Grievance Investigations & Hearings
- What is a formal grievance procedure?
- Why are grievance procedures important?
- The different (re)sources
- Pervasive requirements
- Company internal policy?
- Informal first
- Who should deal with formal investigation?
- Role of the Investigator
- The investigation
- The Report and Decision
- The Decision
- Common Problems
1. What is a formal grievance procedure?
- ACAS Code of Practice defines grievances as :
“…concerns, problems or complaints that employees raise with their employers.”
- An opportunity for:
- the employee to request redress of an action taken by the employer (directly or vicariously); and
- the employer to resolve an employee’s concern before it escalates into a dispute/resignation/litigation.
2. Why are grievance procedures important?
- acts as a release valve for some employees
- employees feel they have a genuine option to raise a complaint
- effective grievance procedures foster a culture of fair treatment that encourages commitment, staff retention and respect
- essential to break cycle of disputes
- employees must follow the ACAS Code or their compensation at Employment Tribunal will be reduced by 0-25%
- employers must follow the ACAS Code or compensation at Employment Tribunal will be increased by up to 0-25%
- potential constructive dismissal – failure to allow redress of grievances
- next step is litigation
3. The different (re)sources
- ACAS guide to investigations
- ACAS Code of Practice on disciplinary and grievance procedures
- ACAS Guide to disciplinaries and grievances at work
- Company’s own Grievance Procedure
- Other relevant company procedures e.g.
- Bullying and Harassment
- Equality and Equal Opportunities
4. Pervasive requirements
Before looking at the practice, there are general concepts that need to be applied at all stages and to all decisions:
- genuine opportunity for redress
- fair and open
- genuine and sufficient investigation
- confidentiality at all times and at all level
- management buy-in
- prompt and timely
- comply with statutory rights (e.g. accompanied, adjournment etc)
5. Company internal policy?
- Informal first
- Grievance in writing to manager
- What has happened and why a grievance is requested
- First meeting between manager/employee as soon as reasonable
- Right to be accompanied
- Witness interviews
- Non-witness evidence
- Decision in writing
6. Informal first
Try to deal informally first:
- Employees should be encouraged to raise grievances informally with their immediate line manager. Most grievances can be dealt with at this level.
- Managers should be willing to first deal with grievances informally (irrespective of whether they are raised verbally or in writing).
- Whenever an informal grievance is raised, the manager should arrange to meet the employee as soon as is reasonably practicable to establish why he or she is dissatisfied and to look for a solution to the problem.
- Always take notes, confirm actions and/or outcome by email and inform HR.
- Effective/continuous management will prevent most matters escalating.
- Company procedure may state informal first.
7. Who should deal with formal investigation?
- Line manager, unless:
- he/she is not impartial or is otherwise involved in the issues giving rise to the complaint,
- has not received training on how to deal with grievances and is unsuitable,
- complex issues that require specialist knowledge or additional seniority.
- If not manager, next level of management up.
- Keep someone free to run the appeal.
8. Role of the Investigator
“The role of an investigator is to be fair and objective so that they can establish the essential facts of the matter and reach a conclusion on what did or did not happen. An investigator should do this by looking for evidence that supports the allegation and evidence that contradicts it.”
ACAS Investigations Guide
9. The investigation
- Complete an investigation plan:
- terms of reference e.g. scope of the complaint, what needs to be investigated, what action is requested, method of providing response
- act promptly and establish time frame
- check other policies (e.g. bullying and harassment) to see whether they affect the level/scope of the investigation
- what evidence needs to be collected and from whom?
- The plan helps keep things on track/under control
- How much/what investigation is required depends on the band of reasonable responses test
- Not all allegations, statements or assertions need to be investigated
- Anonymity for complainant – only where exceptional circumstances e.g. fear of violence
- As little disclosure of the grievance particulars as possible
- Remind all involved of strict confidentiality (potentially issue express management instruction)
- Keep notes of all meetings and conversations – potentially disclosable in litigation and/or under a Subject Access Request (SAR)
- Collate all non-witness evidence e.g. emails, CCTV, records etc
- Keep returning to the specific terms of the grievance.
- At each interview state:
- 1. Who is present and why
- 2. Your role as an investigator
- 3. Purpose of the meeting
- 4. Need for confidentiality during the process and after
- 5. Who may see the interviewee’s witness statement
- Use a notetaker
- Use open questions where possible
- Ask witness to agree statement
- Keep contemporaneous notes
10. The Report and Decision
- Investigation Report will help bring investigation together and form basis of written decision:
- summary of the process and the evidence gained
- summary of the finding
- the conclusion based on the evidence
- appendix with all documents, statements
- Report should be:
- concise and factual
- uncontroversial if disclosed
11. The Decision
- Conflict of evidence or insufficient evidence:
- 1. If something is unsubstantiated – say so,
- 2. If something is contested:
- A. Say why one version is preferred over another; or
- B. Say why on a balance of probabilities something has been held.
- The decision is usually a simple decision on what the Investigator believes has taken place.
12. Common Problems
- Grievances during disciplinary procedures
- Right to be accompanied
- Post-termination grievances
- Recording hearings
This publication is intended for general summary guidance. It is not and should not be considered legal advice. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.