Managing Grievances in the Workplace – Part 2
In the first edition of this series of articles Joe Culbert, Associate Partner with Stratis Consulting, discussed prevention, fair procedures (the cornerstones of grievance management), informal resolution and mediation when managing grievances in the workplace.
Here, in the second edition of this series, he looks at the formal process for managing grievances.
Where a matter has not been satisfactorily resolved through the informal process or where the informal process has not been invoked, employees may raise complaints under the formal procedures of the grievance policy. Some cases may indeed be so serious that an informal process is deemed unsuitable. From an employer perspective, cases which may involve potential litigation may lend themselves more suited to a formal grievance process where the rigour and documentation associated affords them greater protection. And, as mentioned above, in no case should an employee feel pressured into accepting the informal route.
Employers will therefore need to rely upon formal grievance procedures in the handling of grievances and disputes. Critically, they should not shy away from using these where they are required. The adoption and reliance upon formal grievance procedures demonstrate a company’s commitment to dealing with such issues fairly and consistently. The remainder of this article addresses some of the key aspects of an organisation’s formal procedures and highlights some of the standards required. In the final edition of this series Joe will look closer at a few ‘watch-outs’ in relation to application.
Fundamentals – Grievance Procedure and WRC Code of Practice
Employment law requires employers to set out a grievance procedure. It must be shared in writing with all employees and should comply with the Workplace Relations Commission (WRC) Code of Practice on Grievance and Disciplinary Procedures (SI No. 146 of 2000). The code provides guidance to employers and employees on the general principles which apply and the steps for employers to take in respect of grievance and disciplinary procedures. It sets out the critical features of a grievance policy. In adopting it, employers can ensure that their policy provides the basis for fair and rational procedures.
Huge weight is attached to ensuring employers meet their obligations under the code and in that respect a company’s grievance policy, its content and its accessibility will be heavily relied upon. Although the Code of Practice isn’t legally binding, where grievance procedures do not comply with its provisions, this can be used (and indeed is used) in evidence against the employer in WRC adjudications and Labour Court hearings.
The first questions an employer needs to pose of itself where there is contemplation of a grievance being pursued to the WRC or Labour Court are: ‘What does the contract of employment state?’, ‘What is in the Company’s handbook?’ and ‘What does our policy state?’ All employees should have access to grievance procedures in a format that is presented in clear, simple and unambiguous language. Typically this should be accessed through any one of the company handbook, an easily accessible company intranet site, or the contract of employment. By ensuring that this in place, the employer not only protects itself legally but also has set itself up for consistent application in its treatment of grievances.
Fair Procedures and the Principles of Natural Justice
Procedures must adhere with the general principles of natural justice and fair procedures, to which all employees involved in a grievance case are entitled. This includes the right to know what has been alleged against one, the right to an impartial hearing, the right to state one’s case, the right to representation and the right to appeal. In recognition of this, employers frequently require that grievances be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses. In summary, the Code of Practice sets out that processes must adhere to the principles of natural justice, as follows:
Employee grievances are fairly examined and processed.
Details of any allegations or complaints are gathered and put to the employee concerned.
Parties to the complaint need to have access to the details of the complaint and the opportunity to fully respond.
Employees have the right to representation.
A fair and impartial determination of the issues concerned taking into account all relevant evidence and circumstances.
Up-dating of Procedures
It is essential that procedures be reviewed and up-dated periodically so that they reflect changed circumstances in the workplace and especially any developments and changes in employment legislation and case law. This applies of course not just to the grievance procedure but across the spectrum of employment policies.
A prime example of this is the updating of policies to reflect recent changes mandated under the new code of practice on workplace bullying effective from 23 December 2020. Employers have been advised to review and update their anti-bullying policies to bring them in line with the Code. In the context of grievances, this is important – matters which may not fall within the scope of the definition of bullying or within the separate definition of harassment may well be appropriate for pursuit under the grievance procedure. Allegations of unacceptable behaviour which has not been repeated (which may be relevant to a complaint of bullying) or which is not discriminatory on one of the specified grounds under equality legislation (which may be relevant to a complaint of harassment) may well need to be channelled and treated as a complaint of inappropriate behaviour which is proper for investigation under a company’s grievance procedure.
Separation of Process
Good practice entails a number of stages in grievance handling. These include raising the issue with the immediate manager in the first instance, with progression through a number of steps involving more senior management, HR and potential referral to a third party. Procedures should set out clearly the different levels in the organisation at which the various stages of the procedures will be applied. There must be separation of the stages within the grievance process. For example, the investigation, outcome and appeal stages should all be handled by separately nominated people with no overlap.
A lot of cases which become subject to third party adjudication fall on this issue. Essentially the process is deemed to be flawed arising from the employer’s failure to separate the stages properly and transparently, whereby for example, someone involved in a later stage of the process played an influencing or participatory role involving one of the earlier stages. In accordance with one of the principles of natural justice the process requires an impartial, open-minded decision-maker with no pre-judgement. An investigator should not be someone, for example, who has witnessed or had any involvement in any aspect of the complaint. While such considerations are especially pertinent in the management of discipline cases, employers need to also think carefully about how they structure and separate the stages within the management of each individual grievance case.
For many organisations this can be burdensome and present real challenges. Many smaller organisations may struggle to find enough managers who are independent from a particular issue which is subject of a grievance. In such cases they may seek that one or more of the stages be managed by an outside company.
The separation of process can also be particularly challenging for HR departments. It is common for the HR department to conduct at least one of the stages of the procedure (frequently the labour-intensive investigation stage). If HR are involved within any stages of the grievance procedure, then the only advice that they can provide to any of the participants needs to be confined entirely to procedural matters only. This can be challenging, as inevitably their assistance, expertise and guidance may be sought by parties who are involved in the grievance. However, any such mixing of roles needs to be avoided as failure to strictly observe the separation required (which can be probed under cross examination at third party) poses real risks that a process will be deemed flawed.
The accusation that an employer failed to conduct a ‘full and thorough’ investigation can also undermine a case. Organisations should not underestimate the workload involved in conducting investigations, involving meeting with all parties and producing a comprehensive report which may then need to be referred to a separate outcome manager and an appeal manager. The increasing burden being placed on HR departments in that regard has seen a rise in the engagement of external providers to conduct the investigation part of the process.
Care needs to be observed where grievances are brought by an employee against their line manager. Typically, HR would handle the issues in these cases with the employees directly or another impartial manager would need to be engaged. In some instances, the grievance can involve complaints about HR, where appropriate, competent managers not connected to HR may be needed to manage the case.
The employee should have the right to be accompanied at any meeting held under a Company’s grievance procedure. For the purposes of the Code of Practice this "employee representative" includes a colleague of the employee's choice and a registered trade union, but not any other person or body unconnected with the enterprise. It is critical that the policy specifically calls out the right to representation and that this right is communicated in correspondence with any employees in pursuing a grievance. The employee should be notified that they are entitled to have a colleague or (if applicable) a trade union representative accompany them during the grievance procedure.
There are of course instances where employees may seek to be represented by someone other than a work colleague or a trade union representative. This can range from a family member or friend to a qualified solicitor (neither of which are expressly comprehended by the Code of Practice). While there is increasing case law on the matter of employees being legally represented, in general it is not deemed prudent to involve solicitors at an early stage of grievance management and in practice they tend not to become involved at such stages.
While the involvement of a family member / friend can understandably be sought by employees, real care needs to be exercised before this would be agreed as this can present real procedural challenges when then running the meeting. The important note for employers in all of this is to ensure that their policy specifically stipulates who will be recognised as a representative and then to rely upon that. Also, if any objections are raised during a grievance in relation to the matter of representation, this issue needs to be factored into any decision / outcome together with the rationale for any decision taken in that regard.
A good operational practice in hearing a grievance is to specify at the outset of the meeting that while a witness may address the meeting and provide support to the employee, they should not speak on the employee’s behalf. It is important that the person who has submitted the grievance presents and answers on their own behalf. Once this happens, representatives can be given the opportunity at the end to make comment.
Timelines is a very important feature of procedures with employers being expected to expend every effort to ensure that issues are addressed quickly and fairly. To that end the insertion of prescribed timelines provides all involved with knowledge of how long a grievance investigation, and subsequent steps, should take. Each case should then be processed in accordance with the timelines without due delay. Of course, there may be instances where these cannot be adhered to in which case some flexibility should be afforded within the policy to extending the timelines at each stage as required to take account of the exceptional circumstances. The recent Labour Court Decision (Leigh Bell v Cope Limited t/a Cope Galway, UDD2145) has found that an employer must be provided with reasonable time to have the opportunity to address whatever grievance an employee is pursuing through procedures laid down in their employment.
Best practice dictates the maintenance of proper records in the operation of grievance procedures, with a paper trail documenting each step of the process. This is of particular importance where grievances are appealed to third party whereupon scrutiny of the records forms a fundamental part of the case examination. Nor should decisions taken by the employer simply be recorded without reference to the basis on which conclusions were drawn. The rationale behind any recommendations or decisions should be properly laid out, reflecting that the issues have been fully and duly considered.
In addition to ensuring that policies have been established, communicated and promoted, the appropriate training of employees to ensure all complaints are dealt with appropriately, sensitively and in accordance with procedures is essential. Copies of the procedures should be given to all employees at the commencement of employment and should be included in employee programmes of induction and refresher training. All members of management and all employee representatives should be fully familiar with procedures and of the importance of adhering to the terms.
In many instances where cases have escalated to third party, adjudicators will pay particular attention to how pro-active the employer has been in managing the environment within which the grievance emerged. The training of employees and line management features highly in such considerations. Employers need to pay attention to the different training requirements for their organisation and the respective roles that are required. This is particularly so given the additional complexity which now arises from the varying requirements imposed under the different and distinct procedures relating to anti-bullying, anti-harassment, discipline and grievance.
Front line managers, contact persons, nominated persons, investigators, decision outcome makers and HR practitioners all have different roles to perform with training needing to be tailored accordingly. If employers do not have the internal capacity to deal with all of this, consideration should be given to outsourcing.
Again, the importance of the role of line managers is called out. Having managers on the floor who can provide a listening ear, be a soundboard and provide facilitated discussions goes a long way towards fostering a positive environment and alleviating potential problems. Having said that, managing the basics can be even more important. A well-intended and competent manager may be willing to intervene early in a process involving interpersonal conflict, for example, but if they are not trained properly in the basics of the requirements demanded by the varying procedures, the case may well be placed on the wrong footing from the outset. It is advised that companies should provide appropriate training to any employees who have staff management functions. The training should be continuously kept under review in light of any changes in legislation and/or developments in the workplace.
In part three of this series we will take a closer look at some ‘watch outs’ for managing grievances in the workplace.
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Disclaimer: The information in this article is for practical guidance only and does not constitute legal or specific case advice. The answers to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional advice relevant to individual circumstances facing your business.