Dealing with grievances is probably my least favourite work activity. Where the grievance is genuine and sensibly raised, I don’t mind. But I come across so many that are frivolous or nuisance grievances and they’re exhausting and such a waste of time. Some people raise nuisance grievances as a form of protest or delaying tactic, especially employees facing disciplinary action. If the grievance relates to the disciplinary issue, it is generally not necessary to suspend the disciplinary proceedings and the grievance can be heard alongside the disciplinary proceedings. If the grievance is unrelated, ACA suggests that you could stop the disciplinary proceedings until the grievance has been heard, at least to stage one. You are not obliged to do so and on some occasions I have managed the two concurrently, but ensured they are heard by different managers to ensure impartiality.
There is a duty to properly explore grievances, and this should be done promptly. You can reduce the time spent on nuisance grievances. For example, make sure the procedure allows you to reserve the right not to hear grievances that appear to be very weak without some relevant evidence being supplied before a meeting is convened. You can also refuse to hear repeat complaints that have already been raised unless there is clear new evidence which merits a revisiting of the case.
In the case of Martin v Devonshires Solicitors, the EAT reached the conclusion that it is possible to identify a difference between a dismissal because of a grievance itself; and a dismissal because of some feature of a grievance which can properly be treated as separable. i.e. an action that is taken because an employee has lodged unreasonable, multiple grievances which have led to an irretrievable breakdown in the relationship between employer and employee. The former may amount to unlawful victimisation; the latter may not.
Linda Martin was employed by Devonshires as a legal secretary. The first grievance that she submitted to her employer accused the partners of “harassment and victimisation” because Ms Martin had brought an employment tribunal claim against her previous employers. The partners had no knowledge of this previous claim, and the employees who Ms Martin said had witnessed the specific incidents alleged denied that anything of the kind had taken place. The outcome of the grievance was that not only were the allegations untrue, but they had been lodged maliciously. Seven further grievances were lodged by Ms Martin, alleging discrimination and victimisation, none of which were upheld.
Ms Martin was seen by an occupational health consultant and then a consultant psychiatrist. Both reports found that Ms Martin was suffering from mental ill-health, and the consultant psychiatrist’s view was that Ms Martin suffered from a recurrent depressive illness, with psychotic episodes during which she suffered paranoid delusions. The psychiatrist considered that there was a risk of relapse which could occur at any time, without any ‘trigger’ stress event. Ms Martin refused to accept her diagnosis and continued to insist that the allegations she had made were true.
Devonshires decided that it could no longer employ Ms Martin. In its dismissal letter, the firm’s gave a number of reasons for dismissal.
- Ms Martin’s lack of insight into her illness.
- The likelihood of further relapses.
- The fact that Ms Martin would have to continue to work with partners against whom she had made serious and false allegations.
- The substantial amount of time and resources spent dealing with the eight grievances Ms Martin had raised, and the likelihood of further grievances being lodged.
- The difficulty of the future management of Ms Martin.
- The fact that the relationship between her and the firm had irretrievably broken down.
Ms Martin brought a tribunal claim for sex and disability discrimination, victimisation and unfair dismissal. Eventually the case came before the Employment Appeal Tribunal (EAT) which focused on Ms Martin’s claims of unfair dismissal and victimisation. It decided that Devonshires had not unlawfully dismissed or victimised Ms Martin. That could include the way in which that grievance is advanced, and in Ms Martin’s case the EAT found that the actual reason for the dismissal was not the complaints of discrimination but
- the fact that those complaints involved allegations of considerable seriousness
- they were repeated
- Ms Martin refused to accept that they were false
- the likelihood of disruptive conduct in future
This is not to say that this Martin decision gives employers an automatic right to dismiss or discipline employees who raise grievances. The EAT pointed out in its decision that “ordinary unreasonable behaviour” such as “intemperate language” and “inaccurate statements” will be linked to the grievance itself. Therefore, in all but the clearest cases, tribunals should be very cautious about finding that employers who dismiss or discipline an employee for raising a grievance have not objected to complaint itself.
Find out how to sort out nuisance grievances at our Introduction to HR workshop on Wednesday 4th March.
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