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Managing grievances – how to stay on track

Posted: 14/03/2024

In the past couple of weeks, it seems that everyone on social media has become an employment lawyer, and knows what Red Bull Formula 1 racing team should or should not be doing. This is as a result of the highly publicised complaint by a female employee against Christian Horner, the team principal of Red Bull Racing, the current Formula 1 Constructors World Champions. 

The complaint relates to alleged inappropriate behaviour by Mr Horner against a more junior employee, and the news has dominated discussions around Formula 1 and overshadowed the recent season-opening Bahrain Grand Prix.

The furore stems from a grievance submitted by the employee which, it is widely believed, was dismissed by Red Bull following an independent investigation, with the complainant herself now being suspended by Red Bull. Of course, the majority of grievances do not become hot topics of discussion for journalists and social media users, but regardless of the size of the organisation or the content of the grievance itself, they should be managed carefully to minimise legal and reputational risk.

What is a grievance?

There is no set legal definition of a grievance, though generally the term is taken to mean an expression of dissatisfaction related to a matter at work. Grievances can be raised and dealt with informally in normal day-to-day employment, but occasionally they may not be appropriate for an informal conversation, or they may cover more serious issues, leading to a formal grievance process.

Organisations should have a written grievance procedure which sets out how a grievance would be dealt with. Failing properly to deal with an employee’s complaints can lead to an uplift to compensation of up to 25% for some claims in the Employment Tribunal, along with the obvious potential disharmony among the workforce.

Sometime the contents of a grievance can amount to a ‘whistle-blow’, and the complainant may have protection against detrimental treatment on account of having blown the whistle. It is important to stress that although vexatious complaints might amount to gross misconduct, no-one should fear retaliation on account of raising a grievance in good faith.

How should a grievance be dealt with?

A grievance does not necessarily signal the end of an employee-employer relationship. On the contrary, if handled properly, a grievance can strengthen the relationship and provide learning for the organisation too, minimising the risk of similar problems arising in the future.

Despite this, it is important for an employer to be mindful of the potential legal issues that may come up, and to seek legal advice if there is any uncertainty.

In basic terms, a good grievance process involves holding a grievance meeting with the complainant to understand the issues and the outcome sought, and carrying out an investigation into the concerns raised, followed up with a measured and sufficiently detailed response, which may include action points for the employer, the complainant, or other employees, such as a formal apology, training, or perhaps a change in line management. 

In certain cases, for example where the complaint is made against senior management, it may be advisable to appoint an external independent investigator, as Red Bull did, although often it will be appropriate for the investigation to be carried out by a member of staff who is not the subject of the complaint. The employer’s grievance procedure should set out who will be the appropriate person to investigate a grievance.

However robust the grievance process, it is always possible that the complainant will not be satisfied with the outcome, which may lead to an appeal and even an Employment Tribunal claim. With that potential eventuality in mind, it is worth considering how a tribunal would view the process.

  • Employment tribunals can be critical of employers failing to utilise occupational health properly. It is perhaps less relevant in a grievance when compared to a long-term absence case, but consider whether the employee may need assistance. If the employee is raising allegations about someone they directly work with, they may be absent from work. While dealing with the grievance, ensure the employee (and all of those involved) are fully supported by your organisation.
  • Document, document, document. Employment Tribunal cases are frequently taking two years to get from the claim being issued to a final hearing. If discounting evidence after having looked at it, make a note setting out why. Speak to someone to check an allegation. Make a note or take minutes of the conversation. Not only would this be useful if called as a witness in a tribunal hearing, but it will also help the organisation to deal with any appeal.
  • Fully understand what the employee is complaining about. This is critical, or else the grievance process could be entirely misguided and result in an appeal, simply because their allegations have not been responded to.
  • What is the employee hoping to achieve? Although it is not always possible to meet the employee’s demands, do not come up with complex and potentially expensive solutions if they will not resolve the issue. Having said that, be creative. There may be possible solutions that have not occurred to the complainant which may address their concerns.
  • If speaking to a witness or anyone else involved in the grievance, speak to them orally, if possible, and remember to use open questions. It goes without saying that asking ‘yes or no’ questions will not give the context and depth of understanding required to properly respond to a grievance. But talking a situation through can be invaluable, prompting witnesses to remember more of what happened, when it happened, and who was involved. As above, document these conversations, to avoid dispute over what was said and assist with future recollections.

What happens if it all goes wrong?

Of course, no grievance process is perfect, and some employees will never be satisfied with the response. An appeal process is vital and should be built into the grievance procedure.

Not only can an appeal make it possible to right any wrongs from the original grievance, it can also help zero in on what the employee is unhappy with. Perhaps the original grievance process focused on the wrong problem?

The appeal should be dealt with by someone completely removed from the original process. They can discuss the steps the grievance assessor took, but any decision must be their own.

It is critical for employers to be live to the risks posed from a disgruntled employee and to ensure that the need for confidentiality is emphasised to anyone involved. Be very clear if any meetings will be recorded and for what purpose the recording will be used and retained. Any data breaches (such as the anonymous leak of supposed investigation materials implicating Christian Horner, sent to journalists and F1 officials), should be dealt with using the normal disciplinary process. 

Employees may be reluctant to speak out as part of an investigation unless their anonymity is assured. Be alive to their concerns, but be careful not to over-promise – sometimes an employee’s identity cannot be concealed even if they are not explicitly named, and there is always a balance to be struck between the rights of the various parties. Employers may be wary of arguments of victimisation or whistleblowing detriment, but once any wrongdoing is established, a proper investigation and fair sanction is important.

And what if there are questions about the authenticity of the evidence put forward by the employee? Nowadays, scammers are able to generate fake audio and even video showing trusted public figures saying or doing something they had not. With only a few seconds online, it is possible to find fake WhatsApp or text message generators and, of course, image manipulation is already commonplace.

There is no case law or legal position when it comes to dealing with potentially fake evidence during an internal process. All an employer can do is ask questions where appropriate and consider the evidence in front of them.

Employers are not expected to be tribunal or court judges, nor are they expected to meet the threshold required in a criminal case of ‘beyond all reasonable doubt’. There will always be judgement calls an employer needs to make based on the evidence in front of them as they decide what is likely to have happened, on the balance of probabilities. 

What is important is that, if called upon, the rationale and processes behind the decisions made can be explained (again the importance of documenting decisions is key). Though most employers are unlikely to find themselves under the spotlight in the same way as Red Bull Racing have been in recent weeks, having a transparent and robust grievance process will ensure a smoother journey to the finish line.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP