Throughout our latest webinar on Grievances within the Office, we obtained some questions by way of the chat facility that we are going to deal with in a few blogs over the subsequent few weeks.
First off, we’ve got a few questions concerning the investigation course of.
Now we have a scenario the place the preliminary grievance assembly has been adjourned, investigations have been accomplished, however simply earlier than the reconvened grievance assembly the worker has submitted prolonged emails in relation to the preliminary situation and raised extra considerations. Ought to we maintain one other assembly with the worker after which perform additional investigations?
Probably, sure – a minimum of in relation to the brand new points.
By way of the emails in relation to the preliminary situation, do these add something materials to what the worker has already raised considerations about? Or is it merely the case that the worker has supplied extra element in relation to their preliminary considerations, however the important thing factual and evidential foundation for his or her grievance has not modified? If the emails don’t add something substantial, then it’s best to be capable to reply to the preliminary grievance with out finishing up any additional investigations. If, nevertheless, the emails increase extra data in relation to the preliminary grievance that might have an effect on the end result (for instance, they present that there’s severe doubt over any of the conclusions you will have already reached) then, as annoying as this can be, it’s best to take steps to research these additional earlier than concluding the grievance course of. This may increasingly imply holding one other assembly with the worker first, and possibly different witnesses too if the brand new data is related to their proof. That’s significantly the case if there’s a good motive why the worker was unable to offer that additional proof first time round, or if it pertains to conduct subsequent to the preliminary investigation that sheds some necessary new gentle on it.
By way of the extra considerations, if these successfully represent a brand new grievance then the corporate might be required to handle it (which would require chatting with the worker and will embody finishing up additional investigations). Relying on the character of the brand new allegations, it might be attainable for them to be handled individually and at a later stage, i.e. after the conclusion of the worker’s preliminary grievance. If they’re associated, nevertheless, it’s more likely to be extra acceptable to research them from time to time reply to the worker in relation to all their considerations in a single go. We recognize how irritating this have to be, however it is necessary that you’re seen to behave fairly in relation to this new data. In convening that additional assembly with the worker it might be acceptable to remind them to be able to make all of the factors and convey all of the proof they’ve in order that there is no such thing as a want for any additional hiccup within the course of.
As a part of the grievance investigation, can witnesses request their assertion to be nameless? And what would the implications of this be?
Sure, witnesses can, and certainly typically do, ask for his or her assertion to be anonymised. That is in all probability most definitely to occur as a part of a disciplinary investigation, however it could possibly occur throughout grievance investigations too, particularly if there’s a chance that disciplinary motion could also be taken towards one other worker if the grievance is upheld.
Step one can be to know why the worker desires their assertion to be nameless. Often it’s as a result of they’re involved about potential destructive repercussions for their very own profession or different reprisals if they offer proof. They need to in fact be reassured that they won’t undergo any detrimental therapy for giving proof and the employer ought to clearly take steps to make sure this doesn’t occur. Failure to guard towards retribution is kind of more likely to be trigger for a constructive dismissal declare.
The Acas non-statutory steering on conducting office investigations states that investigators ought to attempt to keep away from anonymising witness statements at any time when attainable. It is because while it is very important keep in mind the considerations of the witness, additionally it is necessary to conduct an open and clear investigation and respect the rights of different workers to have the ability to problem any proof that’s given towards them. This may clearly be rather more tough in the event that they have no idea who has given the assertion.
The Acas steering recommends that nameless statements are solely utilized in distinctive circumstances, particularly the place a witness has a real worry of reprisals. The place an investigator decides that the circumstances do warrant an settlement to anonymity, an interview must be performed with the witness and notes taken with out regard to the necessity for anonymity. The investigator ought to then contemplate what, if any, components of the assertion have to be omitted or redacted to forestall identification. Bear in mind – typically the circumstances of the case will imply that there is no such thing as a level in anonymising an announcement anyway, as will probably be apparent who has given it. Bear in mind too that you simply can not safely depend on any allegation that the accused worker has not had the prospect to rebut, so the extra basic is that proof to the employer’s choice, the much less it’s acceptable to anonymise it.
Even in the event you agree to not disclose the identification of the complainant or witness in your course of, you can not promise that it’ll stay hidden for good – if there may be later authorized problem or litigation, their identification will nearly definitely have to return out.
Along with the factors raised within the Acas steering, case regulation has made it clear that additional investigation also needs to all the time happen to both verify or undermine any data given on an nameless foundation. For instance, the investigator ought to, the place attainable, examine the witness’s assertion to different statements to see in the event that they assist it. The place acceptable, tactful enquiries also needs to be product of the witness’s character and background to assist assess the credibility of their proof. The investigating supervisor also needs to be seen to contemplate how a lot weight must be given to this proof in gentle of the circumstances.
In brief, train warning earlier than happening this route and when you’ve got any considerations, search some recommendation first.