Written by: Clive Lewis
Date: Wednesday, September 06, 2006

The recent news that increasing numbers of civil service staff are overturning dismissals because government HR departments are failing to follow statutory dismissal procedures is not particularly surprising. It was reported last week that the annual report by the Civil Service Appeal Board (CSAB) showed more than one-fifth of all disciplinary cases involving appeals during 2005-06 were deemed ‘unfair’ – a rise of 15% on the previous year.

The introduction of the grievance and disciplinary procedures has meant that thousands of HR professionals are spending an increasing amount of time on a transactional process that adds little value. Legal costs have also risen as HR functions seek advice to ensure that they follow correct procedure. The CIPD Managing Conflict at work survey of 2004 indicated that dealing with conflict is taking up more and more HR time. Over 60 per cent of respondents said they had seen an increase in the use of HR departments to resolve individual disputes in the previous 12 months. At that stage employers said they were spending an average of 10.5 days per case dealing with disciplinary and grievance issues. A little less than the 12.5 days they said they were spending preparing for a tribunal case.

The number of grievance cases lodged with employment tribunals also rose by a third during the last financial year. Claims initially fell by one quarter after the 2004 dispute resolution rules came in. But the latest Employment Tribunals Service (EST) figures show a surge in claims from 86,181 to 115,039 over the 12 months to the end of March.

As a HR director, I recall an ever-increasing percentage of my time was being taken up with discussions about the disciplinary and grievance process. It got to the stage where a large chunk of the Monday morning team meeting was carved out for updates on cases that my team was dealing with. Whilst cases such as gross misconduct probably warrant time being spent on the process, the merit for other cases is less clear-cut.

There are only three ways in which disputes can be resolved. Through power, rights or interests. Power based conflict resolution techniques such as a boss imposing their orders on a direct report, generate a great deal of damage because they create winners and losers, destroy important relationships and only lead to potential further disputes.

Rights based methods such as legislation, litigation and the grievance and disciplinary procedures were introduced to allow disputes to be resolved and encourage individuals to interact more peacefully. The exercise of rights is often perceived by those in power as diluting their authority. Rights-based processes similarly create winners and losers. While power-based relationships focus on preserving hierarchy and obedience, rights-based processes focus on enforcing contractual language and rarely lead to closure. The grievance and disciplinary process has proved to be unwieldy and imperfect for the improvement in human interaction. Both power and rights based methods focus on suppressing or settling conflicts rather than resolving and preventing them.

Interest based processes such as workplace mediation on the other hand, focuses on finding common ground and seeking to understand why people came into conflict in the first place. Interest based approaches focus therefore not just on what people want, but why they want it. As a result people are encouraged to learn from each other and work more collaboratively.

Mediation also offers the advantage that it can be undertaken in tandem with the grievance and disciplinary process, as it is without prejudice. If mediation doesn’t work (and it does in more than 80% of cases) then the tortuous disciplinary and grievance procedures can continue their trajectory. It is only through interest-based processes that everyone’s ability to learn from and prevent further conflict is increased.

Mediation differs from litigation in that the mediator is not a judge or arbitrator who decides the issues for the parties. It is a process that invites the participants to be creative, collaborative and responsible for solutions. It is future-oriented and less concerned with deciding whom is right or wrong than with solving problems so they do not occur again.

There are many reasons that can explain why workplace mediation is now becoming an increasingly used method of dispute resolution for employee conflicts. These include the high increase in the number of employee tribunal cases, the higher levels of compensation, the continuing introduction of new employment legislation and, for many, the realisation that formal procedures and investigations can in some circumstances be so adversarial and stressful to all concerned that any possibility of people working together again is minimal. Workplace mediation is based on the principles of encouraging constructive communication in a safe and confidential environment, identifying mutual solutions and agreements and restoring respectful, professional working relationships.

The CIPD survey Managing conflict at work (27 October 2004) stated, “Awareness needs to be raised about how mediation can make a difference to managing workplace disputes. It needs to be part of the process from the start of the problem, not used as a sticking plaster once relationships have already broken down.”

Progressive organisations that have adopted mediation principles within their HR practices are beginning to see the benefit that this brings. HR functions also have the opportunity to engage in a transformational HR process that will be seen by their internal customers as a great value add tool.

It is only after workplace mediation has begun to be utilised across UK businesses (including Whitehall) that we will begin to see a reduction in the grievance and disciplinary statistics that we are now seeing.