20 February 2024

Dealing with employee grievances can sometimes seem like a thankless drain on a business’s management and resources. But a prompt investigation can uncover inappropriate behaviour or poor management that needs to be nipped in the bud, avoiding bigger problems and reputational risk in the future.

Employers must comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code), which sets out the basic steps and principles for dealing with a grievance.

While the Code encourages employers to ‘have a quiet word’ or to use mediation where appropriate, investing time and resources in dealing with a grievance can pay off in the longer term. An informal approach can backfire if the employee feels their concerns have not been taken seriously enough; this in itself could be an act of discrimination. Careful judgment is therefore needed.

In this article, we set out some considerations to take into account when deciding on how to approach a grievance and highlight some risks, particularly relating to legal protections given to some aggrieved employees.

When is a grumble a grievance?

If an employee raises a grievance, the employer should not dismiss it solely on the basis that it seems petty or insignificant. Generally, anything raised as a grievance should be treated as such. In rare cases, it may be legitimate not to look into a grievance – for example, if there are good reasons to think it is vexatious or made in bad faith – but we would suggest taking legal advice first. If the grievance seems like a minor grumble that could be resolved informally, employers should try this before commencing a formal procedure.

Care should be taken if the allegation is potentially serious – for example, sexual harassment. How the employee perceives the unwelcome conduct is an important factor in determining whether it is harassment or not. Just because it appears to the employer to be ‘a bit of harmless fun’ does not mean a tribunal will agree. Employers should err on the side of investigating the grievance and hearing the employee’s account of how they have been affected. Care should also be taken if the employee is raising an issue that could give them protection as a whistleblower, such as a concern related to health and safety, discrimination in the workplace, or any kind of unlawful conduct. We can advise you on how to respond.

If an employee consistently grumbles about an issue without ever formalising the complaint, it can be sensible to suggest they bring a formal grievance (or, in the alternative, that they drop it). In rare circumstances, instigating the grievance procedure on the employee’s behalf can help close down an issue. Once the grievance procedure has been exhausted, it will usually be reasonable to tell the employee that the issue is closed.

If an employee raises a complaint about an ongoing disciplinary procedure against them, in many cases you will not need to open up a fresh grievance process. We can advise on whether the complaint can be safely fed into the disciplinary procedure.

What are the risks of not looking into a grievance?

Employees have a right of redress of a workplace grievance. If the grievance is ignored or only considered very superficially, this can give the employee the option to resign and claim constructive unfair dismissal. In most cases, the employee needs two years’ service for this. Depending on the background, employees may also be able to argue that the failure to deal with a grievance properly is discriminatory or is a detriment for making a protected disclosure (whistleblowing). There is no minimum service requirement for making these complaints.

Employers who do not follow the steps and principles set out in the Acas Code risk the tribunal increasing the employee’s award by up to 25 per cent. This applies to claims such as discrimination, disputes over pay, and alleged detriments against whistleblowers.

Do we have to investigate?

Most grievances need at least a brief investigation. Unless you carry out a reasonable investigation, the employee can argue that they were not given a reasonable chance for redress of their grievance. This could lead to a constructive dismissal claim.

How far do we have to investigate?

This will always be a balancing act. On the one hand, employers should deal with grievances promptly to comply with the Code and to ensure the fair treatment of the complainant and any employees named in the grievance. On the other hand, the investigation needs to be thorough enough that the manager deciding on the grievance can reach a reasoned view.

A desktop investigation may be sufficient, for example, in the case of a pay error. In dealing with more complex allegations, such as bullying or harassment, a reasonable investigation is likely to involve interviewing individuals. For example, if an employee alleges that an incident of bullying was witnessed by a colleague, the colleague should be interviewed. However, it may be reasonable to limit the number of individuals who are interviewed. For example if an employee in a large team alleges that the team manager shouts in team meetings, it may not be necessary to interview the whole team.

What can we do if the grievance is unfounded?

Grievances can be very damaging to working relationships, and sometimes, if a grievance is not upheld, the aggrieved employee’s relationships with the employer and their colleagues may appear to be irreparably broken, creating a potential ground for dismissal. However, the employer should pause for thought before dismissing. If the employee’s original grievance was an allegation of discrimination, they may be able to bring a victimisation claim if they are dismissed after the grievance is not upheld. Sometimes it will still be possible to fairly dismiss in these circumstances, but we would suggest seeking legal advice first. Similarly, employers can take action against employees if grievances have been brought in bad faith or are vexatious, but again, this needs careful consideration.

How we can help

Employee grievances will crop up from time to time, and handling them effectively pays off, but careful management is required.

Sometimes an employee will bring a grievance to use as leverage in negotiating a favourable exit package. Promptly and effectively dealing with the grievance can strengthen the employer’s bargaining position.

We are highly experienced in this area and can support you in managing the risks. For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.