The Trouble with Grievances

by Keith Davis LL.B., Accredited Mediator 

The original reasons for having a Grievance or “Speak Out” Procedure at work were sound. They were intended as an informal method of resolving issues, often worked through by discussion where the outcome was something which was agreed rather than imposed.

Nowadays, they consist of formal steps over which both an employer and employee must travel in order to protect their legal rights. The outcome is a judgment with which, at least one of those involved remains unhappy.

Again, in order to protect their respective legal positions, an employee who feels that the matter has not been resolved to his/her satisfaction will appeal, and the employer will fall into line. Off we go again proceeding towards a further judgment with which at least one of those involved is likely to disagree.

What happens next?

Ah, the grieving employee has a choice: either he/she works on having parked and stored the grievance, or he resigns because working on is so not possible.

As for the resignation, many employees nowadays will have been alert to the need to gather evidence throughout the grievance process to support a view that he/she has lost all trust and confidence in the employer. Then, surprise, surprise: the final grievance decision is the last straw when that relationship of trust and confidence just cannot be remedied.

Also, that grievance process has probably enabled the employee concerned to gather together the final pieces of evidence needed for a constructive dismissal claim.

You know what I mean: was the grievance fully and impartially investigated? Were all the pertinent facts obtained and made available to the employee well before the grievance hearing? Were the opposing accounts heard in the presence of the employee who raised the grievance? Did he/she have an opportunity to cross-question those accounts in front of the Chair? Were all the notes and statements concerned full, accurate, validated and fairly presented at the Grievance Hearing?

Then, particularly with the “help” of legal advice, it’s time to focus on the procedural defects with a view to booking both line managers and HR personnel to take their place in the witness stand at an employment tribunal near you.

If the original grievance consisted of a claim of unlawful discrimination, then one should anticipate an appeal decision which does not uphold the allegation being “further evidence of continued discrimination.

I suggest that the formality, judgment and “must go through the process” elements are what cause the hearing of many grievances to make the situation worse rather than facilitating a reasonable opportunity to resolve the disputes.

There is, however, a commercial alternative.

First, it would be prudent to invoke the Grievance Procedure, and perhaps fix a date for the Grievance Hearing. Then, the employer’s HR Department could suggest to both those involved that either the process is held in abeyance for, say two weeks, pending mediation, or provide for an optional additional stage for the grievance to be mediated as part of the Grievance Hearing.

The purpose would be to move towards an agreed outcome within an agreed short time-frame, in a safe environment which prejudices nobody. Just think: a civil, private process conducted quickly (and possibly without everyone ever being in the same room), and no appeals, tribunal hearings, adversarial tactics and amateur (or not so-amateur) dramatics.

There will always be those who long for the thrill of the employment tribunal hearing room. That’s sad. However, for the rest of us, there is an effective and commercial alternative.

Keith Davis has been helping corporate HR personnel (mainly in the retailing and entertaining sectors) for over 20 years to defend employment tribunal claims. His company, Neutrality at Work Limited, helps to bring about a resolution, particularly of the “no-win” situations through external or internal mediation.