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 Claire Simon, Partner in the employment team with QualitySolicitors Parkinson Wright. ‘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.’
Claire 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. 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. In 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 example 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
Employee grievances will crop up from time to time, and handling them effectively can really pay off. Dealing with these carefully, and the fall-out from grievances, can require careful management.
Sometimes employees bring a grievance to use as leverage in negotiations for an exit payment. Promptly and effectively dealing with the grievance can 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 Claire Simon or a member of the employment team on 01905 721600 or via email firstname.lastname@example.org
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.