Top Tips for Successful Grievance Management

Posted in : HR Updates ROI on 14 October 2019
Caroline McEnery
The HR Suite

During a recent Legal Island webinar on the 25 September 2019 on the topic “Fostering a Dignity & Respect Culture & Potential Risks of Not Achieving Same” a few interesting questions came up that are addressed during this article, e.g. At what point do you have to inform the alleged perpetrator of the issues being raised when the employee hasn’t raised a formal complaint and Can the investigated employee demand to have the opportunity to cross examine the employee in person or are statements sufficient?  This article by the HR Suite also sets out key tips for successful grievance management.

A grievance is a complaint which an employee or group of employees has concerning his or her terms and conditions of employment, working environment or working relationships. Employee grievances can arise for a variety of reasons including the following: changing work practices, alleged discrimination, bullying or harassment, health and safety issues, promotion and/or grading, issues with fellow employees etc.

Question 1: At what point do you have to inform the alleged perpetrator of the issues being raised when the employee hasn’t raised a formal complaint?

Answer: If the Complainant has decided not to take a formal grievance then the perpetrator or Subject of the Complaint should not be informed about the grievance. The Complainant is afforded the right/opportunity not to proceed with the alleged grievance meaning that management should not approach the Subject of the Complaint as the Complainant has not chosen a route. The Company can decide to do training in the organisation to re-train the team and management on dignity and respect at work for example to ensure everyone understands what is required by them at work.  There may be circumstances however where an employer needs to take action to investigate a complaint, even where the employee does not wish to make a formal complaint, for example, where a serious allegation of sexual harassment has been made.   

Question 2: Can the investigated employee demand to have the opportunity to cross examine the employee in person or are statements sufficient?

Answer: The Lyons case was concerned with the procedures applied in the case of an investigation into an allegation of bullying made by a teacher against the applicant, a deputy principal of a school.   The right to cross-examine was noted of an employee’s accuser and any witnesses to the matter under investigation at the investigation stage, where the matter is sufficiently serious that it may warrant dismissal. Therefore, the Subject of the Complaint has, in line with case law, the right to cross examine both witnesses and the complainant. This is quite a new revelation to the grievance process therefore the Company/Investigator should proceed with caution in how to facilitate the same especially taking into account extremely sensitive grievances such as allegations of sexual harassment or bullying.

Question 3: Do you allow cross examination only on request?

Answer:  It is recommended that cross examination be stated in the terms of reference from the outset so that both parties know this is a potential part of the investigation. Cross examination is not a normal part of the investigation process however, one should consider any requests of the same where the matter is sufficiently serious that it may warrant dismissal.

Question 4: Where there is a witness involved, can they remain anonymous in order for us to uphold a complaint or must they be named?

Answer: In short no. It should be clearly stated in witness invites that any agreed minutes will form part of the evidence which both the Complainant and the Subject of the Complaint will have access to in order to agree or dispute. Both parties, in line with the rules of natural justice are entitled to a fair and impartial hearing and to know all the evidence against them therefore using anonymity is not respectful of the same and could classify itself as an unfair process.

Question 5: Where a dual complaint comes in - do you treat them separately? Even if they overlap?

This would depend on the type of complaint. If the subject of the complaint is the same person then both allegations can be addressed in the investigation process.

Top Tips for Successful Grievance Management

We have enclosed 4 top tips for successful grievance management:

  1. Policy: The first and most important step is to have a policy in place. If you have this in place it means that you have taken proactive steps in order to address this before it became an issue. The aim of a grievance procedure is to encourage consistency, transparency and fairness in the handling of workplace problems or complaints.  A grievance policy and procedure will provide a mechanism to solve problems and no employee shall suffer any form of victimization as a result of raising a grievance under this procedure. The Code of Practice on Grievance Procedure as provided for by S.I. number 146 of 2000 sets out the best practice guidelines for Grievance procedures. This policy should have regular reviews in line with case law. The first step for anyone dealing with a grievance issue is to refer to the Company policy. The procedure should be applied fairly and consistently to all staff. These policies should be communicated to employees and signed by both parties to ensure that employees understand the content.
  2. Training: It is advised that as a Company you should provide appropriate training to any staff members who have staff management functions. This training should be kept under review in light of developments and best practice in this area and show management the basics in addressing grievances in the first instance.
  3. Be Fully Informed: Your Company Policy should have several routes for your employee to invoke should she so wish. A typical policy will have 3 routes; Informal, Mediation and Formal. It is vital you know the difference between them and explain them in easy to understand language.  It is important, before you discuss this with the employee, that you are fully aware of what her routes are and how she/he should go about them.
  4. Talk to your Employee: If the employee comes to you to discuss the concerns make sure that you follow this meeting up in writing and include the Company policy. This is most likely new to your employee, so she/he will take certain things away from the meeting and may forget others. This protects the Company in showing you have provided this to the employee and did everything you can to help them. Be sure, dependent of the issues at hand, to encourage usage of the informal grievance procedure which is quick and easy to implement. I would additionally advise you include a deadline so that you can close this issue out or further it to be completion in a timely manner to avoid any undue stress to both parties.

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Caroline McEnery is speaking at this year's Annual Review of Employment Law conferences

Session Title: What a Good Investigation Report Looks Like

Top trainer, expert investigator, mediator, WRC Adjudication Officer and MD of the HR Suite, Caroline McEnery, sets out how to write a good, robust investigation report and set out findings.

Caroline considers:

  • Key challenges that occur during investigations (minutes, witnesses, representation)
  • Risk Management
  • Top Tips for proactive Investigations.
  • Relevant Case Law

Find out more about the Annual Review of Employment Law 2019 conference, including the full programme, speaker list and how to book your place here:

This article is correct at 14/10/2019
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Caroline McEnery
The HR Suite

The main content of this article was provided by Caroline McEnery. Contact telephone number is +353 66 710 2887 / +353 86 775 2064 or email info@thehrsuite.com

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