Sometimes as part of an investigation, you have to determine whether a policy is inherently flawed or whether a manager is applying it incorrectly – intentionally or not.
You’ve been asked to investigate a grievance about an organisational policy. Let’s say someone has complained that the Compassionate Leave Policy is unfit for purpose. What do you do?
First, interview the complainant to establish exactly what they think is detrimental about the policy and how it has impacted on them. It’s not a legitimate grievance simply not to like a policy. Then you’d investigate whether the detriment was caused by the policy.
Consider the purpose of the policy
It may be that the policy is fundamentally flawed and is either discriminatory in some way or fails to address or consider a set of circumstances, which has had unforeseen and unintended negative consequences, for example it does not include compassionate leave for carers of Adults. The complaint would be expressed in effect as a representation of an injustice or exclusion caused by an alleged unfortunate crafting of a policy. So you need to consider the purpose of the policy and whether the circumstance outlined in the representation ought properly to be addressed by the policy or not. This type of ‘complaint’, or more properly it is a representation, would need more general consideration of the purposes of the policy, and the intention behind it.
Is that all there is?
Our experience has often been where there is a complaint about an organisational policy (rather than the application of the policy, or exercise of discretion) it is often a symptom of general dissatisfaction from the complainant, and it may be wise to look beyond, as sometimes there is something deeper going on. This would take the issue outside the realms of pure investigation, but sometimes internal investigators are wearing several different hats.
What if the policy is fine but is not being applied correctly?
Here the person is bringing a complaint about how someone has applied or failed to apply a policy. The investigation there will need to be focused more on how and why the policy was applied in that particular case.
Sticking with the Compassionate leave policy, let’s say the complaint is that the manager chose not to give the complainant what they potentially could have had under the policy. So, you need to establish via interview, whether the manager had a malicious intent for applying the policy the way they had, or whether they had applied the policy more favourably to other staff, and was there any justification for that.
In both cases, if there is a personal or protected characteristic involved then consider and test for indirect discrimination. And the second one could also be considered in the context of victimisation, given the right set of circumstances.
Have you assessed how you handle your grievances and disciplinaries?
How these are managed could determine how positive the outcome is, and the price you pay.
Managing internal complaints is widely accepted as being resource intensive. The process causes significant stress and disruption for all involved, and all too often leads to a lose/lose outcome.
An organisation’s reputation, brand and finances can be badly damaged by high profile cases, and employers invest heavily in legal advice and insurances in order to protect themselves at employment tribunals. While early intervention and mediation are having an impact on grievance and disciplinary numbers, many organisations are not as effective as they could be at managing the risks posed by their internal investigation procedures and processes.
In this paper we guide you through a review of your policies and practices.
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