INFORMAL GRIEVANCES - MAKING PROPER USE OF THEM

There is no legal definition as such for a grievance.

Under the old Statutory Dispute Procedures (remember those!), a grievance was defined as a complaint by an employee about action (including any act or omission) which his/her employer has taken or is contemplating taking in relation to that employee. The ACAS Code of Practice on Disciplinary and Grievance Procedures, describes grievances as "concerns, problems or complaints that employees raise with their employers".

Most employers have a grievance procedure. This will set out how an employee can go about raising a complaint and how it will be managed. It will also set out the various stages to a grievance process, and normally, who the grievance should be directed to, in the first instance.

Many grievance procedures will have a section about raising grievances, perhaps in the first instance, in an informal way. Notwithstanding this, far too many grievances that are raised always seem to start, at least at first, with the formal bit - the grievance letter. Parties then generally proceed with the formal route without regard to the fact it is still possible that many complaints/grievances can be dealt with successfully by dealing with them informally.

The purpose of this post is to explore the use of the informal grievance stage in a little more detail and to consider whether and to what degree employers and employees can make better use of this than they currently are.

In some instances, formalising grievances can lead to occasional polarised positions. Formality brings with it inevitablity a formal process, formal and documented investigations, formalised meetings and a formal company response that is on-record. There is a strict protocol to follow. People involved in the process will know that there is a grievance and will know what or who it is about generally. Both parties will adopt a position, and it is not always easy to deal with matters as quickly or as succinctly as you would like, whilst trying to be fair to all parties involved. Those raising formal grievances often tell you how stressful the process can be. In some instances, this can lead to the complainant falling ill and having sickness absence issues, dependant on what the complaint is about. Regardless of the issues raised, formal grievances can sometimes (but obviously not always) result in at least one (and sometimes both) of the parties feeling negative or disappointed with the outcome. This often leaves the employer with the headache of how to engage with potentially disaffected employees. The trouble is, having been forced down a formal route for managing the complaint, it is often difficult to draw-back from this, at least before some damage has been done.

And this is where the advantage of being able to manage a grievance informally comes into play.

So, what are the advantages of dealing with it in an informal way?

Well, first of all, there are no real rules when dealing with a grievance informally. We all know how a formal grievance should be managed (whether that be set out in the grievance procedure itself or the ACAS Code), but with informal grievances, very little, if anything is set out on how best to handle such situations. People will have their views, but there is no "one size fits all" approach, and as a result, employers and employees can be creative in how they approach such matters, dependant on the type of complaint made.

For instance, a complaint about a working relationship with a colleague, need not result in you having to investigate whether anybody is actually at fault or to make a decision in respect of such matters, but can, with the complainant's agreement, result in you positively exploring ways in which the relationship can be managed, including options of some form of mediation if required.

In the same way, employees may feel very anxious about raising any form of grievance or complaint about their employment situation. They may be concerned about the reaction they might receive from others or worry about how this will affect the security of their job going forward. The advantage of dealing with complaints informally, is that you can get to the nub of the problem more quickly, in most cases, and agree with the employee how best they want you to handle the issue that is causing them most concern. As an example, an employee may not want to raise a complaint, say, about their manager, and may simply be looking for an opportunity to move away from them. This will enable you to explore the possibility of redeployment if the employee sees that as a potential outcome to their issue and this is something you can do practically. This does not mean that you ignore the complaint, and it may be necessary to monitor the situation in another way, but at least so far as the complainant is concerned this is something that they may be happy, and dare I say, relieved about.

A clear advantage to dealing with grievances informally, is speed. As indicated, when formalising grievances, with the best will in the world, in a lot of situations this will take time. You will need to decide the best person to hear the grievance and will then need to organise a time to hold a meeting initially with the complainant. You will then need to decide the extent of any investigation needed before making your decision. You may need to have a further meeting with the employee concerned before finalising your decision. And you will need to set out your decision in writing and give reasons for why you have come to such a decision. There could well then be an appeal process. With an informal process, there is no need to do this. Yes, you will want to have some record of how you are dealing with the process (and the extent of this will depend on the issues raised) but you have much more flexibility and you can arrange meetings (if these are needed) much more quickly and without the need for formality etc.

What are the drawbacks?

An obvious drawback is that it may not always be appropriate to deal with a grievance in an informal manner. You may, for instance, find that the nature of the complaint made is so serious and has such wide-reaching implications that dealing with it informally is simply not going to work.

Further, in some instances, you may find that an informal process does not lead to the precise issue being dealt with. In the example I gave above of agreeing a redeployment opportunity with the complainant as an alternative way of resolving their complaint, may mean that you do not get truly to the bottom of what is causing the issue or concern, or indeed, whether there is a wider problem with the manager being complained about that needs to be dealt with or with the employee who is making the complaint.

You may find that the nature of the complaint made is such that as an organisation you need the protection that a formal process will bring. This will particularly be the case when you anticipate potential litigation could ensue dependant on how the matter is handled.

What if the employee has already submitted a formal grievance and wants to go through the formal process?

Obviously, you cannot force an employee who has raised a grievance to first go down the informal route. They have the right to insist that the matter be dealt with formally if they wish. However, that should not stop you, as a first response to any grievance, at least having a discussion with the employee about whether they would like the matter to be considered first through the informal process.

Many employees will think that dealing with a grievance informally is in some way letting the company off the hook. Or they may think that this is allowing the company in some way to brush things under the mat and to avoid dealing with the complaint. It is important that you correct this misinterpretation. It is important that you make it clear that the aim of the informal process is to resolve, as best you can, the employee's complaint, and that it is simply a different approach that may ultimately suit them better. In any event, you can make it clear that this does not prevent the employee later insisting that he/she have their grievance dealt with formally, and therefore in real terms there is nothing for them to lose by giving the informal process a chance.

It is important when having this type of discussion with the complainant that you set out exactly what the formal process will look like as against the informal process. As stated, grievances can be a stressful process to go through and the employee might not fully appreciate what is involved both in timescales and process but also emotionally. This is your chance therefore to set out to the employee the advantages and disadvantages of both processes.

You will of course need to be careful that you are not seen to be applying undue pressure on the employee to agree to dealing with the matter in a particular way and make it clear that the employee ultimately has the choice. However, you should at least attempt to have the conversation and to explore the options carefully with the employee so that they can make their decision with their eyes open as to what may be involved. Explaining in full what both processes potentially will look like will help in this decision-making.

How should an informal process be managed?

As I have said, the beauty with dealing with a matter informally is that there are no real set rules as such. The only 2 rules that I cite are:

• Firstly, agree with the employee what the informal process will look like. If you are going to be creative in managing the employee's complaint then make sure you have their buy-in to this; and
• Make sure that the process is seen to be resolving the complaint in some way. This does not mean that you need make a decision as such in relation to the complaint raised, but merely that you have understood what the employee is looking at to resolve the issue, and that the process you design seeks to achieve that. So, in the example I have given of the fallout with the manager, you don't necessarily need to find that the manager is at fault or to agree with the complaints raised. All you need to recognise is that the relationship has broken down, and whilst you might want to understand the causes of that, it is about getting the relationship working again, or if that is not possible, otherwise agreeing with the employee what will happen.

In terms of how the process should be managed, the beauty with an informal process is that it is entirely up to you, within reason. It may however involve some or all of the below:

• You may want some form of meeting/conversation to discuss the complaint and what it is the employee wants - this should happen quickly and should be informal!;
• You may want to agree with the employee if there is anything you should be looking into or whether there is a need for any particular fact-finding at this stage;
• What the employee wants as an outcome to the process may well drive that process and therefore getting a clear indication from the employee is useful;
• You may want to hold discussions with others, and you may want to agree this with the employee and also agree whether he/she wants to be involved in this process or not;
• You might want to agree timescales and how long you think the informal process will last - the idea of an informal process is that it should ideally be something that can happen quickly and with the minimum of fuss and minimum of process;
• You might want to consider whether you introduce the services of an outside consultant (such as a mediator);
• You might choose the process to have a s.111A protected conversation about settlement, if you see this as an option for instance - where the employee has indicated that they are thinking of leaving or don't feel able to continue in employment, then this may be something you can explore with them;
• You can agree what is documented, if anything regarding the outcome of the complaint;
• You might want to agree a period of leave with the employee to help with the process, dependant on the type of complaint made;
• You might agree with the employee that one way of resolving the issue complained about involves exploring alternative roles elsewhere within the business which you can assist with;
• You might want to agree with the employee how they will continue to work in the meantime and who needs to be aware of the complaint - ideally, as an informal process you want to try to manage this with as few people as you can if this is possible.

How you manage the process is however really up to you and the employee to agree. You can of course set out how you envisage the process operating and try to direct this, but generally the best informal processes are those that are agreed with the employee and something they can have ownership to.

Dealing with a grievance in an informal manner will not always work. Sometimes, complaints can only be resolved in a formal way, and in some cases, grievances go unresolved. Hopefully, however, with better use of your informal methods and processes, you will have the chance to deal with issues that are more capable of being dealt with quickly and without drama. Often matters that are dealt with in this way stand a better chance of achieving a positive, or at least the right outcome, than complaints that are dragged through a long and drawn-out formalised grievance process where parties are left to think and worry.

Alex Payton, Director and Employment Lawyer, Howes Percival LLP