What should HR do when a complaint is made by a member of staff about another employee? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.

The question:

One member of staff recently made a complaint about another’s behaviour during an argument in his office. I have interviewed the defendant who was deeply shocked and has now made a complaint about the original complainant. Having spoken to them both and having interviewed six witnesses who saw the argument and behaviour by both, I am very much of the opinion that it was a tit-for-tat argument and nobody was being bullied or intimidated by the other.

My question is, what do I do now? I’m not sure if I share my report findings with both parties, and just leave it there. Or what? Neither will be happy with me doing nothing and will want to take it further.

Legal advice:

Esther Smith, partner, Thomas Eggar

Sadly this is not an uncommon situation. You do not make it clear whether or not either employee has raised their complaint under your grievance procedure, but from the process you describe, it seems that the complaint has been treated as a grievance, which I think is sensible.

On this basis, having conducted interviews with all relevant witnesses and the two complainants, I think you should invite them individually to a meeting to give the outcome of your investigation into their grievance/complaint. They should have copies of the statements and other information you have taken account of when investigating their issue, so that they can make comments or representations on these, and at the meeting you should discuss the findings of your investigation and listen to their comments on the documentation before making a final decision.

If the decision with both of them is that they are both as culpable as each for the situation that occurred (which seems to be the case from your investigations so far) then confirm this, and follow up the meeting in writing. As you have not found either party to be at fault there is no need in this situation to progress further action, such as a disciplinary hearing, although they should both be given the right of appeal against the outcome of their grievance.

Hopefully if they have both been given the same result following your thorough investigation, they may take the view that an appeal is not going to get them anywhere, and that they should just get on with things. However if they do appeal, the company should hear this in accordance with your own, or the statutory, grievance procedure.

If there are still some issues to be resolved between the two employees, you may need to get them together after you have delivered the outcome of their grievances just to iron out any problems so that they can all work together going forward.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

Apply a bit of common sense to this. First, the complainant has in effect taken out a grievance so it is their complaint. Second, your obligation is to feed back on the result of the investigation.

There’s no obligation on you to share any written report with anyone but you must respond to the complainant. Presumably, if your conclusion was that there was a spat between two members of staff and you can’t apportion blame then that is what you feed back. You may want to tell them both this and that you expect better behaviour in the future. The complainant can appeal this, so yes, you may have another step to take yet but just deal with it in a measured way (which you seem to have done so far).

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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