This month, Joanne Kane of HeadsTogether Consulting looks at common pitfalls associated with the process of handling a formal grievance, and provides some insights for employers to avoid falling into common traps.

In her previous articles on Workplace Conflict, Joanne Kane, HR Director at Headstogether Consulting looked at the causes of conflict in the workplace and the importance of trying to achieve an early informal resolution, which is often the best possible outcome.

But there are occasions when informal resolution isn’t possible, or just isn’t appropriate. The situation might have become too serious for informal resolution, or the balance of power between the respective parties might be too unequal for informal resolution to be fair or reasonable. Or indeed one party might simply not be prepared to go down the informal route. So what next?

If informal resolution to a dispute is not possible, depending on the circumstances, an employer is most likely looking at either a disciplinary case, or a grievance, or both. The respective procedures for each are set out in the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, which should be looked at in conjunction with the organisation’s own procedures. But it is the twists and the turns not written into the Code, or into procedures, that can prove most challenging for employers.

In this article, we will look at common pitfalls associated with the process of handling a formal grievance, and provide some insights for employers to avoid falling into common traps.

Handling formal grievances

• It doesn’t have to say the G word to be the G word

It’s fairly common for an employer not to recognise that they are dealing with a grievance, just because the G word hasn’t specifically been used.  The LRA Code defines a grievance as follows:

“Grievances are concerns, problems or complaints that an employee has about some aspect of their work”

The rule of thumb is that if “it looks like a grievance and smells like a grievance” then chances are it is a grievance and it is better to deal with it on that basis, in accordance with grievance procedures, than run the risk of subsequently being judged to have ignored it. If in doubt, discuss the complaint with the person who raised it.

The LRA code states that the employee should raise their grievance formally with management, using the formal grievance procedure, and that the nature of the grievance should be set out in writing. However, in reality very few employees are familiar with the LRA Code. So it is incumbent on an employer to recognise that an issue that should be formally dealt with has been raised, and to guide the employee on how to raise the grievance formally in accordance with procedure.

Raising a grievance

• You can’t always un-know what you know

Raising a grievance can be a stressful experience for an employee. Even if they feel they’re justified in raising their complaint, being part of the process and perhaps “having rocked the boat” can feel alien to them and make them feel outside their comfort zone. So it’s not uncommon for an employee to change their mind at some point in the process, and state that they no longer wish to pursue a formal grievance.

This can leave the employer with a dilemma. Depending on the seriousness of what has been alleged, it may not be possible for the employer to simply drop the matter at the employee’s request. Remember that as an employer you have a duty of care to all staff, not just the individual who has voiced the complaint. Broadly, there are two options available.

Options if an employee withdraws a formal grievance

• Agree to take no further action straight away, but to monitor the situation. It is important to be clear who is keeping the situation under review, and how the employee should contact that person if any further issue arises.

• If you feel that the original complaint is potentially sufficiently serious, then you may feel that you need to investigate it without the employee’s express consent. In this situation it’s important to try not to add to the employee’s anxiety, and to find ways to approach the issue sensitively without involving them against their will.

It can be helpful to remember the over-arching principle that an employer is expected to act reasonably and without unnecessary delay, in the interests of both the individual employee, and the workforce as a whole.

Useful tips when dealing with a formal grievance

• Keep an open mind and be prepared for some bumps along the way

It’s relatively rare after a grievance has been raised, for the process to be carried through to its conclusion smoothly and without delay. For example, a person who is the subject of a complaint might go on sick leave, or raise a counter complaint, or both.

In these types of scenario, particularly if you have any personal doubts about the legitimacy of what is taking place, it’s important to keep your cool and follow the organisation’s internal procedures correctly.

If in doubt, step away for a short period of time or speak to someone else on a confidential basis, rather than allowing personal frustration or even scepticism to prevent you from making the right judgement in the long run.

Sickness has to be taken seriously, and the usual occupational health or other procedures should be followed. However, this should be done whilst also actively managing the grievance process to an appropriate and timely conclusion.

If you receive a counter complaint, don’t immediately be dismissive and do read the contents carefully before deciding on next steps. No matter how clear cut an issue appears to be at face value, that can change as an issue begins to unfold. You should be open minded and remember that it’s possible for any of us to make a pre-determination about who is right and who is wrong, that subsequently turns out to be incorrect.

Counter-complaints must be properly dealt with, or you risk undermining your decision in the original grievance.

• Be aware that Subject Access Requests are on the up

At one time employees only really got to see the workings of a grievance process through legal discovery as part of a tribunal case. But the ability of individuals to make subject access requests under Data Protection legislation has changed all that.

The Information Commissioner’s Office Annual Report 2014/15 reported a 16% increase in the number of referrals arising from subject access requests. It is becoming increasingly common for a request to land into HR in the midst of a disciplinary or grievance process and it’s no good worrying about the information that will have to be produced once the metaphorical cat is out of the bag.

When you’re operating a formal process, do document decisions carefully to show that the matter has been given proper consideration. But do also be aware that everything that has been put in writing or recorded electronically can be dredged up at any point in time through a subject access request, including in the midst of a grievance, an appeal, or preparation for a tribunal.

Train managers and make them aware that this can be an issue from the outset of handling a grievance. Make sure their awareness extends to emails and any type of communication that is stored in manual or electronic files.

This can make all the difference in the outcome of a grievance and is definitely something we are likely to see more and more of in the future.

In subsequent articles Joanne will turn to practical issues around the formal disciplinary process and also alternative ways of formally resolving disputes.