Refreshing Law
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Anna Denton-Jones
Refreshing Law
A recent case illustrates the risk employers face every time they receive a grievance in relation to a victimisation complaint.
If the grievance has any kind of discrimination angle to it, bullying harassment or an argument about less favourable treatment because of a protected characteristic or an allegation that the employer has failed to make reasonable adjustments to accommodate a health issue, the employer also runs the risk of a victimisation complaint.
The raising of the grievance, if it references the protected characteristic and allegations of some form of discrimination, becomes a “protected act”. If, as a result of that protected act, the employee then suffers some other detriment, this will give them grounds to claim victimisation.
This can be as simple as suffering the consequences of colleagues knowing that a grievance has been raised and behaving differently towards the person who has raised the grievance as a result. For example, a manager who has been accused may be very angry about the accusation that has been made or other colleagues who are interviewed as witnesses in the grievance process might change their behaviour towards the individual, “sending them to Coventry” or even telling them that they agree with what the employee has done. One of the first mediations that I was ever involved with, involved this scenario where a colleague clearly felt a manager didn’t deserve to be criticised by the other employee who had raised a grievance.
A recent case that illustrated this, was a case against Online Travel Training Group Ltd by Mr Weinreb. He was a Business Development Manager and had some kind of altercation with a Finance Manager after asking for her help. It sounds as though the Finance Manager didn’t like the employee and felt he should have known how to do the things he was asking for help with. The Tribunal felt that she goaded him and created conflict. Another colleague implied Mr Weinreb had been Jewish during a discussion about team work, and he also alleged that a conversation about the gay dating app ‘Grinder’ implied his colleagues thought he was a closet homosexual.
The case ended up in cross-grievances – the Finance Manager raised a grievance against Mr Weinreb because he recorded a conversation held about his commission. Mr Weinreb raised a grievance alleging discrimination and complaining about how an employment review meeting had been held.
Faced with the cross-grievance, the Managing Director missed the opportunity to go to a mediator and really get to the bottom of what was going on between the two individuals. Instead the pair were told that they should only communicate with each other by email (Tip: never go down that route).
Matters were investigated but played down – the Finance Manager was reminded of her obligation to show respect to her colleagues. Mr Weinreb attended a Grievance Outcome Meeting with the Managing Director who sounds like she lost her temper. At one point, she banged on the desk and told Mr Weinreb that she was very upset and offended by his allegations of discrimination about his colleagues (Tip: never do this!).
Mr Weinreb clearly didn’t feel listened to and this is a very important part of any grievance process and so appealed the grievance outcome.
The company subsequently dismissed Mr Weinreb for his “unacceptable conduct”. The Managing Director felt that his allegations had been spurious.
The banging on the table at the grievance outcome and failure to give Mr Weinreb any details about why his employment was being terminated were the acts of victimisation in this particular case. It was found that the Managing Director would not have behaved in the way that she had, had the employee not complained of discrimination in the first place.
Since employers are vulnerable to the emotional responses of those accused in grievances and those around them, it is very important that employers must always make it clear to those involved that any mistreatment of the employee who has raised a grievance will, in itself, be a disciplinary issue and that they are alert to their behaviour so that they can take action when necessary.
Refreshing Law
3 June 2021
At first glance, one might think the answer to this question was rather obvious, in that the employee raising the grievance is going to want to see that the investigation has been done thoroughly and fairly in order to be able to accept that the employer is following the correct processes based on the evidence. Indeed, if you didn’t disclose these papers to the employee, it is likely to foster distress and further antagonise what may already be the steps on the way to a breakdown in trust and confidence between the parties.
Having said that, are there circumstances in which you can decline to show the employee parts of the evidence? It is worth noting that the ACAS Code of Practice in relation to grievance procedures does not grant a specific “right” to the employee to see witness statements or any evidence that is part of an investigation.
The employer is likely to be having to balance the rights of the employee against the rights of others who have also been named in the report, and to whom it may also owe duties such as confidentiality, if that were the only basis on which it could obtain evidence.
The ACAS Guide to Conducting Workplace Investigations states “if an individual wishes to see a report they have been named in, they have got a right to see any parts of the report that contains information about them or that is reliant on information they have provided”. That makes sense because they may want to correct a mistake that you have made in quoting them or if they disagree with an interpretation that has been made by the investigator. The ACAS Guidance goes onto say “however, they should not be allowed to see private information belonging to other individuals”. Thus, you would not necessarily be disclosing to them the entire report. It may be that in sensitive cases, where perhaps co-operation in an investigation has only been able to be obtained by witnesses being promised anonymity, certain parts of the report/statements would have to be redacted. In such circumstances, it may be that you change the names and other identifying information to, for example, numbers or letters, say witness B etc.
Ultimately, it is down to the employer to decide what the best thing to do is in each case and we would recommend that the rationale for acting in a particular way is recorded at the relevant time, so that if it is challenged later, at appeal or through the Tribunal, there is a record of the decision-making process.
Anna Denton-Jones
Refreshing Law
You will be familiar with the idea that in a disciplinary process the person who is accused of wrongdoing should hear the case against them or should hear or be told the important parts of the evidence in support of that case so that they are given the opportunity to criticise or dispute that evidence and put forward their own arguments. This comes from a case of Spink -v- Express Foods Limited 1990. But what about the situation where there is a grievance investigation?
The Acas Code is silent on this issue but focuses instead on the person who has raised the complaint. However, as part of the investigation into the complaints that that person has raised, you will need to interview anyone that they have accused of wrongdoing. For example, there may be an allegation of bullying and harassment.
One option would be to simply show the person, perhaps the line manager, the grievance letter. This is the most open and transparent position and one would hope that any line manager would behave professionally, see the grievance for what it is, and be prepared to answer those allegations in full. This position accords with the concept of ‘natural justice’ – nothing is being hidden and the accused has full opportunity to have their input to what is being said about them.
However, there may be cases where there is a concern that to take this open position would perhaps inflame or fundamentally damage the working relationship between the person who has raised the grievance and, for example, their line manager. The investigator may feel that a better approach would be to not show the full letter to the person who has been accused but rather to take them through the contents of the letter through a process of questioning so that they still have full opportunity to answer what is being said, but perhaps in doing this they can soften the language a little and take some of the ‘heat’ out of the matter. If the investigator does go down this route they will need to be skilled in questioning and make sure that they do give the full picture to the person so that they are being fair to everybody. For example, it wouldn’t be appropriate to just say ‘what happened on 5th August?’ You would need to go further and ask ‘Joe Bloggs has stated that there was an argument between the two of you on 5th August. He has said that your voice was raised and that other people noticed that you were shouting. Is that true?’
If the complainant’s letter refers to complaints against a number of different people then, again, it may be sensible to separate out the allegations so that you are only interviewing an individual about those matters that are relevant to them.
In any event, if the individual (for example, the line manager) is named in a grievance letter, strictly speaking, under the Data Protection Act, they can make a Subject Access Request requesting to see the contents of the letter. For that reason, again, the employer may want to choose the most open position.
It could also be damaging, as regards the relationship between the employer and the person who has been accused (such as the line manager), if the employer does not disclose the contents of a grievance letter. The line manager may feel that something is being hidden or that they are not being given a full opportunity to answer the case against them, even though at this stage there is no hint of a disciplinary.
The employer will need to carefully weigh all of these issues before deciding how to proceed. If you have any questions please do not hesitate to contact us.
Anna Denton-Jones
Refreshing Law
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