- How to recognise a grievance?
Although the Acas code says that a grievance should be in writing the prudent employer should take up a grievance if its communicated to them by;
- Told verbally
- Raised on their behalf by trade union representative, legal adviser or even family member
- In writing.
If in doubt, ask the employee themselves what they meant.
- When do they arise?
Normally they arise when an employee directs a complaint to their line manager, a manager who is there or HR. However, they can arise out of;
- A resignation letter
- An exit interview
- In a return to work interview
- At an appraisal
- In giving a witness statement for another matter
The list above is not exhaustive and one does not have to look at every statement critically but if you read or hear something that strikes you as a grievance – make enquiries.
If in doubt, ask the employee themselves what they meant.
- How to handle – formally or informally?
Responding informally to a grievance may be appropriate and may in fact be part of your grievance process.
It may just be the employee and manager discussing privately the concerns or issues of the employee. Before going down this path, the manager needs to be able to answer the following in the affirmative;
- Is it a suitable matter to dealt with informally?
- Is the employee happy to deal with the matter in this way?
- Have we re-assured the employee that should the informal path fail, they still have the right to use the formal grievance procedure
Certain issues will require that we deal with the issue formally, e.g. bullying and harassment, derogatory comments by colleagues toward each other.
How do we do that?
The Acas Code states that you should:
- “arrange for a formal meeting to be held without reasonable delay after a grievance is received, and
- carry out any necessary investigations, to establish the facts of the case.”
It is considered appropriate to arrange a hearing within 5 working days (or what your own rules require). If the matter is complex or requires greater time to investigate properly then take the time in order to conduct a proper investigation.
If there is going to be a lengthy investigation, make the complainant aware of this and keep them abreast of the conduct of the matter.
- Conducting a formal grievance
If the grievance is going to be dealt with formally, we will need to;
- Acknowledge receipt of the grievance
- Invite the complainant to a grievance hearing
- Appoint an investigating officer
- Reschedule if the original date is not satisfactory
- Accommodating employees with certain needs e.g. a disability
At the hearing itself, the investigating officer will need to;
- Open the meeting
- State its purpose and the process
- Outline the complaint
- Ask the complainant to add anything they think is relevant to the conduct of the investigation
- Sum up the meeting and outline next steps
- Adjourn the hearing
- If possible, give a date when an outcome is likely to be given.
The investigating officer will then need to make their enquiries, review the evidence and give their outcome.
If the decision is not in favour of the complainant, then they need to be told of this plus the reasoning for the decision and have this confirmed in writing with a right of appeal.
If the decision is in favour of the complainant, then they need to be told of this and the reasoning. If through upholding the grievance it requires further action against a member of staff, then we can state that the member of staff will be subject to further action but not the detail of such action.
If upholding the grievance requires further action in regard to the complainant, then the complainant should be given a plan of action as to the changes, e.g. a revision of salary grading.
- Other matters
What if the employee wants no action taken other than getting it “off their chest?”
It may be possible to do this but where the matter raised relates to a legal duty of care that obliges the employer to act, bullying and harassment, breaches of health and safety for example, then, the organisation will have to tackle the matter despite the complainant’s reluctance. One will need to explain this to the employee and do what one can to take their concerns on-board.
Lastly, may mediation whether internal or externally conducted assist in remedying the situation and therefore can the matter be dealt with outside the grievance procedure?
- A proper investigation
In relation to investigations, the ACAS Code of Practice on disciplinary and grievance procedures (‘the Acas Code’) states:
“It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing.
In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.
- A formal or an informal response
The Acas Code of Practice on disciplinary and grievance procedures (the Acas Code) says: “Many potential disciplinary or grievance issues can be resolved informally. A quiet word is often all that is required to resolve an issue. However, where an issue cannot be resolved informally then it may be pursued formally.”
It may not always be necessary to take formal action to get the required improvement. A quiet word or guidance from a manger may do the trick.
That said, it may be the case that formal action is required. It is important to set out guidelines and train your managers on how to make that choice. This will a void inconsistency and the perception that the organisation is fickle and an employee’s treatment may be down to the discretion of a manager.
- Do we need to suspend an employee?
If we are conducting an investigation, we may need to consider if the employee should be suspended?
Often in cases of possible serious or gross misconduct the reaction will be to suspend pending investigation of the matter. But should we? We should consider the following in weighing up whether to suspend or not;
- Concerns that the investigation may be undermined by the employee’s continued presence
- There is a serious breakdown in relationships with the employer. Fellow employees or customers and normal activities cannot be maintained
- That the presence of the employee poses a significant risk to other employees or that other employees might pose a risk to the employee under investigation.
Suspension should not be an automatic response, but if an employee is suspended, it should be on full pay and for as short a time as is required to conduct a proper process.
- Can an employee be accompanied to an investigation meeting?
There is no legal right for an employee under investigation to be accompanied to an investigation hearing. However, it is possible to allow the employee a companion either under the disciplinary procedure. Often it is more straightforward to say that a companion is allowed at all stages of the procedure.
- People chairing the stages of the process
When conducting a disciplinary process, make sure that wherever possible that the people who conduct the investigatory stage, disciplinary hearing and appeal stage are different and have had no prior involvement in the matter.
Do not for example appoint a witness to chair the disciplinary hearing as the person having witnessed the alleged misconduct will be viewed as not impartial and it will create a major flaw in the process.
It is important that the process is seen as fair, even handed and impartial.