#metoo

In part 1 of this blog, we discussed the fact that employers are vicariously liable for employees’ actions ‘in the course of employment’, and that this definition can be very wide. We looked at examples, and noted that employers need to be able to demonstrate they have taken ‘all reasonable steps’ to prevent unwanted conduct.

As such, we can assume that regular training for managers and employees is happening, everyone is aware of expected standards of behaviour and anti-harassment, and equal opportunities policies are readily available for all employees. Essentially, everything is covered, as long as nothing untoward happens.

So what do you do if an employee raises a complaint?

In our previous blog, we explained that in deciding whether conduct has the effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, employment tribunals will take into account the victim’s perception, the circumstances of the case and whether it is reasonable for the conduct to have that effect. As such, the first thing to point out is that if an employee has raised a complaint, the golden rule is to take the complaint seriously, however trivial it may at first appear.

Who has complained?

According to the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code), grievances are “concerns, problems or complaints that employees raise with their employers”. As can be seen from the above wording taken from the ACAS Code, it is only strictly necessary to hear grievances which are raised by employees. This means that it is potentially open for employers to decide to decline to hear grievances from workers, contractors, job applicants or former employees. However, certain rights apply to contractors and others such as discrimination, which includes harassment, so we should always look into these type of concerns even if not from an employee.

Informal or Formal?

If the complaint has been raised verbally, or in a very informal way, the person considering the complaint should clarify with the employee if they intend that their grievance be heard under the formal procedure or if they intend for it to be handled informally initially. There may be complaints of an obviously serious nature, for example a sexual assault, which should always be dealt with on a formal basis.

Many employees will prefer to attempt to raise grievances informally. Generally an employee will raise their concerns verbally with a manager before escalating the matter to the formal procedure. A verbal informal grievance can be looked into by the manager and the employee can be provided with a considered response and suggestions or recommendations that can assist to resolve the concerns going forward. This can be extremely effective.

It is recommended that when informal grievances are dealt with, a file note is prepared to record the date of the discussion, the substance of the grievance, what investigations were done, what resolution was proposed and how the employee responded to the resolution proposal. It is, of course, vitally important that if a resolution is proposed and agreed by the employee that the employer follows through and carries out the proposals.  Keeping notes and a paper trail helps everyone concerned know where they stand, and will help show that the employer was actively engaged in helping to resolve the grievance.

The Formal Process

With a grievance, it is common to hold the hearing first, and then investigate, so that you have the full details of the allegations to investigate. You can then either reconvene the hearing if you need to get the employee’s response to matters arising from the investigation, or issue an outcome if the matter is clear.

As a general rule, a grievance hearing should take place without unreasonable delay and ideally within five working days of the grievance being received by the employer. The written notification should contain key procedural information like the right to be accompanied, the identity of the grievance chairperson and the date, time and location of the grievance hearing.

The Hearing

The grievance hearing should be held at a reasonable time and location. In most cases, this will be in a private meeting room during the employee’s normal working hours. Where there have been allegations of discrimination or the employee is on sickness absence at the time of raising the grievance, it may be appropriate to consider holding the hearing at a neutral venue or the employee’s home. This may also be a reasonable adjustment if the employee is disabled. It is important to remember that this process will often be very stressful for the employee concerned. It is also important to keep a very open mind while investigating the issues raised.

The chairperson (who will carry out the investigations and make the decisions on the grievance) and a note taker should be at the hearing, as well as the person raising the grievance, and their companion if they have elected to attend with one for support. Many employers prefer the note taker to have some understanding of human resources so that they are able to advise the chairperson on procedural issues. If someone with an understanding of human resources attends the grievance hearing then it should be very clear what their role is; to provide advice and support on process and procedure. It is important that it is the chairperson as the stated decision maker who actually makes the decision. It is not recommended that other opinions are sought nor “joint” decisions made. The chairperson should be relatively senior, impartial and ideally have no previous involvement in the matter. It is also important to consider who will be used for an appeal if necessary.

Minutes should be recorded of the formal grievance hearing. The employee should be advised that it is likely that the grievance hearing will need to be adjourned to allow investigations to take place and once those investigations are complete the chairperson will be in a position to make a decision on the grievance raised. It is important to go through the evidence presented thoroughly. If there are a number of incidents complained of in the grievance it is advisable to take these in turn and allow the employee to explain each point separately. Take careful note of potential witnesses, dates and times, as they can be vital in a “he said she said” scenario.

At the end of the grievance hearing, it is helpful to sum up the information and evidence put forward in respect of each point of grievance to ensure they understand the complaints. The chairperson should then invite the employee to have a final opportunity to put forward any information or evidence the employee considers to be relevant which has not already been discussed. The employee should be advised of the likely timescale that the chairperson expects the investigations will take before the grievance hearing will be reconvened. Before closing the hearing, the chairperson should ideally make arrangements for the employee to read the minutes of the meeting and sign to confirm that they are a true account of what has taken place.

The Outcome

The ACAS Code requires the grievance outcome to be provided to the employee in writing, but in most cases involving current employees it is also highly recommended that the decision is first provided to the employee face to face during a reconvened grievance hearing. Words on a page can appear very harsh and it is much harder to convey empathy in writing. This can be particularly critical if a grievance is not upheld, due to a lack of evidence for example. It is vital to ensure that the employee feels heard.

In grievances involving multiple separate points, it is best practice to provide a specific response and recommendation in relation to each point. It is important for the chairperson to consider consistency cases when reaching a decision on the grievance outcome and any recommendations, if this is not done there may be a risk of discrimination allegations.

If any point of grievance is upheld, the employer must make a decision on how to resolve that grievance issue. In a case involving sexual harassment, disciplinary action may be necessary up to and including dismissal, if the grievance is upheld. In any event, it would be appropriate to consider separating individuals if there was no other reasonable solution, but alternatives such as workplace mediation, ACAS facilitated mediation, conduct agreements and additional supervision should ideally be considered first.

The Appeal

The ACAS Code requires employers to provide employees with the right to appeal against the grievance decision. If an employee wishes to appeal against the grievance decision, they should set out the grounds for appeal in writing without unreasonable delay. They will then be invited to a meeting to discuss their grounds of appeal.

Employers can set a deadline for appeals to be submitted by, this would usually be set out within the written policy. However, it is recommended that employers should be flexible and consider appeals submitted after such deadlines (within reason) to avoid allegations that a failure to hear a late appeal is a breach of the duty of trust and confidence, and therefore grounds for constructive dismissal.

 


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Author: Arwen Makin

After studying law at Cambridge University, Arwen trained at leading national law firm Mills & Reeve, qualifying into their employment team in 2002. Arwen has extensive employment law experience, having advised both employers and employees on a wide range of employment issues. Prior to joining ESP she previously worked for a number of years providing advice and representation to both trade unions and their members, and has a particular expertise in the education sector. Due to her diverse experience she is ideally placed to give advice in relation to professional conduct and regulatory matters.

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