12th August 2021

Don’t let the sun go down… on your grievances

I recently attended an excellent presentation about resilience strategies.  I came away from the presentation feeling positive and armed with a string of new resilience strategies.  One of the strategies which struck a chord with me was to stop complaining.  While I don’t regard myself as a serial moaner (unless on the subject of fishing – not enough water, too much water, too windy, too bright today, not enough fish, blah blah…), I undertook to give this a try. 

Serial complainers
We all have that one colleague don’t we (think yourself lucky it’s just one!).  The one who is always mumping and moaning.  Never happy.  Everything that their gaffer does is always wrong or picking on them.  This got me to thinking about grievances.   What is a grievance?  What is the point of a grievance?  My go-to strategy when a colleague moans to me about someone or something that has happened to them, after initial sympathy of course, is to advise “why don’t you lodge a grievance then”?  Often this suggestion is met with a quizzical look.  However, it is often a good tool to filter out a nonsense groan.   Of course, Joe Bloggs isn’t going to lodge a formal grievance about the semi-skimmed (green cap) milk in the canteen being replaced with full fat (blue cap) milk.   A grievance is ultimately a mechanism for an employer and an employee to seek to resolve workplace disputes or issues. 

Top 5 tips for handling grievances
Here are my top tips for employers when dealing with grievances: –

  1. Don’t get caught up in formalities such as whether it has been sent in a letter signed in black ink by the employee.  I once dealt with a case where the employer refused to “recognise” a grievance because it was handed in to the workplace by the employee’s friend on her behalf and it was not signed.  The worst thing that an employer can do is to ignore a grievance.  There are no formal requirements as to how a grievance should be set out.  Even a post-it- note with complaints scribbled on it and stuck to the boss’ computer could amount to a grievance.  Obsessing over pedantic formalities is likely to make the employer look objectionable and difficult, if the case ever calls before a tribunal.  Similarly, if an employee complains about historic issues don’t try and use the legal argument of time bar as a means to avoid looking into these issues.
  2. Do let the employee have their say.  One of the most vital steps for the employer in dealing with a grievance is to follow the ACAS Code of Practice.  This is a very easy procedure to follow.  Many employers of course have their own sophisticated grievance procedures, which can sometimes be more of a headache for employers than any benefit arising.  However, the employer should always follow their own procedures in addition to the ACAS Code.  A very basic summary of the procedure is: (1) meeting; (2) outcome letter; and (3) right of appeal.  Always follow every step of the procedure to the letter to avoid being tripped up in a subsequent tribunal. 
  3. Sometimes a grievance will also be followed by a sick line.  The issues which are troubling the employee has made them so unwell that their GP advises time away from work.  While employers will naturally be keen to get the grievance “off their plate”, sometimes the best approach here is to simply wait until the employee is well enough to return to work and then hold the grievance meeting at that juncture.  Is there any real rush to push it through and decide in the employee’s absence if they are not fit to engage?  It may be difficult to persuade a tribunal that this is a reasonable response.  If getting the employee to attend a grievance meeting is becoming like Mission Impossible, consider alternative mechanisms to allow the employee to have their say.  Virtual hearings will have become the norm for many in the recent past.  If that isn’t possible, consider offering the employee the chance to offer written representations as an alternative to them physically attending a meeting.  
  4. What if a grievance is raised by a former employee?  Do employers have to spend time dealing with this?  My advice here would, generally, be no.  A grievance is all about resolving workplace disputes.  A former employee is no longer part of the workplace, so what is the point?  However, I would caveat this advice by observing that there may be cases where it would be useful to look into the matter.  Particularly if the allegations are serious, such as discrimination or bullying by a colleague.  The employer would be wise to look into this type of issue, to assess if there is any merit in the complaint.  Afterall, this ex-employee might not be the only person to fall victim to the person complained of.  The employer has a duty to take all reasonable steps to prevent discrimination in the workplace.  Addressing a complaint brought by a former employee would be a reasonable step.
  5. If the grievance is about another employee (which it often is), should that employee (“the Bad Guy”) be shown a copy of the grievance?  Clearly the Bad Guy will need to be interviewed as part of a fair process, to get their take on the situation.  Fairness applies equally to the person who has lodged the grievance as it does to the person about whom the grievance was written.  I would always advise letting the Bad Guy have some information so that they can respond to something meaningful with a bit of context.  Rather than just asking them “what were you doing at 2pm on Tuesday afternoon 8 weeks ago”.  That might not mean giving them sight of the whole grievance letter (some can be very lengthy), but at least a summary of the allegations that relate to the Bad Guy so that they know what they are to be answering.  

If you have received a grievance and need any assistance on how to deal with it, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow and Perth.

Jack Boyle, Director
Employment Law
Blackadders LLP


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