Handling Grievances webinar follow-up questions, Part 1 (UK)
Over 700 people signed up to our Handling Grievances webinar last week, reinforcing our view that the return to the workplace (RTW) process is going to be a fertile breeding ground for such complaints by employees, some around new working conditions, some alleging health and safety failures and others just to vent minor unhappinesses and resentments built up over the last 12 months’ festering at home and finally uncorked in the office.
Grievances can be time-consuming and stressful for all concerned, but they are not necessarily a sign that something has gone wrong, nor is seeking to avoid them a good reason for making the wrong decisions in relation to RTW matters. Approaching them flexibly, robustly and (in particular) with a keen eye on outcome above process can help develop the internal view of your grievance procedures into an effective means of resolving disputes quickly, pragmatically and with minimum damage to working relationships. Employees with genuine issues can expect resolution of them and those without can expect to be told so both pretty quickly and quite firmly.
So much to cover and so little time on this webinar, with the usual consequence that sadly we could not get to all the questions which participants kindly submitted through the online chat-box thingy. Here are the first 2 answers, with more to follow:-
Is it correct that a grievance may contain health and safety concerns and therefore also be a protected disclosure for whistleblowing purposes? Would that affect the investigation process?
Yes, entirely possible. In fact, during the RTW process, more than likely. Of course, to gain the formal protections of the whistleblowing regime the employee must show that he believed his disclosure to be a matter for the public interest, which is not required of an ordinary grievance. However, it will usually be so easy for an alleged health and safety failure to be reasonably believed as affecting the public interest that the point will rarely be worth taking. As soon as an employer gets into whether something is a protected disclosure for whistleblowing purposes on technical legal grounds it has to some extent lost its way – the key questions to start with on receipt of the grievance should be whether it requires a resolution and how to avoid any improper retaliation for it, not its precise legal categorisation. That is really only relevant if you do intend to retaliate, or think you may already have done so, so grasping immediately for legal fig-leafs is not a good look.
That a grievance may also be a protected disclosure does not affect the burden of proof applicable to the factual findings required (i.e. still on the balance of probabilities rather than beyond all reasonable doubt). However, it may affect the extent of the investigation you need to carry out. An ordinary common-or-garden investigation needs only to be reasonable, or rather, not outside the range of reasonable responses. But what is reasonable depends in part on the gravity of the grievance, and no sensible employer is going to argue that the alleged unnecessary exposure of employees or visitors to Covid19 (or any other material health and safety risk) is anything but very serious indeed. Therefore the investigation of possible non-compliance with the Government’s Covid-secure guidelines, for example, would require a more thorough review than individual-specific allegations of rudeness, bullying or similar, which usually have little remedy at law for those affected.
If you make a note of having had the “quiet word” which Acas suggests can resolve many grievances at source, can you keep it in the employee’s file?
Yes, although subject to all the usual data protection conditions around it being kept for no longer than it remains relevant. Keeping a record of something informal does not make it formal.
That obviously takes us to the question of how long a “quiet word” does remain relevant for these purposes. Surely if it has no formal lifespan and is effective immediately, it also ceases to be relevant immediately?
Yes and no, but mostly no. The effectiveness of that gentle shot across the bows, like any other management intervention, is measured not just in the moment but over a period. Even if put expressly as just a word to the wise without any specific period of validity, that does not permit the employee to forget or disregard it immediately. You have to (and are entitled to) assume that at least some residue of the message would stick in the employee’s consciousness and that the more senior the employee and the more serious the matter, the longer that would last (though noting that if the grievance has highlighted conduct of any real gravity, the quiet word is probably not the appropriate response in the first place). But that does not permit you to elevate the note into part of your formal performance or conduct management procedures if it was not stated to be so when it was delivered. Where you have a measure of discretion in any sanction to be imposed, you could take it into account, but not by much and not for long, as otherwise you are treating it as serious when by its whole nature, it was not.
You would also wish to keep the quiet word note if any decisions are made on the back of it which you might later need to defend. By definition, it won’t be about anything of huge significance, but even the tiniest of slaps on the wrist might be enough if you have to separate people for example for promotion, pay/bonus, redundancy selection purposes. If that is genuinely what makes the difference between the successful and unsuccessful candidates (i.e. they were otherwise very closely matched), you will need to be able to show that to be the case to exclude any scope for the inference of less lawful considerations, e.g. discrimination or whistleblowing retaliation. Given the potential reach-back of discrimination claims, especially around pay, it then makes sense to retain that note for much longer than its informal nature might initially suggest.