The Employment Rights Act 1996 states that you should provide employees with a written Grievance Procedure. It is important to ensure that employees have recourse if they have any issues at work that cannot be addressed informally. In addition, should any such grievance escalate into a Tribunal Claim, you will be able to demonstrate that you have a process in place to demonstrate to the Tribunal that you treated any workplace grievances seriously and in line with current best practice guidelines.
What is a Grievance?
Often the most challenging part of dealing with grievances is being able to recognise when you should treat an issue as a formal grievance. It is always best to be proactive and try to resolve any issues informally before they reach a-point where the employee feels that they have no alternative but to raise the issue formally, and your procedure should invite employees to try-and resolve any issues with their line manager informally in the first instance.
What does the ACAS Code of Practice say?
While the ACAS Code of Practice is not legally binding, it is recognised by Tribunals, and when considering whether your Process is fair, a Tribunal will consider whether your Procedure follows the guidance set out in the Code.
The Formal Grievance Procedure
If it is not possible to resolve any issues informally, you should ask the employee to put their concerns in writing and set out in as much detail as possible their concerns.
You must then invite them to attend a formal grievance meeting; as with most other formal procedures, you should invite the employee to attend the meeting in writing and advise them that they have the right to be accompanied by a work colleague or an accredited trade union representative.
Anyone that is referred to in the grievance (for example, if the complaint is about a line manager), should not have any involvement in the formal process.
The Grievance Meeting
At the meeting, you should ask the employee to outline their concerns, and where possible they should provide you with dates and details of any evidence that supports their grievance; you should also ask them if any potential witnesses may have seen any of the incidents.
Once you have taken as much information from the employee as possible, explain to them that you will investigate their concerns and as soon as you have concluded that investigation, you will write to them with your decision.
It is essential to manage employee expectations during this process and to try and give them a realistic estimate of how long you think it will take you to complete the process.
If there are any further delays in meeting the timescales that you have given to the employee, always keep them informed; many complaints made to the Employment Tribunal centre around the fact that employees do not feel that their employers acted promptly in dealing with such issues.
Once you have heard the grievance, you should also consider whether it is necessary to take any preliminary action; for example, if the complaint is one of sexual harassment by a manager, you should consider whether it would be appropriate to suspend that manager until the process is complete.
While you cannot take disciplinary action until you have completed a full and thorough investigation, a suspension is not considered to be a disciplinary sanction, but rather is a mechanism to allow employers to remove any potential risks and enable them to investigate fully.
Investigate and Gather Evidence
You should then conduct a full and thorough investigation; it may be the case that the employee has given you the names of possible witnesses and in that case, they will need to be interviewed.
While you should interview staff referred to by the complainant, you should also consider whether there is another staff that you should also interview; you need to be-able to demonstrate that you have conducted a fair and reasonable process.
When interviewing witnesses, you should also ask them if they are agreeable to their interview transcripts being disclosed to the complainant and (if the subsequent disciplinary action becomes necessary), any other employee.
Ideally, employees will agree to their interviews being disclosed, but it is also understandable if some people are reluctant for their work colleagues to see what they have said about them. If this is the case, ask them if they would be happy for their interviews to be disclosed if you remove their names.
If they are still not happy for their transcripts to be disclosed to other employees, and it becomes necessary to take disciplinary action against another employee, you could then summarise any allegations in the disciplinary invite without disclosing the transcripts.
This is not ideal as-the rules of natural justice state that any employee should be made fully aware of any accusations against them, but-the Employment Tribunals do understand that witnesses will often be reluctant to do so.
Once you have completed your investigation, you need to decide whether or not you should uphold the grievance or dismiss it based on the evidence that you have gathered as part of your investigation.
You must confirm your decision in writing to the employee setting out the reasons for your decision, and where possible, include a copy of the evidence gathered as part of your investigation.
You must also inform the employee of their right to appeal against the decision in line with your Company’s Procedures.
Any appeal should go to a different manager and ideally someone more senior.
If you have upheld the decision, you should then decide whether it is necessary to take any formal action against any other employees, and should this be necessary you should ensure that you follow your Company’s Disciplinary Procedure.