Grievances and punishment – Is it enough to succeed, or must others fail? (UK)David Whincupon November 5, 2021 at 9:59 am Employment Law Worldview


If you look for the statutory source of the ordinary right to bring a workplace grievance, you may be gone some time.  It arose initially as a by-product of the implied duty of trust and confidence, and formally bubbled to the surface in WA Gould (Pearmak) Limited – v – McConnell in 1995.  There the EAT found that that duty included an obligation on employers “to reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have“.  That word reappears in Section 3 Employment Rights Act 1996, which requires the employer to notify the worker in writing of the procedure through which he can “seek redress of any grievance relating to his employment“.

So what does “redress” mean in the context of a workplace grievance?  The question arises particularly in cases where the employee is agreed or found to have been in some way wronged by a colleague or manager.  Obviously the employer should take reasonable steps to right that wrong in terms of its practical impact on the complainant.  So he succeeds, but what about others failing?  Do the employer’s obligations to the complainant extend to punishing the wrongdoer, and how far can the complainant make any legal mileage out of the employer’s decision not to treat the perpetrator as harshly as he would have done himself?  When does redress, which is okay, cross into revenge, which is not?

The starting point is that if the employer reasonably believes that the measures it has taken in response to the grievance will be effective to prevent any recurrence of the conduct complained of, then that is clearly an outcome within the range of reasonable responses and so is not open to meaningful challenge by the employee, however much he might have relished some particular head on a spike outside HR’s door.  The underlying reasonable interests of the complaining employee are served by the measures taken to halt the offending conduct.  That would normally mean that the employee has no right to reject that outcome — the redress he was entitled to seek has indeed been provided.  The grievance process is about obtaining an effective “fix” for what troubles the employee and in the great majority of cases that will not extend to his having much of relevance to say about what disciplinary action, if any, is taken against the subject of his complaint.

However, there are as always some exceptions to this, where the employer’s failure to act sufficiently robustly against a perpetrator (whether bully, harasser, or breacher of legal obligations for whistleblowing purposes, for example) could still represent grounds for a constructive dismissal or discrimination claim by the complainant even though the immediate harm to him appears to have been addressed.

To justify such claims, the outcome as regards the perpetrator would have to be something which essentially undermined or belittled the gravity of the conduct found to such an extent that the complainant could reasonably conclude that his concerns had not been taken seriously, or that the remedy awarded could not reasonably be expected to be effective.  An obvious example would be a first written warning for a deliberate assault.  That outcome would provide the victim with little assurance that there would be no recurrence, or even that the employer was very much bothered either way.  The deterrent value would be marginal at best. It would imply that the assault could be repeated at least twice more before the offender would be dismissed. Similarly, if a person rightly accused of deliberately committing some serious breaches of a legal obligation is not treated reasonably firmly, the obvious inference is that the employer is at best indifferent to the illegality and at worst would prefer that the disclosure of it had not been made.  While that may not by itself give the whistleblower a claim, it would certainly add significant cosmetic muscle to any later allegation that he had suffered some detriment as a result.

But these are extreme cases.  By contrast, if the harassment were inadvertent or an instance of bullying behaviour clearly a one-off or the product of illness or stress on the part of the “bully”, the employer could legitimately take the view that an apology and a promise/instruction not to do it again would be enough to satisfy its obligations to the victim, whatever the subjective upset felt by him. And if the breach of legal obligation at the heart of the grievance were clearly technical only or the product of lack of training, nothing in law requires the employer to warn, let alone dismiss, even if the complaining employee favours a zero-tolerance approach to legal compliance.

For the most part, redress is redress and the right to seek it as part of a workplace grievance does not extend to an entitlement to revenge or retaliation against the person responsible.  If it is your considered view as employer that a particular act of course of conduct does not warrant the dismissal or serious warning pushed for by the complainant and any harm done can be adequately addressed by other means, that is generally your prerogative so long as the employee is not overtly prejudiced as a result. In making that assessment you are entitled to take into account all the circumstances surrounding the offending conduct, for example that it may have been a long time ago with no recurrence since, making a sanction now potentially redundant. The complainant’s claimed degree of anger or offence is substantially immaterial to that.   [Oddly the same is not quite true in reverse, i.e. where the victim seeks a lesser penalty than the employer proposes.  In such a case, the willingness of the victim to forgive or mitigate the gravity of what was done is certainly relevant to (though not determinative of) whether the dismissal of the perpetrator would still be within that range of reasonable responses.]

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