Following the implementation of the statutory dispute resolution procedures this October, employers will increasingly need to address the way they deal with claims and manage the potential damage they may cause to other members of the workforce.
With the exception of unfair and wrongful dismissal claims and breach of contract claims, staff can bring claims against their employer while they remain employed.
Whether the claim being made is for discrimination, whistleblowing or unlawful deduction from wages (to name but a few examples), employers should not underestimate the detrimental impact this could have on the workplace.
If a claim is brought, employers should consider this checklist:
– Ensure the new statutory procedures are followed
– Deal sensitively with employees tasked with giving evidence against their colleagues
– Consider whether it is appropriate to hold ‘without prejudice’ discussions with the aggrieved employee
– Plan how to deal with the aggrieved employee during and after the case.
Employers must ensure they are familiar with the new statutory procedures and make any necessary changes to their own practices. Failure to ensure the proper procedure is followed could result in having to pay up to 50 per cent more compensation.
If it is unclear whether a staff complaint amounts to a grievance, write to them and ask whether they intend the complaint to be dealt with as such.
Where investigating a grievance involves taking statements from other staff, employers must consider how to deal with those who are reluctant to give evidence.
In Ramsey v Walkers Snack Foods, the Employment Appeal Tribunal (EAT) considered unfair dismissal claims that were brought by employees who had been dismissed on the basis of anonymous witness statements.
It was found that the dismissals were fair, and the employer had correctly balanced both its duty to protect its employees who were in fear of giving evidence and its duty to act fairly towards those it proposed to dismiss.
In that case, it was found to be sufficient to supply the accused staff with edited statements, which prevented the informants from being identified, and to give those employees the right to put written questions to the anonymous informants. Each case, however, must be decided on its own facts.
‘Without prejudice’ discussions
Employers may be tempted to look for an easy option and try to agree a settlement linked with the termination of the employee who has made the complaint.
A recent case has highlighted possible problems employers can encounter when trying to engage current employees in ‘without prejudice’ discussions.
In BNP Paribas v A Mezzotero, the EAT found that offers made to an employee during the course of an internal grievance procedure would not be ‘without prejudice’ unless there could fairly be said to be a genuine dispute between the parties.
In Billington v Michael Hunter, Mrs Billington was warned she might be dismissed if her poor performance did not improve. She was then offered, on a ‘without prejudice’ basis, the option of resigning on favourable terms.
She rejected those terms and resigned, claiming she had been constructively dismissed by reason of the employer’s conduct, which she said had undermined the mutual bond of trust and confidence. She won.
So what should employers do?
Employers should consider the following practical tips for dealing with internal grievances:
– Where applicable, engage trade union representatives for all parties involved
– Ensure you are fair to all sides and follow your procedures
– Consider bringing in an external mediator to help resolve the dispute
– Ask those involved to continue to work together co-operatively and professionally
– Consider moving employees to different departments while the matter is being dealt with
– Consider the use of team-building exercises to rebuild any relationships damaged by the complaint.
By Rachael Heenan, partner, Beachcroft Wansbroughs