Managing Grievances in the Workplace – Part 3
So far in this series of articles Joe Culbert, Associate Partner with Stratis Consulting, discussed prevention, fair procedures (the cornerstones of grievance management), informal resolution and mediation, and the formal process, when managing grievances in the workplace.
Here, in the third edition he takes a closer look at some of the ‘watch outs’ for managing grievance in the workplace.
Some ‘Watch Outs’
The following are advanced as some ‘watch out’ issues which can be sometimes overlooked or neglected in the management of grievance cases.
Working Under Protest
Once employers are observing due process and once a standard ‘continue to work under protest’ clause is inserted in their procedure, normal work must continue while an employee pursues their grievance. In the turmoil associated with some disputes, this simple and obvious provision is sometimes overlooked by employers. By following the company’s own policy and not deviating from it, companies can protect themselves from the potential for disruption in addition to providing a strong foundation defence in the event of third-party referral.
Data Access Requests
Employers are experiencing increasing incidence of such requests being lodged in association with grievances. Under GDPR, individuals have the right to request a copy of their personal data, the provision of which can be particularly cumbersome and time consuming for employers, (especially where the request is broad in nature).
Moreover, in the context of grievances, such requests can uncover material which supports or indeed substantiate a grievance. Any emails and performance review documentation (often written by managers under the erroneous impression that these are completely private) can all be subject to data access requests at a later stage. Employers need to be ever vigilant that there is full understanding of this by managers and employees.
Employers should always be mindful of the Protection of Employees (Temporary Agency Work) Act 2012 and the protections afforded to temporary agency workers. Such employees must receive equal treatment. Agency workers have the right to raise grievances, in which case it may require them doing so according to their employer’s policy.
Supports and Fitness to Engage
Grievances can be highly emotive involving stress for the parties involved, with this resulting in parties going sick in some cases. The more that an employer can do in terms of providing supports for employees, and being seen to provide such supports, the better. There can be a tendency for managers to shy away from making contact in instances when an employee who is pursuing a grievance is out sick. This can be motivated by well-meaning concern as to how this will be interpreted by the employee i.e., that the employee may feel that they are being disturbed, pressurised or even harassed. However, while this needs to be managed with sensitivity, managers in exercising their duty of care need to ensure that employees are not left feeling isolated. The offer of employee assistance programmes and facilities should form part of the normal consideration when an employee raises a grievance.
Another significant issue for consideration in instances where complainants are out sick is the matter of their fitness to engage. Employers should not assume that a grievance investigation should be put into abeyance in the (mistaken) belief that lack of fitness to attend work necessarily equates with lack of fitness to engage in a grievance process. Similarly, employers need to be mindful of the process being undermined if they proceed with a grievance investigation and the person subsequently challenges this on the basis that they were unfit to engage.
Referral to a company’s occupational health advisers for appropriate advice can play an important role here. The impact on timelines also needs attention. If delays become inevitable because someone is out sick and unable to participate, they should be written to informing them that the process will be recommenced as soon as they are certified as medically fit to resume. Or it may be possible, depending on the advice received, to offer the employee the option of conducting the process remotely.
Organisations’ ways of working have radically changed because of Covid-19 and the demands placed on employers arising from this. One feature of this is obviously the huge increase in the use of video conferencing platforms for meetings with which many employees are now very familiar. In practice this has proven to be an excellent facility for employers and employees alike but in the context of grievance meetings, some additional precautions are recommended.
Firstly, the employee should be assured that the meetings will be conducted in accordance with all existing investigation procedures thereby ensuring fair process. Secondly, employers should be sensitive to the fact that some employees will be particularly nervous or uncomfortable in using the technology. Doing a trial run in advance, or at least offering one, can often allay any such concerns. Where possible the employee can also be offered ‘face to face’ meetings, subject to Covid-19 workplace safety protocols being observed.
Reluctance to Hear a Grievance
Employers can sometimes be loath, for varying reasons, to entertain grievances from employees e.g. the employer believe that the matter is trivial, or that the employee is being deliberately difficult on an issue. Great care needs to be taken here. The only time that an employer can really refuse to hear a grievance is when it originates from bad faith i.e. where the employer has strong grounds for believing that the grievance contains elements of dishonesty. If the employer refuses to hear a grievance and cannot subsequently prove this bad faith, they will be exposed to the accusation of engaging in unfair conduct. Where such cases are referred to the WRC, the onus will be on the employer to demonstrate that the grievance was indeed submitted in bad faith, something which can be difficult to substantiate.
In similar vein, employees are protected from being victimised arising from a submission of a grievance. Under no circumstances (and at risk to the employer of a serious sanction being imposed if they do so) should an employee be penalised in any way for making a complaint in good faith, regardless of whether or not the complaint is subsequently upheld.
While grievances will inevitably arise within organisations, the level of incidents can be greatly ameliorated where investment is made in promoting positive working environments founded on people respect, where efforts are expended in anticipating problems and where early intervention is adopted before issues can escalate.
Where grievances do arise, it is vital for both legal and operational purposes that organisations have appropriate grievance procedures in place. Organisations continue to underestimate and undervalue the benefits of informal processes and alternative dispute resolution mechanisms (such as mediation) in successfully managing complaints and disputes. Where issues cannot be resolved through such processes, it is imperative that the company has formal procedures to rely upon which comply with the provisions of the Workplace Relations Commission Code of Practice on Grievance and Disciplinary Procedures.
Success for organisations in managing cases thereafter relies upon commitment to rigorously applying those procedures and upon the appropriate investment in the continual training and developing of people to ensure effective execution.
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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.