When problems persist in the workplace

Citation

Pitt, M. (2008), "When problems persist in the workplace", Human Resource Management International Digest, Vol. 16 No. 7. https://doi.org/10.1108/hrmid.2008.04416gab.001

When problems persist in the workplace

Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 16, Issue 7

No matter how good the relationship between employer and employee, problems arise in the best of businesses. It is always advisable to sort things out as and when they happen, but it is essential to know what the law says you must, or must not, do if problems persist.

Most employers know that they have to state their dismissal, disciplinary and grievance rules in writing. But what many may not know is what they have to do if they face a claim at an employment tribunal from a disgruntled employee or ex-employee.

The law says an employee must set out his or her grievance in writing and send it to the employer. If the employee is still working there, the employer must invite him or her to a meeting to discuss the grievance and inform the person of the decision afterwards. If the employee has left, the employer must send a written response. This way both parties are aware of what the problem is supposed to be and what, if anything, is being done about it.

A danger for employers is that they might get such a statement of “grievance” but not realize it. For instance, in a recent case, a woman left her job and included in her letter of resignation some general complaints about the way her manager treated her and other employees. Even though the employer said she could raise a formal grievance, the woman did not do so, but later brought a case of constructive dismissal to an employment tribunal.

Although the tribunal decided the resignation letter did not amount to “an invocation of any grievance procedure”, that decision was overturned, on appeal. The Employment Appeals Tribunal president said that what was required from an employee was simply that a grievance should be set out in writing and the fact that it was in a resignation letter did not make any difference.

He went on to say that the employee did not even need to make clear in the letter that it was a grievance or an intention to start the grievance procedure. There was not even a requirement on the employee to comply with any contractual grievance procedure the company had, merely to set out the grievance in writing.

Employers, therefore, need to be alert to this less-than-straightforward situation. If a letter from an employee arrives with what seem to be grievances, even if it only gives few details of what the problem is, the alarm bells should be warning that a meeting with the employee must be arranged or, if the employee has left, a written response must be sent.

The legislation is intended to enable employers and employees to sort things out, as amicably as possible, without the need to go to a tribunal. But both parties need to be clear on what they have to do, and when, if there is a grievance – by whatever name.

Before a hearing takes place there is always one final opportunity for the dispute to be resolved without resorting to tribunal. The Advisory, Conciliation and Arbitration Service (Acas) assigns a conciliator who normally meets the two sides separately to discover if there is any common ground before bringing both parties together for negotiation.

Acas-conciliated settlements are a common way of dealing with many types of claim, particularly in the areas of unfair dismissal, equal pay, unlawful deductions from pay, breach of contract, race and disability discrimination. But if agreement cannot be reached with Acas help, the only course of action is to go through an employment tribunal.

The UK Government has announced its intention to reform dismissal and grievance procedures. These, therefore, are a topic to which we will return in the new year.

Whether they have won, lost or settled their lawsuit, I always advise my clients to carry out a post mortem as soon as the case finishes to learn what they can while the experience is still fresh in their minds. There are usually valuable lessons about why mistakes were made or how problems could have been avoided.

The most obvious thing to check is whether all the company’s policies, procedures and practices comply with the law. Do managers and employees fully understand their legal obligations? Are any company policies obsolete? Do any practices create an unnecessary risk of liability? With specific reference to the case, did the company take all the steps that the law requires? Did it take any actions that would be better avoided in the future? Many of the matters I have to deal with center not so much on what the employer did, but how he or she did it.

The post mortem can help to improve the employer’s problem-solving practices. Did the company act as soon as the problem came to light? Were the firm’s own internal-investigation and conflict-resolution procedures adequate?

Companies quite often find that they would not have got into difficulties in the first place if their internal communications had been better. Managers and employees need not only to know what is expected of them, but why – and what happens if they fail to meet expectations.

Failure to provide employees with proper information can feed harmful rumours about managers’ intentions. Managers who have their ear to the ground can spot potential difficulties and intervene before anger, bitterness – and potential legal claims – arise.

Firms that keep good records are less likely to get in trouble with the law and more likely to emerge from the legal process unscathed. The post mortem should examine whether the company kept all the documents it should have and whether these were accurate.

Training records can be particularly useful. They can help to counter employees’ claims that, for example, they did not know what behavior was expected of them, were never told where to report an internal complaint or were not instructed in how to perform the job from which they were removed.

Finally, a post mortem can highlight behaviors that helped to defend the claim or prevent it from becoming worse than it was. When companies give a pat on the back to the people responsible for these behaviors, they encourage similar positive behavior in the future and so help to ensure that the firm will not find itself in trouble with the law again.

Mike PittEmployment-law partner at Greater Manchester solicitor Pearson Hinchliffe Commercial Law. He can be contacted by e-mailing michael.pitt@pearson-hinchlif.co.uk, or telephoning +44 (0)161 785 3500.