Taking the Grief out of Grievances

According to the LRA definition, grievances are concerns, problems or complaints that an employee has about some aspect of their work. Most employers should expect to hear grievances raised from time to time and we know that most are resolved quickly and informally, particularly if there is a relationship of trust between the employee and the manager.

The statutory workplace grievance procedures under the Employment (Northern Ireland) Order 2003 were repealed and employers are now directed to the LRA Code of Practice on Disciplinary and Grievance procedures for guidance on how Grievance policy and procedure should be approached and managed.

Some might argue that the repeal of the statutory workplace grievance procedures has simplified the way in which employers are required to deal with workplace grievances. However, despite the fact that Section 2 (Grievance Procedures) of the code is written in simple and straightforward language, there remains a level of uncertainty, particularly when dealing with some of the common complexities which occur in practice, such as how to manage repetitive grievances or what to do if the employee is absent with stress or anxiety whilst a grievance is being investigated. We touch on a few common concerns and offer some guidance on how to approach them.


1. LRA Code of Practice

In the first instance and whenever a Grievance is raised, it is important that all NI employers are familiar with and follow the new LRA Code of Practice on Discipline and Grievance which came into effect in April 2011. Industrial Tribunals can take into account ‘unreasonable failure’ to follow the grievance aspects of the Code and may financially penalise the employer (or the employee) when making a final decision in a tribunal case.


2. At a glance

The code summarises guidance for employers as follows:

Drawing up a grievance procedure

• Involve management, employees and their representatives.
• Explain procedures to employees and make sure they have access to a copy.

3. Operating grievance procedures

• Where appropriate aim to resolve grievances informally with line managers.
  
• Employees should raise formal grievance with line management.
• Invite the employee to a meeting and inform them that they may be accompanied.
• Give the employee the opportunity to have their say at the meeting.
• Respond in writing within a reasonable time and inform the employee of their right to appeal. 

4. Appeals

• A more senior manager should, if possible, handle the appeal.
• Tell the employee that they may be accompanied.
• The senior manager should respond to the grievance after the appeal and tell the employee if it is the final stage in the grievance procedure.

5. Records

Written records should be kept for future reference.

There are some inclusions within the Code of Practice which may mean that your existing Grievance policy should be updated. Some points of note include:

• The LRA Code does not include procedures that apply specifically to former employees. However, where the grievance is about an issue that could form the basis of an industrial tribunal claim and the grievance has been raised within the relevant time limit for bringing the claim, employers might choose to err on the side of caution and where practicable deal with the grievance in accordance with the Code. Policies may state that grievances from former employees will be heard at the employer’s discretion.
• The employee is required in a written grievance, not only to state the grievance but also to state how it might be resolved. This requirement should be reflected in the Grievance policy.
  
• Employers should take steps to ensure all employees understand the policy. This implies that putting a policy on an intranet site or in an inaccessible handbook will not suffice. Employees should be taken through the policy and the employer should keep a record that this has taken place.
• There is no set time frame to respond to grievances, but this must be within a ‘reasonable’ time frame. Responses must not only set out the decision but also how this decision was reached and any proposed action, if appropriate.

6. Some Common Questions

What if an Employee Fails to Attend a Grievance Hearing?

If there is a genuine reason preventing the employee from attending the hearing (e.g. illness or their companion cannot attend) then an alternative date should be arranged within a reasonable time frame.

If the employee fails to attend a rearranged meeting, they should be made aware that you may make a decision in their absence, based on the information available.


Should the Grievance Hearing Occur if the Employee is Absent with Stress/Anxiety?

Write to the employee and state that in order to proceed you will require their consent for you to obtain a medical assessment of their ability to attend a grievance hearing in the near future from either their GP or an occupational health specialist. 

• If the employee is deemed fit enough to attend, you should arrange the hearing with the employee without delay.
• If not, you will not be able complete the grievance procedure without delay. In this situation, you may choose to ask the employee for written representation and make a decision in the employee's absence. 
  

What Should you do if an Employee Raises a Grievance During a Disciplinary Process?

The Code states that in this case the disciplinary process may be temporarily suspended in order to deal with the grievance. There may be situations where the employer may find it more convenient to deal with both issues concurrently. The appropriate approach will be fact sensitive and employers should seek advice if unsure.


What if the Employer Believes the Employee is Making False or Malicious Grievances?  

If there is evidence to suggest an employee is deliberately making false allegations, or is doing so as a form of bullying, this can be treated as misconduct, and in some cases can justify dismissal. In Bashir and another v Sheffield Teaching Hospital NHS Foundation Trust EAT/0448/09, two employees were dismissed after making multiple grievances alleging race discrimination, which the employer found they had made in bad faith. The employees’ dismissals were found to be fair by reason of their conduct. However, an employer considering disciplinary action will need clear grounds for a belief that the grievance is false; in particular, the employer should be cautious where the employee makes allegations of discrimination, as action taken against him or her can amount to victimisation if the employee is in fact acting in good faith in making the allegations.


What Should you do if a Grievance is a repeat of a Previously Resolved Grievance?

If a new grievance repeats a complaint that the employer has already dealt with in the past, the employer should ask the employee to explain how the new grievance differs from the previous one, or what new evidence has come to light.

Where it is clear that there is nothing new being raised, the employer will not be required to hold a new hearing. There is no implied term in the contract to the effect that an employee will have multiple opportunities to have the same grievance reconsidered.

In this case it is prudent to write to the employee and explain that no further action will be taken because the issue has already been dealt with and refer the employee to the previous correspondence and outcome. The letter should inform the employee that the matter will be considered again if new incidents occur or if new facts come to light.


7. A note about the guidance on the LRA free Pre Claim Conciliation services

Employers and employees should always use internal Grievance procedures before considering any other option. It’s usually quicker, less stressful and less costly for all concerned.

Where a problem or disagreement in the workplace is likely to lead to a tribunal claim, however, the Labour Relations Agency will often be able to help employers and employees find a solution that is acceptable to both. This service is known as Pre-Claim Conciliation. It can save time and the expense normally associated with a tribunal claim.

Further information about this service can be found here:
http://bit.ly/MacEVm