Tactical grievances during exit negotiations – can you refuse to hear them?

It is now becoming increasingly common for employees to raise tactical grievances during exit negotiations. Refusing to hear a grievance when you suspect an employee has raised it purely as a negotiation tool, does run the risk of potential claims. However, there are circumstances when you can legitimately refuse to deal with the grievance and, save yourself significant management time and cost, if you suspect the intention behind the grievance is to enhance the employees negotiation position for settlement purposes.

Too often, even when employers suspect an ulterior motive for a grievance being raised, they are likely to still investigate and deal with the concerns in the same way as any other grievance. From the employers perspective, they will not want to risk any potential claims arising from its failure to deal with the grievance promptly or thoroughly. However, when you balance this against the management time and cost involved, in interviewing witnesses, carrying out investigations, conducting the hearing and providing a reasoned written grievance outcome response letter, there are compelling business reasons for you to refuse to hear what you suspect to be a tactical grievance, driven by the employees desire to further their negotiation position during exit negotiations.

Pre-termination negotiations

In practice, an exit negotiation with an employee is likely to have been commenced as part of a wider without prejudice or open pre-termination negotiation under section 111A of the ERA 1996. If you are satisfied that you have done everything by the book and there is no improper behaviour on your part, in the handling of the exit negotiations, then refusing to deal with the grievance is unlikely to damage your position in any unfair dismissal claim, as evidence relating to the grievance will not be admissible. In these circumstances, your position should be to state that the grievance is an extension of the exit negotiations and, given that there has been no improper behaviour, you are taking the position that the grievance is inadmissible in any subsequent proceedings under section 111A. Your focus should then be to get the employee back to discussing exit terms, as opposed to having to run parallel grievance investigations and exit negotiations. Or worse still, putting on hold the ongoing exit negotiations and switching your attention to having to deal with the grievance.

What is improper behaviour?

Key to determining whether you are able to legitimately refuse to deal with a grievance on the handling of exit negotiations is to assess whether there has arisen any improper behaviour on your part. Ultimately this is a factual assessment depending on the circumstances of each case, but it can include matters such as the following:

• all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour – therefore ensue you conduct the exit discussions in a procedurally fair manner;
• physical assault or the threat of physical assault and other criminal behaviour such as bribery, theft or fraud;
• all forms of victimisation;
• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
• putting undue pressure on a party (so for instance before any form of disciplinary process has begun you say that if a deal can’t be reached then the employee will be dismissed). In addition, putting undue pressure on the employee to conclude the exit negotiations. In fact, the ACAS Code of Practice recommends a minimum period of 10 days for the employee to consider the any offer as part of an exit discussion, although there is nothing to stop the parties concluding the deal in a shorter time frame.

Even if you are satisfied that there is no improper behaviour on your part, in the handling of the exit negotiations, before you decide not to hear the grievance you should take into account the following risks:

• the employee could pursue a claim for something other than unfair dismissal meaning that the pre-termination exit negotiation, the grievance, and your refusal to hear it would be admissible. So for instance where the employee alleges that the manner in which the exit negotiations have been handled are discriminatory and/or a breach of contract.
• the refusal to hear the grievance could be a repudiatory breach of contract entitling the employee to resign and claim constructive dismissal. However, if you have clearly explained why it is not appropriate to hear the grievance and ultimately there is no evidence of improper conduct during the exit negotiations, then it will be difficult for the employee to establish such a breach.
• check your policies and procedures to ensure that there does not exist a contractual right for the grievance to be dealt with. Otherwise you run the risk of a breach of contract claim and your refusal to deal with the grievance becomes admissible.
• there is the possibility of an uplift in compensation on the basis of an unreasonable failure to follow the ACAS Code if the final position reached by the tribunal is that you should have heard the grievance.

So in summary, the next time you receive a grievance from an employee who you are in exit discussions with, consider going through the following thought process before commencing a formal full blown grievance investigation:

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