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Grievance Overview Article

Grievance Overview Article

Most, if not all, businesses will at some point find themselves presented with a grievance by an employee. It is almost inevitable, where individuals are working together for several hours each day, that disagreements will happen.

Employers should have a Grievance Policy and Procedure and will also need to ensure that during any grievance process both their own policy and the ACAS Code of Practice on Disciplinary and Grievance Procedures are followed.

It is important to note that the approach to a grievance can very much dictate the outcome. If a grievance is considered properly and fairly and the parties involved keep an open mind, it can help considerably in avoiding any unnecessary escalation. It also helps if the employee is willing from the beginning of the process to listen to other views and that they don’t close their mind to opposing views. Having a robust policy in place can assist with this.

Process

Before commencing any grievance process, the employer should be familiar with the content of the ACAS Code of Practice. The Code sets out practical guidance where a grievance must be dealt with formally and this should be followed as closely as possible. Whilst there is, in theory, less risk in not following the Code because an employee is not being dismissed as part of the process, there is still the significant risk that, where the process is not followed properly, the employee could resign and make a claim for constructive dismissal. Failing to follow the Code properly could result in any award to an employee being increased by up to 25%, so it remains very important to stick to the correct procedure.

A grievance is generally defined as concerns, problems or complaints that employees raise with their employers. You will see that this is a wide definition. Most importantly, there is nothing that dictates in what form a grievance must be raised, and there is nothing that states a grievance must say that it is a grievance. It is therefore important to be vigilant as an employer and make sure that any concerns, problems or complaints from an employee are considered carefully before a decision is made on how to approach the matter.

Often, minor matters raised by employees can be resolved informally, and that is the place to begin, particularly where the issues are raised less formally. Be mindful though, just because you believe a matter to be minor does not mean that the employee does, so make sure that even when attempting to resolve a matter informally it is given the proper attention it requires.

When dealing with a grievance informally, you should still meet with the employee, discuss the issues raised, take their views on how they would like the matter resolved and try to reach an agreement on the way forward. You should also consider whether workplace mediation may be appropriate, particularly where a professional relationship between two colleagues has broken down and there appears to be scope to remedy it.

There will be occasions where an informal approach is not appropriate. This will normally be when significant issues are raised, for example, where an employee raises issues relating to discrimination.

In these circumstances, the investigation becomes key. This is often the part of the procedure which is missed, or not given the attention it requires, and failing to conduct a proper investigation can be fatal to the procedure. In addition, a full and proper investigation should, in theory, allow the grievance to be resolved properly, so there is significant merit in getting this right.

The investigation is a fact-finding exercise which should be aimed at collecting all relevant information on the issues raised in the grievance.

Choosing the investigator is important. This should be someone who has had appropriate training and experience and who is not going to be otherwise involved in the process, for example as a witness. Normally, the employee’s manager or a member of the HR team would be appropriate, but for more complex grievances someone with more seniority and experience should be considered.

Planning the investigation is helpful and recommended. The investigator should set out a plan at the beginning so that they can focus the investigation on what facts need to be established, what evidence needs to be collected and what time frame should be adhered to.

The most common approach is to hold meetings to investigate, with evidence gathering also taking place. This should generally enable the investigator to gain a full understanding regarding what happened.

Once the investigation is completed it will normally be necessary to hold a grievance hearing where the evidence gathered is discussed with the employee that has raised the grievance and attempts are made to reach an outcome. This hearing is formal, and the employee will have the right to be accompanied.

A decision should then be communicated to the employee and followed up in writing if the decision is initially given verbally. The decision letter should set out the employee’s right to appeal.

There are a number of problem areas when it comes to grievances, for example, they will often be about other employees which can sour relationships moving forward, or they may be raised maliciously against colleagues, or even tactically in attempts to delay other processes, such as disciplinary hearings, or to shift focus away from other issues. These are difficult to deal with because failing to deal with a grievance at all opens employers to claims.

Conclusion

Unfortunately, grievances are part and parcel of being an employer. They will happen and being prepared for when they do is essential.

It is important to be able to take advice at every stage of a grievance process to ensure that you are taking the correct steps and are remaining compliant with the ACAS Code. It becomes even more important when dealing with complex grievances.

We would highly recommend having Trusted Advisers in your corner to help you.  Wilford Smith’s business focused services specialise in Employment Law, Commercial Law, Company Law, Commercial Conveyancing, Regulatory and Criminal Investigations.

We can be your Trusted Adviser in all areas.

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