Round #450

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?

### Disclaimer I am not a lawyer, and this is not formal legal advice. Employment law varies by jurisdiction (e.g., UK, US, EU countries), so the following is general guidance based on common practices, particularly in the UK where the term "grievance" is often used under the ACAS Code of Practice. You should consult an employment law specialist, HR professional, or your legal team for advice tailored to your location, company policies, and specific circumstances. Failing to do so could expose your organization to risks. ### Do You Still Have to Investigate the Grievance After Resignation? In many jurisdictions, **yes, you are generally still required or strongly advised to investigate the grievance**, even if the employee has resigned before the scheduled hearing. Here's why: - **Legal and Procedural Obligations**: - Under the UK's ACAS Code of Practice on Disciplinary and Grievance Procedures (a statutory code that tribunals must consider), employers should handle grievances fairly and promptly. Resignation does not automatically end the process, especially if the grievance involves serious issues like discrimination, harassment, bullying, health and safety concerns, or unequal pay. The Code recommends continuing the investigation to its conclusion, offering the employee the opportunity to participate (e.g., via written submissions or a virtual/remote hearing if they've left). - In the US (under frameworks like Title VII or state laws), similar principles apply if the grievance relates to protected characteristics (e.g., race, gender). The EEOC or equivalent bodies expect employers to investigate complaints of discrimination regardless of employment status. - In the EU, directives on equal treatment and whistleblowing may require follow-through to avoid liability. - **Employee's Rights Post-Resignation**: - The employee can still pursue claims through an employment tribunal, court, or regulatory body (e.g., in the UK, within 3 months of the last act of discrimination or resignation). Resignation might even form the basis of a constructive dismissal claim if the grievance highlights a fundamental breach of contract. - If the grievance is upheld during investigation, it could lead to remedial actions like policy changes, apologies, or compensation, even after they've left. - **Practical Steps if You Proceed**: - Notify the former employee in writing that you're proceeding with the investigation and invite their input (e.g., additional evidence or a meeting). - Conduct a fair, impartial investigation (e.g., gather evidence, interview witnesses). - Issue a written outcome, explaining your findings and any actions taken. - Document everything meticulously to demonstrate compliance. If the grievance is minor, historical, or unrelated to ongoing issues (and the employee explicitly withdraws it), you might agree to close it—but get this in writing to avoid disputes. ### Risks If You Do Not Investigate Failing to investigate can have significant consequences, even post-resignation. Tribunals and courts often view non-investigation as a failure to follow fair procedures, which can weaken your defense and lead to higher penalties. Key risks include: 1. **Employment Tribunal or Legal Claims**: - **Constructive Dismissal**: If the grievance contributed to the resignation, the employee could claim they were forced out due to an unresolved issue. Without investigation, it's harder to argue you acted reasonably. - **Discrimination/Harassment Claims**: These can be brought by former employees. Tribunals may award uncapped compensation (e.g., for injury to feelings, lost earnings). In the UK, ignoring a grievance can lead to a 25% uplift in awards for unreasonable failure to comply with the ACAS Code. - **Time Limits**: Claims must typically be filed soon after resignation (e.g., 3 months in the UK, 180-300 days in the US), but delays in your process could extend effective deadlines. - **Example Outcome**: Awards can range from £1,000–£50,000+ in the UK for basic claims, escalating with evidence of procedural unfairness. 2. **Financial Penalties**: - Compensation for losses (e.g., notice pay, future earnings if they mitigate poorly). - Legal costs if you lose (tribunals can order the losing party to pay the winner's fees in some cases). - Fines from regulators (e.g., under GDPR for data mishandling during investigation, or health/safety bodies). 3. **Reputational and Operational Risks**: - Damage to employer brand if the issue goes public (e.g., via social media or reviews on sites like Glassdoor). - Internal morale issues: Other employees may lose trust if grievances seem ignored, leading to higher turnover or more claims. - Precedent for Future Cases: Sets a bad example, making it harder to defend similar situations. 4. **Insurance and Compliance Issues**: - Employment liability insurance may not cover claims if you didn't follow best practices. - Non-compliance with equality/diversity laws could trigger audits or investigations by bodies like the Equality and Human Rights Commission (UK) or EEOC (US). ### Recommendations - **Act Quickly**: Review the grievance's nature immediately. If it's serious (e.g., involving protected characteristics), prioritize investigation. - **Seek Expert Help**: Contact ACAS (UK helpline: 0300 123 1100) for free guidance, or an employment solicitor. In the US, consult SHRM or a labor attorney. - **Document Your Decision**: If you choose not to investigate (rarely advisable), justify it in writing (e.g., based on withdrawal) and inform the employee. - **Prevent Future Issues**: Ensure your grievance policy explicitly addresses resignations to provide clarity. By investigating, you not only mitigate risks but also demonstrate good faith, which can protect you in any potential claim. If you provide more details (e.g., your country or grievance type), I can offer more targeted general insights—but again, professional advice is essential.

### Legal Context and Obligations In the UK (assuming this is the relevant jurisdiction based on the ACAS reference), employment law, particularly the ACAS Code of Practice on disciplinary and grievance procedures, provides guidance on handling grievances. While the Code is not legally binding, employment tribunals must take it into account, and unreasonable failure to follow it can result in uplifts to compensation awards (up to 25%) in relevant claims. #### Do You Still Have to Investigate? - **Short Answer**: You are not strictly *required* to hold a formal hearing or complete the full grievance process after resignation, as the employment relationship has ended. However, it is generally advisable to conduct at least a proportionate investigation, especially if the grievance raises serious allegations (e.g., discrimination, harassment, bullying, or health and safety issues). This demonstrates procedural fairness and compliance with the ACAS Code. - **Key Considerations**: - **ACAS Code of Practice (Paragraphs 9-10 on Grievances)**: Employers should investigate grievances "without unreasonable delay" to establish the facts. Resignation does not automatically terminate this duty, particularly if the grievance could have ongoing implications (e.g., references, potential claims, or internal process improvements). - **Procedural Fairness**: Failing to investigate could be seen as unfair, especially if the employee requested it in writing. Even post-resignation, you should consider inviting the former employee to participate (e.g., via email) and document your attempts. - **Appeal Rights**: If the grievance was at an early stage, the right to appeal (under ACAS) might still apply if you decide to proceed. Post-resignation, this could be handled informally. - **Practical Steps**: 1. Acknowledge the resignation and the outstanding grievance in writing. 2. Assess the nature of the grievance: Minor issues might not warrant full investigation; serious ones (e.g., involving others in the workplace) should. 3. Conduct an internal review or fact-finding (without a formal hearing if the employee is unavailable). 4. Communicate the outcome to the former employee, even if it's a decision not to proceed fully. 5. Retain records for at least 6 months (or longer if litigation risk exists), as tribunals can review them. If the resignation was triggered by the grievance (e.g., constructive dismissal), a full investigation becomes even more critical. #### Risks If You Do Not Investigate Failing to investigate carries several potential risks, depending on the circumstances: 1. **Employment Tribunal Claims**: - **Constructive Unfair Dismissal**: If the employee argues the employer's handling (or lack thereof) of the grievance forced their resignation, they could claim this within 3 months of resignation. No investigation might weaken your defense and lead to findings of unfairness. - **Discrimination Claims** (under Equality Act 2010): If the grievance involved protected characteristics, non-investigation could support claims of victimisation or failure to prevent harassment. Unlimited compensation possible. - **ACAS Uplift**: Tribunals can increase awards by up to 25% for breaching the Code. 2. **Reputational and Internal Risks**: - Damage to workplace morale if the issue affects current employees. - Issues with future references or settlement agreements (e.g., the ex-employee might demand one to waive claims). - Regulatory scrutiny if the grievance involves serious misconduct (e.g., from HSE for safety issues). 3. **Financial Risks**: - Tribunal costs: Basic awards (up to ~£20,000) plus compensatory (unlimited, covering losses). - Legal fees for defense. - Potential for higher settlements if the employee pursues early conciliation via ACAS. 4. **Mitigation**: - Time limit for claims is 3 months less one day from resignation—act promptly. - If low risk, document your rationale for not investigating (e.g., "grievance resolved by resignation; no ongoing issues"). - Consider offering an exit interview to address concerns informally. #### Recommendations - This is general guidance based on UK employment law and the ACAS Code; it is not personalized legal advice. Consult a qualified employment lawyer, HR specialist, or ACAS (helpline: 0300 123 1100) immediately for your specific situation, as outcomes depend on details like the grievance content, contract terms, and timing. - Review your internal policies to ensure they align with ACAS for future cases. - If the employee is in a different jurisdiction (e.g., EU or US), local laws (like Title VII in the US) may impose stricter duties. For official resources: - ACAS Code: [Download from GOV.UK](https://www.gov.uk/government/publications/acas-code-of-practice-on-disciplinary-and-grievance-procedures) - Guidance on Grievances: [ACAS Website](https://www.acas.org.uk/grievance-procedure)