Business as usual, but worse….
During the last year, we’ve seen a definite trend in life being made just that little bit more difficult for our employer clients or, to be more specific, for the individuals who make up their senior HR function. Nothing new there, I hear you say. Except that there does seem to be something new, in terms of the volume and complexity of grievances being raised and the chaos being caused to organisations when the people in charge of people processes are being prevented from doing their jobs. That’s not to mention the stress that can be experienced by individuals targeted by grievances and related allegations.
The scenarios we’ve been seeing arise where a process is underway, perhaps a redundancy or a disciplinary, and the employee (we’ll call her Mabel) is unhappy with the process and invokes the grievance procedure against the HR person managing it. For good measure, she may also claim that she has ‘blown the whistle’ in relation to the treatment she has received, and invoke the whistleblowing policy alongside the grievance. The textbook response is for the HR person to be ‘taken off the case’ while the grievance is investigated. So another member of the team picks it up, only for them to incur Mabel’s wrath – in comes Grievance #2. Each grievance refers back to the last and spawns ever longer and more detailed complaints, which bear increasingly little connection to the original work-related concerns, as opposed to the processes themselves. We’ve seen a couple of situations where Mabel has managed to ‘shut down’ an entire HR department by raising successive grievances, leaving the business with no one able to provide expert management of the original process. This has led to significant disruption for the business, added expense where external HR support is brought in, or added risk when non-HR experts within the organisation try to move the processes along.
There is clearly a delicate balance to strike, and the problem is that well-intentioned and important employee rights (such as the right to have access to one’s personal data, or to take paid sick leave) can, in the worst case scenario, be ‘weaponised’ by more unscrupulous employees and their representatives. In such cases, the employee’s objectives may have much more to do with extracting a significant exit payment than in facilitating an on-going employment relationship. It’s a very difficult situation to deal with and employers relying on off-the-peg, ‘safety first’ legal advice can find themselves getting further and further entangled in an Alice in Wonderland labyrinth of proliferating allegations and processes.
There is a troubling legal overlay to throw into the mix here. The Court of Appeal decision in Timis v Osipv late last year made fundamental changes to what had generally been understood in relation to the law on whistleblowing. Without embarking on too much legal analysis, this makes it advantageous for employees to name individual Respondents in whistleblowing claims – generally this will be the manager (or HR representative) they hold responsible for their dismissal, and perhaps a clutch of such individuals. Facing a claim in one’s personal capacity is far from fun, and may also lead to spiralling costs for employers who feel obliged to indemnify those individuals in respect of the proceedings brought. For switched-on employee representatives who may have an eye on the prospect of bringing such a claim, there is all the more incentive to spread the net widely in terms of bringing pre-action grievances against individuals involved in trying to manage the employee.
Keen to help our HR clients find a practical way through these difficult times, we’ve been developing a bold new approach to dealing with grievances against HR (and against managers involved in HR processes), which have such characteristics; one which might stop the entire HR or leadership function in your business being put out of action.