Malicious grievance counts as one of the genuine grievances that employees can raise. Every employee has the right to raise a genuine grievance where they may feel like they have been subjected to unfair treatment. As an employer, you will need to analyse the grievance to decide if it is malicious or vexatious, based on its content.
Under every circumstance, employers are under an obligation to carry out a thorough investigation of any complaint or grievance made by an employee, based on company procedures and ACAS codes of practice. It is important to follow these procedures meticulously to avoid potential employment tribunal claims where procedures have not been adhered to.
In the case of not following ACAS procedures, this could result in a 25% uplift awarded to an employee where there has been a failure to follow grievance procedures.
Dealing With a Malicious Claim Informally
It may be possible to “nip it in the bud” by speaking to the employee raising the grievance on a one-to-one level and resolving the conflict amongst yourselves. The possibility of this may depend on the people involved and the nature of the complaint.
However, it is important to keep some kind of record of the conversations or meetings held regarding the matter. This will help for future claims if the background of any complaint and/or the attempts to resolve them come under scrutiny.
What Happens Where a Complaint Moves to a Formal Stage?
It is important to ensure that the procedures associated with investigating complaints are fair and in line with the company policy for dealing with grievances and/or ACAS procedures. This should happen when dealing with all complaints whether genuine or malicious in nature.
After receiving the complaint from the employee, they should be invited to a meeting, along with their trade union rep or work colleague. Following this, every employer should ensure that a fair and transparent investigation takes place and relevant witnesses are interviewed.
What Disciplinary Action Can You Take Against an Employee Who Raises a Malicious Grievance?
As an employer, it is important to be seen to have acted in a way that is fair and proportionate, even when someone has submitted a complaint that could be seen as malicious.
It may be necessary where a grievance can be seen as malicious and vexatious, to consider taking disciplinary action against the complainant. For instance, where the complainant is making unfounded allegations against you as an employer, or other members of staff with an intention to cause distress or offence for instance.
It is important that you always keep in mind your duty to also properly investigate the grievance in line with your company procedures and ACAS guidelines.
Can A Malicious Grievance Raised by An Employee Be Justified in Certain Situations?
Employees may have legitimate complaints about the way they have been treated if they have been subjected to unfair treatment at work such as bullying, harassment or being undervalued within the company.
The employee themselves may be suffering severe stress or mental illness which could amount to mitigating circumstances. These should be discussed as part of the grievance investigation process.
It is always useful to consider how an employment tribunal may view your actions in dealing with malicious grievances. If you have carried out a fair and transparent process in carrying out the necessary investigations into any grievance raised, you won’t have anything to worry about.
On the flip side, if you decide to go down the road of disciplining an employee who has raised a grievance that had merit, this may act against you in some situations. For example, if an employee raises a grievance for sexual harassment and is then disciplined. If it is found that the two are linked, this could amount to being treated less favourably for raising a grievance, which could be seen as victimisation. The important point to note here is that this would apply even where a grievance may be malicious or vexatious.