We often get asked the question by employees: why is the employer presenting issues as allegations when they are really the grievances of one or more employees? An extreme is the allegation that X has said you didn’t say good morning to them. It’s a tough one. We cant help but thinking HR feels the easiest way to deal with a grievance or complaint is simply to give it to the respondent as an allegation rather than addressing the root cause of the issue.
A grievance is a formal complaint by an employee about an issue personal to that employee. It may relate to pay and conditions or it may relate to a perception of unfair performance management action or excessive workload or the conduct of another employee towards them. Common themes include being ignored or excluded by another employee or being subject to a snide comment or favouritism towards another employee by a manager. Other examples include arguments between employees or with a supervisor over the detail of tasks, failing to cooperate on team projects, refusing to share necessary information about tasks and even complaints about a colleague’s strong perfume or their playing music too loudly. Grievances usually are about incidents in the workplace involving a fellow employee or employees. Often details of the particular incident/s can be lacking in relevant information, eg dates and times of incidents and what was precisely done or said. These issues are often minor of themselves but can involve patterns of behaviour which are undesirable. They can sometimes be put in the category of “workplace bickering”.
These types of issues are usually best addressed by enquiring into the facts without disciplinary intervention, addressing them informally, at least in the first instance, or offering to mediate between the parties. These steps do not generally involve the stigma or distress of disciplinary action. Allegations on the other hand are made by an employer rather than an employee and are altogether more serious. They may have disciplinary consequences such as a warning or even termination of employment. Employers have a responsibility to ensure that employees answering allegations are provided with all relevant information to enable a proper response to be given, ie procedural fairness. Procedural fairness also involves taking the employee’s response into account before determining the truth of the allegation and any potential disciplinary penalty.
When issues are framed as disciplinary allegations, the focus is on the conduct of the respondent to the allegation. Grievances on the other hand aim to resolve a dispute in order to improve the situation of the employee raising the grievance. Disciplinary process often involves labelling the conduct in a certain way such as harassment or bullying whereas grievances focus more on the facts themselves. Disciplinary allegations can only either be substantiated or not substantiated, perhaps with disciplinary consequences whereas a broader range of options can be used to address a grievance. The two should be very different things.
Instead, what we have seen happen is that matters which are really grievances by an individual employee are conveyed to the respondent as allegations (often with only the broadest of detail) which may result in disciplinary process. Respondents are often confused by what they perceive as an over reaction and distressed by what they perceive to be an unnecessary and heavy handed process with the natural reaction of “fight or flight”. This can result in respondents (unnecessarily) taking personal leave, resigning or making a counter complaint about conduct of the applicant or other employees. None of this is likely to be conducive to workplace harmony. Sometimes employees will make counter complaints alleging the complainant is guilty of the same behaviour.
In our view, if disciplinary allegations are made, they should articulate the particulars of the allegation as well as what has actually been breached. Particulars should follow the general rules of setting out what happened (what was said or done), when did it happen, where did it happen and who was there. Allegations should also detail the particular breaches of policy or inappropriate conduct alleged, not just refer generally to policy or a code of conduct full of motherhood statements. Allegations lacking in these basic details are very difficult to respond to and respondents often have to box at shadows, responding to what they think the real complaint might be. If something is serious enough to be called an allegation, it should contain sufficient detail for a proper response.
If, after initial enquiry, an issue appears to be more of a personal grievance, then HR should undertake the hard yards of taking steps and implementing process to seek to resolve the grievance whilst maintaining workplace harmony. This takes skill and sensitivity and experience. All too often, these issues are being pushed down to line managers who are unskilled in these arts. Of course, employers have a duty to assess each complaint or grievance and decide whether it involves conduct which the employer has an independent duty to pursue or whether it is best addressed by informal means including discussion between the employees, perhaps facilitated by the employer, or mediation, perhaps with the help of an external mediator. This requires a merit assessment by HR rather than a one size fits all approach. A two step process may be advisable – see our bulletin Employer allegations – more than a flick pass?
Taking the time to assess each matter on its merits and acting appropriately will pay dividends when it comes to workplace culture and retention of valuable staff. Please contact us if you would like any further information or help.