An employee has just provided you with a written grievance letter at work. However, you have some doubts about whether the content has been fabricated to get somebody else into trouble. Are you still required to investigate it?
The simple answer is yes.
Definition of a grievance
The definition of grievances according to Acas is “concerns, problems or complaints that employees raise with their employer”. An employee may raise a formal grievance at work about anything that concerns them, for example, conditions of employment, breaches of contract, health and safety matters, working relationships, new working practices, alleged bullying and discrimination. The Acas Code of Practice says that a grievance should be raised in writing and without unreasonable delay.
What is a malicious grievance?
A malicious grievance is where an employee has deliberately attempted to mislead with the intention to cause harm to the respondent or the business.
Although you may suspect the grievance to be fabricated, it is advisable that you do not immediately react but take time to investigate the claims in full and ask the employee to provide any evidence to support their claims as part of a written statement.
Grievances in relation to discrimination, bullying and harassment should always be handled with care. You should also keep in mind that grievances relating to qualifying disclosures (criminal offences, miscarriage of justice, an act creating risk to health and safety, an act causing damage to the environment, a breach of any other legal obligation or concealment of these matters), only require the employee to have a reasonable belief that such an act may have been or is likely to be committed.
Where your investigation provides clear evidence that the grievance has been raised maliciously, you may determine it necessary to commence disciplinary proceedings following your disciplinary procedure. However, before taking this step, you must rule out qualifying disclosures, and determine whether the employee genuinely believed their complaint to be valid.
Acas Code of Practice
When a grievance is submitted, the Acas Code of Practice on disciplinary and grievance procedures states that the employer should:
- Arrange for a formal meeting to be held with the employee and a senior manager to discuss their grievance; and
- Communicate its decision to the employee (including any action it intends to take to resolve the matter) without unreasonable delay.
Unfortunately, whilst grievance procedures are governed by the Code it does not give any indication as to your ability to reject an employee’s grievance or in what circumstances this might be permissible. So, does that mean you’ve no choice but to trigger your formal procedure and go through the motions? The answer to this is “not yet”. The Code recommends that, wherever possible, employers should try to resolve grievances informally.
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The best advice is to have an informal meeting to discuss with the employee first, as soon as possible. Explain firmly, but politely, that in order to investigate their grievance properly you will need clear evidence of what it is they are alleging and will expect this to be available at any formal grievance meeting.
Step 1 – For example, where a complaint has been made about another employee, tell them that you will need to know specific dates, times, what was said/happened, whether there were any independent witnesses, etc. Advise them that you will be speaking to the other person(s) concerned to obtain their version of events.
Step 2 – Ask them if they wish to proceed with the formal process. If it is fabricated, they probably won’t. However, if they do, follow your formal grievance procedure as normal and insist on seeing their evidence.
Step 3 – Check your disciplinary policy and procedure as it may be helpful to mention that an employee may leave themselves open to disciplinary action if they are found to be making a fraudulent statement.
Step 4 – Arrange and hold a formal grievance hearing with the employee. Provide them with 48 hours’ notice of the meeting and ensure they are given the right to be accompanied by either a colleague or trade union representative. Ensure to take meeting minutes. It is useful to prepare a list of grievance meeting questions in advance.
Step 5 – Undertake your investigation. Gather statements from those involved or identified as witnesses and again, take meeting minutes. Aim to conduct your investigation as promptly as you can and provide the employee with an approximate timeline – check your grievance process in case this specifies any proposed timelines. Be sure to write to them to advise if there are any delays.
If the employee has raised a formal grievance against their line manager, then another manager should hear the grievance and undertake the investigation.
Possible Grievance Outcomes
Once your investigation has been completed, you must issue the decision in writing via a grievance outcome letter to the employee who raised the grievance and implement any required actions as a result of your investigation.
Possible outcomes may be:
- To uphold the original decision
- To partially uphold the original decision
- To overturn the original decision
Examples of grievance outcomes may be:
- A claim of bullying has been upheld and so the next step may be to instigate disciplinary action against the accused employee.
- A claim of breakdown in relations may not be fully upheld as you feel both parties hold some responsibility, and therefore your outcome may be to uphold some elements, but provide actions going forward such as mediation and training.
The employee must be provided with the opportunity to appeal the decision. The appeal will provide the final decision.
Can an Employer Refuse to Hear a Grievance?
Employers have a duty of care to listen to any grievance raised by an employee and should do so in a reasonable and timely manner. Failure to do so may amount to a breach of implied trust and confidence, and if serious enough, poses the risk of a right to claim unfair dismissal. Also, ignoring the grievance or failing to follow a fair process could lead to any uplift on a pending employment tribunal claim by up to 25%. Even if you suspect a grievance to be falsified or malicious, you should err on the side of caution and investigate thoroughly.
Grievance Settlement Agreements
Settlement agreements are utilised to settle a dispute and offer protection to the employer to stop an employee making a claim to a tribunal as well as maintaining confidentiality. Such agreements should only be used in serious circumstances and as they are a legal contract between employer and employee, should not be entered into without seeking appropriate advice.
Responding to a grievance from an ex-employee
Ideally, grievances should be lodged before notice of resignation has been submitted. The Acas Code does not have an explicit requirement for you to hear a grievance from an ex-employee. However, it is never that simple – if an employee has raised a grievance in a resignation letter, this could form part of their evidence for a constructive dismissal claim at tribunal. It is therefore advisable to assess the risks of not doing so. You must establish whether they were still an employee at the time of raising the grievance, and whether ignoring the grievance could have any negative impact on remaining employees.
Dealing with grievances and other employment law and people matters such as this can feel overwhelming, but the MAD-HR team is here to step in to assist you. Whether you need to get ‘grievance ready’ with our Online HR Toolkit, containing grievance template letters and grievance procedures, or whether you need pragmatic, business-focussed advice, contact us today to see how we can help.
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