3 August 2009
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The political and economic maelstrom which has swirled around us in the past few months has meant that stories which would once have made the headlines have struggled to have an impact. The new and radical rules on employment dispute resolution which came into effect on 6th April have gone largely unnoticed. Yet failure to pursue the options for early resolution of disputes, as laid down in the legislation, could have far reaching consequences for employers and employees alike.
The new guidelines follow the publication of the Gibbons Review, which concluded that the now infamous ‘three step’ process at the heart of the 2004 regulations had not only failed to deliver efficient dispute resolution, but had “unintended negative consequences which outweigh their benefits”. Gibbons noted that if the three step procedure was not followed to the letter by an employer, any dismissal, however justified, would be considered unfair. This had resulted time and again in the automatic instigation of formal procedures in dealing with straightforward matters such as lateness, whereas in the past a quiet word might have sufficed. On the flip side, an employee, given only three months to lodge a complaint, would often feel pressured into getting the process of their grievance underway, rather than seek to resolve matters informally.
Stephen Alambritis of the Federation of Small Businesses summed it up: “it looked good at the start but, in reality, behind the three steps were a lot of regulations and codes for business owners that incited staff to take issue with an employer”. In a nutshell, too many bosses had been forced into dealing formally with even the most minor of misdemeanours; in just two years the number of staff grievances had risen by 28%, and tribunal claims by 65%.
The new legislation comes hot on the heels of alarming research from the Chartered Institute of Personnel and Development which puts the annual cost of conflict at work to the UK economy at a staggering £24bn, with some 370 million working days lost in 2007 alone. Line mangers are spending around 20% of their time managing disputes, with the average cost of defending an employment tribunal claim at around £9,000. However, it is impossible to put a price on the cost to employees in terms of stress and damaged employment prospects. At a time of economic downturn and rising unemployment, it makes sense for all concerned that workplace conflict be resolved as quickly and harmoniously as possible.
It is unsurprising therefore that, at the core of Gibbons’s recommendations for a new system, was the replacement of the “inappropriately inflexible and prescriptive” three steps’ with a much less formal process, and a far greater emphasis on the use of mediation. The new Code states: “Where it is not possible to resolve disciplinary and grievance issues in the workplace, employers and employees should consider using an independent third party to help resolve the problem. In some cases, an external mediator might be appropriate”.
Mediation has been practised in the UK for the last 20 years and is considered to be a future focussed process that is less concerned about who might be right or wrong and more about solving problems so that they don’t occur again. A neutral and impartial mediator facilitates the process, but responsibility for finding a workable solution for the dispute rests firmly with the parties. It is therefore essential that taking part in mediation should not be imposed on staff; by its very nature the process requires voluntary participation and a desire by all parties to seek an amicable and effective outcome.
Mediation is so effective is because it addresses the reasons why the dispute originally surfaced. By encouraging parties to express what happened, it also allows them to explore what needs to change in order to prevent future reoccurrences. One of the stated problems with the grievance process is that once concluded, colleagues are then expected to continue working together as if nothing has happened. Mediation offers employees a cathartic opportunity to talk about the past, and feel that they have been listened to, before moving on to find a solution in the future.
Another strength of the mediation process is that it can be applied to individual, team, departmental, functional or organisational disputes. It is non-binding until agreement has been reached, but if a party reneges on agreed actions, the organisation can invoke its normal disciplinary or grievance measures. It is also quick, saving money and emotional distress. Mediation sessions can be set up very quickly, within days if necessary, preventing grievances from festering and spiralling out of control. In the UK, mediation has a success rate of 93%. East Sussex County Council reported productivity savings of £500,000 in just one year after introducing its in-house mediation scheme.
However, there is government concern that the recent changes to employment legislation have gone largely unnoticed, a view recently confirmed by Sir Henry Brooke, Chairman of the Civil Mediation Council, who commented that “there are many companies throughout the country, large and small, that are unprepared for this legislation. It is therefore essential that all employers should review their disciplinary and grievance procedures as a matter of some urgency to make sure they do not fall foul of the new Code”.
If employers take nothing else away from the new Code it should be that the business case is compelling. Mediation has become a tool that can help organizations stay one step ahead and secure competitive advantage. It helps key employees and line managers stay focused on the job, rather than becoming embroiled in conflict. Employers ignore its benefits at their peril.
Five recommendations for organisations when engaging conflict resolution principles:
- Consider training some colleagues to become accredited mediators. This could be done on an in-house basis. The Civil Mediation Council has a list of bona fide workplace mediation services providers at www.cmcregistered.org
- Partner with an external mediation provider. This will ensure that in cases where there may be a conflict of interest to appoint an internal mediator you can call on the services of an external organisation
- Review your organisation’s policies and procedures to incorporate clauses that promote and encourage early resolution of disputes and mediation
- Review other parts of the HR framework. For example consider offering training for line manages on topics such as ‘how to manage difficult conversations’ and equality/diversity training
- Link any success from mediation back to the business case. Identify savings made and ensure the benefits of mediation are publicised within the business.
Clive Lewis is a Board Member of the Civil Mediation Council and chairs the Council’s workplace committee www.civilmediation.org
He is also the author of ‘The definitive guide to workplace mediation and managing conflict at work’ http://www.globis.co.uk/resources/definitiveGuide.php
7 August 2009
