1 week Ago By Stephen Miller
When it comes to employee grievances, we have come a long way in a short time. It is now accepted as good practice for an employer to devise and operate clear disciplinary and grievance procedures for all employees to use. As ACAS have pointed out in their influential Guide to Discipline and Grievances at work, anybody working in an organisation may, at some time, have problems or concerns about their work.
Since 1999, employees have had a statutory right to be accompanied at a grievance hearing by a work colleague or union official, but not, as a matter of statutory rights, by a lawyer. Nowadays, not a day passes without at least one employee somewhere choosing to pursue a grievance. A particularly vexed situation arises when employees in dispute bring grievances against one another, rendering the boss more referee than employer.
In the main, this is healthy – addressing grievances makes for a more conducive working experience. However, I’ve noticed an emerging, worrying trend for employees and their unions to insist grievances be heard and resolved by an external party, independent of their employer. This trend mirrors the spike in demands for public or judge-led inquiries.
Indeed, the analogy can be extended, as campaigners in high-profile incidents now claim even a judge-led inquiry will be ineffective unless the appointed judge comes from outside Scotland . Outside the truly exceptional, there is no justification for grievances to be heard by a third party and on the contrary, a compelling need to reject such requests, often couched as demands. A core or possibly the core employment contractual term is the mutual bond of trust and confidence, which is automatically implied in every contract and which serves to regulate the employment relationship, and which provides recourse if either employer or employee behave so unreasonably as to threaten the viability of the contract.
If an employee doesn’t trust their employer to handle their grievance fairly, that would signify that the mutual bond of trust and confidence has been broken and the employment relationship as good as over. If that was truly the case, the employee’s remedy is to resign and claim constructive dismissal. ACAS sees no role for external involvement other than when securing the services of an independent mediator.
This sensible stance even extends to small businesses where the same owner/manager dealing with the grievance is the subject of the grievance itself. For all these reasons, employers need to become better at resisting calls for the appointment of independent grievance investigators – by reminding the employee of the contradiction of being in a relationship founded on trust and at the same time questioning the trustworthiness of the employer by insisting on a third party investigation. To make matters worse, in the examples I have seen, employees who have succeeded in having a third party determine their grievance usually find some spurious reason to refuse to accept the outcome, meaning a lot of wasted time and expense for nothing, and leaving the employment relationship in a worse state than when the grievance was first raised.
Stephen Miller is a Partner, Clyde & Co.
