Employment Law: Handling Grievances at the End of Term

This summary is based on Judicium’s Employment Law ‘Sofa Session’ from the 7th of June, with our resident expert Suzanne Ravenhall, MCIPD. This session focused on the best way to approach grievances, how to manage staff relationships whilst any grievance is ongoing  and the pitfalls to avoid in the Summer Term.

Poll

What is a Grievance?

A grievance is defined by ACAS as “a problem” at work.  Ideally, it would be raised informally first. However, the employee may not wish to do that or if the incident is too serious, such as sexual harassment or whistleblowing, raising it informally may be inappropriate. 

It’s the employee’s right to choose the approach for their complaint, although you might try to persuade them to start with a discussion.

When someone first approaches with an intended grievance, try asking them:

1. Do you need to vent?

If so, ‘vent-away!’ It’s easier to listen to venting than to launch an investigation. Therefore, if venting resolves the issue for the employee, try to consider it. 

NB: Remember they are confidentially advising you of their concerns. You might have previously heard of their particular issues. This is also an opportunity for you to assess if the grievant is well. Perhaps they need some medical assistance or an Occupational Health referral, especially if the level of concern is out of character for them.

2. Do you “want it recorded?”

The offer to keep a record ‘on their personnel file’ does pacify some employees.  Also, it is a good way for the employee to keep a record of incidents happening, especially as a successful grievance needs to be backed up with dates and actual events. This would demonstrate you being a supportive employer and tuning in to their needs. 

 We recommend emailing the grievant back, including the details of their account. Include details such as the reasons why it is being recorded, any deviation from a planned investigation and the fact you have been provided their version of events. This might assist later when building a case against the other employee in situations where they are causing issues with several other members of staff.

3. Do you want this matter dealt with informally?

• Do they want help to do something about it themselves?
• What assistance do they need to take control of what’s gone wrong?
• Do they want to set up a meeting between individuals?
• Do they need advice (such as speaking to their union rep)?
• Alternatively, do they want you to do something about it such as speaking to someone on their behalf?

NB: Ensure they are aware that any intervention, such as your approaching the other party to explain the issue, means the other party will know about the grievant. Ask if they are ok with this?

4. Do you want me to deal with it formally?

 If none of the above appears to be suitable, it may be a grievance that requires an investigation.  At that point, it’s helpful if the employee has written some details including incidents, dates, times, and witnesses. These will give you an idea of what you’re dealing with. 

What is the Best Way to Approach Grievances?

• Who is the grievance against?
• The school will need someone to ‘act as employer’ - the decision maker.
• They will need an Investigating Officer - someone else or the same person to investigate the issue.

The Investigating Officer (IO) speaks to the grievant and agrees what will be investigated, determines their expectations for the outcome, and interviews witnesses.  The IO then formulates their findings into a report which is given to the decision maker to review the findings.  The decision maker then formulates an outcome.

For a more in depth look at this process, you can book on to Judicium’s CPD training course on the 22nd of June called ‘A Practical Guide to Grievance Investigations.’

If the grievance is against the Headteacher, then the Chair of Governors needs to be informed, and your HR provider can assist the Chair from that point. 

In some policies, the decision maker and the IO can be one and the same person, which could expedite the process.  However, if the issue is particularly contentious, then you might deliberately separate those roles. 

Whatever the decision is, there is still a ‘next stage’ – the Appeal. Keep in mind that if you use a three-person panel for the outcome, who will be available for the Appeal stage?

How do we Manage Staff Relationships while a Grievance is Ongoing?

If the grievance is against a person ‘in power’ e.g., the Headteacher or a Head of Department, the biggest issue appears to be an inability to carry on working with that person (this could be by the grievant or the other party).

If there is only one person ‘in power’ i.e., there is only one Headteacher, that person must remain in post. If it’s against one of two Deputy Heads, you might switch the line management to the other Deputy Head until the matter is resolved.

Sometimes as a response to this, one of the parties goes off sick.  The grievance continues to progress despite someone being signed off, and you might simultaneously have to start the Absence procedure. 

• Ensure they will not discuss the grievance issue with each other whilst it’s under investigation.
• Explain doing so may be construed as a disciplinary matter, therefore they should avoid each other where possible.
• If there are concerns, make arrangements to have essential meetings in the presence of someone else.
• Keep all parties informed about the status of the investigation.
• Expedite the process where possible.

Pitfalls to Avoid during the Summer Term 

 The most difficult time of year to receive a grievance is right before a main leave period, in particular the summer leave period. 

Firstly, arrange to meet, or if there is no time to meet, a phone call may be necessary. 

• Checking you’ve understood what they’re stating.
• Explain the time constraints due to leave, e.g., needing to appoint someone to investigate and potentially get witness statements, etc.
• Explain that you may not be able to begin to progress the grievance until September and ask if that’s ok? NB: Get an agreement they are content that it’s the earliest you can proceed.
• Send an email confirmation of what was agreed.
  • Your policy is likely to have a very short timeframe to investigate, which becomes unreasonable during the six-week summer holidays. Inaction will mean the policy is breached and a union rep may raise the issue.

 Use your skill and judgement to determine if the matter is so serious it can’t wait.

You may have to agree that the IO will interview the grievant during the holidays.  Of course, if they don’t agree to that, then nothing else will happen until that first step is taken.  If the grievant agrees, review what’s been said and decide whether to pause or progress it further during the holidays.  Taking advice from your HR provider at this point is invaluable.

NB: The reason you, as an employer, investigate a grievance is to find out if the school is in a position of strength and to confirm you haven’t breached anyone’s contract.  If the school is in a weak position, it’s best to find that out early, remedy the situation, and move on.  If the school is in a position of strength and doesn’t believe it’s done anything wrong contractually, your findings might not be in the grievant’s favour.

Key Takeaways

1. A grievance is described by ACAS as "a problem or issue" - the employee doesn't have to use the word grievance!  

2. A policy asking a member of staff to submit their grievance on a form is only to assist an employee who doesn't want to write it out in letter format.

3.  The grievance process allows you to assess whether the school is in a strong or a weak position and rectify that position if necessary. Any steps you take to improve the position may be assessed at a later Tribunal.  

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