Employment: employee grievances

Clearing the air

3 November 2017

Helen Crossland offers advice on dealing with employee grievances

Workplace grievances are presented in many forms, and it is not always obvious when a formal complaint has been made. Although most employees will make it clear that they are raising a formal grievance – which alerts the receiving party to the fact that an official procedure needs to be triggered – anything in writing that alludes to a workplace problem should never be ignored.

In many cases, a formal grievance does not come out of the blue and may have been preceded by something that was passed off as a minor niggle. However, dealing with both informal and formal grievances promptly and fairly can prevent many an issue from escalating into something far more serious.

No business welcomes having to manage complaints from its employees and the valuable time this takes; but it is nonetheless part and parcel of being an employer. Moreover, if a grievance is not given due consideration or recognition in the eyes of the employee, the chance to resolve it may disappear and permanently damage the employment relationship.

Procedure

Most organisations have their own grievance procedure, which notifies employees of the mechanism to use if they have a complaint; such a procedure should only apply to employees rather than casual staff or freelancers. As a minimum, it should make the following provisions, as set out in the ACAS Code of Practice:

  • a grievance should be expressed as such and be in writing
  • on receipt of a grievance, the employer should conduct any necessary investigations and invite the employee to a formal grievance meeting, offering the right to be accompanied by a colleague or trade union representative
  • after a formal grievance meeting, the outcome should be confirmed to the employee in writing, and they should be offered the right of appeal.

If a written complaint is not labelled as a grievance, or if the tone and content invites an informal approach, the employer may opt to talk to the employee in the first instance to try to resolve the issue without invoking the procedure. Many complaints can be remedied in this fashion, although the employee should nonetheless be advised of, and not deterred from, the formal grievance procedure.

In many cases, a formal grievance does not come out of the blue and may have been preceded by something that was passed off as a minor niggle

It may also be that, regardless of an employee’s preference for an informal approach, the matter warrants a formal procedure. This could include situations where a particularly serious allegation has been made, such as harassment, bullying or discrimination, as any of these could expose the company to the risk of a tribunal claim, or a claim for personal injury, if they were not handled robustly.

Bad practices?

Irrespective of the perceived merits of a grievance, no employer should ignore or only pay lip service to a complaint brought formally. Not only could this prompt an employee to broaden their complaint or raise new ones, an employer could also pay the price financially.

If in the worst-case scenario the employee resigns and issues a claim, an employer’s failure to address a complaint under its grievance procedure will not be well received by the employment tribunal. Moreover, if the employee then wins their claim, any compensation award could be increased by up to 25% if the employer is found to have been at fault procedurally.

Good management

Training managers to spot and prevent potential grievances before they develop is the best precaution. Managers will often be best placed to respond to complaints at an early stage, as well as being able to identify or settle problems or ease relationships.

It is also important to remember that a grievance meeting is a platform for the employee to be heard and that a positive and supportive discussion may well defuse an otherwise explosive situation. Employers should always allow an employee to explain their grievance and how they think it should be resolved. This tends to focus the employee’s mind on solutions rather than the problem.

Where you have a serial complainant, however, or an employee rehearses grievances that have already been properly addressed, a breakdown of trust and confidence could have occurred, rendering the employment relationship untenable. Whether this can be retrieved may rest on the employee’s willingness to explore ways to do so.

Even where a grievance has been brought legitimately, thought should be given to what happens next and what measures may help the parties move forward, regardless of the outcome.

Alternative means

The use of professional mediation in the workplace has surged in recent years, with employers more willing to try this as a means of resolving issues and complaints. It can take the form of group mediation to identify the underlying source of the problem, or, where the problem lies with two individuals, an expert could be engaged to mediate between them. This can elicit surprisingly beneficial outcomes, or establish that the issue is unsalvageable.

Other measures may be used to turn around relations after a grievance, including changing an employee’s place of work, their line manager or even their role, assuming they are open to redeployment. Hence, getting to the root of the matter at a grievance meeting and establishing any viable interventions is often essential to determining how and indeed whether a complaint can realistically be resolved.

...it is vital to ensure a grievance has been properly investigated. Grievances can cover a multitude of issues, but failing to get to the bottom of a complaint may result in further grievances being raised...

In tandem with this, it is vital to ensure a grievance has been properly investigated. Grievances can cover a multitude of issues, but failing to get to the bottom of a complaint may result in further grievances being raised, good people leaving unnecessarily and potential constructive dismissal claims.

Any evidence gathered during the investigation – including witness statements, redacted as necessary – should be provided to an employee in advance of any grievance meeting so they have a proper chance to respond to the same.

Decision time

Any decision should be communicated to the employee, in writing, after a grievance meeting has taken place. Grievances may be upheld, upheld in part, or rejected.

If an employee’s grievance is not upheld, employers should ensure the reasons are carefully explained and justified. Where a complaint is upheld or partly upheld, the letter should set out what action the employer intends to take to resolve the grievance. Employers are naturally reluctant to uphold complaints for fear that conceding fault may enable a would-be claimant to win a claim. But this approach should not be taken where it is an unsupportable position; for example, where during a grievance process it emerges that another employee’s conduct needs to be tackled. In short, accepting wrongdoing may sometimes be necessary to avert what could otherwise be a guaranteed claim.

Employers should keep records of grievances raised, decisions or actions taken and any subsequent developments. Employers should also conduct and record exit interviews, which may pinpoint factors or people contributing to staff complaints and turnover.

Grievances should not be pre-judged, and can uncover problems in the workplace that need to be addressed. That said, the action taken after a grievance can often be as important as how well the complaint itself is handled in showing good leadership and management, and in preserving worthwhile relationships.

Conversely, where a grievance has not been brought in good faith or no steps can reasonably be taken to satisfy a complainant, it may lead to a formal process of a different kind. This could be to consider whether there has been a breakdown in trust and confidence on the part of the employer or employee, or both, to the extent that terminating the employment is the only resolution.

Helen Crossland is a partner and Head of the Employment Law team at Seddons

Further information

Download a complete “Employment: employee grievances” PDF