MANAGING GRIEVANCE DURING LOCK-DOWN
This blog on managing grievance during lock-down is the first in a series of practical guides to help human resources specialists to manage the special risks which the current coronavirus pandemic has thrown up. Can employees be asked to provide evidence while on furlough? Can formal meetings take place virtually and still be fair? Can you hear a grievance by video conference?
As George Orwell said, “On the whole human beings want to be good, but not too good, and not quite all the time”. In these strange times, employers find themselves the vanguards of a new employment model. Ways of working that were apt for a workforce based out of an organisation’s premises no longer appear to be fit for a workforce which is either furloughed or distributed in home offices across the country. And while much focus has been on the new challenges that the coronavirus presents (and rightly so), some of the old challenges – from managing complex disciplinary and grievance issues to the control of confidential information – remain. Now, however, they require new solutions.
In this blog post we’ll be tackling some of the trickier challenges faced by employers as they adapt to an ever-changing employment landscape, starting with how to manage grievance during lock-down.
Let’s start by looking at a grievance scenario:
Lucy is an IT Manager for a medium sized accountancy firm. Last week the company furloughed two thirds of her team. As we all know, furloughed staff are not permitted to perform any work. As a result, Lucy’s workload has increased significantly and she is regularly working 14 hour days just to keep up. On Monday she contacted HR to complain.
Informal resolution
Most employers will have a grievance policy setting out the steps to be taken by an employee who wants to raise a concern. Unless they were written by Orwell, however, it’s unlikely that they will explain how you may be expected to deal with managing a grievance during lock-down. Typically your policy will recommend informal resolution with a line manager before the formal grievance process starts. The first question should therefore be whether informal resolution is practical. The truth is, even in coronavirus times, the answer to that question is very likely to be yes.
However, the keyword to emphasise here is informal. In a time of uncertainty there is a natural tendency to take refuge in rules and formality. This may escalate the matter unnecessarily. Don’t rush off to arrange a video conference attended by HR, the IT director, a union rep, the cleaner and Lucy, with verbatim minutes taken and a digital recording available for all to listen to in the privacy of their (home) office later. Just as, in the days before coronavirus swept the world, informal resolution would not have involved a formal meeting, the same should apply if you need to manage a grievance during lock-down.
The best initial response will therefore be to advise Lucy to arrange a call with her line manager to see if the matter can be resolved. Lucy’s line manager may not have been aware of how many hours Lucy was putting in, and between them they may be able to come up with a solution.
In this case, one resolution might be for her line manager to take on some of Lucy’s work themselves. An alternative might be to “un-furlough” one or more members of Lucy’s team to staff to relieve some of her workload. Government guidance suggests that this may be possible and appears to envisage the possibility of rotating staff on furlough. It should of course be noted that the minimum length of time an employee can be furloughed for is three weeks. As a result, the latter solution might not be capable of resolving the grievance immediately.
Even after three weeks, you may not want to un-furlough staff, if, for example, any kind of commitment has been given to those employees that their furloughing will be longer-term or it is not financially viable. And this brings us to a practical point, to be eligible for the furloughing scheme employers must write to their employees confirming that fact: any such communication should therefore clearly state that furloughing arrangements are subject to regular review.
It will also be important for Lucy’s line manager to remember that even in a global pandemic the Working Time Regulations will apply and Lucy’s grievance raises an obvious issue: Lucy is entitled to a rest period of at least 11 consecutive hours in each 24 hour working period. As a result, Lucy’s line manager must also be mindful of his or her duty to protect Lucy’s health and safety.
Let’s complicate the issue further for a moment… What if Lucy’s line manager has themself been furloughed? Government guidance is that, when on furlough, an employee cannot undertake work for or on behalf of the organisation, which includes providing services or generating revenue. Would entering into informal resolution fall within that definition? The guidance is (naturally) untested, but informal resolution would, arguably, seem like it could fall within “providing services”. Going forward it may, therefore, be necessary to amend your grievance policy to provide for informal resolution with the employee’s line manager, ‘or other person nominated by the Company’. For current purposes, however, even if your current grievance policy is not permissive in this way, inserting a substitute may be less risky than engaging the furloughed manager.
Back to the plot… let’s assume for a moment that, in this instance, informal resolution is unsuccessful and Lucy’s manager refuses to do anything to assist Lucy, telling her she needs to “just get on with it”. As a result, Lucy decides to escalate the matter into a formal grievance.
The grievance meeting
In managing grievance during lock-down there should be no reason to depart from any of the formal requirements set out in your policy (providing that already complies with the ACAS guidance). If it is a requirement of your policy that grievances are submitted in writing, then stick to that (though of course be prepared to exercise your discretion on that because inflexibility can lead to difficult scenarios which can be laden with risk). Similarly, be prepared to exercise your discretion to extend any time frames set out in your policy. ACAS guidance is that following receipt of a grievance a formal meeting should be held without unreasonable delay, and ideally within 5 working days, but staff absence and IT issues may mean it is simply not be possible to arrange a grievance meeting within the pre coronavirus time frame. What is very important in these difficult times, is communication. Ensure not only that Lucy understands that the lock-down may impact the process but that is reduced to writing: explain that you hope to arrange a meeting within a certain time frame, but you will keep her updated. And then, ensure that you do keep her updated. If necessary, consider amending your grievance policy to provide more flexibility.
In terms of conducting the meeting itself, there is no rule that says you cannot conduct the grievance by video-conference. If you do not have a corporate solution available, there are a number of conferencing solutions on the market, some of which are free. One advantage of such software is that you may even be able to record the meeting for later transcription. If you decide to do this, you should ensure that you have the permission of all participants beforehand and that you are clear about who will have access to the recording, what it will be used for, and for how long it will be retained. In the same way as the Working Time Regulations continue to apply during this pandemic, so too does both the GDPR and the Regulation of Investigatory Powers Act.
Remember also that, if you have no choice but to manage the grievance during lock-down, Lucy is entitled to be accompanied by a colleague or trade union representative at the meeting, even if the grievance is by video-conference. However, if that is not possible, for example, due to furloughing or sickness absence, then be reasonable. You don’t need to agree that a solicitor is present (and, save for in a very narrow set of circumstances, we wouldn’t recommend that you do) but if Lucy would like to be accompanied by a family member, then consider carefully your reason for any refusal. Many of your employees are likely to be under considerable stress, both at work and at home, and an employment tribunal would expect to see a reasonable employer take this into account. If you decide to relax your grievance policy in this way, make sure that you explain that this is an exception to the policy, and document your reasons for making that exception. Employers should be mindful of the need to avoid setting precedents that it may be difficult to row back from in a post-pandemic world. As an aside, if there is any indication that Lucy may be disabled, in order to lower the risk, simply relaxing the rules around who can accompany her to a grievance meeting may well be later seen to be a reasonable adjustment.
Before the meeting begins remind all participants that they must keep what is discussed confidential – this will be particularly important if you have relaxed your policy to allow someone other than a colleague or trade union representative to attend but is also important given that you are hearing the grievance by video-conference. But don’t just obtain a commitment to confidentiality from all participants. You should also document that agreement.
At the end of the meeting, explain to Lucy what will happen next and the time frames under which she can expect to receive her grievance outcome. Keep in touch with Lucy, and if you are unable to meet the deadline for a response, let her know and provide a revised time frame if necessary. As ever, communication and documenting the fact you have done so will be key if you later need to defend your actions.
The investigation
In Lucy’s case there is unlikely to be a great deal of investigation to be done. Her working hours should already have been kept under review to ensure compliance with the Working Time Regulations. As a result, verifying them ought to be straightforward. It will, of course, be important to understand the reasons why Lucy’s line manager was unwilling to come up with a solution that Lucy found satisfactory. This can be done via email or video conference though it is important to ensure that the reasoning is properly documented.
Unfortunately, it seems unlikely in this case that any response to the grievance by Lucy’s line manager would satisfy an Employment Tribunal if the issue should go that far. Lucy has, arguably, disclosed information which tends to show a breach of a legal obligation – i.e., the Working Time Regulations, and/or has disclosed information that the health and safety of an individual has been endangered. She could well be deemed to be a whistleblower. This would allow her to benefit from the protections set out in the Public Interest Disclosures Act. Immediate action should therefore be taken to find a solution which results in a reduction to Lucy’s hours, even if that appears difficult. Importantly, the Company should be careful not to subject her to any kind of detriment because she raised the issue in the first place unless it is willing to risk a successful employment tribunal claim.
If you need to manage a more complex grievance during lock-down, just as it is possible to hear Lucy’s grievance by video-conferencing, interviewing employees for the purposes of the investigation can take place via telephone, email or video conferencing. That said, our comments above are also relevant here: if any of those employees are furloughed then participating in a grievance interview may be considered work and could jeopardise an employer’s entitlement to a furlough payment.
Under those circumstances, employers have a few options unless they are willing to take the risk that furlough payments may be disallowed:
- The first is to continue the process without the input of furloughed employees in much the same way as you might in the case of an employee on long-term sickness absence. If this approach is adopted it should be recorded in the grievance outcome.
- A second solution would be to temporarily put the grievance on hold until such time as the relevant employees have been un-furloughed. This will clearly be more practical if employees have been placed on a rotating furlough scheme.
- The final option is to put the investigation on hold indefinitely and until things get back to normal. This might be necessary if the subject of the grievance is furloughed and it is not possible for them to return to work. The risk here is that an aggrieved employee claims that the postponement amounts to a repudiatory breach of contract entitling them to resign and claim constructive unfair dismissal. Much will depend on circumstances, and the seriousness of the grievance in question, but we would hope that a Tribunal would take into account the exceptional circumstances employers find themselves in. However, there are no guarantees, and this option should therefore be a last resort. An investigation on the papers or with witness evidence of staff who have not been furloughed may be more desirable than no investigation at all, and is likely to be possible in most cases.
The grievance outcome
Grievance outcomes should be written in the same way as pre Covid-19 times although, if you must manage a grievance during lock-down, you may wish to extend the period of time for making and responding to any appeal against the grievance outcome. Be mindful of who will be appointed to carry out that appeal (and their availability) when you set those time frames. If you are a small or medium sized company and the only person with suitable experience and seniority is a statutory Director that has been furloughed, then remember such Directors are able to continue with their statutory duties. It may be arguable that that hearing a grievance appeal (or the grievance itself) is acting to promote the success of the company, particularly where resolving a grievance is critical to the ongoing success of a business. However, as Government Guidance is silent on this and constantly evolving, we recommend that you take legal advice before taking such a step.
Finally, throughout the grievance process, be mindful about what is put in writing. Covid-19 means that it is more difficult to have an off-the-record ‘chat’ with a colleague and more likely that inadvisable emails will be sent. These emails are likely to be discloseable under a SAR or in Employment Tribunal proceedings.
And what about Lucy in our example? Well, following an investigation she was given some additional administrative support, and new guidelines were issued to employees to manage expectations around IT response times. She was happy with the outcome.
