Round #437

An employee raised a grievance and then resigned before the hearing date. Do we still have to investigate and what are the risks if we do not?

### Obligation to Investigate the Grievance In the UK (assuming this is the relevant jurisdiction based on common employment law contexts; if it's elsewhere, laws may differ—consult local regulations), employers are generally required to follow a fair and reasonable process for handling grievances under the ACAS Code of Practice on Disciplinary and Grievance Procedures. However, resignation does not automatically end this obligation. Key points: - **No Strict Legal Requirement Post-Resignation**: Once an employee resigns, their employment contract ends (typically on the notice period's expiry), and they are no longer an "employee" under employment law. This means you are not legally compelled to hold a formal grievance hearing or investigation as you would for a current employee. The ACAS Code primarily applies during employment, and tribunals have ruled that the process can be adapted or curtailed if the employee leaves (e.g., *Samuel Smith Old Brewery (Tadcaster) Ltd v Marshall* [2009], where post-termination grievances were handled less formally). - **When Investigation May Still Be Needed**: - If the grievance involves serious issues like discrimination, harassment, or whistleblowing, you may need to investigate to comply with broader laws (e.g., Equality Act 2010 or Public Interest Disclosure Act 1998). Failure to do so could expose you to claims even after resignation. - If the employee requests a hearing before resigning, or if the grievance was raised in writing, it's good practice to acknowledge it and offer a reasonable alternative, such as a written response or informal discussion, to demonstrate fairness. - Consider the timing: If resignation occurs very close to the hearing, proceeding (or at least documenting why you didn't) shows diligence. In summary, you don't *have* to investigate fully, but it's advisable to at least review the grievance internally and respond proportionately to mitigate risks. ### Risks of Not Investigating Failing to investigate or address the grievance at all can carry several potential consequences, even post-resignation. These depend on the grievance's nature, how it's handled, and whether the employee pursues legal action. Here's a breakdown: - **Employment Tribunal Claims**: - The employee has a 3-month window (less one day) from the last act of alleged unfairness to file a claim. Resignation might be framed as constructive dismissal if they argue the employer's handling (or lack thereof) forced them out. Not investigating could weaken your defense, as tribunals expect employers to follow the ACAS Code—breaches can lead to uplifts in compensation (up to 25%). - Potential claims: Unfair dismissal (if resignation is treated as dismissal), discrimination (unlimited compensation possible), or breach of contract. For example, in *Polkey v AE Dayton Services Ltd* [1987], failure to follow procedures was key to finding unfairness. - **Reputational and Internal Risks**: - If the grievance highlights systemic issues (e.g., bullying or unsafe practices), ignoring it could lead to further complaints from other staff, morale issues, or escalation to regulators like the Health and Safety Executive (if health-related). - Public exposure: The ex-employee might share details online or with media, damaging your organization's reputation, especially in industries like healthcare or finance. - **Financial and Legal Costs**: - Tribunal fees aren't recoverable, but defending a claim could cost £5,000–£20,000+ in legal fees, plus awards (e.g., basic award up to £19,290 as of 2024, plus compensatory). If discrimination is involved, costs can exceed £50,000. - Insurance: Employment liability insurance might not cover if procedures weren't followed. - **Mitigation Strategies**: - Document everything: Send a letter acknowledging the resignation and grievance, explain why no hearing is proceeding, and invite written submissions if needed. - Conduct a limited internal review to identify lessons learned, without involving the ex-employee. - Seek advice: Consult ACAS (free helpline: 0300 123 1100), an employment solicitor, or HR specialist promptly. If the grievance is complex, a short investigation (e.g., reviewing evidence) is low-risk and protective. This is general guidance based on UK employment law—specifics vary by case details and location. For tailored advice, contact a professional advisor immediately to avoid escalation.

### Legal Context This response is based on UK employment law, specifically the ACAS Code of Practice on disciplinary and grievance procedures (the "Code"), which provides guidance on handling workplace grievances. The Code is not legally binding but is statutory guidance; employment tribunals must take it into account when determining the fairness of procedures, potentially leading to uplifts in compensation (up to 25%) for unreasonable failure to follow it. Note that laws can vary by jurisdiction (e.g., this assumes UK law; consult local regulations elsewhere). This is not legal advice—seek professional counsel from an employment lawyer or HR specialist for your specific situation. ### Do You Still Have to Investigate? - **Short Answer**: No, you are not strictly *required* to investigate a grievance after an employee resigns, especially if the resignation is effective before the hearing date and the employee is no longer employed. However, it is often advisable to conduct at least a limited investigation or review to mitigate risks, depending on the circumstances. - **Key Reasons and Guidance**: - **ACAS Code Recommendation**: The Code (paragraphs 9-10) states that employers should aim to resolve grievances promptly and fairly while the employee is employed. If the employee resigns, the obligation to hold a full formal hearing may end, as the employment relationship has terminated. However, ACAS advises considering whether a limited investigation or informal resolution is still appropriate if the issues raised could affect the business (e.g., systemic problems, other employees, or potential claims). - **No Automatic Duty Post-Resignation**: UK case law (e.g., *Samuel Smith Old Brewery (Tadcaster) Ltd v Marshall* [2009]) supports that the duty to investigate grievances under the Code typically ceases upon termination of employment. If the grievance is personal to the resigning employee (e.g., about their own treatment), and they've left, a full process isn't mandated. - **Exceptions Where Investigation May Still Be Needed**: - If the grievance involves allegations of discrimination, harassment, or bullying that could impact other staff or the workplace culture, investigating helps demonstrate compliance with the Equality Act 2010 and prevents escalation. - If the resignation was prompted by the grievance (e.g., constructive dismissal claim), a partial investigation shows good faith. - If the employee requests continuation (e.g., for a reference or closure), or if it's part of an ongoing process like a settlement agreement. In practice, many employers opt for a "paper-based" review or summary response instead of a full hearing to acknowledge the grievance without reconvening. ### Risks If You Do Not Investigate Failing to investigate (or at least review) the grievance post-resignation carries potential legal, financial, and reputational risks, even if the employee has left. These stem from the need to act reasonably and follow the Code to avoid claims or uplift penalties. - **Constructive Unfair Dismissal Claim**: - If the employee argues their resignation was a constructive dismissal (i.e., they were effectively forced out due to a breach of trust and confidence, such as mishandling the grievance), lack of investigation could be evidence of unreasonableness. - **Risk Level**: High if the grievance relates to serious issues (e.g., bullying or pay disputes). They have 3 months less one day from resignation to claim via ACAS early conciliation and tribunal. Compensation could include lost earnings (uncapped for discrimination-related claims) plus a 25% uplift for Code non-compliance. - **Mitigation**: Document why you didn't proceed (e.g., resignation ended the process) and offer a written response summarizing your position. - **Discrimination or Harassment Claims**: - Under the Equality Act 2010, if the grievance alleged protected characteristics (e.g., sex, race, disability discrimination), ignoring it could support a claim for victimisation or failure to prevent harassment. - **Risk Level**: Medium to high, especially if evidence emerges later. Claims can be brought post-employment, with no time limit in some victimisation cases. Awards can be unlimited (e.g., injury to feelings: £1,200–£56,000+ depending on severity). - **Mitigation**: Conduct a proportionate investigation to show diligence, even if limited to reviewing documents. - **Breach of Contract or Procedural Unfairness**: - If your employment contracts, handbook, or internal policies require full grievance handling regardless of resignation, non-compliance could lead to breach of contract claims. - Tribunals assess "procedural fairness" (e.g., *Polkey v AE Dayton Services Ltd* [1987] principle), where inadequate processes can render outcomes unfair, even post-termination. - **Risk Level**: Low to medium, but could result in nominal damages or contribute to other claims. - **Reputational and Business Risks**: - Unresolved issues might affect morale if other employees are aware, or lead to negative reviews (e.g., on Glassdoor). If the grievance highlights broader problems (e.g., health and safety violations), ignoring it could invite regulatory scrutiny from bodies like the Health and Safety Executive. - **Financial Exposure**: Beyond claims, costs include legal fees, management time, and potential settlement payments (common via ACAS conciliation). - **Appeal Rights**: - The Code (paragraph 26) requires offering an appeal stage for grievances. Post-resignation, this may not apply, but if you do investigate, ensure the employee has a right to appeal any outcome. Denying this without reason could worsen risks in a tribunal. ### Recommended Steps 1. **Assess the Grievance**: Review its nature—personal vs. organisational. If low-risk and personal, send a polite letter explaining the process ends with resignation but offering to discuss informally. 2. **Document Everything**: Record your decision-making, communications, and reasons for not proceeding fully. This protects against claims. 3. **Consider Limited Action**: Hold a brief internal review or interview witnesses if relevant. Invite the ex-employee to provide more info voluntarily. 4. **Seek Resolution**: Propose a without-prejudice discussion or settlement if claims seem likely. 5. **Consult Experts**: Immediately involve your HR team, union (if applicable), or an employment solicitor. Use ACAS helpline (0300 123 1100) for free advice. By following the Code's spirit, you reduce exposure. If the resignation was recent, act quickly to show reasonableness.