Round #966

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?

# Grievance After Resignation: Investigation Obligations ## Do You Have to Investigate? **Technically, no** – you have no legal obligation to investigate a grievance after an employee has resigned. However, this requires nuance: - Resignation terminates the employment relationship - The grievance procedure typically becomes **moot** once employment ends - Most grievance policies allow for suspension or closure upon resignation **BUT:** Practical and legal considerations may override this. --- ## Key Risks of Not Investigating ### 1. **Employment Tribunal Claims** - The resignation may be **constructive dismissal** (employee forced to resign) - If grievance relates to harassment, discrimination, or safety: - Failing to investigate strengthens their claim - Suggests conditions were so poor they quit - Tribunal may award damages even without formal dismissal ### 2. **Discrimination/Harassment Exposure** - If grievance involved protected characteristics (race, sex, disability, etc.): - **Duty to investigate persists** regardless of resignation - Failure to investigate = failure to prevent discrimination - Can expose you to complaints to the **Equality and Human Rights Commission** ### 3. **Health & Safety Issues** - Safety concerns typically require investigation **regardless** of employment status - Regulatory bodies (HSE) may investigate if you don't ### 4. **References & Future Disputes** - Unresolved grievances cloud reference-giving - May lead to defamation claims if references appear retaliatory - Creates internal record of unaddressed complaints ### 5. **Reputational Damage** - Appears unfair to other employees - Suggests grievances are only taken seriously if employee stays --- ## Best Practice Approach | **Scenario** | **Recommendation** | |---|---| | **Straightforward operational issue** | Reasonable to close with written confirmation | | **Discrimination/harassment allegation** | **Investigate regardless** | | **Potential constructive dismissal** | Investigate to protect position | | **Multiple similar complaints** | Investigate to identify patterns | | **Safety concerns** | Investigate and document | --- ## Practical Steps 1. **Write to the ex-employee** confirming receipt and next steps 2. **Assess the substance** – could this indicate systematic issues? 3. **Preserve evidence** immediately 4. **Conduct basic investigation** if there's any discrimination/safety angle 5. **Document the decision** to close (with rationale) 6. **Inform them of outcomes** even if closed --- ## The Bottom Line While you can **technically** close the grievance, the **legal and reputational risks often outweigh the savings**. A proportionate investigation (even brief) is usually prudent, especially if discrimination or safety is involved. **The weakest position is: doing nothing while maintaining no documentation of why.**

You still have to investigate. Failure to do so exposes you to significant legal risk. **Why investigation is required:** Under the ACAS Code of Practice and the Employment Rights Act 1996, an employer must conduct a fair investigation into a grievance regardless of the employee's subsequent resignation. Abandoning the investigation because the employee has left creates these exposures: 1. **Constructive dismissal claim** — the employee may argue the grievance (and your failure to address it) forced their resignation, potentially succeeding in an unfair dismissal claim within three months of resignation. 2. **Discrimination claim** — if the grievance involved discrimination (race, gender, disability, etc.), non-investigation strengthens their case that you treated the complaint less seriously because they'd resigned, or that the underlying discrimination was real and unaddressed. 3. **Breach of the ACAS Code** — tribunals may uplift compensation by up to 25% if you've unreasonably failed to follow the Code, including investigation of outstanding grievances. 4. **Whistleblowing detriment** — if the grievance related to protected disclosure, resignation without investigation suggests the disclosure was not taken seriously. 5. **Procedural fairness breach** — the employee retains a right to know the outcome, especially if the grievance alleged misconduct by others that could affect remaining staff. **Risk mitigation:** - Complete the investigation to the same standard as if the employee remained employed. - Offer the resigned employee the opportunity to attend the hearing remotely or receive findings in writing (procedural fairness still applies). - Document your decision to proceed and your reasoning. - Provide written findings and, if upheld, any remedial action affecting the workplace (e.g., if misconduct by others was substantiated). - Confirm any appeal right in writing, even though they've left. The cost of investigation is minimal; the cost of defending a tribunal claim is not.