Counsel & Conversation | S1 E3 | Employee Grievances | Swinburne Maddison

Caroline Smith 0:05
Welcome to Swinburne Madison’s Counsel & Conversation, where our expert lawyers talk about everyday legal scenarios.
Today, I’ve got Sharney Randawa, who’s a Managing Associate in our employment team, and I’ve also got Jonathan Moreland, who’s Swinburne Maddison’s Managing Partner. So, we are going to be talking about employment law today and to start with, I’ve got a legal scenario. An employee has brought serious allegations against their line manager. Unsure of the correct procedures, the employer seeks guidance on handling the situation fairly, respecting confidentiality and meeting legal obligations. So, Jonathan, if I can start with you, what advice might you give to the employer at this stage?

Jonathan Moreland 0:53
I think the first question I would ask is, do you have a written grievance procedure? If they do, then follow it. Follow it to the letter. If, for example, there’s a reason they can’t follow it, so for example, it may say your line manager will deal with the grievance, in this scenario, the line manager couldn’t deal with the grievance because it’s about them. So if you do have to depart from it, tell the employee that you are departing from it and the reason why.
Be aware of what the procedure says, read it, acquaint yourself with it, then make sure you follow it. But most importantly, share it with the employee. Don’t let them just raise a complaint and then just goes into a black hole and nothing happens. Explain that you’ve got the complaint and this is a procedure we’ll be following, so they’re up to date every step of the way.
If they don’t have a grievance procedure, that’s a bit of a different ball game, because they really should have one. I think every employer should have a full suite of procedures and policies in a staff handbook, That’s why in our HR subscription service, smartHR, the first thing we do with every client is to make sure they have contracts, policies and procedures in hand that are bespoke to them, because other people don’t have them, or they buy them off the shelf and they don’t really apply to their business.
So, if the answer is they don’t have a procedure, well, they should follow the ACAs code of practice, and that is really the best guidance you can follow. Really, the very general points in there, for example, you make sure you carry out a full investigation, speak to all relevant parties involved, and consider the grievance fairly. Don’t jump to conclusions. Keep an open mind. Keep all private information confidential so it doesn’t become the talk of the business. And finally, keep communicating with all parties throughout, because again, I mean, Sharney, we’ve seen this many times, I’m sure. Nothing aggravates the situation worse than just long pools of silence when people think, well, nothing’s being done, and then things start to fester.

Caroline Smith 3:07
Thanks, Jonathan. Sharney, could you expand at all on that process that Jonathan refers to?

Sharney Randhawa 3:14
Yeah, so in terms of a grievance process, the normal process you’d follow would be, you’ve received a grievance, in writing from your employee. If it’s not and it’s mentioned through conversation, generally, we’d suggest that you ask for the grievance to be submitted in writing so you’ve got something to work from. But ultimately, the next step would be to appoint an investigator to investigate that grievance. They’d review the grievance and then suss out their plan going forward. That would involve inviting the employee who made the grievance to a first stage meeting, as well as perhaps considering who else needs to be interviewed as witnesses, and then just following the investigation process, gathering evidence, if there are relevant documents that need to be looked at, as well as those interviews. Once that has taken place, you would consider all of the evidence that you’ve gathered and then make a finding on the back of that grievance, which you then communicate to your employee.

Caroline Smith 4:20
Some questions about that scenario. I’m thinking that this is about this individual’s line managers, so they obviously wouldn’t feel comfortable going to the line manager if they’re in a business that didn’t have an HR department. What might happen there?

Sharney Randhawa 4:35
Generally, if there’s a grievance process, it may include within that procedure who will be investigating the grievance, whether it be a line manager or another senior manager in the business. If it’s a small business, for example, and we have this situation arise quite often, where the grievance is made against the manager, and there is really no one else to look at that, you could consider appointing an independent HR consultant who can come in and have a look and be that investigator in that process.

Caroline Smith 5:08
When you were talking through the process, I’m imagining that at each stage there should be notes made. Would those notes be shared with the individual? Or how would the structure be made to make sure you’ve got everything that you need in place if it was to progress.

Sharney Randhawa 5:24
Absolutely. So everything should be documented, because it may be useful for employers going forward as well. So, interviews and, as I said, evidence. But generally, what will happen is that an investigation report will be prepared with extracts from the notes that are often provided in terms of a report and an outcome to an employee.

Jonathan Moreland 5:46
I think the only thing I’d add to that, Sharney, about the grievance process is, as you’ll well know, some employees might get very emotional about the complaint they’re pursuing. They might send a 28-page rant to their employer, and it’s so key that the employer knows they’re investigating the right grievance. If they are unclear as to, really, what the bones of the complaint are, I’d go back to the employee and say, look, distil it down, almost into bullet points. You know. What are you really unhappy about?
The other point is trying to test the waters for what they want out of it. Because sometimes the employee may just want to be heard, or they might want something very extreme. But it might just be, I want you to know what’s been going on with this line manager, so it doesn’t happen to someone else again in the future. They might want an apology and then it’s all done and dusted, but it’s good to know from the outset, really, what the complaint is about. What do they want out of it?

Caroline Smith 6:44
That is really good, actually, that’s interesting genuinely. I’m sort of thinking you might be able to resolve it and move forward without legal advice at that point.
Okay, so Jonathan, what steps can employers take to resolve disputes before it progresses to a tribunal?

Jonathan Moreland 7:01
Yeah, I think the general point is try and nip it in the bud. Because, again, you see complaints start out as being something quite minor, then they just escalate and grow legs and it tends to be because the employer hasn’t addressed it. They’ve tried to gloss over it, you know, turn a blind eye. So, to resolve the dispute early, nip it in the bud. Address it. Don’t ignore it.
I’d also suggest taking early legal advice. Evenif it’s just a quick five-minute phone call, say, look, I’ve got this – what should I do? Because Employment Law can be a minefield and employers, with the best of intentions, can just make an absolute Howler without realising it, so take early advice.
The other things to suggest, if you want to avoid a tribunal, are to consider workplace mediation. If you can’t resolve it internally, appoint an independent workplace mediator. Might be to come in, it might be the mediator, the boss, the line manager, the complainant, and just to try to thrash it out once and for all.
Other alternatives are contacting ACAS, who can also provide a mediator. They also have an early Conciliation Service where a conciliator is appointed, and their purpose is to broker a deal between the aggrieved parties. Bigger companies have internal mediators, so they might be a member of the HR team who has a mediation qualification, and really their purpose is to avoid cases going to a tribunal.

Caroline Smith 8:35
It’s really interesting. Thank you. Okay, so in terms of another question, Sharney, this one’s for you. So how can businesses prepare if a tribunal is unavoidable?

Sharney Randhawa 8:47
So more often than not, you probably have an idea if a situation is headed that way, because you will have potentially had the grievance and gone through that process. The employee would have sort of potentially raised that they’re not happy with the outcome. They may have appealed the grievance, and you’ve had to go through an appeal process as well, so you may expect that it’s coming.  In terms of preparing, as long as you’ve followed those processes that we’ve mentioned previously, what I’d suggest is making sure that you have proper records of all those steps, the procedures that you’ve taken, if you have gone through a grievance process.
Making sure that everything’s clearly documented in terms of the process that’s been undertaken,  and everything that was gathered as part of that, in terms of the interviews that were happening. So, in terms of documenting the evidence, it’s really important at the moment, just given how long cases are taking to get to the tribunal.
An employee might have an issue, and you might not see that claim submitted before the tribunal for months. Generally, employees have three months, less one day, to bring a claim.
There’s also the ACAs early conciliation process that’s included, which at the moment is six weeks, so employees have around five and a half months, taking into account that process, before they submit a claim. The ACAS early conciliation process is actually going to be extended from the 1st December by double, so it will go to 12 weeks. Essentially, that will mean that it adds another six weeks onto that process, and employees may have seven and a half months before they actually submit their Tribunal claim. Then there’s some time in terms of going through the system, and when it’s processed, to when it comes to you as an employer. If you think about an incident or a grievance that you’ve gone through seven and a half or eight months ago, it’s recounting and recalling all of that information. So it’s really important to have the documents, to take statements and evidence from, perhaps even the grievance investigator, just because they may have moved on. Employees move on, so it’s just thinking about what I might need later down the line.

Caroline Smith 11:09
What about if an employee actually resigned and left a business. What’s the window for them to be able to make a claim against their employer?

Sharney Randhawa 11:17
If they’re looking at a constructive dismissal claim, speaking in terms of dates, say, for example, they resigned on the 1st December, they would then have three months, as I said, less one day to contact ACAS to start that early conciliation process. So, that would be the end of February. Then with the extended ACAS early conciliation period of 12 weeks, that would take them to the end of May to get the early conciliation certificate. Then you always have a month, up to a month anyway, in terms of how long you have to submit your claim thereafter. It could be the end of June when an employee is actually submitting that Tribunal claim. If you think they’ve left in December, you’ve got all that period to remember. It is a long period.

Caroline Smith 12:04
It’s hard for an employer to remember everything that’s happened in that process of somebody leaving you, then to come back and make a claim.

Jonathan Moreland 12:11
I think, in a situation like that, where the employer has no inkling of a claim coming around the corner, and they’re suddenly hit with it many, many months later, where they haven’t had the opportunity of witnessing, interviewing witnesses, taking Statements from anyone. Two key bits of evidence are the resignation letter, because if the employee is saying I had to resign, I was forced out, it was so dreadful there, but the resignation letter is lovely, saying, thanks for the opportunity, I love my colleagues. That’s a very key bit of evidence.
The second thing is, we always encourage employers to have exit interviews with people when they leave. Again, if they’re saying it was great here, I’m going for a different opportunity – that’s a key bit of evidence, rather than saying, in many months time, it was absolutely horrendous, and I was bullied or discriminated against. Those two documents can be really, really useful, particularly when the employer doesn’t know there’s a claim coming around the corner.

Caroline Smith 13:08
I guess what I’m getting from that is process is it’s important, even at the point of somebody deciding they don’t see themselves with the company moving forward, making sure that you have a process in those situations.

Jonathan Moreland 13:20
Exit interviews are useful anyway, even if there’s no acrimony; it’s all very amicable. It’s good to get the exiting employees’ views on the business so you can make it a better place to work.

Caroline Smith 13:30
Absolutely okay. So I’m going to move on to another question for Jonathan. What are the risks and costs of going to an employment tribunal?

Jonathan Moreland 13:40
I mean, there are no guarantees in any form of litigation. Ultimately, it’s up to the employment judge and the tribunal members. On the day, you might feel you’ve got a very strong case, but witnesses may not perform well; they may give evidence very poorly. So there are no guarantees in any form of litigation, and therefore, there’s an inherent risk in every Tribunal claim. There’s no such thing as the nailed-on case.
But in any event, regardless of the outcome of any claim or hearing, the risk the business faces is losing management time and employee time and focus, because, as Sharney alluded to, it can be a very lengthy process. It can go on for months, if not years, with tribunal backlogs etc. There might be lots of appointments with lawyers to give statements and to gather documents. It can be a massive, time-consuming event for a business, sometimes taking up the focus of senior managers. So there’s that. There’s lost management time, but also we’ve had cases where employers aren’t insured against claims, and they knew, say the worst case scenario, if it all went horribly wrong, it was gonna be £50,000 pounds, they’ve had to ring fence that money for a couple of years and not bought a piece of equipment or machinary with that money. Therefore, they haven’t been able to grow the business the way they wanted to because they have had to hang on to that in case it all went horribly wrong. So there’s that.
Stress, distraction, it can be all-consuming for an employer knowing that they’re facing a horrendous claim. It might be an awful allegation of sex discrimination or bullying at the highest level, and it can really cause a business to take its eye off the ball. Really, there are no cost orders, or very rare cost orders made in tribunals, in civil courts, the loser tends to pay both parties’ costs. That rarely applies in the tribunal, only in exceptional circumstances. So again, unless the employer is insured against that, they’re going to have the legal bill to pay. Even if they win the case, if they defend it successfully, they’ll have the legal bill to pay.
And of course, if the claim is unsuccessful, there’s financial damage. They’ve got to pay compensation or to pay their own legal bill. But the key thing for me is reputational damage, because the tribunal proceedings are public record, and so if people are looking to join your company, considering, will you recruit me, they may Google you, and you might pop up in the tribunal records of having lost a case a few months before. And the other thing to throw into the pot is, if you’re thinking about selling your business, you have to go through the due diligence process and disclose whether you’ve had any adverse findings against you in the employment tribunal. I mentioned there about insuring against financial damage. Again, with regard to our HR employment subscription service, smartHR, there’s always an option for our clients to insure against claims, against compensation, but also against fees that they may have to pay us.

Caroline Smith 17:01
Yeah, the implications are so wide-reaching, much more than you would consider, so avoiding it has got to be the way forward.

Jonathan Moreland 17:08
And we get a lot of people who say, I’m going to defend this to the hilt. It’s the principle of it. And so that’s all fine, we get that you don’t want the floodgates to open, you don’t want to make yourself an easy target. You’ve got to look at it commercially as well, particularly if it’s a very, very low-value claim; there is merit in buying that risk off at a really early stage and saving your management time, saving yourself the stress and distraction over potentially years.

Caroline Smith 17:34
Sharney, how can training help businesses?

Sharney Randhawa 17:39
Training can help in a number of ways. It can assist managers in knowing how to interpret policies in terms of how to handle situations where there are grievance procedures or discipline procedures that need to take place, as well as how to communicate with employees and other individuals, especially with tricky areas around confidentiality. It can also ensure that managers or employees are applying those policies fairly and consistently. And then that can reduce the option for employees of perceptions of buyers and whatnot. But also, it can assist in the legal context as well. It can ensure that you’re legally compliant where you need to be. In some situations, it can assist with a defence. It’s not a complete defence, but if a claim is brought, it can sometimes help, and I’m thinking sort of specifically around the sexual harassment. The law changed recently, bringing in a requirement for employers to try to prevent sexual harassment from taking place in the workplace, and that requirement is for employers to take reasonable steps in doing so. So that’s things such as policies, but also trainings – so training managers and employees on what sexual harassment is, what to do if there is a report and how to handle those situations, and if an employer can show that they’ve had sort of the clear policies, undertaken regular training and taken complaints seriously, then it may reduce their liability if a claim is later brought down the line in terms of sexual harassment.

Caroline Smith 19:18
Gosh, so it’s really, really important.

Jonathan Moreland 19:23
I think training sends the right message to the workforce as well. If you’ve got senior managers being brought together and you’re investing in expert trainers, like Sharney, to come to talk to you, it’s getting the message across. We take employment law seriously. You know, we’re a responsible business, and it just sets the right tone in the business as well.

Caroline Smith 19:43
I think what you were talking about was culture, weren’t you? And you know, making sure that businesses take those complaints seriously. You feel like all of that comes together, having the procedures and the training.

Jonathan Moreland 19:53
So ultimately, good businesses do have a good culture. Sharney and I know this with our clients, what businesses have a good culture and which ones don’t, and it’s ones that don’t that tend to get themselves into a lot of trouble. I suppose the most common causes of tribunal claims are things like this stem from a poor culture, like turning a blind eye to issues, going for the easy option of just brushing grievances to one side, and allowing issues to fester. Something that we see regularly is permitting a banter culture saying, well, it’s just, it’s just the trade we work in, everyone’s like that. It’s reminding yourself that something that one person finds funny, another may not. They might find it deeply offensive. And really combating that banter culture.
I think the other main cause of a Tribunal claim is not taking early advice. Culture is key. You know, it can’t be underestimated at all. And I think it’s setting the tone in the business that if someone has a problem, it’s going to be addressed, it’s not going to be ignored. But also, if someone’s behaviour is inappropriate, it’s going to be challenged. So not waiting for somebody to raise a complaint that the culture in our businesses, if someone’s behaving inappropriately, you will be picked up on it, not saying you’ll be dismissed or even a disciplinary matter, but we won’t turn a blind eye, and that’s why, if you have that sort of culture, and it stems from training that we’ve talked about, that’s really important.

Caroline Smith 21:26
Yeah, it’s coming across, isn’t it? Procedures, training, proactivity, rather than just reacting to issues and taking it seriously. So what can employers do to make sure that they’ve got a really positive culture?

Sharney Randhawa 21:39
It’s going back to that training point where we’re training managers on handling issues the right way, and part of that is training managers to have and breed an open and honest culture where employees feel that they are able to raise issues, not be scared of repercussions, and know that things will be dealt with in the right way and head on.

Caroline Smith 22:06
So in summary, Jonathan, what three things would you say a business should consider to do the right thing moving forward with employees?

Jonathan Moreland 22:16
I think the first thing is to build the foundations and get comprehensive contracts of employment. The staff handbook is full of policies and procedures that are bespoke to your business. I think, without that, you’re on the back foot. It’s not a difficult process to do that. And of course, once they’re in place, make sure you follow them, so your managers and all the directors, etc, know what the policies are, know where to find them, so when anything crops up, make sure you follow those policies.
The second thing is, really focus on your culture. And again, it comes back to not turning a blind eye, not glossing over issues, not brushing to one side, making employees feel heard and valued. So culture is really important.
And the third thing I really encourage people to do is to take early advice. We come across it so often, where you can have a 10-minute conversation that will avoid a 10-month dispute. Just one specific example, I was acting for a client, a very small business, who Googled that an employee had to work for two years before they could pursue an unfair dismissal claim, and the chap rang me up to say, “I have an employee here who’s been here six months. She’s pregnant, and I’m going to let her go this afternoon – I assume that’s okay. She hasn’t been here for two years.”  In that five-minute conversation, I said of course you can’t do that. You know, what are you thinking about? Don’t do that at all. He didn’t, and saved himself a really expensive sex discrimination claim, which, actually, because of the size of the business, could have seen the end of the business.
So, take early advice with smartHR, our subscription service, two things we have in there. One is reviewing or creating contracts and policies for all employees to make sure they’ve got them and they’re tailored to their business. And secondly, a limitless advice line. So we encourage people pick up the phone for 10 minutes. We’ll point you in the right direction, and it can just save such a huge headache in the past. So in summary, get your contracts and handbooks sorted out, concentrate on your culture and take early advice.

Caroline Smith 24:32
Yeah, it makes total sense. And as part of that, smartHR training figures within that as well. So it kind of covers all those elements we’ve discussed. It’s been so fascinating talking to you today, really insightful. Thank you for giving up your time, and I look forward to chatting with you again. Thank you.