Preventing legal claims with an effective grievance response

 Of course the actual preferred result of a good grievance response letter is that the aggrieved employee is happy and goes back to work without further complaint and everything is rosy.

Back in the real world, by the time it gets as far as a grievance, the relationship is often pretty much doomed. Obviously it depends on the circumstances and the nature of the grievance, but that is frequently the case.

And, also frequently, the grievance can be merely a ‘tick-box’ exercise from an employee who is already on their way out and exploring legal options available to them, and is either genuinely trying a grievance as a last-ditch attempt to resolve things, or has been advised that a claim will be easier if they are seen to have made every attempt to follow internal processes first.

In those circumstances, the aim of your grievance response should be to prevent a legal claim, or at least to put the organisation in a strong position to defend one.

So how do you do that, whilst responding to the specific issues raised in the grievance? Here are three steps you can take to prevent or defend legal claims with a well-crafted letter.

1. Don’t write it to the employee

Of course it will be written and addressed to the employee, but this is about considering who else might read it, and want you want them to think or know when they do so. Bear in mind how much knowledge the various people (could be a tribunal judge, could be a lawyer the individual consults, or another advisor) might have about the scenario. What could you put in the response letter that would perhaps highlight strengths in the employer’s position? Possibly a summary of steps taken to resolve the issue already? Support that has been provided.

When an aggrieved employee is taking advice about a potential legal claim, they will naturally highlight their own position. But they will also need to show the advisor the relevant correspondence. That’s your chance to make sure a legal advisor is fully aware of the employer’s position when advising the employee on whether a claim is worthwhile pursuing.

2. Research legislation for potential claims

An employee wouldn’t necessarily at the grievance stage know exactly what specific legal claims may be open to them. But you can certainly research it, and write a response letter with that in mind.

An example would be where an employee is claiming harassment. You should refer to a definition of harassment as set out in your own policy, if you have one, to explain how the definition has not been met. But if it is harassment based on a protected characteristic, the Equality Act has specific definitions of what harassment is. You can use that language in your response.

If you explain in your grievance response letter why and how the conduct in question did not  have “the purpose or effect of violating [the employee’s] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for [the employee]”, that could be very helpful to the employer’s position. It’s not about pointing out exactly what legal claims the employee may have, it’s about ensuring that language is used so that if and when someone considering potential claims reads the letter, it is easier for them to see that the claim is not made out.

The same can be applied to other potential claims. So if the employee hasn’t pointed it out, consider from their grievance and any other relevant information what claims they could be potentially considering, and research any definitions or requirements they may need to meet for a successful claim, then bear those in mind when drafting your response.

3. Don’t be over-defensive

Remember the aim is to prevent claims where possible. Often HR professionals will think the best way to do that is to deny everything completely. But that can really be counter-productive. Often an employee just really wants to be heard, and for their aggrieved feelings to be acknowledged. And frequently even if the employer technically hasn’t done anything claim-worthy, that doesn’t mean everything has been handled perfectly.

So actually, concede points where you can and feel it’s fair to do so. And express an apology if that’s appropriate. That can have two important effects – it can take some of the heat out of the situation and make the employee feel far less angry and therefore less likely to want to pursue legal action. And it can also have the important effect of making sure the employer has been (and has appeared to be) as reasonable as possible. A lot of employment law is about how reasonable everyone has been, and by conceding some points in a grievance, the employer is showing it has genuinely considered everything, acknowledges faults in process, and is keen to put errors right.

All of this sounds rather cynical. Of course, grievances should be avoided wherever possible. Mediation can be useful in doing this. And if grievances can’t be avoided, they should be conducted with the aim of resolving the situation to everyone’s satisfaction. But, acknowledging that this is not always possible for a variety of reasons, a well-drafted set of correspondence can be incredibly valuable later on.

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