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Grievance procedure - what can I do?

goldbyron
goldbyron Posts: 790 Forumite
edited 25 November 2014 at 9:03PM in Employment, jobseeking & training
Hi

This is a long story and I am posting on behalf of my friend who took out an informal grievance against their employer (a local authority) in May following approximately 6-12 months of an increasing workload, lack of support, bullying and victimisation. The content of the grievance pertained to a lack of any individual supervision for several months, the highest caseload in the team, and one of the managers raising their voice at my friend and sending inappropriate/dismissive emails.

My friend has several years with the team and one episode of sickness for two weeks last year when this first came to a head. They asked repeatedly for an occupational health and this was finally made late last year, with a re-referral earlier this year. None of th recommendations were implemented and no one met with my friend following the second OH report. This report warned that my friends anxiety and stress (all work related) would get worse if these recommedations were not implemented and they were at risk of discrimination should a tribunal be held.

Things got progressively worse in terms of the bullying and absence of support, leading to a meeting with two managers in June where direct threats were made to my friend regarding a future reference and if they have any further sickness or OH visits. They also applied my friends electronic signature on their behalf to a document they only had partial sight of. At no point have any competency issues been raised over the years.

My friend then called in sick and was later signed off for three months. The informal grievance undertaken by one of the managers who made the threat was not upheld and threatened competency issues as a Direct result of the grievance. My friend filed a formal grievance to include all of these concerns which was received by HR in July. A senior manager from another dept was allocated the investigation and interviewed my friend in August. To date there is no outcome.

Fortunately with the help of the Union my friend has been given a temporary placement in another team (after the LA started sickness procedures mid investigation) while the investigation is going on and is reluctant to chase it due to fear they will force them back to the team. This is causing my friend terrible anxiety and they are being left in the balance. They did consider bringing the case to tribunal but wanted to wait for the investigation outcome. The LA refused to mediate with ACAS whilst this is pending. Now the deadline has gone for this. My friend has tried to apply internally for a job, requesting a transfer, but HR just didn't respond to their email.

What would anyone advise my friend does? The union is not very helpful but I can't help thinking the LA is acting completely unlawfully and not adhering to their own procedures. Does anyone know what action can be taken in this situation as the LA appears to think they have no duty of care...

Thanks
«1

Comments

  • I am afraid it may be too late.


    The sickness procedure is entirely separate from anything else. This is "simple" - you are off sick for XX days on YY occasions, it kicks in. No reasons, no excuses - sick is sick. That in itself, taken to its end stage, will result in dismissal. That is the norm across local authorities and many other employers. There is nothing that he or the union can do about this other than be in work - these policies are entirely legal.


    I am unclear why OH, who know nothing at all about the law, would ever advise an employer as to the risk of a discrimination claim - but discrimination for what? This isn't at all clear, nor is the reason why je had two OH referrals.


    The union is absolutely correct - make a tribunals claim whilst internal processes are still underway and at best you will be knocked back, at worst you may get a ruling against you. There is a process which must be gone through, and that means following through the entire process of grievances and appeals before you can make a claim; then ACAS conciliation (so this is not yet dead in the water - it is compulsory now) before a claim to a tribunal can be made.


    The length of time you describe is not, I'm sorry to say, uncommon - it can take many months, and many more yet. I have certainly heard of cases were the wait was counted in years and not months. Not common - but it happens.


    I can understand that this is stressful for your friend, but they need (perhaps with your help) to find coping mechanisms. It will go at the speed it does, and will not be hurried. He or she needs to stay at work because being off sick will make things much worse. And I am afraid there is absolutely no evidence here that the employer is acting unlawfully or not adhering to their own procedures.
  • ohreally
    ohreally Posts: 7,525 Forumite
    1,000 Posts Combo Breaker
    goldbyron wrote: »
    my friend who took out an informal grievance against their employer


    There is no such thing, a grievance is formal machinery.
    Don’t be a can’t, be a can.
  • My friend is at work currently, albeit in a temporary placement, so thankfully isn't off sick at this time.

    Sorry should have said the LA makes a distinction between an informal grievance (undertaken by a manager in the team) and formal which is basically an appeal against the informal and undertaken by an independent manager.

    The new tribunal timescales are really anti employee then - because the timescales will almost always elapse before a grievance is complete thus being caught in a catch 22 of not being able to benefit from a tribunal.

    The OH report has to comment under a section what asks whether the employee is at risk of discrimination if there was a tribunal. It seems a standard question for the LA and OH company. Not sure if this is used everywhere. But this refers to disability discrimination act I think.

    Wow I didn't know this thing could go on any longer - The procedures say the outcome should take a month...I thought this was not adhering to their procedures at the very least?
  • ohreally
    ohreally Posts: 7,525 Forumite
    1,000 Posts Combo Breaker
    goldbyron wrote: »
    The new tribunal timescales are really anti employee then - because the timescales will almost always elapse before a grievance is complete thus being caught in a catch 22 of not being able to benefit from a tribunal

    The internal procedure isn't a barrier to progressing to tribunal. He can go ahead while process is being exhausted. Clock is ticking, he needs to be mindful of this.
    Don’t be a can’t, be a can.
  • Bantex_2
    Bantex_2 Posts: 3,317 Forumite
    Sorry to ask, but could it be possible he/she is just not up to the job?
  • Just read the post. I deal with such cases daily. With respect some of the points made to date by members are a bit misleading.

    The OP may well be the alleged victim, but may just (understandably) be relaying the saga in the third person. Regardless, the tale is a typically sad one, but not uncommon.

    In my experience grievances are generally a complete waste of time. I don't say don't raise em, but do not expect them to be upheld.

    This saga has all the hallmarks of discrimination under the Equality Act, and the OP is correct to state that the OH was equipped to comment thereupon albeit in general terms. It is a standard for employers to query OH specialists re whether work related stress may constitute a disability. This saga seems to tick all the boxes re a work related disability. Arguably any sick days could be occupational disability absence and not conventional sickness absence.

    Unions can be useless.

    What does the employee want ? The grievance will not be upheld. So what do they want ? Compensation ? Ultimately, may need to "threaten" to go down route of constructive dismissal and a course of ongoing conduct amounting to victimisation and harassment under the Equality Act. Risky, yes, but I have helped may people successfully win such cases in Tribunals ; most settle via compromise/ settlement agreements.

    OP/ friend may also have a prima facie personal injury claim dependent upon degree of psychiatric harm (if any) being endured.

    Stand up for your rights... or your "friend's" rights.

    HTH
    Phil
  • Gosh. Others are being misleading ?

    Just read the post. I deal with such cases daily. With respect some of the points made to date by members are a bit misleading.

    The OP may well be the alleged victim, but may just (understandably) be relaying the saga in the third person. Regardless, the tale is a typically sad one, but not uncommon.

    In my experience grievances are generally a complete waste of time. I don't say don't raise em, but do not expect them to be upheld. Nevertheless, you would agree, would you not, that the law expects an employee to use the processes available to them before going to law?

    This saga has all the hallmarks of discrimination under the Equality Act, and the OP is correct to state that the OH was equipped to comment thereupon albeit in general terms. Since when did medical ancillaries get legal training and what role do they have in informing an employer about the law? And can lawyers now deal with broken legs? It is not the role of occupational health to comment on the law.

    What is the basis of the discrimination and where are the "hallmarks" - gender, race, sexual orientation, disability, age...? There is no information within the post to suggest what form of discrimination has taken place. We know the OP's friend has alleged they get little support and they have had a couple of weeks off sick. We know little more than that.




    It is a standard for employers to query OH specialists re whether work related stress may constitute a disability. This saga seems to tick all the boxes re a work related disability. Arguably any sick days could be occupational disability absence and not conventional sickness absence. Which you will know are not discounted in sickness absence procedures. There employer MAY make an allowance for some disability related sickness - if there is a disability, which there is actually no evidence that there is - but will not do so for all such sickness. "Stress", allegedly work related or not, does not constitute a disability unless the other conditions of long lasting and severe impact on daily life are met. There is no evidence from the post that this is the case, so the "saga" as such does not tick any boxes.

    Unions can be useless. A pointless general observation based on what? There is no evidence that the union here have done anything other than the right thing. If they do not follow the processes set down and to which they have agreed, then they will be undermining their members case, should there be one.

    What does the employee want ? The grievance will not be upheld. So what do they want ? Compensation ? Ultimately, may need to "threaten" to go down route of constructive dismissal and a course of ongoing conduct amounting to victimisation and harassment under the Equality Act. Risky, yes, but I have helped may people successfully win such cases in Tribunals ; most settle via compromise/ settlement agreements. Extremely risky. Beyond the pale risky when there are alternatives. Especially since the employee has NOT completed the employers internal grievances, which is the first test of constructive unfair dismissal - that they have made every attempt to resolve the matter complained of with the employer. The OP's friend has not.

    OP/ friend may also have a prima facie personal injury claim dependent upon degree of psychiatric harm (if any) being endured. Wow. A prima facie case? I doubt it. If personal injury was that easy, then everyone would be claiming it.

    Stand up for your rights... or your "friend's" rights.

    HTH
    Phil


    Really, quite a lot of misleading advice in there I believe.
  • goldbyron wrote: »
    My friend is at work currently, albeit in a temporary placement, so thankfully isn't off sick at this time. This would be a normal arrangement, and one that is very likely to become permanent anyway. Returning to a role after a grievance is not common - it may happen but it generally doesn't in local authorities who are large enough to absorb employees elsewhere.

    Sorry should have said the LA makes a distinction between an informal grievance (undertaken by a manager in the team) and formal which is basically an appeal against the informal and undertaken by an independent manager. Again, this is not uncommon although generally there is no requirement to go through the informal stage - but it can be useful in resolving a problem without escalating the "drama" in some circumstances. Obviously not here, but one size does not fit all.

    The new tribunal timescales are really anti employee then - because the timescales will almost always elapse before a grievance is complete thus being caught in a catch 22 of not being able to benefit from a tribunal. You misunderstand the tribunal deadlines. They are three months less a day from the last action complained of, which can and should be the unsuccessful outcome of an appeal hearing. So your friend is definitely not out of time - the clock hasn't even started ticking on this one.

    The OH report has to comment under a section what asks whether the employee is at risk of discrimination if there was a tribunal. It seems a standard question for the LA and OH company. Not sure if this is used everywhere. But this refers to disability discrimination act I think. Nevertheless, it is a stupid question and one which an experienced health professional would not answer. They are not lawyers. Someone who has only had a few weeks of sickness would struggle immensely to show that there was a significant impact on their day to day ability to function normally. And the disability discrimination act was repealed four years ago - the Equality Act is a single act on all forms of unlawful discrimination.

    Wow I didn't know this thing could go on any longer - The procedures say the outcome should take a month...I thought this was not adhering to their procedures at the very least?



    I will lay bets on what the procedure actually says. It will have the word "normally" or some such qualifier in front of the timescales. That means that it can stretch as long as a piece of string. A very simple investigation may take a month or less to get to an outcome, but that would be exceptional. For something complex, and based on a lot of allegations based on perceptions and feelings (which these sort always are - in the end "lack of support" is often in the eye of the beholder) commonly take several months or more.


    As life is at the moment, the likelihood is that your friend wants to retain their employment, if only because it is a job with good terms and a pension. No award of an employment tribunal, even if it should get that far, will ever replace that or come even close to replacing it. But your friend seems to indicate that there is an outcome that could make everyone happy and also achieve that - a transfer. Instead of speaking to HR - which in my experience generally are pretty unhelpful to employees, since their job is actually to advise the employer - he should go to the union and discuss proposing a compromise. The LA help him to find a place to move on to, and he quietly drops all complaints. Unless he has a staggeringly good legal claim - which there is no evidence that he does - the union are likely to support such a negotiation and the employer is likely to want to find a peaceful resolution. Such transfers are equally as common as the length of time it takes to hear a grievance - local authorities effect them all the time as a way of resolving conflict.
  • goldbyron
    goldbyron Posts: 790 Forumite
    edited 26 November 2014 at 9:34AM
    Hi - thanks for all the posts, they are helpful to read.

    In response to a couple of posts - all my friend is requesting and wanting is a transfer to another team, even if on a lower salary. This would peacefully resolve everything. My friend does not want to enter any legal proceedings - this was a last resort as it looked like the LA was just ignoring the grievance. Even in negotiations with ACAS the request was only for a transfer which they wouldn't commit to. They don't want any compensation at all unless they are 'forced back' to their old team as they will have no option but to leave. They have suffered psychiatric injury (anxiety and depression) which could be evidenced by GP/medication prescribed and a referral was made for CBT - all after this started.

    In terms of OH - I agree the question is a bit daft. They have consistently advised that my friend will incur further sickness if their recommendations are not implemented, which the LA ignored sadly. The recommedations were very basic and just matters like one to one supervision (which is procedure anyway) but the team still failed to implement. Funnily enough my friend has been receiving one to one in the temporary placement and has no problems in this work space.

    As for competencies, my friend has been in the team for 11 years with no issues raised and has consistently produced a high turnover of work. So if there were issues about performance they weren't raised. The only change has been the cuts and re-structuring of the team members which has introduced different line management (who have also been in the team for many years but in a different structure). The cuts have of course added more casework pressure and my friend, who is deemed capable previously, was gradually given a higher caseload of work. There have also been issues of sickness in the team elsewhere and two staff members left in the last two years due to pressure/management giving an indication of the issues.

    I hope that a couple of you are correct in that a transfer is standard and will be considered. I don't think it would help anyone for my friend to return and a transfer would settle everything.
  • PHILANTHROPIST
    PHILANTHROPIST Posts: 410 Forumite
    edited 26 November 2014 at 10:35AM
    Gosh. Others are being misleading ?

    Really, quite a lot of misleading advice in there I believe.

    Based on my own experience "Another" I am extremely confident that my comments are valid in the circumstances.

    I actively deal with such matters daily ...and achieve a successful outcome in many such cases.

    CD is risky, but achievable if you follow a careful step by step procedure , to which I'll stay privy.

    Anyhow, let's not enter into member squabbling as it does not really assist the OP. Their last input helps clarify matters further. I hope things do not need to go legal, but I fear to date that it's heading that way.

    Phil
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