Part 1 – Nos. 1 – 5
Evidence, in the context of employee grievances, is likely to come from two primary sources: your employee and you (or others within your business).
As was discussed in a previous post about ‘Compliance’, there is a requirement for you, or the organisation, to investigate the employee’s complaint. Such an investigation needs to be undertaken sufficiently thoroughly, fairly and without unreasonable delay.
Ideally, any investigation should be capable of looking at the issue dispassionately, fairly and without pre-judgment. Consequently, the best person to carry it out may not be you. It might be another manager, or an independent investigator, depending in part on the size and financial resources of your business.
However, if your business is small; or you don’t have any other managers, and you are not able to (or think you can’t) afford an independent investigator; it might fall to ‘you’ to look into the matter further.
This issue is, of course, complicated, because in these situations, the complaint or grievance is likely to be about you or something you have, or haven’t done.
Despite this, it’s essential that you to try to look at the issue again. Reconsider whether you have been fair and reasonable in your approach.
However, before we look at the issues to take into account when investigating any complaint, it is worth considering what a grievance is, and what it isn’t!
Grievances are “… concerns, problems or complaints raised by an employee with management. Anybody may at some time have problems or concerns with their working conditions or relationships with colleagues that they wish to raise.”
This definition isn’t mine; it’s ACAS’s.
Grievances are not:
- Trivial — For example, a colleague or manager not saying ‘good morning’.
- Vexatious — For example, where an employee regularly raises complaints which are relatively minor in nature, and which the employer has already provided a reasonable answer or resolution to.
- Disciplinary matters — That is, claims that should be more appropriately addressed by following the disciplinary procedure.
- Performance Management issues — For example, where a manager implements an efficient, fair and appropriate performance management process, and the employee doesn’t like the fact that their manager has fairly criticised them.
It’s also good to know that most good union officials don’t want to support something that isn’t a genuine grievance either, for three main reasons:
- The union rep would be raising expectations that they were unable to fulfil (i.e. get a satisfactory resolution to) if it wasn’t a genuine, live grievance.
- It would damage the union rep’s credibility with management, as they might start to question the union rep’s judgment.
- Filing frivolous or inappropriate issues with management can, over time, destroy the relationship with the company, which would make resolving more significant matters more complicated.
The list that follows outlines 10 ‘observations’ [5 in this post, and 5 in the next] that I have encountered in my experience of dealing with employee’s grievances over the years. BUT I am in no way saying that the items on the list are always true, and mustn’t be considered. An investigator needs to review each case on its merits thoroughly.
They are — in no particular order — as follows:
- Most grievances contain at least an element of truth.
- Grievance Diaries’ can damage early resolution.
- Collusion is rare.
- Post-disciplinary claims have less merit than when an employee raises a grievance after the organisation disciplined them for something else.
- Less is more.
- Exaggerated grievances lead to excessive defences.
- Conspiracy theorists and conspiracies can co-exist.
- Employees don’t always know that they’re lying.
- Bullies don’t just turn up overnight.
- If something appears to be too good to be true, it usually is.
1. Most grievances contain at least an element of truth
- In reality, there will always be something that we can complain about at work. However, most of the time, we accept that the world isn’t perfect, and we let minor issues go because they’re just not worth complaining about. Not everyone is the same. Some complain more than others. But usually, if somebody complains, it is because they think that they have a genuine grievance or complaint.
- Then there are the ‘less typical’ cases. The cases that aren’t just a single issue grievance or complaint. The instances that — for reasons that we’ll explore further below — contain multiple (one, two three or sometimes thirty or more!) grievances that may span many years. However many; over however long; there is usually some element of the complaint that is in some way true.
- Entirely fictitious grievances are therefore extremely uncommon or non-existent.
2. Grievance Diaries’ can damage the chances of an early resolution
- I would propose that the best time to resolve a grievance is as close as possible to when it occurs. People can see the issues in ‘real-time’. You can identify suitable witnesses, and you don’t have to test their memories. Small ‘acorn’ issues aren’t given a chance to grow into a forest of ‘oak tree’ grievances.
- But I have witnessed many situations where an early resolution has been thwarted by the advice the employee has received from their (usually well-meaning) advisors. That advice has tended to be along the lines of “… keep a diary of every time he/she does this/that”. No attempt has been made to resolve the issue and put a stop to the behaviour causing the problem. The advice — while not stated explicitly — has in effect been “… let it continue to happen until the point when the weight of the evidence is so strong that someone will be bound to be found to have done wrong.”
- Part of the difficulty here is that there is a dichotomy caused by definitions of workplace bullying, one of which defines it as “… unwanted, persistent and harmful psychological or physical abuse, directed toward one or more employees that are intended to psychologically reduce the target/s to inferior status within the workplace.” Persistent, being defined as “… 6 months or more”. How do you know it’s been going on for six months or more? Because it’s in a diary!
- But who wins in this scenario? Don’t both sides get damaged? I will provide more details about the research around the issues of bullying in a later post.
3. Collusion is rare
- I have never, in 25 years of managing grievances, (albeit admittedly mainly in professional, office environments) experienced a group of employees knowingly colluding (i.e. secretly or illegally cooperating or conspiring to deceive others) to support a false allegation made by a colleague against somebody else. I can’t say that it never happens, but I have never seen it.
- Consequently, when a group of employees come out in support of a colleague’s allegations, they are highly likely to be telling the truth
- [That is not to say that bullies do not collude. In Germany, bullying has been found to be frequently perpetrated by a “mob” of bullies, rather than an individual bully. This behaviour has lead to the use of the term “mobbing”, which, somewhat bizarrely, is rarely seen outside of Germany.]
4. Post-disciplinary grievances have less merit
- When an individual has a genuine grievance, which is severe enough to need a resolution that changes the status quo, then they will raise it.
- However, when an employee only lodges a grievance in response to being called to a disciplinary hearing to answer questions about their alleged misconduct or underperformance, then one has to examine their motives.
- That is not to say that employees who have been unfairly treated or discriminated against at work won’t lodge grievances in such situations to counter the employer’s act of unfairness. But where the employer has a genuine, and fair reason to initiate disciplinary proceedings, an employee’s grievance is usually an attempt to frustrate due process or delay the necessary disciplinary action, whatever form that may take.
5. Less is more
- For the reasons already stated above, in the main, the most genuine grievances are those that are raised promptly. If an issue is not worth raising at the time, why does it become more worthy of being raised after the passage of time? Let’s assume (dangerously) that the employee is giving their boss the benefit of the doubt. And then the boss does something else that the employee doesn’t like. So they raise a grievance and cite the first issue as well, as evidence of the manager acting unfairly, or discriminately or whatever. You can see how two or possibly three issues might be linked. But why more?
- How long should you — as an individual with a grievance — wait? We have already seen in an earlier post that the ACAS Code of Practice states that the employee should raise their grievance “… without unreasonable delay”. So what would the proverbial ‘man on the bus’ consider to be “reasonable”? A week? A month? A year? A decade
- The nature and seriousness of the complaint are relevant. We’ve seen criminal cases in recent years where victims who had been sexually assaulted did not come forward initially, as they feared that they would not be believed.
- So, much will depend on the detail. Given that all grievances tend to have an element of truth, the skill is to identify which, or how many, of the grievances are genuine, and which are not.
- The addition of weak grievances does not, in my view make the overall case stronger, but in fact, weaker.
- I have seen cases where an employee raised over 20 grievances of which only two or three had any real merit. Perversely, in my view, the addition of numerous — somewhat spurious — grievances, weakens the case rather than strengthens it.
- When investigating new grievances, I, therefore, have to test whether each grievance stated includes substantive issues to answer or are merely added to ‘pad out’ others.
See the next post for issues 6–10.