14 March 2017
It’s that moment all employers and HR professionals dread: the letter from a member of staff cataloguing a long list of concerns; the call about a colleague’s behaviour at yesterday’s company social; or the email complaining about the work environment.
Grievances take a wide variety of forms. Handle it well and you can often avoid issues from escalating and even increase the faith employees have in their employer. Handle it badly and anything from disillusionment to full blown litigation can follow.
The action taken on receiving a grievance is crucial. Employers are all too aware of the consequences of making mistakes, so will often err on the side of caution and process every grievance through formal channels. But sometimes this escalates matters when a more informal resolution could do the trick.
Take an employee who raises concerns to HR about what he sees as unfair criticism of his work from his manager. To immediately launch into a formal process can be counter-productive – particularly as manager and employee will probably need to continue working together. Instead a more informal route can be much more effective. There may have been a simple misunderstanding, or it may be a communication issue which can be resolved through an informal conversation and, potentially, training on giving feedback.
Ultimately, it is important to understand what the employee wants. The decision to raise a grievance is often a difficult step to take and one that an employee will agonise over. Wherever possible employers should ensure that employees feel in control of their grievance and so discussing the outcome they are seeking is an integral part of the employer’s role.
There will be occasions where the the allegations are so serious that, once brought to the employer’s attention, they will need formal action. If the employee in the example above said that the manager’s comments included racist remarks, an informal process will not fit the bill. The key is to make sure that the response is proportionate and to engage with the issues at the earliest stage before deciding how to proceed.
One of the difficulties employers face when receiving a grievance is that, initially at least, they will only have one side of the story. Not having all the facts is a dangerous position to be in and so it is essential not to jump to conclusions. It is rare that any grievance will be so clear-cut that it will give the employer enough to decide what action to take. This makes a proper investigation a key part of any grievance process.
The nature and extent of the investigation will depend on the grievance and the seriousness of the issues it raises. A reasonable investigation will not only help to establish the true facts, but will help to shield the employer from allegations of unfairness.
Reassuringly, employers dealing with a grievance are not expected to exercise the Wisdom of Solomon – particularly when faced with evidence which is very finely balanced. The key is to make a reasonable decision having conducted a fair investigation.
Sometimes, it’s not what you know but who you know that counts. But when it comes to handling grievances fairly this can be fatal.
Ideally formal grievances should involve an investigator, decision-maker and appeal manager – each independent of each other, removed from the allegations and those involved.
This can often be easier said than done. Small employers with only one or two managers may struggle to have enough appropriate people to fill each of these roles. They are also more likely to know and have worked with each of those involved in the grievance. Some smaller employers use external consultants to manage the investigation process, reserving the decision-making to a senior manager, but again this may not be appropriate in all cases (not least because of the additional cost involved).
What is important is that employers direct their mind to the issue at an early stage and try to find the best solution in the circumstances.
Employers will often spend many weeks (and sometimes months) investigating and concluding a grievance. Having done all of the hard work, sometimes a decision letter will say little more than “I have decided not to uphold your grievance”. Bearing in mind the emotion often invested by an employee in their grievance, this is bound to lead to problems. Often it results in an appeal, but frequently in disillusionment with the process.
It may seem obvious, but explaining to an employee (particularly where grievances are being rejected) how a decision has been reached is crucial. Even an employee who disagrees with the decision can at least feel that there is logic to it and that their views have been considered. Moreover, if that decision was ever to be challenged, the letter will be a contemporaneous record of why the decision was reached. Contrast that with a manager trying to recall his rationale in an employment tribunal many months later and it is easy to see why it is so important.
Documenting the action to be taken is also imperative. Whether or not a grievance is upheld, it is rare that no action at all will be needed. Where two colleagues have fallen out, it may prove impossible in a grievance to identify the guilty party – and often neither is without fault. That may mean that a grievance is not upheld, but unless action is taken to mend bridges, further staff unrest is likely to follow.
The subject of a grievance is often something an employee will face daily, so each passing day without resolution will take its toll. Leaving an employee for weeks and months without information or resolution is asking for trouble. It is the greatest source of frustration for employees and one of the biggest risks for employer.
Handling a grievance properly (particularly those which are serious and complex) can take time, but all employers are under a duty to conclude grievances promptly.
There is no doubt that handling a grievance can be a bit of a minefield. At times it can seem daunting, and though it is important to tread carefully, avoiding these common pitfalls can help employers navigate to safety.
An edited version of this article was previously published on EmploymentSolicitor.com.