Many employers have had to deal with the kind of employee who persists unreasonably with their complaints, or makes complaints in order to make life difficult for the employer rather than genuinely to resolve a grievance. This article sets out some tips on how to deal with this kind of employee, who can often drain time, resources and morale from an organisation.
Beware of dismissing an employee
- The recent case of Woodhouse v West North West Homes Leeds Limited  is a useful warning to employers that no matter how ill founded discrimination grievances or claims may be, provided they have been made by the employee in good faith, an employer who dismisses an employee for raising such grievances risks exposure to a victimisation claim.
- Some, albeit small, comfort can be gleaned from the Woodhouse case -Judge Hand QC recognised that conduct/behaviour might be one genuinely separable feature from the making of the complaint itself. In other words it may be possible to dismiss an employee for a reason not related to the bringing of a discrimination claim, but to the way in which that claim was pursued, including unreasonable allegations designed to harass the employer into settlement.
- In circumstances where a dismissal is too risky because of the threat of a victimisation claim (see above) mediation – whether internal or external – can be a good alternative solution.
- In view of the decision in Woodhouse, employers should treat allegations of discrimination seriously. If, having investigated the matter, there is evidence the complaint was vexatious and not in good faith, this should be recorded in the written decision.
Is a complaint vexatious?
- It is important to distinguish between employees who make a number of complaints because they feel genuinely aggrieved and employees who are simply being difficult. Furthermore, employees who make a complaint will often feel frustrated and discontent with their employer and therefore it is essential to consider the merits of the case rather than their attitude.
- Even though someone has made vexatious complaints in the past, it cannot be assumed that the next complaint is also vexatious. Each case must be considered, and a decision made as to whether it is vexatious or genuine. There is no way of avoiding reading and evaluating each piece of correspondence. This may be time consuming, but it must be done.
Complaints about the same matter
- If a complaint is about essentially the same matter that has already been considered, with only very minor differences, and does not contain any new information, then the following steps should be considered:
- If the employee has not exhausted the employer’s grievance procedure (i.e. they still have the right to appeal), their complaint could be picked up during the process or they should be referred to the appeal stage of the procedure.
- If the internal grievance procedure has been exhausted and an appeal has already been heard but not upheld, the employee should be informed that they have reached the end of the internal grievance procedure.
- If the employee does not pursue the grievance to the next stage, and continues nonetheless to correspond, the correspondence must be read by the manager who originally dealt with the grievance. If it raises no significant new matters and presents no new information, the employee should be referred to the original decision and informed that the employer will not enter into any further correspondence about the matter. If the employee still does not take this advice, the employer might decide that any further correspondence that does not raise any significant new matters or present any new information is simply filed with no acknowledgement sent.
Complaints about similar matters
- The most difficult complaints to deal with are often complaints that are slightly different from the original complaint, but about the same broad area of activity. A decision will have to be made on whether the matters are sufficiently different to justify being considered as a new complaint. Employers often find it easier to collate them with an existing investigation, as this tends to reduce overall management time.
Complaints about different matters
- If an employee keeps making complaints about different matters, each complaint should normally be considered in the usual way under the employer’s grievance procedure.
- Remind the employee that complaints should be raised informally before seeking to invoke a formal process.
- If the new complaints are about entirely trivial matters, or matters that have clearly not caused the employee any injustice, it may be appropriate (and this will be a judgment call) in exceptional circumstances to simply note the complaint without invoking the formal grievance procedures, provided the employee is informed of this decision. In other words the employer does not necessarily have to respond to every concern.
Minimising the disruption to management
- Vexatious complainants may contact different people with the company, and can try and take advantage of the differing responses they may receive. It is important to try and ensure that a vexatious complainant has one main contact within the organisation (i.e. the HR Manager or the manager dealing with the grievance) and to notify the employee that any complaints are addressed to that person in the first instance.
- It is important not to spend large amounts of time on vexatious complainants. However, it may sometimes be worth spending a bit of time defusing a situation (e.g. responding tactfully and sympathetically). The best way of handling the situation will be a matter for judgment.
- It is not necessary to meet a complainant’s unreasonable demands, or to answer every single point in an unreasonable letter. Again, judgment will be required to separate a complainant’s legitimate queries from those that are unreasonable, often all within the same complaint.