When an employee decides to leave the company, all that stands in the way of them and their gracious goodbye is the exit interview. So what happens when things go horribly wrong and the final show down becomes a forum of emotion and anger? Annie Hayes reports on what to do when it gets nasty.
The journey from ‘moan’ to ‘grievance’ is rather muddied when it comes to employment law. Should letting off some steam take the route of more formal proceedings and what should HR do when in receipt of the bad news? The HR community don’t seem to be any clearer on this point of law and HR practitioners are approaching it with very different armoury.
Sue Kingston, a seasoned HR practitioner, has been lucky so far: “When I have discovered a potential grievance during the exit process I have ‘informally’ passed the information on to the line manager/director in question in order to make them more self aware and to ensure they do not repeat history. This informal method has proven to be the most successful rather than escalating to a full blown grievance process and possible tribunal claim.”
But this is not a fail safe plan.
Best practice
Bobby Davis, group people director for the Hanover housing group, says it’s all about best practice and advises caution: “If it is clear that a grievance has occurred during an exit interview or around the time that a member of staff is leaving, we continue with the formal procedure as if the person were still in employment. Indeed, if the member of staff doesn’t continue with the procedure, they cannot bring a case against us at Tribunal. From an employer perspective this somewhat focuses the mind that such procedures must be bought to a conclusion in order to satisfy all parties if at all possible.
“It is also best practice in terms of being an effective employer who doesn’t wish to leave ‘unfinished business’ with their staff.”
It is not always clear, however, whether a grievance is being brought.
HR Zone member Brian Rogers believes anything that arises must be investigated: “If you feel something they say gives cause for concern I would ask them outright as to whether they are just having a moan or whether they would like you to take matters further. Crystal ball gazing is difficult.”
HR Zone member Brian Rogers.
But what happens when an employee uses the exit interview to spill the beans ‘confidentially’? HR Consultant, Quentin Colborn says it’s best to be up front: “Sometimes a leaving employee will say something along the lines of “There’s something I would like to tell you, but it must be in absolute confidence.” Where do you go with this one? My view is that there is no point hearing anything under these terms if you feel your hands are tied about saying anything. My preferred approach is to say something along the lines of “I appreciate that you would like me to keep this confidential, however if I am to properly address your concerns I need to be able to share your views with selected others. Can you please trust me to use my discretion as to whom I tell?” In many cases this frees up people to say what they really want.”
Any clearer? No I thought not. Does the law provide better direction?
Making a judgment call
I asked Ranjit Dhindsa, partner in the employment team at law firm Reed Smith Richards Butler to explain the legal parameters. She says that deciphering whether a moan constitutes a complaint in law is, yes, you guessed it, a judgment call.
“A grievance is currently defined as any complaint in writing. If the employee has completed the exit form themselves, this is a grievance and should be dealt with as such under the company’s procedures. Even if the employee hasn’t completed the form but the HR officer has, this still falls within the definition of a complaint in writing, and so again, the company would have to act.”
If only it were as straightforward. Iain Young, an interim HR consultant and former head of HR for Cofathec Heatsave, says that it is precisely the legal terminology that is causing all the headaches:
“I have no issue with having a formal grievance but the wording in the Act and from subsequent Tribunal decisions of what a grievance is, is so woolly you could knit enough sweaters to keep M&S supplied for the next 20 years.”
Logic and common sense does play its part, however. Action seems more appropriate where the content of the ‘bad-mouthing’ is of a serious nature.
Notes count
Young’s advice is to write to the individual concerned and ask them if they wish their comments to be acknowledged as a formal grievance.
“Should they then try to launch a tribunal case our first line of defence is that we heard their comments but were not totally sure if they were making a grievance complaint or not hence the reason that we wrote to them,” admits Young.
Iain Young, interim HR consultant.
Dhindsa and Alison Wallace, a partner at law firm Steptoe and Johnson, agree that the best way of handling potentially explosive information sourced through an exit interview is to ask the employee whether they wish to raise a formal grievance in respect of their ‘moans’.
Just making the gesture is not always sufficient. In some cases the wheels are already put in motion the minute the ink is dry. Wallace points to a case in which it was held that an employer’s note fulfilled step one of the statutory grievance procedure.
In Kennedy Scott Limited v Francis the EAT upheld a tribunal chairman’s decision that a note made by an employee’s manager during a meeting, and which contained “various details of complaints … which could, at least in places, reasonably be expected to raise with any employer reading them, concerns about allegations of sex and race discrimination”, was a written statement of grievance under step one of the standard grievance procedure.
Taking things further
Wallace says if the employee wishes to take things further they can proceed formally under the statutory grievance procedure or under the modified procedure if they are about to leave. If they wish to make a quick exit and brush the comments under the carpet they still need to confirm that in writing and say they don’t want to proceed formally with any grievance.
“Otherwise,” warns Wallace, “a claim is later made and the company can raise as a preliminary point that the step one has not been complied with by the former employee and the claim should be struck out.”
But, admits Wallace, employers are having mixed success with these applications.
Making that ‘judgment’ call could mean the difference between paying due attention to a serious grievance and winding up in the dock over failure to do just that. It is clear that ‘getting things off the chest’ is different to raising some serious concerns whether that be in the case of management or colleague behaviour or, of more concern, outright discrimination. And where the law may provide poor direction a good dose of common sense should apply.
