What’s the answer? Should a grievance be lodged?

Annie Hayes

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What’s the answer? Should a grievance be lodged?

By Annie Hayes

An HR Zone member gets legal guidance this week from Stephanie Wootton, employment law expert at Browne Jacobson and Nadia Hoosen Senior Solicitor at Clarkslegal on how to handle a sticky situation fuelled by poor communication.

The question:
A member of staff has come to me informally with a problem that I am not quite sure how to deal with. Her direct line manager has no problems with her work, but her manager’s manager highlighted three areas of concern to her, went about it in the wrong way and made it very personal. I now have a very upset member of staff who wants to know what steps she should take next. She could lodge a grievance, but she is concerned about the impact it could have as she works in a very small team. I am not sure what to advise. Anyone come across anything similar?

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The answers:
Stephanie Wootton, employment law expert, Browne Jacobson

Lodging a formal grievance can be a difficult step for any employee to take, but this is particularly true when issues arise within a small team. This can often be put down to close working relationships that may exist and heighten tensions between employees which may result from a complaint.

However, when dealing with any expressed grievance, whether be it within a small or large team, there are particular steps that should always be taken. When handling such complaints you should refer to, if in place, the formal grievance procedure at your company. This may refer to an informal process and provide guidance on how issues can potentially be resolved before a formal procedure is invoked.

A possible solution would be to persuade the employee to attend a meeting with the individuals involved, perhaps with HR support, with a view to all parties airing any concerns they have and moving forward before the matter needs to be dealt with on a more formal footing.

A word of warning: in view of the new statutory dispute resolution procedures you need to be sure that the statutory grievance procedure hasn’t already been put into motion. For this to occur all that is required is for the employee to, ‘set out the grievance in writing and send the statement or copy of it to the employer’.

Therefore, if you became aware of the employee’s dissatisfaction through an email, or if this issue was raised in writing even if it was in relation to another matter you might be dealing with such as in an appraisal form, then this could constitute ‘step one’ of the statutory grievance procedure. This is the case even if it is not the employee’s intention at the time. The staff member may not specifically say they want to pursue the complaint, but it must still be treated as such under the statutory procedures.

It is crucial in your next steps to identify whether the employee has invoked ‘step one’ of the statutory grievance procedure. If an employer fails to recognise and, in turn, deal with a formal grievance correctly, by holding a meeting, dealing with the grievance and offering a right of appeal against the outcome of the grievance, any award made by an Employment Tribunal could be increased by 10 to 50%.

In light of the statutory dispute resolution and to avoid any future claims, you need to ensure that all managers and HR advisers are trained and able to recognise whether a complaint amounts to a ‘step one’ grievance. All written complaints need to be dealt with correctly, even if a complaint hasn’t been raised in line with the company’s grievance procedures.

Stephanie can be contacted at: swootton@brownejacobson.com

Nadia Hoosen, Senior Solicitor at Clarkslegal

The statutory definition of a grievance is a “complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”.

Once a grievance is raised by an employee (i.e a complaint is put in writing), an employer has a legal duty to follow the statutory grievance procedure. If an employer fails to follow the statutory procedure, they could find themselves at the end of a constructive dismissal claim and/or having to pay up to 50% more in compensation at Tribunal.

If an employee raises a grievance, if can often make working relationships extremely difficult, particularly if the employee has complained about someone they work closely with. There is also the possibility that the remainder of the team will suitably take sides,thereby involving everyone. This is especially relevant given this relates to a small team.

Employees are often reluctant to raise formal grievances because of the fear of how awkward they will feel if their Manager or team become aware of it. However often the formal approach is the only way to address an on going problem.

Invariably, if an employee complains about someone in their team, it will be necessary to speak to the person complained about, so that you can hear both sides of the story. It is therefore fairly difficult to keep the matter confidential, unless all parties are willing to do so.

In such situations, it is often best to try and use an informal approach first. There are some companies which offer their employees the opportunity to mediate, before raising a formal grievance. This is an informal procedure where both parties are given a chance to air their views and resolve their differences together, with an independent member chairing the meeting. Given the fact that the key cause of most complaints is a lack of communication between people, this can often prove quite successful.

Another option is to offer the employee personal counselling. This may enable the employee to air their issue in confidence and independently work out the best way to approach the situation on their own.

However, employers should bare in mind that if the employee’s complaint is of a serious nature and an an informal approach is suggested, you may be accused of not taking the employee’s complaint seriously. It is therefore always best to offer both informal and formal options and give the employee a choice. If you are going to go down an informal route, you should regularly check how the employee is progressing and ideally have it confirmed in writing that the informal route is acceptable.

It is sensible to ask the employee to provide written confirmation that they do not wish you to proceed with the formal statutory grievance procedure.

Nadia Hoosen can be contacted at nhoosen@clarkslegal.com