Dealing with Employee Complaints?
Often employees complain informally, sometimes many times, before they raise a formal grievance and frequently grievances arise because those complaints are not picked up and dealt with by managers. Resolving issues before things escalate requires a forward-thinking approach and managers addressing issues at an early stage.
Managers should be trained to identify concerns and understand how to start conversations about potentially sensitive issues so that they can deal with a situation before minor complaints escalate into grievances.
Dealing with a grievance is costly and time consuming – and frequently does not result in effective resolution, so “nipping things in the bud” is a sensible business strategy.
What is a Grievance?
Identifying a grievance is not always straightforward. The process is made much easier if your grievance policy clearly explains the format in which a grievance should be raised and the information that should be included. However, the fact that an employee raises the grievance in a different way does not negate the responsibility to deal with it.
A grievance can relate to any concern, problem or complaint relating to the workplace. A grievance may relate to any aspect of working life, such as contract terms, salary/bonus pay, working conditions, colleagues, bullying, discrimination or harassment etc etc.
Responding to a Grievance
A grievance needs to be investigated, heard and a decision reached and communicated in a timely manner. Delay will be criticised in the event of an employment claim. A grievance should be acknowledged promptly, and the employee should be provided with confirmation of who will be responsible for hearing the grievance and the process to be followed. The employee raising the grievance should be invited to a grievance meeting or grievance hearing so that the grievance can be explored, and appropriate questions asked. It may be appropriate for the grievance meeting to be adjourned to allow for further investigation or for there to be more than one grievance meeting before a decision is reached.
A grievance procedure should follow the ACAS Code of Practice on Disciplinary and Grievance Procedures and should provide that:
- A grievance should be raised in writing and provide sufficient details of the complaint to enable concerns to be understood and investigated.
- A grievance meeting should be held without unreasonable delay so that the employee’s concerns can be heard and understood.
- The grievance meeting should be adjourned if further investigation is required.
- The employee has the right to be accompanied to a grievance meeting by a colleague or trade union representative (Companion).
- The grievance outcome and any proposed actions should be communicated to the employee in writing.
- The employee must be given the right to appeal the grievance decision.
Right to be accompanied to a grievance meeting
Under the Employment Relations Act 1999, employees have the right to bring a Companion to a grievance meeting. A Companion can either be a Trade Union Representative or a workplace colleague.
The request to be accompanied should be reasonable. It may not be reasonable to bring a Companion who has a conflict of interest (i.e. a witness) or someone who may be prejudicial to the meeting (i.e. a co-complainant).
Employees do not normally have the right to bring a friend or a legal representative to a grievance meeting.
If an employee has a disability it may be appropriate for them to be accompanied by another person by way of a ‘reasonable adjustment’ to the usual procedure, in accordance with the requirements of the Equality Act 2010.
A grievance policy should set out the process to be followed if the employee wishes to appeal the grievance decision and confirm whether the appeal will be a review of the decision taken or a complete rehearing of the facts. A grievance appeal should be in writing and should set out the reasons for the appeal.
The grievance outcome letter should confirm the right to appeal and state to whom any appeal should be addressed. A different manager should hear a grievance appeal to ensure impartiality.
Frequently employees raise grievances because they feel they have no other choice and often, they simply want the behaviour in question to stop. Whilst, hearing the grievance and deciding on a course of action (including disciplining colleagues if necessary) might be seen as resolving the grievance it does not repair the relationship between colleagues who may continue to need to work together:
- Workplace mediation: can be an effective way to resolve disputes in the workplace and repair relationships. Further information on workplace mediation can be found here.
- Facilitated conversations: can enable employees to discuss and resolve disputes in a constructive way, guided by a neutral third party facilitating the flow and direction of the conversation. Further information on facilitated conversations be found here.
- Coaching: coaching employees in skills and tactics to help manage workplace relationships can help to repair relationships, and frame interactions moving forward in a more positive way. Further information on employee and executive coaching can be found here.
- Training: workplace training can be valuable tool in ensuring that workplace rights are understood and respected. Providing appropriate training can minimise the risk of employment claims arising and assist with defending any claims that do. Further information on workplace training can be found here.
Grievances and Subject Access Requests
Data Subject Access Requests are increasingly part of an employee’s armoury when submitting a grievance, partly because of the information they may unearth but also because the significant cost (in time and money) to an employer in responding to a request makes the offer of a severance package more likely.
A DSAR entitles the person making the request to details of the information held about them, which could include information which may help their case, such as incriminating emails. Information on data protection subject access requests can be found here: [Data Protection – Subject Access Request].
Grievances and Whistleblowing
In light of the statutory protection afforded to whistleblowers it is important for those dealing with grievances to be able to identify instances where the concerns raised may amount to whistleblowing so that they can be dealt with in accordance with an employer’s whistleblowing policy.
Whistleblowing and the protection afforded to those who whistle blow is vital. For an employer it is important to uncover dangerous practices or wrongdoing in the workplace. For a worker it is important that they understand they are protected against reprisals from other members of staff should they report an incident or practice. The protections afforded by whistleblowing legislation are designed to encourage workers to have the confidence to come forward.
Should an individual believe that they have suffered a detriment as a result of reporting workplace malpractice they may wish to bring a claim. If a grievance is not appropriately identified as potential whistleblowing that risk is exacerbated. Further information on whistleblowing can be found here.
Grievances and Concurrent Disciplinary Issues
It is not uncommon for employees to raise grievances during or following disciplinary proceedings. Concurrent disciplinary allegations and grievances present employers with significant challenges. Some employers may be quick to dismiss a grievance as a retaliatory act without giving the substance proper consideration. Others may feel that one process (normally the disciplinary process) must be placed on hold until the other is complete. The correct approach will be determined by the particular facts.
If the grievance relates to the substance of the disciplinary allegations or the disciplinary procedure being followed it may be appropriate to either place the grievance on hold or to treat the contents of the grievance as points raised by the employee when considering the disciplinary allegations or to treat the contents as an appeal against a disciplinary decision already made as appropriate.
If the substance of the grievance relates to other matters, including perhaps allegations of discrimination, it must be appropriately dealt with notwithstanding the ongoing disciplinary allegations. Employers will need to consider on the facts whether it is appropriate to pause the disciplinary process pending the outcome of the grievance or whether they can be run concurrently. However, a delicate balancing act will be needed to ensure that each of the grievance and disciplinary matters are dealt with efficiently and not unduly delayed.
False or Vexatious Complaints and Grievances
Dealing with unfounded grievances
Sometimes employees raise grievances which are false or deliberately misleading (as opposed to being a genuine mistake).
Grievances which are felt to be unfounded, whether intentionally or unintentionally, need to be considered carefully. Malicious grievances can and arguably should result in disciplinary action but employers will need to be able to satisfy themselves as far as possible that the claims are false in order for disciplinary proceedings to be justified. That means an appropriate level of investigation still needs to be undertaken to ascertain whether there is a legitimate basis for the issues raised and to ensure that any genuine complaints are fairly and adequately addressed.
If an employer has suspicions that a grievance is unfounded, unless there is anything immediately apparent to suggest to the contrary, it should usually give an employee the benefit of the doubt that they genuinely (even if mistakenly) believe that the issues being raised are true and address the grievance accordingly.
Where there is clear evidence that a grievance is deliberately misleading or malicious it may be appropriate to commence disciplinary proceedings. An example of such a situation would be where an individual raises a baseless grievance against a line manager who has disciplined them or placed them on a performance improvement plan as a form of retaliation. After appropriate investigation any disciplinary process should always be carried out in accordance with the employer’s disciplinary procedure.
Top 10 tips to Conducting a Grievance Investigation
- Choose the investigator carefully. Professionalism, integrity, and diligence are important qualities, along with good communication skills. An investigator should have an open mind and be mindful to avoid confirmation bias (looking for information consistent with existing beliefs). Above all, the investigator must be independent and impartial. In a very small, close-knit business with very little chance of finding someone truly impartial it may be appropriate to appoint someone external. That may also be true for issues that require specialist skills and understanding.
- Make a plan. Have a clear terms of reference and methodology. This will help keep the investigation on track and ensure transparency and fairness. It will also assist with decision making at the end.
- Conduct reasonable investigation. The amount of investigation required will depend on the individual circumstances. The legal test is that an employer must undertake such investigation as is reasonable in all the circumstances: the investigation needs to be robust so that all grievance allegations are carefully considered but there is no need to make findings on every single disputed fact.
- Take care with witness evidence. Carefully consider who to speak to as part of the investigation. It is important to gather witness evidence in a balanced manner. For example interviewing too many colleagues may embarrass the person raising the grievance, risk reputational damage or create an uncomfortable working environment. It may be useful for witnesses have advance notice of topics so that they can prepare, for example checking their diaries or bringing relevant documents. Some witnesses might have particular needs because of a disability, others may find the subject matter of the investigation difficult. Consider adjustments as appropriate, for example interviewing people outside of the workplace or allowing them to bring a companion.
- Memories fade. Witness interviews should be taken as soon as possible. Take full notes of interviews with each witness, ideally signed, or agreed, by the witness as an accurate reflection of matters discussed. Consider recording witness interviews to ensure an accurate record.
- Preserve physical evidence. Think about whether any physical evidence is required, for example CCTV footage. Consider whether it is appropriate to notify relevant individuals to preserve evidence (emails etc) that may be relevant to the grievance (and indeed any potential future employment claims) immediately. Request the information as soon as possible – remembering that some evidence has a short shelf life, such as voicemail recordings. Care should be taken to ensure that data protection laws are complied with.
- Keep it confidential. Interviews should be conducted in private, and the importance of confidentiality emphasised to each witness. Where appropriate, witnesses should be reminded that breaching confidentiality is a disciplinary sanction.
- Challenge the evidence. If there are inconsistencies or things that do not quite add up, challenge the evidence. Be persistent – do not give up if something needs to be followed through.
- Manage expectations. Let the employees and witnesses know what to expect and set time limits. If there are (often inevitable) delays with investigations. Update the person raising the grievance regularly.
- Keep a record. It is important to retain the records to show that the investigation was fair and sufficiently thorough. Copies of information that will be considered as part of the decision making process should be provided to the employee raising the grievance so that they can make any appropriate observations / comments. Remember that records may be disclosable as part of a future employment tribunal claim.