Senior Employment Lawyer Matthew Ainscough specialises in discrimination and employment litigation for the law firm Bell & Buxton incorporating Ironmonger Curtis. Here he explains the employee grievance procedure and how employers should typically respond to grievances.
Dealing with an employee grievance is something that almost all employers will encounter at some stage, no matter how robust the company’s policies and procedures are. It’s crucial that employers are aware of the fundamental principles guiding this potentially tricky process.
What is a grievance at work?
A workplace grievance can be any matter that the employee wishes to complain about or have investigated, so it’s important to investigate any matter that an employee might raise, no matter how trivial or unimportant it might seem.
Common reasons for employee grievances
Common grievances can include:
- Pay issues
- Bullying by managers
- Health and safety concerns
- Changes to terms and conditions of employment
It is worth bearing in mind that employers should always adopt a sensitive approach when responding to a grievance and keep an open mind. The employee raising the grievance is already likely to be feeling distressed, so it’s important to respond appropriately to avoid the situation worsening.
Addressing grievances: formally or informally?
The first thing to think about is whether the grievance should be dealt with formally or informally. It is a good idea to consult with the employee about this, but you should also be guided by the nature of the grievance raised. If an employee is complaining about the tone of voice in which they have been spoken to by another employee, an informal word with the employee in question may resolve the matter. On the other hand, if the employee is alleging that they have been the victim of discrimination, a formal grievance procedure is more appropriate.
It is also worth noting that where a grievance at work raises a potential legal issue (such as discrimination or sexual harassment), the employer should deal with it under its formal procedure to establish whether any action needs to be taken internally and to protect its legal position, even if the employee is reluctant for it to be treated as a formal grievance.
Employers should also think about the following:
- Does the grievance raise issues under other policies, such as the whistleblowing, bribery, equal opportunities, anti-harassment/ bullying, or stress at work policies? Would any of those policies provide a more appropriate procedure?
- Does the employee have a disability and, if so, does the employer need to make any reasonable adjustments?
- Does the grievance raise issues that could potentially result in disciplinary action against another employee or employees?
Having a grievance policy
Employers should make sure that they have a grievance policy in place as this will ensure that both parties are aware of how the grievance will be progressed, who will deal with it, and what the timescales for dealing with it will be. A grievance policy will help to ensure that all grievances are dealt with fairly and reasonably, and that employees are treated equally.
Related article: How to create great HR policies as an SME
If the matter needs to be dealt with as a formal grievance and requires investigation, employers should ensure that a fair and balanced investigation into the grievance and the surrounding circumstances is carried out.
Appointing an investigator
Employers should assess the seriousness and complexity of the grievance when deciding who to appoint to investigate. The employer should also ensure that the person appointed to investigate is not named in the grievance.
In most employee grievance cases, a line manager or a member of HR would be an appropriate person to carry out the investigation. However, if the evidence to be investigated is serious or complex, it might be a good idea to appoint someone more senior or who has previous experience of dealing with complex grievances at work.
Smaller employers without HR departments might feel that they do not have the time or resources available to deal with a complex workplace grievance, in which case it might be a good idea to appoint an external HR or employment law company to deal with the grievance.
Undertaking the investigation
An investigation is essentially a fact-finding exercise to collect all the relevant information on the issues raised in the grievance. If an employer does not carry out a reasonable investigation, it could potentially make the grievance outcome unfair and leave the employer vulnerable to legal action.
A meeting with the aggrieved employee will usually be required at an early stage. This will help the employer establish the issues surrounding the grievance, what other witnesses need to be interviewed and what evidence needs to be obtained.
- When carrying out investigation meetings employers should take note of the following:
- Meetings should be held in private and notes should be taken of the meeting
- Only witnesses relevant to the issues raised should be interviewed
- Prepare written witness statements and ask the witnesses to approve these
- Consider whether physical evidence may be relevant e.g. CCTV or computer or phone records
- Confidentiality is important so witnesses should be advised to not discuss the grievance with anyone. Employers should make it clear that any breach of confidentiality may be treated as a disciplinary matter
Once the investigation has concluded, it is good practice to prepare a written investigation report setting out the scope of the investigation, the process followed, and a summary of the evidence obtained.
The grievance hearing
A grievance meeting should be held as soon as possible after a grievance has been received to clarify the issues. In some cases, it will be appropriate to hold the meeting shortly after receiving the grievance and then adjourn the meeting while the investigation is carried out. In most cases, the investigation will be carried out by the chair of the grievance hearing.
In relation to a grievance hearing, employers should take note of the following:
- The hearing should be held at a reasonable time and place, in a private meeting room during the employee's normal working hours
- The employer should give the employee sufficient notice so the employee can prepare and make suitable arrangements to attend the meeting
- The invitation to the hearing should set out the employee's right to be accompanied by either a work colleague or a trade union representative
- Employers should also ensure that there is someone present to take notes of the meeting, such as a member of HR
- A copy of the meeting notes should be provided to the employee following the meeting
At the start of the meeting, the person chairing the meeting (the workplace grievance officer) should introduce those present and explain the purpose of the meeting. If the employee is unaccompanied, the grievance officer should remind them again of their right to be accompanied and record this in the notes. It is probably helpful to emphasise that the primary purpose of the meeting is to work towards a resolution of the grievance. The grievance officer should try to ensure that the meeting remains conciliatory rather than adversarial, and be aware that the employee may find discussing their grievance stressful and upsetting.
During the meeting, the grievance officer should:
- Check that the employee is satisfied with the arrangements for the meeting
- Check the employee has received, read, and understood all the relevant documents (i.e. the grievance procedure, investigation report, witness statements etc)
- Allow the employee to fully explain their grievance
- Take the employee through the investigation report and any evidence obtained
In relation to witnesses, there is usually no need for witnesses to attend the meeting as the matter can be dealt with by witness statements alone and witnesses might feel uncomfortable about attending a hearing. However, if the employee specifically requests witnesses attend the meeting, the employer should consider this. There is no requirement for the grievance officer to allow cross-examination of witnesses and this type of adversarial approach is best avoided. However, the employee should be allowed to raise points in response to anything a witness has said.
Employees may become visibly distressed and/or aggressive during the hearing. If this happens, an adjournment might be required to allow them to calm themselves before the hearing is able to resume.
At the end of the hearing, the grievance officer should summarise the information put forward by the employee and if necessary, clarify any points with them.
Following the hearing
The hearing should then be adjourned for the grievance officer to consider all the evidence. At this stage, the grievance officer might need to carry out further investigations or re-interview witnesses.
It is good practice to adjourn to take time for consideration as this makes it less likely the matter will be seen to have been pre-judged or like a decision has been made in haste. Just make sure that the employee is given an indication of how long it is likely to be before the hearing is reconvened or an outcome provided.
The grievance outcome
Once the grievance officer has decided, the hearing should ideally be re-convened, and the outcome explained to the employee. It is usually good practice to have a face-to-face meeting, and then confirm the outcome in writing afterwards.
In some cases, a grievance will result in disciplinary action being taken against another employee. If this is the case, employers should not disclose this information to the employee who raised the grievance as this could be a breach of trust and confidence to the employee that has been disciplined. Therefore, the grievance officer should simply reassure the employee that appropriate action will be taken because of their grievance and leave it at that.
The employee should also be advised of their right to appeal if they are not satisfied with the decision. Employers should provide clear instructions on how to appeal, including the name of the person to whom the appeal must be submitted and the timescale for appeal. There is no specific timescale set out in law, but it is normal to allow 7-10 days for an appeal.
The grievance appeal
Ideally a grievance appeal should be heard by someone who has not previously been involved in the process and is more senior than the original grievance officer. Again, for smaller business, if the most senior person in the organisation heard the original grievance, then it might be a good idea to appoint an external organisation to hear the appeal.
In relation to the grievance appeal itself, there is no set format for the appeal, provided the employee is allowed an opportunity to present their arguments. It could be conducted as a full rehearing or a review of the original decision. Don’t forget that employees also have the right to accompaniment by a work colleague or trade union representative.
Managing the grievance process with software
It is important that employers are equipped to deal with workplace grievances properly to maintain staff relations and keep tribunal claims to a minimum. An online document management system can provide the tools that employers need to store/find the documentation needed for a grievance process and remain legally compliant. You can use the software to store relevant policy documentation and any notes or decisions made as part of a grievance process, so you are equipped with the information you need were a grievance ever to become a legal matter.
Manage company documents securely with an online document management system
Written by Matthew Ainscough
Matthew Ainscough is a Senior Employment Lawyer and Fellow of the Chartered Institute of Legal Executives (FCILEx), specialising in discrimination and employment litigation for law firm Bell & Buxton incorporating Ironmonger Curtis. He writes about specialist employment law topics and issues.