There is no statutory requirement in Guernsey that an employer should have a grievance procedure in place to deal with staff complaints. However, the absence of legislation does not mean that employees have no rights in this area.
Under general legal principles, an employer must “reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance”. A failure to do so can amount to a repudiatory (fundamental) breach of contract, entitling an employee to consider himself or herself constructively dismissed.
Moreover, any investigation into a grievance should be carried out with the same level of care given to examining disciplinary complaints. A failure to conduct a proper investigation can amount to a breach of the implied term of trust and confidence.
Very recently, the case of Watson v The University of Strathclyde (June 2011), considered the issue of whether apparent bias in the constitution of a grievance appeal panel could justify a claim for constructive unfair dismissal.
The case was brought by Sally Watson who worked at Strathclyde University in the Marketing & Communications Office. Problems started when a new director (Andrew Taylor) was appointed. The two did not get on, culminating in Mrs Watson presenting a grievance to the University. The thrust of her complaint was that, since Mr Taylor’s appointment, there had been a change of style which included inappropriate behaviour by him and autocratic management, with a consequent breakdown in trust and confidence.
Mrs Watson’s grievance was rejected and she appealed to an internal grievance appeal panel. A member of the panel was Dr West, the Secretary of the University. Mrs Watson objected to Dr West’s membership of the panel on the basis that she believed his involvement in various decisions concerning Mr Taylor (including Mr Taylor’s retention notwithstanding a criminal prosecution for firing an air rifle in a public park at 3 am one morning which formed part of her grievance) gave Dr West a conflict of interest. The University did not agree to remove Dr West from the appeal panel, resulting in Mrs Watson’s resignation and constructive unfair dismissal claim.
The Employment Tribunal dismissed Mrs Watson’s claim on the basis that the University had reasonably concluded, on the facts available, that Dr West did not have a conflict of interest. However, the Employment Appeal Tribunal overturned the Tribunal’s decision, holding that it was not enough for the University to consider whether Dr West actually had a conflict of interest; it should also have considered whether, to an objective outsider, he appeared to have a conflict of interest.
On the basis that Mrs Watson perceived Dr West to have a conflict of interest, and that perception was reasonable in the circumstances, the University should have removed him from the internal appeal panel.
So – bearing Watson and other legal principles in mind - how should Guernsey employers approach handling a grievance?
The Employment Relations Service in Guernsey has published a guide to handling grievances which we recommend you refer to if an employee lodges a grievance. Not only will it help by giving you a framework for dealing with the grievance, but it will also help you to be able to say you complied with the guide if you should find yourself facing a Tribunal claim connected with the way you handled the grievance.
The guide itself recommends:
- a written procedure, in simple language;
- a two-stage process – informal followed by formal (in either case in writing);
- the process should allow for the grievance to be raised with someone independent from the matters at issue;
- the procedure should be communicated to all employees and be readily accessible;
- staff and managers should be trained on the value of having a grievance procedure. If the procedure is regarded as a valuable method for addressing issues before they become real problems, it is more likely to be used constructively by everyone than if raising a grievance is simply regarded as a spoiling tactic to be used by disgruntled employees;
- managers should be trained in handling grievances;
- grievances should be dealt with promptly (ideally within seven days);
- the grievance procedure should allow an avenue of internal appeal free, as far as possible, from actual or perceived bias (in a small business, this may not be easily achievable and the Guide recognises this).
Even in the best run organisations, workplace grumbles are bound to arise. Whilst flowers and chocolates may work for some, it is much better to have a procedure in place to deal with grievances promptly and transparently. In this way, you are more likely to stop them becoming major issues. Please do contact us if you require advice on your existing procedure or if you would like advice on how to introduce a grievance procedure.