Tughans LLP on employment law and difficult workplace scenarios.

For November 2023, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem is:

“A female employee raised a grievance regarding allegations of sexual harassment. We held the grievance investigation this morning. The employee tendered their resignation after the meeting, claiming that it “isn’t worth the stress, no-one is listening to me and I won’t get a fair hearing”. Do we accept her resignation or complete the grievance process – or both? How do I handle it?”

It can be difficult to deal with situations where an employee has raised a grievance and decides to resign before you can complete the investigation process. Sometimes it can be tempting to accept the employee’s resignation and close down the grievance process, especially if this is the preference of the others involved in the investigation process. However, while this is certainly the convenient option, it usually won’t be appropriate.

The first issue to deal with is the employee’s resignation. Notice must be clear and unambiguous, and we’ll assume that is the case here. However, given that the employee has raised a grievance, has resigned shortly following her investigation meeting, you should approach her resignation cautiously and ensure that she has not resigned in the ‘heat of the moment’. You should ask the employee if they would like to retract their resignation and for more detail around why they have decided to resign.

You should reassure the employee that they will receive a full and fair grievance process, and that their complaints are being heard. This is particularly important given the nature of the allegations. You can advise them that the purpose of the investigation meeting is to get a better understanding of their complaint and that no decisions have been made. You can reassure them that if they feel they left anything out or something wasn’t understood, they can follow up by email.

If the employee has concerns about how the meeting was conducted, you should consider whether you need to take any steps to address them. For example, if the employee has complained about the investigator themselves, you will need to carefully consider their position in all the circumstances, and if you can maintain a fair process. The employee may have raised issues about how they felt during the investigation process which will help you improve your processes and prevent similar problems arising in the future.

If the employee retracts their resignation, you can proceed with their grievance as normal, in line with your grievance procedure. You should check whether the employee raised any new complaints or provided new evidence in their resignation. If so, these should be investigated as part of the grievance.

If the employee confirms their resignation stands, and they have resigned with notice, they remain entitled to your grievance procedure for the duration of their notice period, and you should continue with the investigation as normal. If you stopped the grievance process during this time, this could form part of any later claim for constructive unfair dismissal and/or sex discrimination. In particular, the employee may argue that failing to investigate her complaints constitutes victimisation on the grounds of her sex.

Similarly, if the employee confirms that she is resigning with immediate effect, you might consider whether you should continue the investigation and issue an outcome. You would have to rely on the information available if the employee does not participate any further.

Strictly speaking, following the abolition of the statutory grievance procedure in 2011, there is no legal obligation for you to proceed with an ex-employee’s grievance. However,  it will very likely strengthen the Company’s position if the employee does bring a claim, as you will be able to show the Tribunal that you have tried to follow a fair grievance process in response to the complaints raised. In some cases, the employee will be satisfied that you have continued to deal with their grievance despite their resignation, which can resolve the issue without a claim being brought.

Conversely, by raising a grievance, and then resigning, the employee has arguably defeated the objective of the grievance process, because as her employer, you have not been given the opportunity to put things right and this could result in a reduction to any award made by the Tribunal. Likewise, the Tribunal would have the power to increase any compensation awarded to the employee if you failed to address their grievance properly.

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