Dealing with grievances promptly and fairly can prevent problems developing into major issues in the workplace. If grievances are not dealt with or are handled badly, the problem is likely to grow and permanently damage the trust and confidence underpinning the employment relationship.
This could potentially result in resignations and the loss of good workers, disciplinary issues, unsatisfactory performance, a wider dispute with a collective group of employees and ultimately encourage employees to bring claims for a fundamental breach of contract amounting to ‘constructive dismissal’.
Below, we discuss the most common mistakes employers make and ways to avoid them.
The ACAS Code of Practice provides best practice guidance to employers on how to handle grievances. It is sensible, practical advice written in plain language.
Whilst it is not legally binding, a failure to comply with the ACAS Code of Practice without good reason will often fatally undermine an employer’s defence to a tribunal claim as well as increasing an employee’s compensation by up to 25%.
Failing to follow your own grievance policy is also much more likely to lead to a judgment against the employer. Employers should familiarise themselves with the Code and its own policies, following both wherever reasonably possible.
Failing to train managers on best practice when dealing with grievances
Providing employees who may be involved in dealing with grievance matters with the appropriate training can prevent major issues developing in the workplace and, ultimately tribunal claims.
In preparation for hearing a grievance, managers should consider whether similar grievances have been raised before, how they have been resolved, and any follow-up action that has been necessary to ensure consistency of treatment.
Managers should always remember that a grievance hearing is not the same as a disciplinary hearing and that positive and encouraged discussion may lead to an amicable solution. Employers should always allow employees to explain their grievance and how they think it should be resolved. This tends to focus the employees’ mind on the solution they are looking for rather than just the problem.
Be aware of making any snap decisions on the grievance raised, particularly in cases where the employee is raising a grievance in relation to a long period of time. If new facts arise in the meeting consider an adjournment to allow time to investigate.
Failing to carry out a sufficient grievance investigation
Grievances can cover a host of issues including terms and conditions of employment, bullying and harassment and organisational changes. Failing to carry out a sufficient investigation may result in further grievances being raised and potential constructive dismissal claims.
Any evidence gathered during the investigation (i.e. witness statements and formal minutes of meetings) should usually be provided to employees in advance of any meeting so that they have adequate time to consider and respond to it.
Employers should endeavour to keep records which confirm the nature of the grievance raised, what was decided and actions taken, the reason for the actions, whether an appeal was lodged, the outcome of the appeal and any subsequent developments.
Failing to decide on appropriate action in a timely manner
Decisions should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. Employers should monitor and review any intended actions so that the issues are dealt with effectively.
If an employee’s grievance is not upheld, employers should make sure the reasons are carefully explained as there may be other individuals who also feel aggrieved “waiting in the wings” pending the outcome of their colleague’s grievance before raising their own concerns.
If the grievance highlights any general issues concerning policies and procedures, or concerns in relation to any particular conduct (even if not sufficiently serious to merit separate disciplinary procedures), employers should address these matters as a priority in order to limit any future risk.
Failing to deal with overlapping grievance and disciplinary cases efficiently
The ACAS Code of Practice advises that where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Employers should remember that where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently. It is important not to delay in deciding on how best to proceed in such circumstances and to approach each scenario with an open mind.
Failing to use the appeal hearing as an opportunity to close any loopholes
Appeals should be heard without unreasonable delay and dealt with impartially and wherever possible by a manager who has not previously been involved in the case. If there have been any flaws in the original grievance hearing, then the appeal hearing is an opportunity to rectify this. If the original procedure leading to the grievance not being upheld was significantly flawed, then it is usually a good idea to have a complete rehearing of the grievance at the appeal hearing. This could be sufficient to prevent any further grievances being raised or a constructive dismissal claim being issued.
As always, the outcome of the appeal should be communicated to the employee in writing without unreasonable delay.
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