An employer’s guide to managing grievances
Dealing with grievances can be a drain on any business. There are, however, real advantages to undertaking a prompt investigation. It could uncover inappropriate behaviour, or poor management, that needs to be nipped in the bud. Swift action could avoid more significant problems later on and assist in mitigating reputational risk both internal and external.
Employers should normally comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”). This sets out the basic steps and principles for dealing with a grievance.
‘Investing time and resources to deal with a grievance early can pay off in the long term’ explains Sam Welham, an Associate Solicitor in the Employment Team at Barker Gotelee. ‘If you ignore a grievance, or are slow to respond, it could backfire. The employee may believe their concerns have not been taken seriously. That could, in some circumstances, lead to a claim on constructive unfair dismissal and/or discrimination.’
Sam Welham sets out why you should take grievances seriously from the outset, how to a proportionate approach, and highlights the legal protection given to some employees who raise a grievance.
When should you investigate a grievance?
If an employee raises a concern, you should not dismiss it just because it may seem petty, or insignificant. The term ‘grievance’ has a very wide definition. It is a concern, problem or complaint that is raised by an employee.
Care you should be taken if the allegation is 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 comments appear to be a ‘bit of banter’, it does not necessarily follow an Employment Tribunal would agree.
You should err on the side of investigating the grievance, and listening to the employee about how they have been affected. Care should also be taken if the employee is raising an issue that give whistleblower protection. We can advise you on how to respond.
In rare cases, it may be legitimate not to investigate a grievance. For example, if it is vexatious, or made in bad faith. If you decide not to investigate a grievance for these reasons, then legal advice should always be taken and a full record made of the reasons for that decision.
What are the risks of not looking into a grievance?
Employees have a right to redress if they raise a grievance. If the grievance is ignored, or only considered superficially, the employee might resign and claim constructive unfair dismissal. Depending upon the background, the employee may also argue that the failure to deal with a grievance properly is discriminatory, or is a ‘detriment’ following a whistleblower complaint.
If you do not follow the steps set out in the ACAS Code, an Employment Tribunal could increase any award it makes, by up to 25 per cent.
Do we have to investigate?
Most grievances need at least a brief investigation. Unless you carry out a reasonable investigation, the employee could 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. You should deal with a grievance promptly to comply with the ACAS Code, and to ensure fair treatment. At the same time, the investigation needs to be thorough. This is so the manager deciding the outcome, can reach a reasoned view.
A desk-top investigation may be sufficient, for example, to consider a pay error. In dealing with more complex allegations, such as of bullying and harassment, a reasonable investigation is likely to involve interviewing witnesses. For example, if an employee alleges that bullying was seen by a colleague, you should interview that colleague.
It may be reasonable to limit the number of individuals who are interviewed. For example, if an employee in a large team alleges their manager shouts during team meetings, it may only be necessary to interview a few team members.
What can we do if the grievance is unfounded?
Grievances can be very damaging to working relationships. If the grievance is dismissed, and it has caused the relationship to break down, you should pause for thought before dismissing. If the employee has alleged discrimination, they will be protected from victimisation, which includes dismissal.
Sometimes it will be possible to fairly dismiss in these circumstances, but please speak to us first. Similarly, you can take action if a grievance has been made in bad faith, or is vexatious. Again, this needs careful consideration, and legal advice should be sought.
How can we help
Grievances are raised from time to time. Handling them effectively can really pay off. They need to be dealt with promptly, and the fall-out can require careful management.
Sometimes employees bring a grievance to use as leverage, when negotiating an exit payment. Prompt and effective management can strengthen your bargaining position.
We are highly experienced in these areas and can support you in managing the risks. For further information, please contact Sam Welham in the Employment Team on 01473 617 348 or email [email protected]
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
