Is the endless stream of complex employee grievances getting out of control?

But first, what we observe…

• HR teams are increasingly finding their backs to the wall when it comes to managing grievances with employees often believing that they can dictate how things will be managed.
• With threats of grievances, managers are often finding their hands are tied when they try to manage or discipline someone.
• Smaller organisations find they simply don’t have the internal resources to investigate and manage complex issues and are paying a fortune for external support.

Fear, panic, and stress are just some of the reasons why not all grievances are being handled effectively. Over cautious, or over zealous legal advisors and senior teams are another cause. Let’s start by taking a look at what the law actually requires…

What Acas asks of us

To create a little clarity on what is required, let’s go back to basics. Here’s some of the words taken from the Acas website, Acas being the organisation that sets the standard here. Our commentary on relevant bits of this is below:

On timings

Who should investigate, need for training…

• If the employer has decided to investigate a disciplinary or grievance issue, they should start as soon as possible.
• Where possible, the employer should get somebody who’s not involved in the case to carry out the investigation, for example another manager or someone from HR. This is to keep things as fair as possible. In smaller organisations, the employer might have to do it themselves.
• For a grievance investigation, it is usually best for the person hearing the grievance to investigate the issue. (note that this is different guidance to investigations that lead to disciplinary hearings) 
• Where possible, the person investigating should also have had training.

Doing the investigation

A plan, wellbeing, speed of investigation, employees who don’t attend…

• The person investigating should start by making an investigation plan.
• An investigation can be stressful. It’s important for employers to consider the wellbeing and mental health of their employees and offer support where needed.
• While an investigation should be completed as quickly as possible, it always needs to be thorough and fair. A simple case might only take a day to gather enough information, whereas a more complicated case could take several weeks.
• Your organisation might have timescales for investigations written in their policy. Otherwise, the employer or person investigating should set a reasonable timescale and tell the employee.
• If an employee needs to go to an investigation meeting but they do not attend, the person investigating should rearrange the meeting. The employer or person investigating should see if it would help to make other arrangements. For example, if the employee is off with stress and is worried about coming to the workplace, they could hold the meeting somewhere else. If the employee is too sick, or continues to be not able or not willing to attend, the person investigating will need to look at all other evidence and make a reasonable decision. The employer might decide they need to carry on with the investigation without the employee. If they do, they should tell the employee.
• Being under investigation can be very stressful, so it’s important that employers consider the wellbeing and mental health of their employees. ….the employer could arrange any meetings in a more private and comfortable location if this would help an employee.

If you’d like to read the full guidance yourself, visit the Acas website.

What we take from the Acas guidance

1. The investigation needs to be done quickly, but thoroughly

There are references here to investigations that take a day or several weeks but no mention of the 4-6 months we all too often see. In our experience the longer it takes, the more they tend to cost and the more stress is created for the employer/manager. Can you go back to basics to shorten your investigations?

2. Within the guidance you’ll see that there are lots of ‘where possible’

Some interpret this as always get someone external to do the investigation, however, if you look at what is said, Acas concedes that it’s not always possible to find an independent party and that’s okay. Just make sure you have been as impartial as possible and done a thorough job.

3. It’s best that the grievance hearing and investigation is carried out by the same person

Different, of course, to the advice around disciplinary hearings. Are you over complicating things by appointing different investigators and hearing Chairs? Has your grievance policy over complicated things?

4. Think about what’s reasonable when it comes to mental wellbeing and adjustments

Not surprisingly there are plenty of mentions of mental wellbeing and the need to make adjustments, but let’s be clear that there is no mention of delaying for 1 or 3 months, or endlessly rearranging meetings the employee decides not to attend. Instead, it refers to a more private or comfortable location (sticking to online meetings makes that easy), carry on without the employee attending the meeting, or holding the meeting somewhere else (e.g. online). Don’t allow your employee to manage this process, you need to be managing it and calling someone out when they are being unreasonable.

5. Acas refers to a reasonable timeline for a grievance investigation

Reasonableness does not just go one way so perhaps employers should push back a little more strongly when employees are appearing to be unreasonable in respect of attending meetings or providing statements.

Why have grievances become so complex?

Just to plant our feet on the ground, 30 years ago a grievance would consist of one page with several paragraphs outlining something that had just happened that an employee found unfair. One issue, often one instance, one complaint, one person blamed. Nowadays, the complaints could fill a file with multiple, complex claims often brought against multiple individuals. We need to find a way to manage these more effectively if we’re to keep our heads above water.

We would, of course, never suggest that employees should not be able to bring grievances as the right to be heard/to challenge is as essential in a professional modern workplace as the right to be paid. However, the balance in some cases has been lost. You might say that some employees are ruining it for everyone!

3 in 10 don’t trust their HR Department

Interestingly, it’s been reported that 3 in 10 don’t trust their HR department (HRD Canada). Could this be the reason we see increasing numbers of grievances raised against not just managers, but the HR Department itself?  

In a Forbes analysis of this trend of distrust in HR teams, it has been suggested that younger workers have been brought up to believe that everyone is equal, and that it’s okay to share, whenever you feel you have been wronged and with whoever it is you perceive has wronged you. Their assumption as a result is that HR will always have your back and that senior team members will always welcome feedback from the most junior member of the team. This misunderstanding of hierarchy and the role of the HR Department is probably driving some of the loss of trust and resulting in grievances being raised.

Might there be value in taking time during the induction of younger workers to set out clearly how the office hierarchy works and how that differs to what they might have experienced prior to employment?

The HR Fun Factory…

Also, might there be value in HR teams being a little bit more upfront about their primary role being to protect the employer, rather than support the staff to avoid such misunderstandings? Or is the more important point here that with so many HR teams rebranding themselves as People Teams, guardians of wellbeing, drivers of employee initiatives, promoters of inclusion, fun factory managers and the like they are in fact creating confusion within both the HR function and the business as a whole as to what their role and purpose is. For if HR don’t maintain discipline and protect the employer, which department is going to step in to do that? We all want to be liked, but being liked is, I am afraid, not really what HR is there for.

Is a different question here can you be both nurturing, caring ‘parent’ and also controlling ‘disciplinarian’ who will always put your employers needs above your own? It’s inevitable employees are confused if the HR team itself is confused. And if a balance of the two is required, do we need to re-set and re-communicate the balance so everyone is clear?

Our 4.5 top tips for more effective handling of grievances

1. The length of an investigation meeting should be carefully managed by the chair. Allowing an employee to talk for 2 to 3 hours about their grievances can be unnecessary and sometimes counterproductive. Setting an expectation for the meeting to last for around 1 hour is recommended along with asking the employee to prepare properly with their thoughts and points, suggesting they write them down can support in keeping the meeting on track and focussed.
2. Check your grievance procedure does not provide for a process that is in excess of what Acas advises. You can always do more or offer more, but don’t write it into your process so you are stuck with it. The shorter the better.
3. Most insurers check every few weeks that there is still a 50% or more likelihood of success for the current claim and, if lower, they pull the plug on insurance support. Use this approach to build into your process a regular ‘proportionality’ checker. Is the time going into a grievance proportionate to the issue raised and the person concerned. One grievance about provision of a mouse mat should not require the same HR input as a grievance about sexual harassment.
4. Into every employee letter about a meeting, build in detail of what will happen if the meeting doesn’t go ahead due to non-attendance or non-cooperation. Don’t wait for non-attendance to set expectations of how things will be managed – pre-empt it.

Top tip 4.5

Keep a clear head. A stressed employee does not have a free pass to rudeness or dishonesty or unprofessional behaviour. A difficult employee does not have a free pass to choose how or when to respond to you or attend meetings. Refusal to obey a reasonable instruction is potential misconduct. A grievance does not give anyone a free pass to behave as they like without fear of consequence – be prepared to ensure discipline is maintained, albeit with a hefty dose of emotional intelligence and empathy from you!

Help with grievances

You are certainly not alone if you are finding that grievances are impacting your business.

For support with investigations, chairing hearings, managing grievances training for managers or directors please do call us. We are pragmatic, always try to keep costs down and will work with you to find a way to a solution. Spending your money is not our goal, resolving the issue effectively is!