Host: With a grievance meeting, what should you do to prepare for one of those? How do you approach it?
Paul Ball: Let's assume that we're talking about a grievance meeting with the person who has raised the grievance, because how you prepare for that is actually a little bit different from how you might prepare to interview relevant witnesses or somebody who has been accused. Firstly, if you're dealing with a formal complaint, I think it's important to remember that it might have been quite difficult for the individual to have got to the point where they felt they had no choice but to make a formal complaint. We've seen situations where people firing written grievances willy-nilly over the most trivial things, but they're the exception rather than the rule. In most cases, a formal grievance is raised because the person feels they have no choice but to make matters formal. They've tried to resolve things informally, either by speaking with the person concerned or speaking with a supervisor or something like that, and have got nowhere, and so they feel that this is a last resort.
I mention that because one of the things that you should do to prepare is to prepare for emotion and prepare for difficult reactions, and not to be blindsided by that, and not to be overly sympathetic, but to be empathetic. There's a slight difference and it's about how you behave within the grievance meeting and be prepared to react to that kind of behavior, and behaving appropriately might include things like making sure there are breaks available, you've got tissues available, or whatever, all of those things, but how you behave in the grievance meeting should be entirely fair and above board, and not allow the individual to say afterwards, "That person completely didn't care about the difficulty I felt in raising these complaints." That's one thing.
Gearalt Fahy: Yeah. It shouldn't be adversarial. You shouldn't approach the investigation or the discussion with the individual with the view that what they're saying is not true. You shouldn't be looking for finding ways to disprove what they're saying. It's a listening experience, isn't it, really?
Paul Ball: It is. The likelihood is you will know the person. You may well know the person who's being accused, and you'll have your own thoughts on them. Better relationship with one than with the other. You might know a little bit about what their perception is, the quality of their work, their attitude to work et cetera. You should try to put that all to one side, and it's about being open-minded. It's gathering facts. It's trying to understand what has happened, if anything, and if anything has happened, whether that amounts to a breach of your policies and procedures, otherwise inappropriate behavior, and so on and so forth.
And so part of the preparation is to make sure that you come into it with an open mind. I want to establish if what this person is saying has any substance and what the wider implications of that may be. We've already talked elsewhere about what you do for an investigation. Some of that overlaps quite significantly in terms, because it's about gathering information to decide whether the grievance is substantiated or not, and something else may follow from that, whether it's disciplinary action or otherwise.
I think what's also important to think about when you're preparing is what the outcome might be and what outcome that person might want from this because what we run the risk of as employment lawyers sometimes is when we see a complaint and we're advising a client about that complaint, we look at the worst case scenario, that this is going to be something that escalates into a dispute, a disciplinary hearing, a resignation, a claim, and actually it might be nothing of those things. The individual might simply say, "I want to bring this to your attention because I want the person to stop and that's all I want." If that is achieved, then the issue may go away.
So it's understanding that it has the potential, and this is the preparation stage, it has the potential to be serious, but not over-inflating that and thinking, "What might the individual want as an outcome to this?"
Gearalt Fahy: I think it's quite likely that you will want to come away from that first meeting and to carry out further investigation. It's almost inevitable.
Paul Ball: I think that's right. Some of it, and what we've talked about elsewhere about planning and scope of an investigation applies equally here, doesn't it, in terms of when you see a grievance letter? It's not just simply, "I've got a letter. Right. Let's have a meeting." Spend some time understanding exactly what you think that complaint is, what they are raising, what specific allegations are being raised, what policies and procedures might be in question. Even if it's a case of just highlighting four or five, of these are the things I think I'm going to be talking about, so when it comes to the meeting with the individual, you can say, "I've received this. I don't want to second guess everything that you've raised. I want to understand from you what that is, however I'm getting the sense that it's these points. Am I right there or not?"
It helps you frame the scope of what it is that you might need to be including within the grievance. The risk you run if you launch straight into it without trying to clarify in your mind that it's going to be these four or five different areas, so what's this about? And the individual then says, "It's all these other things as well," which are completely different to those, and suddenly the person has spoken to you about them. You know about those and the investigation might have ballooned for no obvious reason other than the person has been given a forum to air their concerns. I think that's something ... That's an important thing to do as part of your preparation stage.
Gearalt Fahy: Yeah. It's scoping out what the issues are and getting some confirmation from the individual, so the time to do that is in advance, and then to be prepared to adapt, depending on what the individual says in response.
Paul Ball: And kind of presupposing here that the we know that the individual has had their grievance acknowledged by whoever received it in human resources or management service. It's being acknowledged and they know that there's a meeting to take place with you, in which the content of that letter or email is going to be the subject of that meeting, and presupposing that that's been done. I'm saying that because that's what an employer should do. They should acknowledge so they've got a paper trail of how they've acknowledged the grievance in a meeting following from that.
Another important point, and this is why I mentioned it a few minutes ago about when you're dealing with the person who's raised the complaint. The ACAS Code is pretty clear on this. The person who's raised the complaint has the right at their grievance meeting to be accompanied again by a work colleague or union representative, so make sure that they're aware of that, they've been informed of that, and have the opportunity to find somebody if they want somebody.
Gearalt Fahy: And that they've been provided with a copy of the grievance procedure.
Paul Ball: Yeah. So there's a few housekeeping points on that.
Host: Yeah. Do those kind of key things fold into what to think about when you're arranging the grievance meeting as well?
Gearalt Fahy: I think so. I think it's one and the same. Grievances are slightly different from, say, a disciplinary hearing, because in a disciplinary hearing, the issues may be clearer, so investigation prior to the disciplinary hearing tends to be easier. With a grievance, that can often be more difficult, and so the time to really investigate the grievance is when you are clear as to what the issues are, so you can almost look at it as in reverse, whereby you listen to the individual. It's a listening exercise. You get clear in your mind as to what the nature of their complaint is, and then go away to investigate. What do you think, Paul?
Paul Ball: I think that's right. I think bearing in mind, as the grievance manager, you do have a degree of control, and you should make sure you use that. I mentioned a few minutes ago about you've got to be wary about the individual using the meeting as an opportunity to raise loads of things that haven't been raised in the complaint previously because I've now got this forum where a manager is listening to me. If that is something that is happening, the appeal manager, it's entirely proper for them to say, "When did that happen? When's this issue? Is that something that you've written about in this complaint? No. Why not?" On that basis, I'm only instructed, I'm only appointed to investigate these things. I will let HR or whoever pointed me know about these particular points, but the grievance procedure is pretty clear.
If you've got a concern, try and speak up informally and get it resolved informally. If not, then you should raise it formally. You haven't raised this particularly formally, and I also find out about terms of timings of it, because grievance procedures will almost universally say issues need to be dealt with promptly, so if somebody is speaking up in a grievance meeting and raising something that happened two years ago and they've never spoken up about it before, I'd be wanting to cut that off and say, "I'm not sure why you're raising this now. Where is the connection between that and this? I'm only really tasked with investigating these particular points." I think that's one important point to note, that as the grievance manager you do have a degree of control.
I think another point [inaudible 00:09:10] of what you were just saying, it's also quite a fluid process. You're not just going to have ... In any grievance, you can't guarantee that you'll only need to have one meeting with the person who raised that particular complaint. I can envision it a little bit like Columbo. He goes back and he goes back and he goes back. It's a bit like that. You may need to speak to the person again. You may need to speak to them more than twice depending on what comes out during the investigation from the witnesses, from the person who they've accused, et cetera, and I think you need as part of the scene setting or as part of the closing off in any grievance meeting, making it clear that you may need to come back and ask further questions, and be prepared that's something you might need to do.
Host: You mentioned the grievance manager there. Let's talk about their role a little bit. You've touched on it a little bit. Just expand on that. What's their role in a grievance meeting?
Paul Ball: The role is to establish the facts first and foremost. It's to find out if what the person is saying has happened or not. That's the starting point. The next point is if it has happened, decide on what needs to ... Whether anything needs to happen to ensure that that doesn't happen again if what's happened is a breach of what the company expects. That could be identifying training. It could be implementing new processes to ensure things aren't missed, or it could be and often is that some form of disciplinary action needs to take place. It could be a whole range of things but the starting point is I'm trying to establish whether what the person has raised in this grievance, on balance, has or hasn't happened.
Host: Talk me through a grievance meeting. How do we conduct it? I know, Paul, you've said that they can be quite fluid, but generally how do we conduct them? What's the run of them?
Gearalt Fahy: I think there are certainly some housekeeping issues that would need to be dealt with as there are at any formal meeting, but it is a formal meeting. This is that individual's opportunity to put forward their concerns. I would begin by explaining who you are if the individual doesn't already know you. I would explain your role in the process and that this is the beginning of a process and it is something which is unlikely to conclude on that day, and will certainly need some followup investigation. I would remind the individual that they have the right to be accompanied at that meeting if they're not obviously accompanied, and that they understand that they have that right. I would explain that you have a colleague there to take notes and who will take notes of the meeting, and will perhaps prepare a list of the points that need further investigation.
I think one point that I would always cover off, and it's probably referable to your grievance policy, if it isn't clear from the complaint itself, I might be asking whether or not the individual has taken steps to raise these concerns informally, and if not, why not?
Paul Ball: That's a good point.
Gearalt Fahy: Because there are informal steps for a reason, because nobody wants these matters to escalate to a point where somebody is so unhappy that they've had to raise quite serious issues formally, so there is an additional opportunity to try to really understand what the issues are and what the individual is looking for in terms of an outcome.
Paul Ball: I think they're good points. I'm interested in your thoughts on this, Gene, in terms of when you're setting the scene, particularly if you're dealing with, for example, a harassment complaint or something like that, you're dealing with difficult issues, you've got to try and find what's happened. If you're simply just listening to what the person said and doing nothing more, you're not necessarily doing the most effective job in trying to understand exactly what has happened. To do an effective job might require you asking difficult questions or challenging the individual. Why are you saying they behaved in that way towards you? What else happened? You might be pushing them a little bit on that.
Gearalt Fahy: Probing.
Paul Ball: Yeah. That's the role of the investigator, to gather facts. We've talked elsewhere around active listening and probing for detail and things like that, so to do an effective job, you might need to do that. I think it's part of the scene setting. In that kind of grievance, I'd be saying, "To get to the bottom of this, I'm going to have to play devil's advocate at some times. I want to be clear with you now on that, because it might be difficult. I'm doing that solely because it's my role to get to the bottom of that," and I want to be up front so that you're not in any way feeling that I'm not listening to you or I'm not believing what you're saying. I'm doing it simply because I need to get to establish the veracity or the credibility of what you're saying and so on and so forth. That'll really help with the grievance. I think I'd flag that up as part of the scene setting.
Gearalt Fahy: I agree. I think that's important, and it's finely balanced. Probing and accusing. If you're the individual, then emotions can be heightened. You're raising something and you feel that you're not being listened to or not believed, it's an issue, and yes, if you don't cover it off at the beginning, you're going to have to cover it off as you're asking the questions, and perhaps time and time again throughout the meeting to remind the individual that these are questions you have to ask.
Paul Ball: I think that's right, and there's a specific reason why I raised this point, really, which is when you're dealing with harassment type allegations, particularly dealing with discrimination, so sexual harassment, racial harassment, et cetera, it's emotional. It's going to be difficult. The way you conduct the investigation of that complaint, the way you conduct the grievance meeting is something that if you're not careful, you can find yourself, as the grievance manager, embroiled in the situation. The way I was treated was absolutely appalling in that grievance meeting and it was a further act of discrimination by this business against me. It's not an uncommon complaint that arises, so if you're not careful, you can have a grievance about the person who conducted the grievance and how they conducted the grievance. If you raise that as part of the scene setting, you're helping mitigate the chances of that a little bit.
Host: Is it better to have a grievance meeting as a slightly more informal structure to it? Is that how it should be ... I'm just thinking, because there's no doubt there's a serious thing to be discussed here. Would being informal make that an easier process for the person that's making the allegation?
Gearalt Fahy: I think it's important to know that you're being listened to, because we're dealing with people. We're dealing with our employees, which in most organizations, it's your most valuable asset. You've spent a lot of time in employing, managing, working with those individuals, and what you don't want to do is to lose an employee because they're dissatisfied with the way that you've responded to an issue that they've raised.
Paul Ball: I think it can be a bit of both, actually. When a grievance lands, initial discussion will receive this, just want to understand a little bit more about what that's about, because it might influence your decision on who's going to do the investigation, how that investigation might progress, et cetera, so there could be initial discussion which is perhaps less formal, as a preliminary to then arranging a more formal meeting, but that aside, if you've got a written complaint and it raises issues of concern relating to that employee's employment relationship with you, sensible thing would be to start that process with a formal meeting to discuss that person's grievance, but the purpose perhaps of having an initial discussion is it might influence your decision on things like who would be a sensible person to investigate here.
And I don't want to make an obvious comment, but let's just say a quite young junior female employee has raised a complaint of sexual harassment against a male colleague. In that scenario, having two men to be the people conducting the grievance meeting with that person, one leading the investigation and one being the note taker, and that person being quite a senior manager, might not be the most appropriate thing to do. An initial discussion with the individual, and it might be HR that has this discussion with the individual, about what it is and talking them through what a grievance process might look like might be very helpful in terms of identifying how the formal part of the investigation should be conducted and where it might take place.
Host: With adjournments, do they have a common place in grievance meetings, and if so, what happens next?
Gearalt Fahy: It's again slightly different to dealing with a disciplinary. If we're still at the first initial meeting, the likelihood is that we're not going to be able to make a decision on that day, so adjournment is inevitable. Adjournment and further investigation is likely. As Paul said, we could have one to three different meetings, and we may have to go on a host of tangents, really, by interviewing different individuals, and really trying to get a grasp of what's happened.
Paul Ball: I think that's right. It kicks off an investigation in most cases, unless it's a really basic one or two point grievance that can be addressed very quickly because the person may have perhaps misunderstood what has happened and they can be put right and it can be backed up with, here's the paper trail of so and so, confirming the decision. Unless it can be dealt with in that kind of open and shut manner, and the purpose of the adjournment is so that the issue can then be investigated, and in contrast to say an adjournment in a disciplinary hearing which might be a couple of hours or overnight or something, that kind of ilk, in a grievance meeting, the adjournment could be several weeks while the investigation takes place and the decision is then reached on the grievance before they're told, and in that period, in that adjournment, as you say, there could be a further meeting with the person who's raised the complaint, interviews with other people and so on, so the adjournment is a much bigger window to gather the facts.
Host: The ultimate end of the grievance meeting, which is the decision as to what happens next, is that more black and white than a disciplinary hearing? Isn't it either there's going to be an investigation, there isn't going to be an investigation?
Paul Ball: This is the point that causes a huge amount of friction, I think, within an employment relationship. Because somebody raises a grievance and the outcome, they'll typically be informed of, is the grievance is upheld or not upheld, full stop. If it's upheld, it may be that we're taking appropriate measures. Appropriate measures might be expanded on to say which include training, new policies, implementing [inaudible 00:21:02] line manager implemented these moves at your request or whatever, but the individual will not find out what action has been taken against any other individual who they've accused as part of the grievance unless that person then leaves, they disappear. What happens between the employer and the person who's been the subject of the grievance is a matter between the employer and them, but the individual who's raised the grievance almost invariably wants to know what has happened.
Paul Ball: They're not entitled to know. They're entitled to know whether their grievance has been upheld or not. They're not entitled to know what penalty you have imposed on somebody, and if you think about some recent matters you've been involved in, that's been the cause of huge amounts of friction.
Gearalt Fahy: It was a hugely contentious point, and I can remember it being discussed between the judge and the advocate for the claimant, and that was something that he needed to know, and by not telling him, that that in itself was sufficient to a breach of contract, and the judge said that whilst it is unfortunate and whilst they would have sympathy with individuals in those circumstances, that's the position in common practice not to, because it can lead to more problems than solutions because it just means that the issue rumbles on.
Paul Ball: The case that you were dealing with, the issue was you haven't been severe enough on that person and I'm off, broadly, and that's a common friction. Equally if the person who's raised the complaint is just told, "Your grievance has been upheld and we're taking action," put yourself in their shoes. They may say, "You say that but how do I know you're taking any action?" There's a disconnect there. I think that creates some challenges.
No question it creates some challenges for businesses and I think the only thing you can really do is at the outset say, "In terms of your grievance, just so you're aware, the outcome of this process may be that your grievance is upheld or it's not upheld. If it's upheld, that doesn't mean you will get to know what specific action is taken against anybody that you have accused within this because we do not share that. That's personal data, private between us and them, not you," and I want to set expectations now, but I want you to trust that if we say we are taking action to deal with it, that is something we've done. We won't say something that isn't true. I think if you set that scene at the outset, you're giving yourself the opportunity to at least mitigate the kind of issue that arises all too often and that you heard in that recent case that we just talked about.
Gearalt Fahy: Yeah. It's just a reminder about the importance of confidentiality. In the same way that what they have raised or indeed the investigations that take place into the complaints that they make, that information is confidential and what may happen as a result of that, that involves another person, and we have duties and responsibilities towards that individual as well, so there are two sides to it.
Paul Ball: I think where you can say more is where any action you're taking isn't about any given individual. It's about organizational changes that might've been put into place.
Gearalt Fahy: We recognized that was an issue we're putting in place, training, it's remedial steps.
Paul Ball: It might be the person has raised a complaint about not getting a particular bonus or a subsidy or something like that, and that might be something that is easily rectifiable, and you say, "You should have had that particular bonus on those hours of work and that pay will be made in your next payroll run." Sometimes if you ask the question at the outset, what is it that you want in this grievance, and the person says, "I demand compensation for what has happened to me," I can think of a few occasions where clients have said, "We want to pay a little bit of money to this individual because we feel really bad," and my reaction is I'd be very cautious about doing that within an internal process.
Paul Ball: If someone has complained of discrimination, giving somebody compensation for discrimination as part of an internal process is a difficult thing to do. It doesn't stop you getting a tribunal claim from that person, and you are potentially creating difficulties down the line.
Host: In what way?
Paul Ball: The person has got an expectation, complains about things, it's upheld, this business will compensate you. Speak up loud enough about things and they throw money at it, and other people then become aware of that, and throwing money at things is not the way to resolve issues. If an issue has arisen that is inappropriate behavior you deal with it by way of if need by disciplining the person who's perpetrated the behavior, about training people, about the standards of behavior that are expected within the workplace as needs be, being transparent about what is acceptable and not acceptable within the workplace and that being something that is looked at from the top down. You can't stop what's already happened. If the person has been treated in that manner and they want to pursue a tribunal complaint about it, that might be the point at which you agree to give them some compensation for that issue but I wouldn't give compensation in an internal process only because I think it just creates more potential difficulties than you might think.
Host: When we look at communicating the decision then, from what you were saying earlier on, depending on the manner of the grievance that's been brought, that will determine who you're going to be communicating your decision to.
Gearalt Fahy: Yes. You're communicating your decision to the individual. The individual has made a complaint. It's no different to making a complaint in the real world where you would complain to an organization about the level of service that you'd received. You might be in a department store, you might be in a restaurant, whatever else. If you make a complaint, then you can hope that you will receive some form of response. The individual is no different in that respect, so in terms of how you would communicate that, it comes all the way back to how important it is to frame the allegations, to frame the complaints, and in any letter where you would confirm the outcome, you would then address those individually and explain the steps that you've taken to investigate, and whether or not you uphold their complaint, and you would go through and deal with them sequentially.
Paul Ball: Yeah. And I think within that, going through them sequentially, remember the why, this is why I've reached the conclusion. This is upheld. This is why I've concluded it's upheld. If it's not upheld, I think language or nuances are quite important here. Unless you're satisfied that the complaint has not substance at all, I would always phrase it, which is, on the basis of the inquiries I've been able to do, I cannot establish that the complaint you've raised on this point is substantiated. That's not saying you lied. It's just saying I've done what I can, but I can't reach a decision. That's a bit of managing expectations in a sense.
Gearalt Fahy: Yeah. And the only thing really to add, of course, is that the individual has the right to appeal the decision that you've reached. Effectively, that concludes that stage of the process. It's then up to the individual as to whether they're accepting of the decision or not.
Host: So if you have upheld it and there's action to be ... How do you go about implementing that? Any kind of followup or remedial action?
Paul Ball: It depends on the structure of the organization, of course. Often, it will be some learning issues or some training and things of that nature, so the learning and development people will need to identify what courses or what support might need to be put in place. Sometimes it might be making sure line management are aware of certain things that are or aren't allowed. You might make changes to the reporting lines or something as basic as that.
Gearalt Fahy: A common issue is that recommendation is made, and then it comes to reviewing that somewhere down the line, say, if you're dealing with litigation, and the steps that have been recommended haven't been put in place, so if you say you're going to do something, the most important thing is that you do it and you ensure that that takes place.
Host: What's the best practice for documenting the grievance process?
Gearalt Fahy: Documentation, we will have the last stage of the process, which is the letter confirming the outcome. I would tend to work backwards. We will have the notes at the meeting, which you would ideally provide to the individual, have them agree or otherwise comment on any inaccuracies. You will have notes of the interviews or your investigation. You may have an investigator re-report. It's about ensuring that you have everything properly documented and kept together in one place. You have to assume that if it's not a positive outcome for the individual in any one respect, that this may be challenged on appeal, and so all of that documentary evidence will inevitably be needed on appeal, so it's really just getting the house in order.
Paul Ball: Yeah. What you're describing there is something that we touched on elsewhere with investigations, isn't it, in a way, because what you would expect to be documented in a grievance process is the process you have followed to investigate the complaints that have been raised, and why the decision reached was what it was. I think overlaying that, it's also the documents to show that the way in which you have conducted the grievance, both the meeting with the individual and the subsequent investigation, is something that [inaudible 00:31:06] reasonable, suggests independence and impartiality, and so on, so that in the event of an appeal or in the event of any subsequently disciplinary action, neither of those two sides are able to accuse you of having had a pre-judged view of what the outcome of the complaint was going to be and that it was inevitably going to end in one way or the other, because it's an easy accusation to throw about by an individual who's unhappy with what's happened.
It's much easier for you to be able to overcome that if you can say, "Well, look. The paper trail showed exactly what I did or didn't do," and so that helps, I think. It's not entirely different from what you have in terms of an outcome of any kind of investigation. It's just the book ending, isn't it, of the decision for the grievance and the decision bookends an investigation, really.
Gearalt Fahy: Exactly right.