Grievance Investigations
Brenda Roper spends much of her working life undertaking grievance investigations for organisations in need of impartial and independent investigators. Common themes emerge no matter how diverse the organisations in which she is working.
The most difficult to manage for any organisation is when a grievance is effectively hijacked by the person against whom the grievance was originally lodged. Here are some examples:
- Mrs. X had a grievance lodged against her by a member of her team and hardly had the investigation begun than Mrs. X lodged her own grievance against the manager investigating the originating complaint, claiming that her management of the grievance amounted to victimisation.
- Mr. Y lodged a bullying grievance against his manager Mrs. Z who promptly went sick with stress. One year later Mrs. Z took a personal injury claim against the organisation claiming that her career was over, she was too ill to work and that the cause was the organisation’s failure to properly manage Mr. Y’s originating grievance.
These are both actual cases, and in both the originating grievance became subsumed by the secondary grievance and was never addressed. In both cases, fear of litigation effectively paralysed the organisations involved leading to protracted and antagonistic situations which had a profound effect on the ability of the organisation to be productive.
Both cases ended with expensive compromise agreements which included an agreed reference, leaving a bullying manager free to be employed elsewhere with an unchanged management style – and continuing to think they had been badly treated by their previous organisation.
How can these situations be avoided?
1 Never hold a grievance in abeyance whilst a second grievance is being investigated. Investigations should be undertaken in tandem and preferably by different – and properly trained – investigators
2 Whenever possible, investigators should be impartial and independent. That does not necessarily mean that you must bring someone in from outside of your organisation – someone from a different department or branch of your own organisation is absolutely fine.
3 Because someone is off sick does not preclude an investigation. If their illness is stress (or similar) related to the problem, their health is unlikely to improve until the situation is resolved. Time is of the essence, get the investigation underway whilst witness memories are unjaded and staff have not yet polarised into taking sides. Importantly, get the situation resolved and the individual back to work before their absence becomes so protracted that a return to work becomes difficult.
If medical opinion suggests that an individual is too ill to be interviewed and is unlikely to be well enough in the foreseeable future, you may need to conclude the investigation without that important interview. Hardly an ideal situation, but infinitely better than allowing a grievance to drift on for many months unresolved.
Make reasonable offers around the interview process; time and place of the individual’s choosing etc. I have even occasionally been surprised at an individual’s improvement in health when it becomes clear to them that the process will continue without their input!
4 Be flexible about the right to be accompanied if an individual is off sick and you are interviewing them outside of the work environment. Husbands and siblings could be allowed to accompany provided they do not participate in the interview. Their role is to ensure their loved one is not bullied by the investigator. It is always best to ensure they sit behind the person being interviewed thereby avoiding eye contact with the interviewee, this will help to ensure the integrity of the interview.
5 Life is rarely black and white, particularly when feelings are involved. A good investigator will not feel that they have to find ‘for or against’ in a grievance investigation, it is their role to establish, on balance of probability, the facts of the case. Once the facts are set out in a clear report which includes any supporting evidence, it may become obvious that a relatively minor misdemeanour caught someone on a bad day and grew out of proportion. Mediation can then have a powerful affect and allow the parties to move on.
6 Ensure that audit trails and reports are not only accurate but also set out the peripheral issues such as who accompanied and the seating arrangements if it is appropriate to do so. Such reports can find their way into Employment Tribunal bundles of evidence and showing that the investigation was fair and reasonable is an essential part of the process
7 If the evidence upholds the grievance, do something about it! Poor management leads to low morale, high staff turnover, high sickness absence rates and low productivity. Behaviours can be changed through coaching and mentoring, by mediation or, as a last resort, through the disciplinary process.
In both the examples cited above, staff claimed that senior managers were weak and ineffective because they were prepared to allow the situation to continue. “Nothing will happen, it never does”. In the second example, the team of 12 had largely moved on because they felt their voice had not been heard. The cost in terms of recruitment and training new staff had not been quantified but will have been significant. If Mrs. Z returns to work the situation will be perpetuated because her management style is unchanged.
The message is
- Be strong, do what is necessary.
- Act in a timely and decisive manner – don’t allow situations to drift.
- Don’t allow grievances to be hijacked by the alleged perpetrator. If there is a second grievance, treat it as if it were a primary grievance and investigate in tandem.
- Don’t allow a sickness absence to paralyse the situation, particularly if the absence is that of the alleged perpetrator. You must be fair and reasonable to both parties and leaving the complainant in limbo is not fair and reasonable. There is also the danger that they will perceive their alleged harasser to be treated with kid gloves whilst they have unresolved issues – a recipe for future problems and a hit to the reputation of HR and senior management.
- Don’t treat managers differently from other staff. If some behaviour is unacceptable then it must be unacceptable from all staff and not just those lower down in the hierarchy. Just because someone is a Director does not give them carte blanche to be a bully.
- Ensure your investigator is unbiased, independent, fair, beyond reproach and knows what they are doing! Their final report may be all that stands between you and compensation.
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