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Volume XI, Number 164

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Handling Grievances webinar follow-up questions, Part 4 (UK)

Human Resources managers try not to have too many hate-figures in their internal client base (not too great for the old professional image, and all that) but you won’t find too many in the HR world who have any time for the serial complainer.  Here are some thoughts on that front in response as a consolidated answer to a number of questions on the point which came up at our Handling Grievances webinar in April.

  1. At what stage should an employee’s grievance history be considered (thinking about vexatious complainers)?

There are lots of interesting issues bound up in this one, some legal and some practical:-

  • “Vexatious” in the Employment Tribunal context (i.e. where an exception to the no-costs rule may be made) means where the party’s conduct is deliberate, designed to harass or intimidate, and especially where the conduct has no direct bearing on the merits of the claim. The intent to vex is a state of mind, not a statistic, so the mere fact of repeated grievances, even if all unsuccessful, does not automatically make them vexatious.  Similarly, the absence of a lengthy prior grievance history does not mean that the employee’s first sally forth onto the grievance field is not Because “vexatious” incorporates a deliberate decision on the part of the complainant, it represents a conscious act contrary to the best interests of the employer and so could relatively easily be turned into misconduct.  However, that’s only if you can prove it, since if you treat a grievance as vexatious in circumstances where it is merely aggressively phrased or factually misplaced (which is not the same thing at all), you will be at significant risk of unlawfully victimising or imposing a detriment on an employee whose complaint includes any element of discrimination or whistleblowing.

  • From the employer’s perspective, what is vexatious and what is merely fantastically irritating is therefore rarely a road worth travelling.  However, that does not mean that the history is irrelevant, because of what it probably says about that employee’s long term future in your business.  It is true that a serial bringer of grievances may indeed have been serially ill-treated by his employer, but maybe more likely, he merely has unrealistic ideas of how happy and fulfilled he is entitled to be as your employee and in his life generally.  In those circumstances (again, treading very carefully around the victimisation and detriment risks), repeated grievances may reasonably be taken in effect as a cry for help, perhaps an opening to a protected conversation, either direct or via some form of mediation.  “We just don’t seem to be able to make you happy here and based on the points you keep raising, we can’t immediately see how that is going to change.  Where do you think that takes us both looking forward?  Where is all this going, reallyFancy a chat about it sometime?”.

  • A grievance which can be shown to be vexatious is probably misconduct, and especially if clearly aimed at the disadvantage of some other person, potentially gross Even if it falls short of that, however, and where attempts at resolution of the underlying issues have failed, it is possible for an employee really putting his back into it to bring grievances in such number and of such pettiness that he destroys the necessary relationship of trust and confidence with his employer, and may ultimately be dismissed on that basis.  There is a particularly cracking example here

  • In criminal prosecutions it is not genuinely permissible to introduce evidence of previous convictions before a verdict is reached.  The Crown must prove the person guilty or not on the facts it puts in front of the jury.  To do otherwise undermines the obligation on the jury to convict only where that evidence convinces beyond reasonable doubt.  Even if prior offences have been committed, runs the argument, that doesn’t mean that the accused is guilty on this Does it matter that the burden of proof in a grievance is only the balance of probabilities?  No, since although a criminal conviction is clearly a very serious outcome, an adverse grievance finding could certainly affect careers and jobs, and so still deserves an appropriately scrupulous approach to reaching one’s factual conclusions.

  • However, in criminal law, previous convictions can be relevant to sentencing, and similarly, previous grievances may be relevant to us here in connection with remedy.  If certain outcomes have clearly failed in the past (e.g. steps to fix a workplace relationship), then there is obviously no point in suggesting the same again.

  • Of course, an employer can also take steps to try to reduce the number of grievances an individual may feel moved to bring through the outcomes it reaches and the remedies it recommends.  This is not in terms of making factual findings it doesn’t believe in, obviously, but in focusing on the most important part of any grievance, which is not process but outcome.  That will allow an employer to take a reasonably robust approach to the complaints put in front of it.  If something is too old, too trivial or too intangible to resolve, don’t get into it.  Instead, focus only on what is recent, relevant and resolvable.  Then your employees will be able to find a remedy for when they have genuinely been wronged and have played their part in raising it promptly, as Acas advises.  However, a focus on outcome will not give them anywhere near the same ability to tie managers, HR and accused colleagues into procedural knots relating to allegations which are too old to address and/or are not susceptible to any meaningful remedy even if true. In those rare grievances which are genuinely vexatious, in the sense that obtaining a remedy is a side-show to trouble-making, this will allow an employer a quick route to dismissing the grievance with a minimum of peripheral damage to others.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 126
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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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...

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