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Looking into workplace investigations, Part 5 – seeking truth, justice or resolution? (UK)

Decades of presenting employment law training have taught me that if you ask seasoned HR audiences what they think employees usually want from a grievance, they will generally lie.  “Justice“, someone will mutter uncomfortably, or “for the truth to come out”, “a better relationship with their manager” or “to correct a wrong“, all straining every sinew not to say what they actually believe. Eventually someone’s self-control will break — “Money“, one will suddenly blurt, “money and revenge“. Then the tension in the room disappears and we can all stop pretending because everyone knows, surely, that you wouldn’t bring a grievance unless you wanted cash and someone else to suffer.

Pre-empting that expectation, employers sometimes a closed and defensive posture on receipt of a grievance, determined to batter flat any allegation they think might cost them.  However, that is not always the reality, at least not until lawyers and unions become involved.  Prior to that there may well be a brief point where a more constructive approach may pay dividends, a point before the formal grievance and investigation machinery has groaned into motion and developed a momentum it can be hard to stop.

Go back to that statutory definition of a grievance in Section 3 ERA 1996 – somewhere the employee can “seek redress”. When employers make assumptions about what that redress will be, that then drives the subsequent investigation towards a shock-and-awe carpet-bombing of the employee’s concerns.  How much better it would be to ask the employee right at the outset the simple question of what he is actually looking for.

The Acas Code of Practice states at paragraph 34 that an employee bringing a grievance should be “allowed” to explain how they think it should be resolved.  To help shape your investigation, however, you should go further and positively require him to do so.  One of your first questions of the complaining employee should be how, in an ideal world, he sees his complaint being dealt with.  You won’t be bound by his answer but it may well be that his desired “fix” is closer and more achievable and/or depends on a narrower range of facts than you thought.  We must keep returning to the point that in a disciplinary or grievance case, you are investigating not for its own sake or in the interests of “justice”, but as a necessary precursor to identifying the appropriate redress, if any.  If you can get there without the potentially destructive side-effects of a formal investigation into fact and (particularly) culpability, then omitting or truncating that investigation process can surely not be said to be outside the range of reasonable responses.

There are other benefits to putting this question early.  If asked right at the very start of the process, employees are far more likely to say something positive and constructive – the cash-and-revenge stage tends to kick in a little later – and that might be a good opening to suggest resolution through mediation rather than the artillery duel of a formal investigation and attribution of blame.  In addition, if you put someone on the spot with the question of what in practical terms should be done about their disclosure, then our experience shows that he will ultimately accept (or it may become clear) that some of his older, pettier and more peripheral allegations are simply not now susceptible to meaningful remedy, and so they can reasonably be dropped out of your investigation.

On the other hand, your employee may secretly realise that his ideal outcome will make him look vindictive, greedy or just plain delusional, and then he may say that he is not willing to share his views of a proper resolution and leaves it in the company’s hands.  He cannot be made to answer this question, either as a condition of progressing your investigation or at all.  However, he can and should be told in writing that if he can’t be clear himself as to what would make him happy, your investigation is much less likely to be able to find it for him.  A stonewall approach to remedy of this sort will not allow you to narrow your investigation, but it will limit your employee’s ability to appeal convincingly against any recommendations arising from it.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 355
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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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