Tips for managing grievances during the Covid-19 pandemic

Acas Code and guidance

The Acas Code of Practice on disciplinary and grievance procedures continues to apply during the current crisis and employers need to act in a fair and reasonable way when dealing with grievances. Employment Tribunals can take account of the Code when considering a claim and can adjust any award by up to 25% for an unreasonable failure to follow it (by either the employer or employee). 

Recognising that social distancing and lockdown measures pose particular practical challenges for employers and employees alike, Acas has recently published specific guidance on disciplinary and grievance procedures during the coronavirus pandemic. Grievance procedures should be carried out in a way that follows public health guidelines around social distancing and the reopening of workplaces.

Timing

In light of current circumstances, employers may consider delaying the grievance process. Acas’s guidance does, however, reiterate that employers should deal with grievances without unreasonable delay - so careful thought should be given to the individual circumstances and nature of the grievance. Would delaying the process make the situation worse? Is the complaint of a serious nature requiring immediate investigation, such as harassment? If so, employers should consider with the employee what, if any, adjustments to the usual process could be made to hear and investigate the grievance in a safe, fair and reasonable way.

Grievances during furlough

If an employee is on furlough, they can still raise a grievance and take part in a grievance investigation or hearing. If the people involved in the grievance process can go to the workplace, employers should ensure it is possible to investigate and conduct the hearing safely. This must be in line with the government’s guidelines on working safely during the coronavirus crisis and carrying out a risk assessment of the workplace.

If it is not possible to hold the meeting(s) in the workplace, or if the employee is unwilling to attend there, the employer should consider conducting the investigation or hearing remotely.

Conducting a grievance process remotely

The Acas guidance confirms that investigation meetings and hearings can be carried out remotely by video, as long as the procedure is still fair and reasonable. Successful remote meetings will depend on suitable technology being available to everyone involved. It will also be important to ensure the following:

• Documents are secured, with access restricted only to the relevant parties involved in the investigation and with restrictions to prevent unauthorised distribution or printing.

• The security and confidentiality of any personal data, in compliance with data protection legislation.

• Interviews with the employee and witnesses are conducted by video so that facial expressions and body language can be seen.

• The employee has the right to have a companion attend and participate in the grievance hearing.

• Meetings are undisturbed and the employee is not joined by unexpected attendees in their home (other than a companion).

• Employees are reminded at the start of the meeting that recording is not allowed and referred to any relevant policies in place prohibiting this.

For more detailed guidance, see our article on undertaking workplace investigations and hearings remotely.

Grievances during a redundancy process

How to deal with a grievance lodged during a redundancy process will depend on the nature of the concerns raised. Employers will need to consider the extent to which the concerns are connected to or intrinsically linked to the redundancy process. For example, does the employee allege they have been selected on discriminatory grounds or harassed by a manager who is also involved in the redundancy process? If so, it may be appropriate to investigate these concerns as part of the redundancy appeal process rather than a standalone grievance. 

Grievances unrelated to the redundancy process (for example, complaints of a dispute with a co-worker) should be investigated in parallel, but in this scenario the employer may need to plan for additional complexities. For example, the timeline for the redundancy process might impact on the employer’s ability to conclude the grievance, should the employee be made redundant and leave before the end of the grievance process. 

Appointing a manager to conduct the process

It is always important to consider who is best placed to investigate and hear a grievance. In some cases, the line manager may not be appropriate if, for example, they are involved in the complaint in some way. Bear in mind that managers or members of HR may be on furlough leave and so be unable to assist.

The person appointed should be sufficiently senior, impartial and ideally have experience of dealing with grievances. It will also be important for the individual to have adequate time to dedicate to the process - the Acas Code requires employers to arrange for a formal meeting to be held without unreasonable delay after a grievance is received. The Code also says that employers should offer a right of appeal. It will be important to ensure that a suitably impartial person is available to deal with any appeal, and that they have not been involved in the initial investigation or grievance hearing.

Dealing with reluctant or absent witnesses

If witnesses are reluctant to speak up or give evidence during a grievance investigation, it is important to find out the reason and see whether there is a way to resolve the issue. It may, for instance, be helpful to talk through the grievance process and explain how their evidence will be used as part of the investigation. 

If witnesses refuse to participate, employers should consider whether to continue the investigation without their evidence. Acas’s guidance states that anonymous witness statements should only be taken in exceptional circumstances, because it may be unfair towards any other parties involved (for example, if the witness statement is later used as part of any subsequent disciplinary proceedings).

If any witnesses are on furlough or a period of sick leave, this could potentially delay the investigation. It is good practice to ensure that the employee who has raised the grievance is kept aware of any delays throughout the process.

Alternatives to the grievance process

The purpose of a grievance procedure is to deal with and resolve workplace issues effectively. In many cases, potential grievances can be resolved informally. It is often useful to ask the employee at the outset what resolution they are looking for from the grievance process and consider whether this is feasible. If their expectations of the process are impossible to accommodate, for example because of the organisation’s size and resources, this should be made clear upfront and alternatives considered. Mediated or facilitated conversations can often be a practical way to rebuild working relationships and are relatively easy to implement, even in a virtual setting.