July 27, 2021

Volume XI, Number 208

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July 27, 2021

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July 26, 2021

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Handling Grievances webinar follow-up questions, Part 2 (UK)

Here are two more questions from our grievances webinar last week and the headline answers:

– Can some initial investigation with the “accused” prior to the meeting with the person bringing the grievance make that meeting more meaningful?

– Some grievances are very vague on what exactly is being complained about.  Is the employer obliged to go with what it gets?

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3. Can some initial investigation with the “accused” prior to the meeting with the person bringing the grievance make that meeting more meaningful?

In principle, yes, but in practice I would usually be disinclined to hear the case for the defence before that for the prosecution.  There are two main reasons for that:

First, unless you are very clear already as to the specifics of the complaints being made, you are unlikely to be able to ascertain anything very useful from the accused at this stage beyond a blanket denial.  He may not be willing to mention any specific facts or issues proactively in case they are not the one(s) being relied upon by the complainant.  Being asked in general terms does not give the accused the necessary opportunity to admit, deny or explain the allegations against him and so merely adds to his anticipatory frustration or irritation (and so the possibility of retaliation of some sort) without taking you anywhere.

Second, if having heard the “defendant’s” case first, you then put any of it to the employee bringing the grievance, even quite tentatively, it may seem to him that you have made your mind up already, and that the outcome is pre-judged.

Therefore, as a rule, I would be tempted instead to tell the complainant that you have read the grievance together with any other evidence sent in with it, but that you are otherwise a blank canvas and the meeting is his opportunity to tell you anything and everything else he thinks is relevant to your decisions on (i) whether any remedial measures are required, and if so, (ii) what they should be. If you have asked him any supplementary questions (see 4 below), then makes sure you get the answers as far as he can give them. Then let him talk without material further comment or interruption.  Remember that it is for him to persuade you at that meeting that he does have a genuine issue, not for you to seek to persuade him that he doesn’t.

You are then entitled to take what he says as a reasonably full statement of the complainant’s allegations and the evidence behind them, and it is that which is best put to the person in the frame.  That should allow you to obtain a similarly definitive picture of his position and hence have a faster and more focused meeting with him and then any other witnesses.

4. Some grievances are very vague on what exactly is being complained about.  Is the employer obliged to go with what it gets?

Minimising the to-ing and fro-ing between the parties and the time-drain that goes with it is an important part of the prompt and reasonable conduct of a grievance.  It places a premium on the employer obtaining the clearest understanding it can at the earliest stage it can of what the allegations being made actually are, or (even if the headline allegations are clear) on what factual grounds they are made.

That means seeking to reduce them to specific acts and omissions on which others’ views can usefully be sought.  It means not accepting at face value stuff like “he always micro-manages my work, she criticises me unnecessarily, he ignores me, she is aggressive/dismissive, I am being set up to fail, management is trying to get rid of me” without pressing for the specific details of who said what and when. Bullying, to take a simple example, is not reasonably inferred from a frame of mind or perceived animosity but from the aggregation of lots of individual instances of tangible conduct. What were the words used, show me the emails you say are rude or dismissive, which particular piece of work was criticised unnecessarily and how, when did he ignore you in a meeting, what about that instruction was unreasonable, why do you think she is trying to get rid of you?, etc.  In particular, where comparisons are made with other employees (especially if of different Equality Act protected characteristics), you will need to know specifically which other employees and the precise respects in which the complainant alleges less favourable treatment.  Any claim of relative unfairness, and still more so of overt discrimination, requires the comparators to be in broadly similar circumstances, so therefore you will normally need to know who they are.

Ideally these are questions asked in writing before you have your formal grievance meeting with the employee complainant so that he has time in advance to marshal his answers for you. Trial by ambush is not an appropriate course for a grievance meeting where the employer is supposed to be impartial, so it is best to avoid springing them on him at that time (it also avoids the need for any adjournment while he goes away to think about them).

“Not accepting” unspecific grievances must be qualified.  You can’t refuse to go on with the grievance process altogether if those details are not provided, nor to put such complaints as have been made to the person accused.  But you can and should make it clear at an early stage, ideally in writing, that the employee’s failure or refusal (it doesn’t much matter which, in most cases) to flesh out his concerns with the actual incidents relied on will prejudice your ability to ask the right questions of those concerned as perpetrators or witnesses.  In addition, he should know that the lack of detail where there should be detail can only damage his credibility in any he-said, she-said conflict of evidence. The same is obviously true of the employee accused – if there are relevant circumstances or facts which might exculpate him but they are not provided, it is not for the employer to suggest them. If after that there are still logical or factual holes in the representations being made to it by either party, the employer can certainly go with what it gets.

 

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 119
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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