Being on the receiving end of a complaint at work can be an extremely stressful and worrying time, especially where the grievance raised is vexatious, malicious and deliberately intended to make life difficult for you.
Below we look at how to deal with a malicious grievance at work, either as an employer or senior employee, and what steps can be taken to minimise the impact of such vexatious complaints.
Handling a malicious grievance
Any workplace grievance, even if thought to be made maliciously, must still be approached in the same way as any other grievance at work. This means that it must be handled fairly and lawfully, always applying a presumption from the outset that the complaint has been made in good faith, unless and until there is clear evidence to the contrary.
In identifying malicious or vexatious complaints, employers must be careful to ensure that they can satisfy, as far as possible, as to the falsity or otherwise of a grievance raised. You must also be careful to distinguish between employees who are raising genuine concerns and those who are being intentionally difficult. In some instances, a person may feel genuinely aggrieved or frustrated by a workplace problem, or how they have been treated at work, resulting in an unintentionally unfounded complaint.
As such, the focus must be on careful consideration of the merits of a complaint rather than the attitude of the complainant, or any previous history of complaints made by them. Further, even if it is apparent that the complaint in question has been made in bad faith, you are still under a duty to investigate the matter as you would with any other grievance.
Following the correct procedure
All complaints, even if thought to be made with malicious or vexatious intent, should be thoroughly investigated in accordance with your internal grievance procedures. If you don’t have any grievance procedure in place, as an absolute minimum you must still follow the steps set out under the Acas Code of Practice on disciplinary and grievance procedures.
The Acas Code of Practice provides practical guidance to employers and employees setting out the basic principles of fairness for handling disciplinary and grievance situations at work. Although a failure to follow the Code does not, in itself, make an employer or organisation liable to proceedings, any unreasonable failure to comply with its provisions will be taken into account by an employment tribunal if the matter proceeded that far.
Where a complaint is made in bad faith, it is not inconceivable that the complainant would seek to pursue this further, litigating the matter in the form of a tribunal claim so as to maximise any upset and inconvenience to you, or even to capitalise on their dishonesty.
It is, therefore, imperative that you follow a full and fair procedure at all times, documenting your actions every step of the way, preferably arranging for someone not involved in the grievance to take notes and act as a witness at any hearings or meetings. In this way, you will be able to defend your decision-making in the context of any claim made against you, and whilst it may prove impossible to evidence the malicious or vexatious nature of the complaint, you should be able to show the lack of factual and legal basis to any unfounded claim.
Conversely, any failure to follow the guidance on grievance procedures provided by Acas is highly likely to reflect badly on your working practices, such that this could cast doubt on any defence you may raise to a claim, potentially lending support to even a malicious or vexatious complaint. Additionally, any award of damages made against you following a successful claim, could be increased by up to 25%.
Can a malicious grievance against me be handled informally?
The way in which a grievance is handled will initially depend on the way in which a complaint is made. If the complaint is made informally, for example, verbally to a line manager, it may be possible to resolve the matter by way of a ‘quiet word’ with the person or people involved.
Even if the complaint has been made maliciously, this may simply be a warning shot to the falsely accused perpetrator(s) of the intention on the part of the complainant to stir up trouble for them, or as a way of that individual ‘flexing their proverbial muscles’. In such cases, where the complainant is not looking to pursue their false or unfounded accusations any further, it may be possible to deal with the matter on an informal basis.
That said, even where it is obvious that the complaint is false or unfounded, an accurate record should still be retained as to what action was taken and how the matter was resolved. This may potentially be the first in a long line of malicious or vexatious complaints, that could at some stage result in a formal grievance or even a tribunal claim, so it important to show that on each and every occasion the matter complained of was approached fairly and lawfully.
In some instances, however, the complainant may be looking to escalate the matter into a formal grievance at the earliest possible opportunity so as to maximise the impact of their ill intent. As such, as with any other formal grievance, you should invite the complainant to put the matter in writing, and refer them to any grievance procedure that you have in place to ensure that things are done by the book.
Steps to take when dealing with a formal grievance
Where some form of formal action is needed, what response is reasonable or justified will depend on all the circumstances of the complaint. However, even where a complaint has been made maliciously, or it is likely that ill intent forms the basis of the allegations, every formal grievance should still be thoroughly investigated and the proper procedures followed.
This will usually mean assessing the nature of the complaint, as detailed in the employee’s grievance letter, and conducting an investigation into the allegations or complaint. Following this, a formal hearing should be arranged without unreasonable delay, providing the employee with the opportunity to explain their complaint and how they think it should be resolved, providing any evidence in support. Once an employee raises a formal grievance, you should usually arrange to hold a meeting within 5 working days.
Employers should allow employees to be accompanied at any formal grievance meeting on request by either a work colleague, trade union representative or an official employed by a trade union. You must also postpone any meeting to a time proposed by the complainant to allow their companion to attend, provided the alternative time is both reasonable and not more than 5 working days after the date originally proposed by you.
Having listened to the nature of the grievance, considered any evidence put forward and asked any questions, you must make a decision as to what action, if any, is appropriate. Where necessary, the meeting should be adjourned for further investigations to be undertaken. Where the complaint is about someone else, for example, another member of staff, this could involve interviewing the alleged perpetrator(s) and any witnesses to incidents described, and carrying out any other necessary investigations to establish all the facts.
You must obtain as much information as possible, gathering evidence from all sides, whilst being sensitive to the circumstances and needs of the person the grievance is about, as well as the person who raised the grievance. Only once you are satisfied that you have all the facts to hand, and everyone has had a chance to have their say, should a final decision be made.
You must communicate your decision to the complainant in writing, again without unreasonable delay, together with what action will be taken. The complainant must also be informed of their right to appeal this decision if they are not content with the outcome, or if they feel that any part of the grievance procedure was wrong or unfair.
Any appeal must be dealt with promptly, and at a time and place that must be notified to the complainant in advance. The appeal should also be dealt with impartially and, wherever possible, by a manager or member of senior management who has not previously been involved in the case. The complainant again has a right to be accompanied at any such appeal hearing and the outcome of any appeal should be communicated to them in writing.
What disciplinary action can be taken for making a malicious grievance?
How you decide to handle the making of a malicious grievance will depend on the facts of each case. Where the evidence clearly points towards the complaint being wholly unfounded and deliberately designed to mislead or cause trouble for either yourself or someone else at work, it may be appropriate to commence disciplinary proceedings against the complainant.
In some cases, the person against whom the false complaint has been made may themselves choose to raise a grievance against the original complainant that will require investigation.
In some cases, where a finding is made against the complainant, this may warrant instant dismissal, for example, where there is clear evidence that a complaint was dishonest. This type of behaviour would clearly breach the implied duty of trust and confidence between an employer and employee, such that this amounted to gross misconduct. That said, even where summary dismissal is deemed appropriate, a fair disciplinary process should still be followed.
This means that you must provide the complainant with sufficient opportunity to defend their actions and state their case before making any decision to dismiss them, or to impose any other form of disciplinary sanction against them.
Given that you will have already conducted some form of investigation into their grievance to warrant a finding that this was made in bad faith, it may not be necessary to carry out any further investigations prior to any disciplinary hearing. However, where further investigation is deemed necessary, this must be undertaken without unreasonable delay.
You must also make the individual aware of their statutory right to be accompanied at the disciplinary hearing, as this could result in the taking of some disciplinary action.
Following any hearing, and as with a formal grievance, your final decision must be communicated in writing and the employee given the opportunity to appeal this.
It is important to remember that when disciplining a member of staff for making a malicious or vexatious complaint, you must take into account any explanation that may mitigate the seriousness of what they have done, for example, stress or mental health issues, or even underlying workplace problems such as bullying, harassment or discrimination that may have led the complainant to behave in such a way.
You must also ensure that any disciplinary sanction imposed is proportionate and consistent with any previous action take in relation to unfounded complaints made by other employees in the past.
Further, where there is no clear evidence that a grievance was made in bad faith, you must exercise caution when deciding to discipline an employee for raising an ill-founded grievance. This could, in itself, result in a valid and wholly founded claim for victimisation. This is because treating anyone less favourably or subjecting them to a detriment at work because they have brought a complaint can amount to unlawful victimisation. This applies even where a complaint is suspected to be malicious or vexatious.
DavidsonMorris’ employment law experts work with employers to support with resolving workforce management issues, including disciplinaries and investigations. Working closely with our team of HR specialists, we provide a holistic approach to managing difficult circumstances that present considerable legal risk, such as vexatious and malicious grievances. For help and advice on your legal options as an employer, speak to us.
Vexatious & malicious grievances FAQs
What to do if someone raises a grievance against you?
If someone raises a grievance against you as an employer, or about another employee, you should ensure that you follow a full and fair procedure in dealing with the matter, investigating the issues thoroughly and documenting your decision-making throughout.
What is vexatious behaviour?
Vexatious behaviour in the workplace typically refers to where an employee pursues a complaint about their employer, or a co-worker, regardless of its merits and deliberately designed to cause trouble or create the basis of an unfounded tribunal claim.
What happens if my grievance is not upheld?
If a grievance is not upheld by your employer, you should be informed of this decision in writing without unreasonable delay. You should also be informed of your right to appeal the outcome, if you disagree with this, or if you think any part of the grievance procedure was wrong or unfair.
Do I have the right to see a complaint made against me UK?
Under UK data protection laws, you have the right to request access to information about you that is held on file. This could include evidence relating to a grievance made against you at work, although your employer can refuse to disclose any document that would also reveal information about a third party, and that party has asked for this to be kept anonymous.
Last updated: 28 September 2020