Whilst the working landscape has dramatically changed over the last year or so, disciplinary and grievance procedures continue to apply in the same way as before the pandemic began. But with the challenges of hybrid working and employers now encouraging workers back to the workplace following the government’s easing of Covid restrictions on so-called ‘Freedom Day’, now more than ever, managers need to be confident of handling employee grievances in a swift and decisive manner.
Grievances are widely defined as concerns, problems or complaints that employees raise with their employer. A grievance at work could relate to just about anything, whether regarding working conditions, bullying and harassment, pay, failure of process, a dispute with a colleague or a lack of management support. The important aspect is that the grievance derives from the employer-employee relationship, whether directly or indirectly. A grievance can be made at any time, but all too often they are made in response to or in anticipation of acts such as redundancy consultation, disciplinary investigations, or performance management processes.
There is no legally binding process that an employer must follow when raising or handling a grievance at work but there are general principles from the ACAS Code of Practice on grievance procedures and Employment Law more generally, which should be followed. Most businesses will have their own grievance policy to guide the process for employees when submitting a grievance and for managers when handling one.
Firstly, informal methods of resolution should be explored with both the complainant and the respondent. Some disputes can be the result of miscommunication or an honest mistake. Workplace mediation can often nip things in the bud and draw a line under an issue before it is escalates to a formal level. However, if an informal approach is not suitable, or does not solve the issue, then employers should be prepared to handle grievances using a formal employee grievance procedure and without unreasonable delay. The ACAS Code provides practical guidance to employers and employees and sets out “the standard of reasonable behaviour” for both parties when a grievance cannot be resolved informally.
The next stage is the investigation, which is essentially a fact-finding exercise to get to the bottom of the matter. It is important that the investigator remains fair and objective throughout the process, as his or her findings will form the basis of the final decision on the matter. If a grievance hearing is required, then procedural requirements should be respected and the employee has the statutory right to be accompanied by work colleague or trade union representative. This is a complex process and sometimes difficulties will arise. It is important to always consider taking expert legal advice on the matter, particularly around conflicts over facts and credibility of evidence.
Whilst this is the traditional picture, employers should be aware that the pandemic and new methods of working will impact these procedures. For example, social distancing may present practical challenges to holding formal grievance meetings or hearings. This may be an issue where the parties are reluctant to discuss such matters in a remote setting. However, there is no reason why grievance investigations cannot take place remotely through use of live virtual meetings. Sometimes, being able to share some documentation like emails or notes on screen for the grievance officer and the employee to see and discuss at the same time will actually save time. Also, separate facilities can be arranged for employees to consult with work colleagues or trade union, without the necessity to traipse in and out of rooms will also save time.
Proceedings may need to be suspended where any of the parties suddenly fall ill due to Covid, or other illnesses of course. Although an employee with a grievance who may not be able to attend an in-person grievance hearing, may still be able to attend a virtual meeting and it may be less stressful, taking into account travel to the workplace.
Employers should also be aware that furloughed workers are still technically employees and retain the right to raise a grievance and have it dealt with even though they are not working.
If you have any queries or concerns regarding an ongoing grievance or disciplinary matter please do not hesitate to contact a member of the Employment team firstname.lastname@example.org