Whilst Bermuda does not have any legislation which sets out what a proper grievance process should look like, UK case law, together with relevant Human Resources practices, can be relied upon for the guidance that an employer in Bermuda needs.
What is a Grievance Procedure?
A grievance procedure is a staged process that is adopted by an employer and often recorded in an Employee Handbook; it sets out the procedure for an employee to formally raise any workplace issues or concerns ranging from bullying and discrimination, to pay issues.
Where should a Grievance Procedure be found?
It is appropriate for most employers, regardless of their size, to have an Employee Handbook. This is a policy document which sets out key information usually not contained in an employment contract such as various types of leave entitlement as well as grievance and disciplinary procedures.
Why is it important to have a Grievance Procedure set out?
A well-thought-out grievance procedure ensures that both the employee and the employer understand that a grievance is to be taken seriously. It should provide a clear and structured framework for the investigation, and determination, of an employee’s grievance, based on principles of fairness.
A good grievance procedure means that a fair outcome is more likely, which in turn means that the employer has better prospects of defending themselves should the employee wish to formally litigate either the issues raised in the grievance or the handling of the grievance itself.
Key Stages of a Grievance Procedure
Most grievance procedures follow a similar structure:
- Submission of a grievance in writing
- Appointment of an investigator
- Invitation to initial meeting
- Initial meeting
- Conducting the investigation
- Presentation of the report
- Decision
- Appeal
Submission of a grievance in writing
The first stage of the grievance process should be that the grievance is submitted to the employer in writing, with sufficient details. This starts a paper trail and means that the employer can be certain of the specifics of the grievance. It is important for the employer to acknowledge receipt of the grievance as soon as practicable, and certainly within 5 days. Unnecessary delays in a grievance procedure can undo a lot of the other good work put into the process by the employer.
Appointment of an investigator
Almost immediately on receipt of the written grievance, an employer will want to consider who will conduct the investigation into the grievance. This will need to be someone who is entirely independent to the issue raised and holds a suitable level of seniority. The employer should consider whether it is appropriate for the grievance to be investigated within the company and should think about whether an independent third party should be contracted to conduct the investigation.
Invitation to initial meeting
The employer must acknowledge receipt of the grievance, introduce the investigator and set out the next steps so that the employee is aware of how the process will unfold. This should be conveyed in a formal letter to the employee which also sets out the employer’s understanding of the employee’s grievance; thus, establishing the scope of the grievance.
The invitation letter should also be used to provide the employee with an opportunity to raise any issues with the appointment, or identity, of the investigator and invite the complainant to a meeting to discuss the grievance in more detail. It is common to permit the employee to be accompanied by a colleague or a member of their trade union, where applicable.
Initial meeting
The purpose of the initial meeting is for the investigator to introduce themselves to the complainant and to give them an opportunity to ask any questions about the process. The investigator should be sure that the parameters of the grievance are agreed with the employee making the complaint at this stage, prior to the commencement of the investigation. The investigator can ask the employee if there are any particular documents that should be considered, or individuals interviewed, as part of the investigation.
Conducting the investigation
The investigator may need to review documents and interview individuals as part of the investigation. Where any interviews are conducted, the investigator should be sure that a note-taker is present; often this is a member of the Human Resources department. As close to a verbatim account of the meeting as possible should be kept, and the interviewee should be asked to confirm that the note represents what was said in the meeting. An employer should not record a meeting with an employee without their consent.
Where an investigator wishes to re-interview any of the individuals in order to answer or clarify outstanding questions, then this is entirely advisable. The aim of the investigation is to ensure as much relevant information as possible is gathered and considered.
The investigation must be thorough and, as this can be time consuming, it is important to keep the complainant informed of timelines and delays.
Decision
The investigation should culminate in a clear and considered written report which sets out the scope of the grievance, the steps taken by the investigator, a summary of the evidence gathered, conclusions and, where necessary, what actions, recommendations or remedies are made.
Appeal
Where an employee in unhappy with the outcome of their grievance, it is advisable to provide them with the right to appeal the decision within 7 days. This demonstrates that the employer is committed to ensuring that they have made the right decision. The individual appointed to hear any appeal should be more senior to the investigator, and where appropriate, the role can be outsourced to an independent third party.
First Published in the Bermuda Chamber of Commerce Newsletter (Chamber Insider), May 2024
