Lodging a workplace grievance is usually a stressful process. Most employees will think long and hard before taking formal action, only lodging a grievance once they feel they’ve tried all other options available to them without success.
In an increasing number of cases though, an employee may not be acting out of genuine concern. Rather, they will lodge a grievance maliciously, with the intention of making the subject’s life a misery, creating disorder and disharmony in their workplace or in response to a challenge they face e.g. a disciplinary or performance management process. The challenge for an employer, however, is spotting a malicious or unfounded complaint.
Presumption it’s Genuine?
Employers are required by the Employments Rights Act 1996 to have a grievance procedure. They are also expected to approach each grievance they receive fairly, in accordance with their grievance procedure and the Acas Code of Practice on Disciplinary and Grievance Procedures. It’s essential to begin from a position of openness, working on the basis the complaint is legitimate, even if you have suspicions about it’s being genuine at a very early stage. Acas’ guide suggests you should give them the benefit of the doubt, at least to begin with.
If an employee is seeking to cause as much disruption or disarray as possible, they are likely to lodge a formal grievance when it could be an issue which can be informally resolved. However, you have to determine first of all if it is an issue which merits a formal process.
If appropriate and you try to resolve an issue informally, be sure to retain an accurate record of the action taken and the resolution agreed. While that might seem counter-intuitive with an informal process, it’s essential to maintain records of all procedures where complaints are concerned, particularly when you’re dealing with someone who could be behaving vexatiously and might therefore bring more formal complaints.
Focus on the Facts
If you do have to carry out a formal procedure, then as a first step you’ll need to meet with the employee to discuss their grievance in detail. Be sure to notify the employee of their right to be accompanied by a companion (either a trade union representative or a work colleague) to the meeting. Use the meeting to clarify anything you don’t understand, ask questions where you need further information and identify with the employee’s assistance who else you need to speak to. Make sure you also ask the employee how they would, in an ideal world, like things to be resolved.
Speak with any witnesses, review documentation, or watch CCTV if relevant. Keep in mind throughout, you need to take a balanced and objective approach.
Once you’ve completed your investigation and reached your decision, you need to communicate it to the employee without delay, advising them of their right to appeal and how they go about doing that.
A failure to comply with these steps and therefore the Acas Code of Practice on Grievance and Disciplinary Procedures, will not, in itself, form the basis of a Tribunal claim. It can be taken into consideration through by the Tribunal, who can as a result increase any compensation awarded by up to 25%.
Tribunals always like to see documentary evidence – remember the Audit Trail
There’s little point following a full and fair procedure if you don’t document it. Be sure to take and retain notes from interviews you carry out, get notes signed and collate documentary evidence you review. If you’re challenged later, you can produce evidence of the steps you took and the efforts you made.
While you should apply this ‘showing your workings’ approach when handling any workplace procedures, it’s arguably never more vital in cases involving the sort of employee who is willing to lodge a malicious grievance. These employees might also be more willing to litigate in bad faith against their employer, asserting, for example, a failure to examine their complaint properly. So you will definitely want a record of the steps you took to rebut their assertions.
Malicious Intent Identified
If, having followed a fair process, the evidence points towards the employee’s grievance being unfounded and designed to cause trouble, it may be appropriate to start a disciplinary procedure against the employee. This should of course be carried out fairly in accordance with your disciplinary procedure and the Acas Code. If there is evidence the employee has behaved dishonestly and breached the duty of trust and confidence they owe their employer, then you could be looking at a dismissal for gross misconduct. Ideally, your disciplinary procedure should specifically state that this sort of behavior could be considered an act of gross misconduct as that will make it easier to go down that route. It’s worth checking and updating your current disciplinary policy if it doesn’t say that and then updating your grievance procedure to make clear how you will deal with malicious grievances, so employees understand the consequences.
You still have to consider if there is any mitigation before dismissing the employee. For example, the employee may raise issues in connection with stress or mental health that change your perspective on their behaviour and lead you to conclude that a lesser disciplinary sanction is appropriate or another approach needs to be taken, e.g. a referral to an Occupational Health specialist.
Whatever the situation, it’s important to err on the side of caution when considering disciplining an employee for raising an ill-founded grievance. If your evidence of malicious intent is weak, then the very commencement of a disciplinary procedure could amount to victimisation with the employee being subjected to a detriment, as a result of lodging a grievance.
The Tribunal’s Approach is Changing!
In Hope v British Medical Association 2022, an employee who raised multiple grievances about management practices. The employee declined to advance them to the formal stage (or to withdraw them) and failed to attend a scheduled grievance meeting. He was dismissed for gross misconduct on the basis he had submitted numerous vexatious grievances and failed to follow reasonable management instructions causing a fundamental breakdown of the working relationship between employee and employer. The Tribunal held that the employee’s dismissal was held to have been fair on the basis the employee had abused the grievance procedure.
This case provides a degree of comfort for employers, in that it shows it’s possible to fairly dismiss an employee who is abusing the grievance procedure.
Process, Process, Process
Handling suspected malicious grievances is not straightforward but given the increasing number, it is something you are more likely to encounter. If you decide the complaint is unfounded and start disciplinary proceedings, you are opening the door to allegations of unfairness, victimisation and even whistleblowing, particularly if you ultimately dismiss the employee. However, doing nothing can have a detrimental impact on wider staff morale, as it suggests those who act in bad faith against their employer and their colleagues will be allowed to get away with it. You might even find the person who was the subject of the false complaint could bring their own grievance as a result of the employer’s failure to act.
What is evident is that it is essential you have in place, clear internal processes and procedures and that, whatever the apparent motivation, you instigate and follow the processes carefully whenever a grievance is lodged. While it might seem tempting to jump to the end and call the employee’s bluff, doing so presents too many risks to make it worthwhile.