What to do with an Employee Grievance

This is a summary of what you need to do if you receive a grievance from an employee. The key thing to remember is that grievances should be dealt with as quickly as possible. The longer a grievance drags on the harder it will become to resolve amicably.

If you fail to deal with a grievance fairly and appropriately an employee could resign and claim constructive unfair dismissal on the basis that you have breached your obligation of trust and confidence.

1. What is the employee seeking to achieve from their grievance? Have informal methods of resolution been considered?

At the outset, ask the employee what they would like to happen as a result of their grievance and what their proposed resolution is, if they haven’t already told you. Asking this question encourages the aggrieved to think about what they are looking to achieve and will assist with the process that follows.

If the grievance relates to a relationship issue between employees, consider whether workplace mediation would be appropriate and put this to the individuals involved. The aggrieved may be willing to pause their formal grievance to try informal resolution methods first and it may circumvent the prospect of a counter grievance.

Mediation is a quick and effective way to repair relationships where there are disagreements at work, whether it be personality clashes, communication problems or even allegations of bullying and harassment.

This step can often be skipped but if the parties involved are willing to try mediation, it has many potential benefits for both the employee and employer. Additionally, a common potential outcome of a formal grievance is the recommendation of mediation, so it makes more sense to offer this at the beginning, when you first become aware of a dispute.

Of course, if the employee wishes to proceed with their formal grievance you are obliged to follow a fair grievance procedure, as outlined below.

2. Refer to your internal grievance procedure and/or the ACAS Code (you can find a copy of the ACAS code here).

The ACAS code and your own internal grievance procedure (if you have one) should give you guidance on the process required.

If you have an internal grievance procedure contained in your staff handbook or policies and procedures it is important to check if this is a contractual procedure or non-contractual. If it is contractual and you fail to follow it the employee could have a claim for breach of contract.

If you fail to follow the ACAS Code and an employee brings a claim in the Employment Tribunal the Tribunal can consider your failure in terms of your reasonableness in handling matters and also adjust compensation by up to 25% for your failure.

You may also find it helpful to check out the ACAS Non-Statutory guide which you can find here. Although not legally binding the guide does provide some practical guidance on what to do.

3. Assign someone to investigate the grievance

Preferably this should be someone who has not been involved in the substance of the grievance and who is impartial.

If this is not possible because of the size of your business or the nature of the grievance you may consider getting someone external to deal with it for you. Contrary to popular belief you do not have to appoint an external investigator, but if there is no-one in your business who is considered impartial or removed from the substance of the grievance you should give serious consideration to doing so.

The ACAS investigations guide (which you can read here) sets out the following list of questions for employers to consider when choosing whom to appoint as an investigator:

• Are they personally involved in the matter being investigated?
• Would the appointment raise any conflict of interest concerns?
• Are they likely to be influenced by people involved in the matter?
• Might they be involved in any subsequent decision making on the matter?
• Do they have a good knowledge of the organisation and how it operates?
• What is their availability during the investigation’s provisional timeframe?
• Are they trained and/or experienced in how to conduct investigations?
• How confident are they at communicating in writing and/or orally?
• What training or support may they require?

4. Acknowledge the grievance in writing

Write to the employee and inform them of the grievance process, sending a copy of any internal grievance procedure. Also inform them of the name and job title or status of the person who will be investigating and an idea of the likely timescale for completion or if not possible at that point, the timescale for the next contact.

5. Investigate the grievance

The investigator needs to approach the investigation in a fair and objective manner with a view to establishing the key facts and reach a conclusion on what did or did not happen, on the balance of probability.

When investigating the grievance, it is important to ensure that you look at both evidence in support and evidence against the grievance, as well as any mitigating factors. Try not to reach a conclusion from the outset.

It is recommended that you plan how you are going to investigate the grievance. ACAS have produced a template investigation plan you can find here.

Although you certainly should not delay in investigating the issue it is important to balance speed with giving the issues due consideration and reflection.

If it is a complicated issue with numerous parties involved, then it could reasonably take several weeks to complete whereas a straightforward issue could be resolved more quickly.

If there are going to be delays in the completion of the grievance investigation then it is important to notify the employee as soon as possible, informing them of the new likely timescale and if appropriate the reason for the delay.

A written record should be kept of all information gathered and contact and communications with all parties.

6. Try to ensure confidentiality

It can be very hard for the investigator to keep matters confidential but as much as possible the substance of the grievance and investigation should be kept confidential and only disclosed as necessary to persons involved.

Once the substance of a grievance becomes public knowledge or the subject of office gossip it can be very hard for the person who raised the grievance to deal with and may make the resolution of, for example, issues between staff much harder.

Even if you are interviewing a witness to the issues they do not have to be given a full run down of the substance of the grievance. The investigator should therefore take care and consideration to what information they are going to disclose.

Again, contrary to popular belief, at the grievance investigation stage you do not have to disclose the full detail of the grievance to the person who is subject of the grievance. You need only disclose enough detail as is reasonable for them to be able to respond and for you to be able to fully investigate the issue.

If you need to obtain advice or support, then this should be obtained from a dedicated person from your HR department or external advisors. You should avoid seeking advice and reassurance from other managers.

7. Investigation outcome

The investigator should present the evidence they have gathered and the conclusion they have reached in an investigation report. ACAS have a template investigation report, which can be found here.

The investigator may conclude that the complaint can be resolved without further formal action if there is agreement with the employee and this action is seen to be fair to all concerned.

Should it be decided that there is a case for the grievance to be upheld, the next stage is a grievance hearing.

Where the grievance could result in disciplinary action being taken against another member of staff, it is advisable to delay such action until the investigation is complete and the grievance hearing has taken place.

If you have any questions in relation to this article or would like further advice on workplace mediation or the grievance process, please feel free to get in touch with a member of our team.