give them protection as a whistle-blower. We can advise you on how to respond.
In some circumstances, if an employee keeps grumbling about an issue, it can be sensible to suggest the employee brings a formal grievance or that they drop it. In rare circumstances, instigating the grievance procedure on the employee’s behalf can help close down an issue. Once the grievance procedure has been exhausted, it will usually be reasonable to tell the employee that the issue is closed.
If an employee raises a complaint about an ongoing disciplinary procedure against them, in many cases you will not need to open up a fresh grievance process. We can advise you on whether the complaint can be safely fed into the disciplinary procedure.
What are the risks of not looking into a grievance?
Employees have a right to redress of a work-place grievance. If the grievance is ignored or only considered very superficially, this can give the employee the option to resign and claim constructive unfair dismissal. In most cases, the employee needs two years’ service for this. Depending on the background, employees may also be able to argue that the failure to deal with a grievance properly is discriminatory or is a detriment for blowing the whistle.
Employers who do not follow the steps and principles set out in the Acas Code, risk the tribunal increasing the employee’s award by up to 25 per cent. This applies to claims such as discrimination, disputes over pay and detriment as a whistle-blower.
Do we have to investigate?
Most grievances need at least a brief investigation. Unless you carry out a reasonable investigation, the employee can argue that they were not given a reasonable chance for redress of their grievance. This could lead to a constructive dismissal claim.
How far do we have to investigate?
This will always be a balancing act. On the one hand, employers should deal with grievances promptly to comply with the Code and to ensure the fair treatment of the complainant and any employees named in the grievance. On the other hand, the investigation needs to be thorough enough so that the manager deciding on the grievance can reach a reasoned view.
A desk-top investigation may be sufficient, for example, into a pay error However, when dealing with more complex allegations, such as of bullying and harassment, a reasonable investigation is likely to involve interviewing individuals. For example, if an employee alleges that an incidence of bullying was witnessed by a colleague, the colleague should be interviewed. However, it may be reasonable to limit the number of individuals who are interviewed. For instance, if an employee in a large team alleges that the team manager shouts in team meetings, it may not be necessary to interview the whole team.
What can we do if the grievance is unfounded?
Grievances can be very damaging to working relationships. If the employer dismisses the grievance, the employer should pause for thought before dismissing an employee due the breakdown in relationships caused by the grievance. If the employee alleged discrimination, they will be protected from victimisation including dismissal because they raised a grievance. Sometimes it will be possible to fairly dismiss in these circumstances, but please speak to us first to help you navigate your way through this. Similarly, employers can take action if grievances have been brought in bad faith or are vexatious. Again, this needs careful consideration.
How we can help
From time to time, employee’s will raise grievances and dealing with these carefully, as well as the fall-out from grievances, can require careful management.
Sometimes employees bring a grievance to use as leverage in negotiations for a settlement agreement. Dealing with the grievance promptly and effectively can ultimately strengthen the employer’s bargaining position.
We are highly experienced in these areas and can support you in managing the risks. For further information, please contact Annalie King, Partner and Head of our Employment Law team or Rosie Brighty, Trainee Employment Solicitor at Kerseys Solicitors. You can contact Annalie King or Rosie Brighty by telephone at Kerseys Solicitors in Colchester 01206 584584, Kerseys Solicitors in Ipswich 01473 213311 or Kerseys Solicitors in Felixstowe on 01394 834557 or email us at [email protected]. Alternatively visit our website and click “Call Me Back”.
