Even the most conscientious employer can find itself faced with an employee grievance. If you don't handle it in a fair and legally-compliant way, your business may be exposed to significant legal and reputational risks. But doing so isn't always straightforward.
Here are our key practical tips following our webinar on managing grievances and investigations at work:
1. Take time to prepare
- Preparation is key to investigating staff complaints.
- Consider the nature of the complaint; is it a grievance? (Hint: most complaints will be). Grievances can be raised verbally or in writing and they may not expressly label themselves as such.
- Consider whether the situation warrants an informal process, or a formal one. In some cases, an informal approach can achieve a speedy resolution the employee is happy with. If that is not possible, or if the complaint is more serious, a formal process will be required.
- Check your own grievance policy and procedure and ensure the manager dealing with the grievance is familiar with it. Even if your policy is non-contractual, following your own policy will help to ensure grievances are handled consistently and fairly. Remember that reasonable adjustments may be required to your own procedure if dealing with a grievance raised by a disabled employee, in particular if some or all of the complaints relate to alleged disability discrimination.
- Consider who should investigate and hear the grievance. Your grievance policy may specify a person but, if not, you will need to decide who should hear it. Consider whether the proposed manager could be conflicted in any way, or otherwise perceived by the employee not to be independent. Deciding on who will deal with the grievance also requires thinking ahead to consider what will happen if an appeal is needed; is there someone more senior than the person who would hear the grievance? Are those people available in the required timeframe?
- Consider the availability of those who will need to be interviewed and check whether any obvious and key witnesses might be unavailable, for example due to pre-booked holiday. You may need to prioritise interviews with those who may soon be unavailable so as not to hold up the investigation.
2. Act fairly
- The ACAS Code of Practice on Disciplinary and Grievance procedures (the ACAS Code) sets out the basic requirements of fairness. Whilst following the ACAS Code is not a legal requirement, in relevant cases an unreasonable failure by an employer to follow the principles of the ACAS Code can result in compensation awarded in a successful claim being increased by up to 25%. (Conversely, an employee who unreasonably fails to follow the guidelines set out in the ACAS Code risks a reduction of up to 25% in any compensation awarded.)
- ACAS also has a more detailed guide for dealing with grievances (and disciplinary issues) at work. Ensure managers handling grievances are familiar with the ACAS Code and its guidance, as well as your own grievance policy.
- Investigating a grievance fairly and objectively requires looking for evidence that supports the complaint and evidence that contradicts it.
3. Keep the lines of communication open
- Poor communication during a grievance process can lead to further complaints from the employee who raised the original grievance as well as new complaints from employees who are the subject of the complaint and who may be concerned about actions you might be contemplating which could impact them.
- It is important to maintain regular communication with employees to keep them updated on the process and timetable and to manage expectations in terms of when they can expect to receive the outcome and recommendations.
- If you become aware of a delay to the communicated timetable, keeping the employee updated will help to manage expectations, minimise the stress that prolonged procedures can cause and also the risk that you will face complaints about unreasonably delaying dealing with the grievance.
4. Manage expectations
- This is important not only in the context of keeping an employee up to date on the timetable, but also on the scope of the grievance investigation.
- In some cases, an employee may have an unrealistic expectation as to what is reasonable without consideration of a business' size or resources. All employers, irrespective of their size, should follow the principles of fairness set out in the ACAS Code. However, in some cases, for example in small firms run by an owner/manager, there will be more limited options as regards who can deal with a grievance and employees may seek to dictate who they consider should be appointed to deal with their complaint. In these situations, businesses should take care to treat all grievances as fairly and objectively as possible, whilst carefully managing any unrealistic or unreasonable expectations.
5. Take control and be proactive
- The ACAS Code requires all parties to deal with matters without unreasonable delay.
- Businesses should take control and adopt a proactive approach to managing formal grievance procedures and ensure there is no unreasonable delay on the business' side.
- In cases which may become protracted, businesses should still proactively consider how matters can be reasonably progressed as far as possible.
Even with the most careful planning, managing a grievance process may not always progress in the way you originally envisaged. Multiple grievances may be raised and it is not uncommon for businesses to have to manage grievances whilst employees are on sick leave. If you're thrown a curveball, take a breath and seek advice if needed. Common sense will normally prevail and your advisor can help to deal with red herrings and complications so that things can run as smoothly as possible and mitigate any risk for the business.
Please contact Sam Murray-Hinde or Lydia Christie if you would like to discuss how we can support and help you to manage grievances and investigations at work.