The full article can be found by clicking here.

Globis Mediation Group provides a course to support organisations that may be experiencing cases of bullying and harassment. To view the full content of the ‘how to prevent bullying harassment in the workplace’ one day course, please click here.

In October 2010, the Equality Bill is scheduled to become law in the UK. It’ s the biggest single biggest piece of employment legislation that the UK will face this year. The Bill is designed to ensure that everybody is adequately protected against discrimination.

 A socio-economic duty to reduce inequality

The Bill will consolidate existing legislation on sex, race, disability, sexual orientation, religion or belief and age. If not followed or prepared for properly, it could result in significant costs for organisations. The Equalities Office is estimating that its implementation is likely to cost somewhere in the region of £310million mainly as a result of extra tribunal and court cases.

Speaking of a link to bullying and harassment, and the events of the last week, the focus of the new Bill will be on ‘preventing unwanted conduct which has the purpose or effect of violating a persons’ dignity or creating a hostile environment’. The emphasis is on the concept of prevention and the steps an organisation takes to help prevention. Organisations will be compelled to recognise their socio-economic duty to reduce inequality.

The Bill will include a new term of ‘protected characteristic’ – a protected characteristic being sex, race, age, and religious belief etc. Conduct which is ‘related to’ a protected characteristic will be also be covered. For example it will protect an employee from being harassed because of their association with someone – such as having a relative who is a homosexual or of a certain race.

The Bill is also designed to increase transparency about pay. Organisations in the private sector with more than 250 employees will be required to publish information on differences in pay between male and female employees (from 2013). The public sector will be required to publish pay gap reports too. The public sector will also be forced to consider equality when deciding on purchasing or outsourcing.

In recruitment, an employer will be able to take a ‘protected characteristic’ into account. For example, where a male and female applicant are considered as having equal skills and experience, the female could be appointed where there is female under representation. This is in effect, positive action.

Employment tribunals will have new powers to make recommendations that will have to be applied to the whole workforce. For example, if a former employee wins a case for being discriminated against, the organisation could be ordered to provide training in equality and diversity management for all managers.

The Bill is far reaching. Even the Pope has had something to say about it!

What can you do now?

• Ensure your equality and diversity policies are compliant – carry out Equality Impact Assessments
• Deliver staff briefing sessions on the changing legislation
• Deliver one day courses on ‘Equality & Diversity – how to manage difference’
• Run training sessions on the prevention of bullying and harassment
• Deliver training sessions on managing difficult conversations
• Set up an in-house mediation scheme

For more information about the Equality Bill visit:

Government Equalities Office

Equalities and Human Rights Commission

Houses of Parliament

Clive Lewis

Director – Globis

Written by Kenneth Cloke

“We do not see things as they are.  We see things as we are.” Anais Nin

While people in conflict commonly refer to facts, behaviors, feelings, personalities, or events, for the most part we ignore the deeper reality that these are processed and regulated by the nervous system, and are therefore initiated, resolved, transformed, and transcended largely within our brains. 

All conflicts are perceived by the senses, manifested through body language and kinesthetic sensations, embodied and given meaning by thoughts and ideas, steeped in intense emotions, made conscious through awareness, and may then be resolved by conversations and experiences, and develop into character, nurture a capacity for openness and trust, and contribute to learning and an ability to change. 

To explain the etiology of conflict therefore requires us to gain a deeper understanding of how the brain responds to conflict.  This should clearly include the ways distrusting personalities are formed, even among primates; the sources of aggressive character traits and the “fight or flight” reflex; the wellsprings of spiritual malaise and hostile gut reactions; and the neurological foundations of forgiveness, open-heartedness, empathy, insight, intuition, learning, wisdom, and willingness to change. 

While conflict and resolution have yet to be reduced to a simple set of deterministic biochemical events taking place exclusively within the brain, research clearly demonstrates that basic neurological processes provide all of us with alternative sets of instructions that lead either toward impasse or resolution, stasis or transformation, isolation or collaboration.  For these reasons, it will serve us well as mediators to understand more about the neurophysiology of conflict. 

We have yet to examine communication and conflict resolution very deeply from the perspective of neurophysiology, though we know that the presence of an empathetic listener, particularly one who is skilled in mediation, can by itself create a significant shift in conflict dynamics, and alter, at a subtle level of awareness, the attitudes of parties in conflict.  But why is this so, and what does it imply for conflict resolution? 

For millennia, our greatest sages – particularly those from the East, including Lao Tse, Confucius, and Buddha – have sought to convince us that the universe consists of opposites that, at the deepest level, merge into a single, unified whole.  Yet it has taken until the 20^th century and the discovery of quantum mechanics – initially by Planck and Einstein, then by Bohr and Heisenberg – to establish scientifically that observers and the things they observe are part of a single interconnected system, and reveal how and why the act of observation, at a subtle level, directly influences the object or process being observed.  

For all our immense progress in recent years in understanding conflict and discovering techniques that encourage resolution, until recently we have paid little attention to the physiology and internal operations of the brain, and the ways it perceives and responds to the complex, ever-changing experience of conflict. 

I am not a trained neurophysiologist, but an avid lay reader, and have learned an immense amount of useful information regarding conflict resolution from reading scientific studies of the brain and how it functions.  What follows is a brief synopsis of some of the more interesting and important ideas and news items I have read describing recent research and experiments in neurophysiology as they pertain to conflict and the mediation process. 

What is the Brain?

Most conflicts are triggered by external experiences and information regarding them is conveyed to us by sensory inputs that have been gathered from our environment. Our conflicts therefore seem to us to take place externally, yet everything we understand about the meaning of what happened, and all of our responses to the actions of others are initiated and coordinated internally by our brains.

What, then, is the brain, how is it structured, and how does it typically respond to conflict?  First, the brain has been analogized to a massively powerful parallel processing computer, more powerful than anything we have been able to design or create.  One hundred billion nerve cells make up the brain, each of which may create up to ten thousand synaptic connections, and together can form more than a million neuronal connections every second.  

An average desktop computer is capable of sending 25 billion instructions per second, while a human brain can send 100 over trillion.  An adult human brain, by some accounts, can make as many as 500 trillion synaptic connections per second.  This, by itself, can explain what we commonly refer to as intuition, which is merely what we know that we don’t know that we know. 

Second, the brain is divided into two halves or hemispheres that are largely separate, but connected at the base by a corpus collossum.  Each hemisphere processes information regarding conflict somewhat differently: one side functions linearly and considers problems individually and in detail, while the other side works more holistically and considers problems collectively and as a whole.  One side favors logical reasoning while the other side favors pattern perception; one works by linear thinking while the other practices emotional responsiveness.  The right hemisphere, for example, has been shown to be more adept at discriminating between emotional expressions and processing negative emotions, while the left is demonstrably less so, and more involved in processing positive emotions. 

Third, the brain is organized into regions, each of which processes different aspects of the information it receives related to conflict in specialized ways.  For example, the ventral tegmental area reinforces the reward circuit; the prefrontal cortex allows for objectivity and logic; the nucleus accumbens, which is directly beneath the frontal cortex and is involved in the release of oxytocin, which is described in greater detail below; the hypothalamus produces testosterone; and, most importantly, the amygdala, an almond-shaped region near the brain stem, regulates immediate responses to conflict and change, especially anger and fear. 

Neurotransmitters and Conflict

The brain is awash in chemicals, including hormones and neurotransmtters that accentuate or dampen its responses and influence its organization and operations.  Neurotransmitters are chemicals that relay, amplify, or modulate signals that are sent between neurons and other cells.  There are many different hormones and neurotransmitters, of which the most important are glutamate and GABA, which excite and modify synapses.  With regard to conflict, the following compounds seem to be most active:

• Adrenalin, which triggers the fight or flight response
• Testosterone, which stimulates aggression
• Oxytocin which instills trust, increases loyalty, and promotes the “tend and befriend” response
• Estrogen, which triggers the release of oxytocin
• Endorphins, which reinforce collaborative experiences with pleasure
• Dopamine, which generates a reward response and fortifies addiction
• Serotonin, which regulates moods
• Phenylethylaline, which induces excitement and anticipation
• Vasopressin, which encourages bonding in males in a variety of species

Many vertebrate brain structures involved in the control of aggression are richly supplied with receptors that bind with hormones produced in the endocrine system, in particular with steroidal hormones produced in the gonads.  In a wide range of vertebrate species, there is a strong relationship between male aggressiveness and circulating levels of androgens such as testosterone, a hormone produced in the testes.  

These aggressive behavioral patterns and the modulation of an animal’s tendency to fight or flee are controlled by a hierarchical system of neural structures.  Many of these are found in the limbic system; a part of the forebrain that is involved in emotionally based behavior and motivation.  These neural structures interact with biochemicals that are produced inside and outside the nervous system.  

For example, it has been shown that serotonin injections cause lobsters and other animals to take a dominant or aggressive posture, while octopamine injections induce submissive postures, which favor cooperation.  When serotonin levels are increased in subordinate animals, their willingness to fight also increases, and declines as they are reduced.  

From fish to mammals, aggression levels have been shown to rise and fall with natural fluctuations in testosterone levels.  Castration has been found to reduce aggression dramatically, while the experimental reinstatement of testosterone by injection restores aggression.  Circulating testosterone also influences the responses and signals that are used during mating and fighting in many species.  In stags, the neck muscles needed for roaring enlarge under the influence of testosterone, while in male mice, the scent of another male’s urine, which contains the breakdown products of testosterone, elicits intense aggressive responses. 

In pregnant female mice, the scent of urine from a male that is ill can even induce the formation of antibodies in their embryos, and the presence of stress chemicals that are increased by fighting and are detected by females who are able to detect the smell of male urine can produce personality and behavioral changes in unborn offspring. 

The experience of fighting has been shown to have a significant impact on brain biochemistry and therefore on brain structure, especially in the limbic system which is strongly associated with conflict.  For example, among rainbow trout and lizards, dominant animals show significant transient activation of their brains’ serotonin systems, whereas subordinate animals display a longer-term elevation of these systems. 

Researchers have shown in several vertebrate species that electrical stimulation of the midbrain and hindbrain elicits stereotyped, yet undirected aggressive behaviors, while stimulation of the hypothalamus and a nearby pre-optic region in the forebrain elicits well-coordinated attacks on other members of the same species.  Lesions in these areas have also been shown to reduce aggression.  

The hypothalamus and pre-optic area of the forebrain are also involved in the generation of coordinated aggressive behaviors that are produced in lower brain regions.  This activity is modulated by the brain’s higher centers, including areas of the limbic system – in particular the septum, which lies above the hypothalamus and has an inhibitory effect on aggression, while the amygdala located deep in the temporal lobes has the opposite effect. 

In a series of experiments, dogs and monkeys have been shown to respond negatively to favoritism and unfairness in experiments where certain animals have been given rewards without having performed, causing others to punish them or refuse to cooperate with researchers. 

The lateral habenula has been shown to react strongly when expected rewards are denied or replaced by mild punishments.  Dopamine neurons are inhibited by the habenula, and since dopamine contributes to learning by producing positive sensations in response to success, researchers now think the habenula may also contribute to learning by shutting off dopamine in response to disappointment, representing an internal form of the carrot and the stick.  Some research suggests that the habenula is implicated in depression.  It has also been shown that the orbitofrontal cortex (OFC), located at the front of the brain behind the eyes, is implicated in various aspects of decision-making and choice evaluation.  The anterior cingulate gyrus then reacts to mistakes and internal conflicts between intentions and outcomes, and helps us alter our behaviors in response.

Researchers have established that the negative emotions we routinely encounter in conflict are triggered in more or less the following sequence: 

•          Sensory information from primary receptors in the eye, nose, ear, and other organs travels along neural pathways to the limbic forebrain. 

•          These stimuli are evaluated for emotional significance.  Research by Joseph E. LeDoux has demonstrated that auditory fear conditioning involves the transmission of sound signals through an auditory pathway to the thalamus, which relays this information to the dorsal amygdala.

•          The amygdala coordinates a “relevance detection” process that is rapid, minimal, automatic, and evaluative. 

•          Emotions are then activated in the subcortical thalamo-amygdala pathway and relayed from the thalamus to the neocortex for cognitive appraisal and evaluation.

•          In some cases, the same information is simultaneously sent to the neocortex for slower processing, creating a dual, two-circuit pathway that permits reason to override an emotional response.

Perception, Mirror Neurons and Suggestibility

The brain notices changes in its immediate environment predominantly by contrast or comparison against a relatively static backdrop of familiarity, expectation, desire, fear, and habit.  Observing the contrast between what is moving and what is not is the way our minds attempt to simplify and predict what is likely to happen next.  At a primitive level, for example, there is an immense evolutionary advantage in being able to notice a potential threat by contrasting the mirror symmetry of a predator’s face and eyes, or sudden movement against an asymmetrical, slower moving background.  In a similar way, we are biased by evolution to credit threatening behaviors more than non-threatening ones.  

A number of recent brain studies have revealed how perceptions and memories are profoundly distorted by emotions and by focused concentration, and how they can be reshaped by suggestion and subsequent events.  Thus, areas of the brain that are linked with negative emotions and judging others are switched off, for example, when mothers look at photographs of their babies.  Instead, the right prefrontal cortex lights up, not only in parents watching their children, but in lovers and Buddhist monks who have been asked to meditate on loving-kindness and compassion.  In other research, memory and awareness have been shown to decline dramatically in the presence of stress chemicals that are released during periods of intense emotion. 

It has also been revealed, in reverse, that the free expression through outward signs of an emotion can intensify it, while repressing or not expressing it, as far as is possible, can soften it.  Thus, experiments have shown that if people are able to control their facial expressions during moments of pain, there is less arousal of the autonomic nervous system and an actual diminution of the pain experience.

In one delightful experiment, a significant percentage of people who were assigned to focus their attention on a single task, such as counting the number of individuals in a colored tee-shirt to whom a basketball was passed.  When they did so, the participants completely ignored and even vigorously denied afterwards that an unusual or bizarre occurrence had occurred, in this case, the entry onto the basketball court of someone dressed in a gorilla outfit, who walked and pranced across their line of vision. 

Scientists have begun to trace the development of empathy in primates, including human beings, leading to the discovery of “mirror neurons,” which fire in the brains of observers watching a given action, and replicate to some extent the experience of the one being observed. Similar neurons fire when we observe someone else suffering or frightened, reproducing those experiences in the form of empathy. 

In one surprising recent experiment, “phantom limb syndrome,” in which a lost limb may experience itching or pain, has been shown to dramatically disappear when the subject is allowed to observe a false image of the lost limb by means of a mirror, thereby tricking the brain’s mirror neurons into thinking that the lost arm or leg had reappeared. 

Several studies have shown that the brain is highly responsive to suggestion.  In a series of remarkable experiments it has been shown that the performance of simple, seemingly unrelated tasks can be increased or decreased merely by placing a briefcase or sports equipment nearby, triggering unconscious associations with work or play.  

In an interesting study, subjects were made happy or angry, then shown happy and angry faces and friendly and hostile interpersonal scenes in a stereoscope.  Happy subjects perceived more happy faces and friendly interpersonal scenes while angry subjects perceived more angry faces and hostile interpersonal scenes. 

In addition, it has been shown that relatively small favors or bits of good luck (like finding money in a coin telephone or getting an unexpected gift) induced positive emotion in people, and that these emotions increased the subjects’ inclination to sympathize or provide help. 

At the same subtle level, a number of experiments have shown that behaviors can be modified simply by the introduction of background scents such as lavender, or the lemony odor of detergent, and that consumers of different products purchase different products more or less readily in the presence of certain scents. 

Equally dramatically, test results can be predictably raised or lowered merely by asking people of color to identify their race beforehand, or by giving indirect racial or emotional cues, or by priming teachers falsely in advance of a test regarding the innate intelligence or stupidity of their students, producing conformance with expectations and a well-established “Pygmalion effect.” 

In one remarkable study, when 12- and 13-year-old African American students were asked to spend 15 minutes indicating which values, such as friendship or family, they upheld, the achievement gap between them and white students decreased by 40%.  Similarly, when female college students read passages before a test arguing against gender differences in mathematical ability, their scores increased by 50%. 

At a very subtle level, Yale University psychologist John Bargh found that when volunteers were “primed” with words associated with the elderly, like “wrinkle,” they took significantly longer to walk down a hall than those who hadn’t.  And interestingly, for conflict resolvers, Alex Pentland of the MIT Media Lab found that watching body language and tone of voice for only a few minutes allowed researchers to predict with 87% accuracy the outcome of subsequent negotiations between strangers. 

This suggests that the brain can be re-programmed by consciously selected practices.  It has been shown, for example, that the ventromedial prefrontal cortex (which is responsible for empathy, compassion, shame, and intuitive emotional responses to moral dilemmas) can be significantly strengthened by the practice of meditation, or merely thinking compassionately for a few moments about the well being of others.  

Other experiments have demonstrated that men become more loving toward their female partners as their ovulation approaches, that women prefer different forms of male attractiveness at different stages in their menstrual cycle, and that women make decisions about male attractiveness based on chemical indicators in their sweat indicating that they have immunities the women do not, as measured by genes for the major histocompatibility complex or MHC.  Other studies have found that men also prefer women with dissimilar MHC genes, specifically human leukocyte antigen or HLA genes. 

An important recent study from Stockholm suggests that lesbian women have more asymmetric brains, like heterosexual men, and that gay men have more symmetric brains, like heterosexual women.  Moreover, in heterosexual women and gay men the amygdala connects mainly to areas of the brain that manifest fear as anxiety, whereas in heterosexual men and lesbian women it connects more strongly to areas that trigger the fight or flight reflex.    

It has also been shown that sweat from women who watched violent movies was accurately rated by others as stronger, less pleasant, and smelling more “like aggression” than sweat from women who had watched a neutral movie.  In a recent study, researchers from Stony Brook University in New York taped absorbent pads to the underarms of 40 volunteers who went on their first skydive.  In a double blind experiment, a second group smelled sample pads from them and from non-skydivers in an fMRI scanner, and showed increased activity in their amygdala and hypothalamus while breathing sweat produced under frightening conditions, indicating that humans may in fact be able to smell fear. 

Oxytocin and Dual Pathways in Conflict

The physical basis for collaboration, altruism, trust, forgiveness, and interest-based conflict resolution techniques, has been clearly identified with the “tend and befriend” hormone oxytocin.  Oxytocin was first synthesized by Vincent du Vigneaud in 1953, for which he received the Nobel Prize for Chemistry in 1955.  It is secreted by the posterior lobe of the pituitary gland and can be made synthetically.  Physiologically, it promotes the secretion of breast milk and stimulates the contraction of the uterus during labor.  It cannot be ingested orally, but can be administered intravenously, sublingually, or by nasal spray, although its strongest effects last only for a few minutes.  

Oxytocin is widely believed responsible for prompting empathy, compassion, trust, generosity, altruism, parent-child bonding, and monogamy in many species, including human beings.  Oxytocin has been dubbed the “bonding” hormone, primarily as a result of research involving voles.   Prairie voles in the U.S. are largely monogamous and the males provide care for the young.  Montane voles, on the other hand, are polygamous and the males are less caring of their young.  Experiments have deprived prairie voles of oxytocin and provided it to montane voles, causing a dramatic reversal of these behaviors. 

In one extraordinary study, participants were given a small amount of pretend money and encouraged to invest it with a stranger. On average, they initially invested only a quarter to a third of the money they possessed. But after four sniffs of the neurotransmitter oxytocin, their trust levels skyrocketed, and without hesitation they became willing to invest 80% more.  Here is a summary from the original study: 

“Human beings routinely help strangers at costs to themselves.  Sometimes the help offered is generous—offering more than the other expects. The proximate mechanisms supporting generosity are not well understood, but several lines of research suggest a role for empathy.  In this study, participants were infused with 40 IU oxytocin (OT) or placebo and engaged in a blinded, one-shot decision on how to split a sum of money with a stranger that could be rejected.  Those on OT were 80% more generous than those given a placebo.  OT had no effect on a unilateral monetary transfer task dissociating generosity from altruism. OT and altruism together predicted almost half the interpersonal variation in generosity.  Notably, OT had twofold larger impact on generosity compared to altruism.  This indicates that generosity is associated with both altruism as well as an emotional identification with another person.”

[Zak PJ, Stanton AA, Ahmadi S (2007) Oxytocin Increases Generosity in Humans. PLoS ONE 2(11): e1128. doi:10.1371/journal.pone.0001128]

Several experiments have shown that positive emotion facilitates creative problem solving. One study, for example, showed that positive emotion enabled subjects to name more uses for common objects.  Another showed that positive emotion enhanced creative problem solving by enabling subjects to see relations among objects that would otherwise have gone unnoticed.  A number of studies have demonstrated the beneficial effects of positive emotion on thinking, memory, and action in preschool and older children. 

A recent study by a group in Zurich, Switzerland showed that oxytocin improves recognition and memory of previously presented faces, which were more correctly assessed as being “known,” but the ability to recollect faces that had not been seen before was unchanged, and there was no difference when recalling images of houses, landscapes or sculptures.  The researchers argue that “this pattern speaks for an immediate and selective effect of the peptide [oxytocin in] strengthening neuronal systems of social memory.”

There is a considerable body of research that has linked oxytocin with collaboration and creative problem solving, and these with the release of endorphins, the brain’s version of morphine.  Creative problem solving has also been shown to increase with diversity, and a mathematical proof has been offered purporting to demonstrate that more diverse groups predictably experience greater creativity, success in problem solving, and satisfaction as a result. 

Thus, the brain possesses not one, but two systems for responding to conflict, and is capable both of adrenalin-based “fight or flight” responses, and of oxytocin-based “tend and befriend” ones.  Just as, in biology, there are evolutionary advantages to aggression and “selfish genes,” there are also advantages to collaboration and altruistic efforts that aid others. 

There are two bundles of nerves, for example, that connect the eye and other sensory organs with the brain.  One travels directly to the amygdala where fight or flight responses are initiated, while the other proceeds to the neocortex where logical explanations can be discovered, allowing us to override costly adrenalin-based responses. 

As we learn, develop language, mature, and accumulate long-term memories and experiences, these dual pathways to the amygdala and the neocortex become more developed and integrated, and we become able to process events in either or both pathways at the same time.

This duality allows the amygdala pathway to specialize in processing information that may require a rapid response, while the neocortex pathway specializes in evaluating information that may be important in forming cognitive judgments or developing complex coping strategies.  Duality also allows us to by-pass the amygdala’s initiation of the fight or flight response and consciously choose the less aggressive option of tend and befriend. 

Moreover, the brain not only dictates how we respond to changes in our environment, it is actually shaped and molded by those changes.  The brain requires sensory stimulation in order to develop, and repeated stimulation creates physical connections between neurons that strengthen the pathways and networks responsible for thoughts, feelings, and behaviors.  

These stimulations have been shown to produce profound attitudinal changes.  Indeed, several experiments have demonstrated that countless previous experiments on laboratory mice and rats over the course of decades have been profoundly influenced by whether the animals were raised in rich or impoverished environments. 

The environment in which a young animal is raised also has a profound effect on whether and how it fights as an adult.  These environmental factors are not always directly related to social experience.  For example, mice that are deprived of food during their early development become particularly aggressive as adults.  On the other hand, environmental effects on the development of aggression may depend on social interactions in contexts other than fighting; for instance, mouse pups that have been roughly handled by their mothers are more aggressive as adults.  Similar results have been found in a range of species that have been reared in social isolation. 

More surprisingly, physical tests have revealed that babies are able to rewire their mothers’ brains in utero, and that some of the genetic material and cells of each remain in the other and may influence a variety of behaviors, including a tendency to aggression or collaboration. 

Is Aggression Inevitable?

Clearly, aggression and war are “hard-wired” into the brain, but so are empathy and collaboration.  Recent research has emphasized the cooperative aspects of warlike behavior, which forms a core element not only in gangs, but sports teams, organizations and nation states, which use internal cooperation as an aid to external competition.  Indeed, modern warfare can be seen as requiring a high level of internal collaborative activity. 

Yet it has also been shown, for example by researchers at the University of Edinburgh, that men in war simulations tend to overestimate their chances of winning, making them more likely to attack and behave aggressively, and leading to unnecessary losses that a more sober calculation might predict. 

It has recently been argued by evolutionary biologists at the University of New Mexico, based on data from 125 civil wars, that cultures become more insular and xenophobic when diseases and parasites are common, perhaps in an effort to drive away strangers who may carry new diseases.  By contrast, cultures with a low risk of disease are more open to outsiders.   They argue that when the risk of infectious diseases fell in Western nations following World War II due to antibiotics and sanitation, these societies became less hostile and xenophobic. 

In one interesting experiment, cricket players on the Caribbean island of Dominica experienced a surge in testosterone and aggressive behavior after winning against another village, but did not experience the same surge when winning against a team from their own village.  Similarly, it has been shown that an increase in testosterone typically experienced by men in the presence of a potential mate is muted if she is in a relationship with a relative or friend. 

This suggests again that building empathy and “identification with the enemy” will prove useful as techniques for countering aggressive behavior.  There is also research suggesting that whereas women may be better at brokering harmony within groups, men may be better at making peace between groups.  These techniques suggest that it may be possible to identify more precisely which approach will work best in a given setting to reduce warfare and aggression. 

Implications for Conflict Resolution

These are just a few of the more dramatic conclusions that have emerged from countless studies and experiments, from which I have culled those that seemed most interesting and significant based on my experience as a mediator.  What, then, does all this research suggest for conflict resolution? 

In the first place, it reinforces the idea of brain “plasticity,” indicating that the brain is not fixed but evolving, learning, and producing new synapses all the time, even among those who were previously considered elderly and incapable of doing so.  Among other things, this gives us hope, and explains why it is possible for people to switch suddenly from aggression to collaboration. 

Second, it suggests that a variety of techniques might be useful in reducing adrenalin, increasing oxytocin, and stimulating collaboration and trust.  One clear example is research that involves what we call “mirroring,” but in scientific literature is called mimicry, and sometimes included under the heading of persuasion.  It has been demonstrated, for example, in human subjects, that mirroring body language after a two second delay (so it is not recognized as mimicry by the subject) improves the outcomes of negotiations and encourages collaborative behavior. 

In reading each of these studies and experiments, we can imagine a number of subtle ways we might go about encouraging a shift in the attitudes of disputants toward problem solving and collaboration.  For example, it is clear by hindsight that a number of very common simple techniques, such as welcoming, introductions, reaching agreement on ground rules, caucusing, summarizing, and securing small agreements, will predictably reduce the release of adrenalin and stimulate the release of oxytocin.  This may cause us to wonder: what deeper results might we achieve by better understanding how the brain processes and overcomes the fight or flight response? 

Even basic information about neurophysiology can lead us to technique, for example, by allowing mediators to work directly with different hemispheres of the brains of conflicted parties, not only presenting information in ways that are more accessible to one hemisphere or the other, but by focusing attention, for example, on the eye that feeds information to a particular hemisphere that may be more receptive to it. 

Other quite subtle techniques might also have an impact on the brain chemistry of conflict, including the introduction of scents that remind people less of fear than of social connection, serving chocolate to stimulate the production of dopamine, placing objects that stimulate positive emotions inside the mediation room, asking questions about values to orient people to their highest standards, using body language to trigger mirror neurons, or offering positive acknowledgments regarding something each party did or said. 

None of this is meant to suggest that oxytocin should be administered in large and continuous doses to parties in mediation, or that we should slip into clever, yet inevitably crass forms of physical manipulation.  Rather, it is to say that we have been working with brain chemicals unconsciously for years, and it is now possible for us to begin thinking about conflict resolution more scientifically and using the information we gather to encourage more positive responses, being careful to build transparency, empowerment, and authenticity into the process. 

Conclusion

Perhaps the most extraordinary thing about the human brain is its capacity to understand and alter the world, starting with itself.  We have begun a period of rapid, perhaps exponential increase in understanding how the brain operates, and a growing ability to translate that knowledge into practical techniques.  But without an equally rapid, equally exponential increase in our ability to use that knowledge openly, ethically, and constructively, and turn it into successful conflict resolution experiences, our species may not be able to collaborate in solving its most urgent problems, or indeed, survive them. 

All of the most significant problems we face, from war and nuclear proliferation to terrorism, greed, and environmental devastation, can arguably be traced to our brain’s automatic responses to conflict.  Out of the last few years of neurophysiological research has emerged a new hope that solutions may indeed be found to the chemical and biological sources of aggression.  These solutions require not only a profound understanding of how the brain works, but a global shift in our attitude toward conflict, an expanding set of scientifically and artistically informed techniques, a humanistic and democratic prioritization of ethics and values, and a willingness to start with ourselves. 

3 September 2009

This article was written by Ben Willmott and John Purcell and appeared in issue 28 of Impact – The CIPD’s Quarterly Update on Policy and Research

A joint CIDP and Acas discussion paper highlights the shortfall of people management skills in the UK and why these skills are so critical if line managers are to support improvements to employee engagement, well-being and productivity.

The role of the line manager is an increasingly important and challenging one in the modern workplace. CIPD research consistently identifies good-quality line management as one of the core drivers of employee engagement (Purcell and Hutchinson 2003). It is the day-to-day behaviours of line managers that will, to a large degree, decide the extent to which employees will go the extra mile in their jobs and remain loyal to their loyal to their organisation. It is line management behaviour that is also central to the degree people learn at work, their well being and resilience and ultimately their productivity. These people management skills are more critical than ever as the UK’s economy emerges from recession and positions itself for the recovery.

The recently published Acas booklet on the front-line managers recognises that managing staff can be the most rewarding aspect of the job, but also often the most challenging, because of issues that line managers have to cope with, from dealing with employees who regularly arrive late to two colleagues accusing each other of bullying, or a senior manager who repeatedly undermines their role as team leader.

Good line management cannot exist in a vacuum without the support and strategic leadership from the top in creating organisational cultures where management styles based on openness and mutual respect can flourish. The senior management team will influence how managers throughout an organisation see their jobs and the extent to which they place a priority on people management.

Line managers need to be able to communicate effectively with employee representatives, knowing when to consult and how to do it.

Line managers also need a clear understanding of the link between the strategic objectives of their organisation, their department or team objectives and their day-to-day people management in areas such as: communication and consultation; training and development; and conflict, stress and absence management. They also need clearly communicated HR policies to provide a framework for consistent people management practice across the organisation.

In addition, line managers need to be given the opportunity to learn the key people management skills needed for their role. Initially, most line managers are promoted because they have particular skills or technical expertise, not because of their ability to manage people.

However, too few employees invest in people management training for their line managers. A 2008 survey of 6, 000 employees across the UK, US and Europe by Skillsoft found that 80% of UK managers had bee asked to do things at work for which they feel they should have been given some training before hand, with managing people at the top of the list. The survey Essential learning: The Employee perspective also revealed that 78% of UK employees identified line management as the job function in most need of additional training. This figure was far higher in the UK than in the USA or the rest of Europe, where respondents had more faith in line managers, which is not surprising given that the UK spends less per manager on management development than any other European country (Leitch Review 2006).

This inadequate investment in management development is reflected by evidence showing that the people management skills of many of the UK’s estimated 4.3 millions managers are not up to the needs of the modern work place in a number of critical areas:

Supporting learning and development

CIPD research has identified a shift over the last few year s from training as an instructor-led, content-based activity to learning as a self-directed, work based process in which the line manager plays an increasingly important role (CIPD 2008b). Line managers now have greater responsibility over people’s career development and promotion, as well as for coaching and supporting informal, on-the-job learning.

The CIPD 2008 Who learns at work? survey reveals that half of training and development at work is now initiated by line managers, compared with just a fifth of training initiated by HR or training department and a fifth initiated by the learner.

If and when new legislation is introduced to give employees the right to request training as the Government is proposing, line managers’ role in this area will be given further weight. Moreover, they will face the added challenge of managing the expectations of those who are turned down do not feel unfairly treated.

However, according to the CIPD’s spring 2009 Employee Outlook survey report, 44% of employees say their line manager rarely or never coaches them and a third or employees report that their line manager never or rarely discusses their training and development needs. Fewer than half of employees say their line manager usually or always provides feedback on their performance.

Employees saying that their line manager usually or always coaches them, discusses their training and development needs or provides feedback on their performance are also more likely to say they are satisfied with their job.

If organisations want to ensure that their investment in training and development has a maximum impact, they must make sure that they develop line managers’ ability to support, accelerate and direct learning in the workplace. Lien management behaviour will also decide to a large extent which employees are given the opportunity to use their skills and are motivated to put in discretionary effort.

Managing conflict

The cost to employers of employment tribunal applications as a result of workplace conflict, both in monetary and reputational terms, is generally well known. However, the vast majority or interpersonal conflict at work never reaches an employment tribunal but plays itself out in the workplace to damaging effect. On average employees spend 12 days each year dealing with conflict in the workplace – significantly more than time lost to absence (OPP 2008). Employers typically spend a total of 13 days in management and HR time or each disciplinary case and 9 days on each formal grievance submitted (CIPD 2007). Conflict at work is also a significant cause of employee absence and employee turnover (OPP 2008).

One of the challenges in managing work place disputes effectively is that, as a result of the increasingly complex legal landscape, more employers are relying on their HR departments and specialist legal advice. Line managers are shying away from tackling conflict in case they say or do something that exacerbates the problem, or which could be held against  them during any formal proceedings (CIPD2007).

This is counterproductive, as evidence shows that conflict is much less likely to escalate where managers have the skills and confidence to tackle conflict situations as soon as they arise. Inadequate line management is cited as one of the main causes of conflict at work by respondents to the 2008 CIPD survey report, Leadership and Management of Conflict at Work.

Conflict management should be an integral part of leadership ad management training. Managers must be able to identify the early signs of conflict and intervene and defuse situations before they escalate if teams are to work productively and harmoniously. Managers must mange underperformance firmly and consistently, as well as pick up on when banter starts to become bullying or when workloads become excessive.

Just as importantly, managers must learn to manage in a way that does not create conflict by providing clear objectives, communicating effectively and planning and managing individual and teal workloads appropriately. Managers should also realise that building effective working relationships with employee representatives will pay long-term dividends preventing and resolving workplace conflict.

Managing stress and supporting employee well-being

Stress at work is, behind musculoskeletal problems, the biggest cause of time lost to employee absence, accounting for 13.4 millions lost working days a year, according to the Health and Safety Executive (HSE). Stress at work also tends to result in long-term absence, with CIPD research finding that the average spell of stress-related absence is 21 days (CIPD/AHP 2007). It is also on the increase, with HSE statistics showing the prevalence of self-reported work-related illness caused by stress doubled between 1990 and 2007-08. The recession is likely to add to the levels of stress at work as a result or work force cuts and increased competitive pressure. The CIPD’s spring 2009 Employee Outlook survey found that about half of employees reported an increase in work related stress as a result of the recession.

It is not just time lost as a result of stress that undermines productivity because many people suffering from stress and other common mental health problems remain at work. Research by the Sainsbury Centre for Mental Health (2007), estimates that the annual cost of such ‘presenteeism’ attributable to mental health problems amounts to £605 for every employee in the workforce. Stress is also a significant cause of conflict at work and contributes to staff turnover.

The HSE defines stress as ‘the adverse reaction people have to excessive pressure or other types of demand placed upon them’. Of course, a certain level of pressure in a business environment is desirable. Pressure helps to motivate people and will boost their energy and productivity levels, but when the pressure individuals are under exceeds their ability to cope, it becomes a negative rather that a positive force – in other words, stress. Stress is not in itself a medical condition but research shows that a prolonged exposure to stress is linked to psychological conditions such as anxiety and depression, as well as physical conditions such as heart disease, back pain, and headaches.

Managers are in many cases part of the problem. CIPD research finds that managers are the category of employee most likely to be identified and bullies within organisations (CIPD 2004) and that workload and management style are the top causes of stress at work (CIPD 2008a). Joint research by the CIPD, HSE and Investors in People (IIP) (2008) has identified four areas of management competency that are key to managing and mitigating against the causes of stress: managing emotions/acting with integrity; reasoning/managing difficult situations; and managing the individual within the team. These are all generic people management skills that managers at all levels should be equipped with, not just to manage stress but to manage performance and underpin employee engagement.

The core people management competencies

The CIPD and Acas have drawn on their extensive research ad practical experience of providing line manager development to identify the key areas of people management competency needed for high-performing workplaces:

Managing work now and in the future

• Gains, develops and communicates clear objectives
• Develops action plans
• Monitors work and workloads regularly
• Sees project/work streams through to delivery
• Looks collaboratively for ways of improving work processes
• Ensures work cover, manages rosters/workloads and discusses these with staff; deals with absence fairly
• Maintains effective working relations with senior managers

Managing the team

• Keeps team members informed on what is happening in the organisation
• Holds regular team meetings with time for questions , discussion and views to be expressed
• Encourages every member of the team to participate
• Allocates and delegates work evenly among the team in line with their level of responsibility and experience
• Allows the teams to take some responsibility for work, work allocation and problem-solving
• Solves team problems quickly and effectively if need be by taking the issues up to senior management while keeping people informed.
• Takes part in the work of the team and joins in
• Mixes with the team in work and at rest times
• Protects the team from excessive work demands; knows when and how to say ‘no’
• Understands health and safety issues and the importance of well-being at work
• Helps new team members to move on inside or outside the organisation

Managing the individual

• Takes part and takes care in selection and induction to welcome and support the individual
• Sets challenging yet achievable job and performance expectations/targets
• Gives autonomy to let the person get on with the work
• Often reviews performance and gives regular constructive feedback
• Rewards good performance quickly from ‘thank you’, ‘well done’ to small gifts or prizes
• Takes appropriate action where there is evidence of poor/unsatisfactory performance, giving opportunities for improvement
• Takes the formal appraisal process seriously, showing preparation and time allocation, giving priority to development and the future
• Provides coaching and guidance on a regular basis, and is patient
• Shows concern, and takes action, when there are signs of stress, listening in confidence when help is requested or needed
• Shows interest in colleagues and their lives

Managing conflict and difficult situations

• Deals with possible conflicts early on, informally where possible
• Acts as a mediator if appropriate, showing impartiality and listening to each side
• Works constructively with employee representatives
• Talks through grievances and problems as soon as they are raised, before formal procedures are used
• Knows when to ask for advice and help, using HR as a resource, and when to pass the matter on to another manager
• Ensures the formal disciplinary and grievance procedure is used when necessary
• Seeks evidence from all sides before making a decision
• Looks for causes behind the symptoms
• Focuses on the future

Managing yourself

• Understands own stress and ways of dealing with it
• Develops, as far as possible, an open relationship with the boss
• Learns from experience, especially ‘near misses’
• Looks for support and advice from other line managers and provides  support to them
• Keeps on top of workloads and communications
• Knows what is going on in the organisation, keeps in touch and takes part in discussions
• Is aware of own strengths and weaknesses and develops self-confidence by dealing  with issues
• Had a strong interest in personal development and learning
• Believes in the values of integrity and professionalism and expects it form others
• Seeks to be a role model and leader
• Has a sense of humour and can show ‘ the human side’

Skills policy and people management

The CIPD and Acas believe that public policy on improving skills, employee well-being and productivity should place greater emphasis on the importance of the development of line managers’ people management skills.

There is evidence that government policy is beginning to move in this direction. This recently published MacLeod review of employee engagement highlighted the critical role of the line manager. The 2008 Foresight report on human capital and well-being also flagged the need for improved people management skills among line managers to support employee mental health and well-being.

In addition, the UK commission for Employment and Skills’ (UKCES) recent report, Ambition 2020 – which assesses the UK’s progress towards becoming a world leader in skills, employment and productivity by 2020 – argues that improving management practices, in particular their take-up across a wider range of companies, is likely to improve both business and national economic performance (UKCES 2009).

The report cites research by the LSE and McKinsey (Dowdy et al 2007), which finds that ‘companies that apply accepted management practices perform significantly better than those that don’t’. The McKinsey/LSE research states that ‘while UK firms are among the best in their approaches to attracting and retaining talented people, they do not rank highly in aspects of individual performance management such as establishment of effective, well-structured targets. The implication here is that while the UK’s flexible labour market ( and competition from a thriving service sector) forces firms to work hard to attract good people, they are far less effective at equipping their employees to deliver improved performance and at motivating them to do their best.’ One of the authors of the McKinsey/LSE report, John Dowdy, director at McKinsey, commented: ‘Professor Michael Porter concluded that he could find little evidence that the quality of UK management contributed to the UK’s productivity gap whereas we have found exactly the opposite of that’.

The Ambition 2020 report include a welcome emphasis on the benefits if skills utilisation, which is about, firstly, ensuring the most effective application of skills in the work place to maximise performance and secondly, the use of a range of effective HR, management and working practices, also known as High- performance working (HPW). HPW emphasises the importance of the role of the line manager, as well as a range of issues that are directly affected by line management behaviour, including: the improvement of employee engagement; the ways people are treated at work; communication; autonomy; and team work.

The CIPD and Acas applaud the Ambition 2020 report and the emphasis that it puts o the importance of management and leadership, skills utilisation and HPW; however, we believe that there needs to be a debate among policy makers about what is really meant by management and leadership skills. There needs to be clearer articulation about exactly what world-class management and leader ship is, if the necessary skills are to be developed. We argue that a large part of the UK’s leadership and management skills deficit is the so-called ‘soft’ people management skills needed by line managers in the modern workplace.

This paper provides an initial template to help inform this debate, setting out the day-to-day people management behaviours needed to promote and support learning at work, as well as underpin employee well-being, engagement and ultimately productivity.

In 2008, just 3% of the Government’s Train to Gain budget was allocated to the development of generic leadership and management skills. We would like  to see a greater proportion of public funding on skills to be allocated specially to the development of people management skills among SME’s, which we believe will help government make the most out of its wider investment in skills.

We would also like to see more government support for the effective communication and marketing of the proposition for developing theses skills to help build demand for investment by employers in this key area of management competency.

References for this paper can be obtained by downloading the report Meeting the UK’s people management skills deficit from here

 This article was written by Mike Emmott and appeared in issue 28 of Impact – The CIPD’s Quarterly Update on Policy and Research

When the HR trade press reported last month of the government-commissioned review of employee engagement by David MacLeod and Nita Clarke, one HR director was quoted as saying it was unlikely to tell employers anything they didn’t know already. At the same time, the CIPD was reported as describing the report as ‘the best thing that’s happened to HR for years’. So who is right?

 The answer is that these apparently conflicting comments both reflect important truths. The MacLeod report didn’t set out to be a ‘how to’ guide or toolkit, so HR professionals who have already made serious progress in implementing engagement strategies will find the report much with which they are familiar. On the other hand, the report showcases many examples of employee engagement in practice, and underlines the vital role of HR in delivering business performance. The CIPD strongly support the recommendations of the review which build on extensive discussions the review team had with a wide range of people, including many of our most experienced senior members. Employee attitude surveys make painfully clear how much progress remains to be made in raising engagement levels. The report refers to research for the CIPD by Professor Katie Truss as Kingston Business School, which found that only three in ten UK employees are actively engaged in their work.

 One of Jackie Orme’s priorities as Chief Executive of the CIPD is to raise the profile of the HR profession. The report quotes Jackie’s comment that HR ‘have a key role in helping companies develop the kind of organisational culture where engagement can thrive, and ensuring that managers have the skills to make engagement a reality’. Many respondents to the review pointed to the strategic opportunity engagement offers for HR to re-establish itself as the heart of business and organisational success, rather than being viewed as a cost centre or administrative function.

The report recommends a nationwide awareness-raising campaign to expose organisations in the public, private and third sectors to the potential benefits of employee engagement. The campaign will be led by Government and guided by a high-level sponsor group on which the Confederation of British Industry (CBI), the Trades Union Congress (TUC) and professional bodies, including the CIPD, will be represented. The campaign is yet to be worked out in detail, but is expected to include a series of nationwide and regional events and conferences, seminars and workshops. It is hard to think of a previous government-led initiative on this scale that has focused so closely on the range of management issues for whish HR has responsibility.

The report’s second recommendation is about skills. It suggests that ‘more support should be devoted to the people skills vital to leader ship and management which lie at the heart of engagement, in addition to generic management skills. These softer skills include: the ability to consult; engage; communicate effectively; have difficult conversations; and interpersonal skills.’ This recommendation closely reflects the CIPD’s own proposals that a greater percentage of government financial support for training should be directed towards leadership and management skills.

Finally, the report recommends that more support should be made available to those who want to develop engagement. The CIPD’s own plans include a session led by David Macleod at out annual conference in November, a major conference on employee engagement early next year and research reports on a number of case studies currently in hand. We recently produced an HR director’s guide to employee engagement, which explains why employers should be interested and what the factors are that can drive or inhibit an engagement strategy, and we are considering what further practical support it might be useful to offer.

One major contribution the report has hopefully made is to finally put to rest any doubts about the business case for employees engagement. Evidence to date has rested heavily on studies by consultancies and the report helpfully summarises their findings. It also quotes John Purcell, who told the review team: ‘Despite the difficulties and weaknesses it is hard to ignore the volume of studies which show, to varying degrees, with varying sophistication, a positive relationship between high performance/involvement work practices and outcome measures.’

But the most convincing evidence probably lies in the sheer number of case studies reported of organisations – in both private and public sectors – where engagement activities have been accompanied by performance improvement. The report would be well worth reading for this evidence alone.

CIPD surveys underline the important role of line managers in raising levels of employee engagement. The top management team also need to pay a leadership role in establishing a culture based on mutual trust and respect. If the campaign that the report calls for is to succeed, it will require ongoing leadership and support from the HR community. The challenge now is to translate the consensus about what is needed into practical action.

The report puts employee engagement where it properly belongs: at the heart of business performance. Employer responses to the recession suggest that an ever-increasing number recognise people are indeed their greatest asset. Converting employee engagement into bottom-line results is what employee engagement is all about. HR professionals will see this report as an endorsement of what many of them are already doing, as well a stimulus to do more.

The CIPD has recently published a discussion paper, An HR Director’s Guide to Employee Engagement, which:

• Outlines key elements of the business case that can help persuade top management of the contribution engaged employees can make to an organisation
• Identifies the key factors driving employees engagement, as well as the possible barriers
• Highlights responsibilities in work places for promoting employee engagement and suggests what employers and government should do to create an engaged workforce.

Members can download the discussion paper by clicking here:

3 August 2009

You can also view this article via the Institute of Directors website by clicking here: http://www.director.co.uk/ONLINE/2009/07_09_mediation.html

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 6^th 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:

1.  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     
2. 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
3. Review your organisation’s policies and procedures to incorporate clauses that promote and encourage early resolution of disputes and mediation
4. 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
5. 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

Are all councils equal – or could some be more equal than others?

The Improvement and Development Agency (IDeA), a body that works to improve local government, plans to get councils to compete against one another to find who is the best at promoting equality among its residents. A competition called Peer Challenge will send senior council officers in to other councils to assess how well they do at ensuring all social groups in their area have equal chances in life. It is part of the Equality Framework, a document giving guidance on equality that has just been launched after extensive consultation with local councils, and which the IDeA hopes will redefine how councils view equality in their areas.

Traditionally, the focus on councils dealing with issues of equality and diversity has been on preventing discrimination on the grounds of gender, race or disability, and stopping ethnic minorities, disabled or older people from being marginalised, says Angela Mason, the national adviser for equality and diversity at the IDeA. But with the Equalities Bill going through Parliament, local government needs to change its approach, she believes.

She said: “There are lots of other vulnerable groups who are not covered by antidiscrimination law but who are actually doing pretty badly – the educational achievement of white working class boys, for example, or the progress on any measure of children in the care system.

“We are trying to say to councils, ‘Look widely at the opportunity of all the people in your community and see who’s not doing so well’.”

The framework, which replaces the former Equality Standard for Local Government, which was introduced in 2000, is designed to be a simple set of guidelines that will help councils to understand where they can improve. If equality law does change, it will probably promote a broader definition of equality, and with it a broader public duty for councils to promote equality in addition to the duties that already exist for race, disability and gender.

Those local authorities with the fullest understanding of their community make-up score highest on equality, Ms Mason says. But knowing the make-up of an area in detail (“equality mapping”) requires substantial data and evidence – meaning time and money. “A lot of councils haven’t invested enough in that area,” Ms Mason said.

As well as their existing responsibilities for education, local authorities will be given more responsibility for careers and skills, she said.

Ms Mason believes that local government has made more progress than other parts of the public sector, but says that there is still a “very long way to go”.

For some councils the problem is with leaders who do not see equality as a priority, while others do not have proper engagement or consultation methods worked out with their communities, she says.

The relatively nondiverse make-up of council staff means that most fail to reflect their communities. Women account for 20 per cent of council chief executives and a “tiny proportion” come from black and minority ethnic backgrounds. “I’d say that’s the biggest thing they still have to get right,” she said.

This article was written by the CIPD’s Employee Relations Adviser, Mike Emmott and appeared in the May 2009 edition of CIPD Impact. Mike Emmott also endorsed the widely-acclaimed ‘The definitive guide to workplace mediation and managing conflict at work’ written by Globis Founder and MD, Clive Lewis and published in January 2009. 

Those seeking to build the business case for mediation in the workplace should not overlook its role in supporting performance.

The business case for mediation is generally framed in terms of reducing costs – either the cost of conflict, or the cost of alternative methods of conflict resolution. Conflict is a reality in most workplaces, reflected for example in the number of days lost through stress and other sickness absence, and cases of bullying and harassment. Research shows that managers spend many days a year handling discipline and grievance issues, and still more responding to subsequent tribunal claims.

But the real impact of mediation is best seen in terms, not of costs, but of importance. Conflict is damaging to performance since it undermines employee relations and individual motivation. The need to manage conflict also distracts managers from focussing on the business of keeping customers happy. People who are thinking of leaving the organisation, perhaps as a result of issues that have not been recognised or effectively tackled, are unlikely to be advocates for their organisation, or go the extra mile.

Conflict management has traditionally been seens as establishing procedures to help avoid and settle disagreements. The assumption is that employer and employee interests will differ, and procedures are needed to reconcile them when relations break down. But mediation goes beyond that in seeking to rebuild broken relationships and create a firmer basis for working together. it assumes that open and honest communication is capable of correcting mistaken perceptions about the behaviour motives of others and establishing a solid foundation for the future.

Mediation is about looking for solutions. It’s about problem solving. it’s about working towards a more constructive future. Mediation offers an alternative mindset to one based on ‘compliance’ with regulation. If we believe that workplace relations are based essentially on the psychological contract or unspoken deal between employer and employee, mediation is a way in which that contract can be restored after suffering conflict-induced damage.

Employee engagement depends to a great extent on effective communications, in both an upward and downward direction but, in the absence of trust, communication breaks down and is replaced by scepticism, disbelief or denial. Mediation focuses on repairing broken relationships between individuals, and helping to restore a sense of trust and fairness that is fundamental to achieving performance.

Employee engagement is also influenced by the degree of respect that people feel they encounter in their dealings with the organisation – by the extent to which people believe that they are being treated as individuals and that their opinions count. Mediation is a voluntary process in which individuals are invited to share their feelings about what they have experienced and the way they have treated or been treated by others. It is not about guilt and innocence but about opening up people’s minds to other perspectives.

Mediation is generally used to tackle problems between individuals: it’s about personal relationships. But there is also a parallel with the way the different departments do or don’t get on within the same organisation. The familiar ‘silo’ effect is produced when people in one department don’t talk to those in another, seeing them as incompetent, misguided and possibly malicious. These judgements are often based on misperceptions that can only be cleared up by a team-building process aimed at opening up communications.

Mediation can be undertaken either in-house, by a person or people trained for the job, or by an independent external mediator. Either can be effective, but the performance effect of in-house mediation can be reinforced by its wider impact on the organisation’s culture. Adopting a policyof sorting out problems by a process of in-house mediation makes a statement that the organisation is committed to maintaining positive relationships with its workforce and is willing to invest in acquiring the skills to make that happen. There is a parallel here with coaching, which can give a message about the kind of line management skills the organisation wants to foster.

But if we accept the argument that mediation is a performance issue, how do we know it works?  A CIPD survey in 2008 found that employers saw mediation as a highly effective method of resolving conflict, second only to informal discussion between those affected. Major organisations, including NHS trusts and BT, have recently moved to set up their own in-house mediation services and have no doubts about their value and effectiveness. Success rates of up to 100% are reported in disposing of issues remitted to mediation.

Looking at the impact of mediation on well-being, nearly three-quarters of respondents to the CIPD survey saw mediation as reducing or eliminating the stress involved in using more formal procedures. Two in three saw it as a means of retaining valuable employees. Over one half said they used mediation to develop an organisational culture that focused on managing and developing people. It’s time mediation was taken out of its box and seen, not as a technical intervention for dealing with a small minority of workplace issues, but as a tool for transforming cultures and building high-performing organisations. Why wouldn’t HR professionals want to take ownership of a process that seeks solutions based on trust, fairness and respect?

The survey report Workplace mediation: how employers do it is free to download from www.cipd.co.uk/surveys

This article was written by Cynthia Wagner and originally appeared in The Futurist in December 2008. Globis believes that bridging the age divide and emracing age Equality and Diversity is one of the biggest issues facing organisations today.

Baby boomers and millennials must learn to teach each other

Old-timer Victor remembers that bad run-in your company once had a certain supplier; he warns you to check all references before signing a crucial contract. New-comer Sasha seems to keep to herself, but she turns out to be one of the best salespeople on your staff. She shows the rest of the team how she found six new client leads just by using Facebook contacts.

When most organisations think about “knowledge transfer”, they think in terms of veterans of the organisation mentoring the new hires, younger people with little experience. But increasingly, younger workers are bringing in new skills that are valuable to an organisation, the Conference Board points out in a new report.

“As baby-boom generation of corporate leaders and experts approaches retirement, business in the US, Canada, and many European nations face the loss of experience and knowledge on an unprecedented scale,” says Diane Piktialis, co-author with Kent Greenes of the report, “Bridging the Gaps: How To Transfer Knowledge In Today’s Multigenerational Workplace.” Piktialis notes, “Younger workers can’t be counted on to fill the void, as they lack the experience that builds deep expertise. They also tend to change jobs frequently, taking their technological savvy and any knowledge they’ve gained with them.”

With potential brain drains from both retiring baby boomers and job hopping Gen Xers and millennials, managers are challenged to keep institutional knowledge intact and organisational learning and innovation expanding.

The Conference Board report urges managers to understand the different learning styles of the generations and to ensure that receivers of “knowledge transfer” understand that it’s a two way street. The report identifies four generations working side-by-side in many of today’s workplaces, each with distinctly different learning styles.

Matures or veterans (born 1925-1945) and baby boomers (1946-1964) prefer to learn via formal classroom instruction and printed texts; they tend to be more verbal than visually orientated communicators.

Gen Xers (1965 – 1979) prefer informal learning but are adept at formal classroom learning as well. They strongly prefer action-orientated leaning that focuses on solving real problems. As the first generation to grow up alongside the development of computers, their learning style is more visual than verbal, the report notes.

Gen Yers or millennials (1980 – 1995) were born into the computer age, where leaning is a team process and occurs through a network and connections. They prefer to do things their own way rather than be told how.

With this mix of learning styles, and with mentors and mentees trading roles frequently throughout the process, knowledge transfer has never been more complex. And the rapid acceleration of advances in computers and other technologies has widened the generational knowledge gap, the report notes. For instance, younger workers may prefer to receive IMs (instant messages) rather than attend a company-mandated workshop, and to share their own insights via blogs, wikis, or podcasts rather than talking to others through a procedure they’ve developed.

The methods of knowledge transfer need to be as diverse as the workforce itself, including formal education and training, apprenticeships, simulations and games, storytelling and conferences, blogs and papers.

The report stresses that there is a strong business case for improving both ends of the knowledge transfer process – providing veteran workers with new skills and orientating new workers with institutional history. The benefits include increased productivity, innovation, and organisational stability.

Employers’ liability for harassment in the workplace has just been increased, thanks to an anti-stalking law 

Stephen Ravenscroft and Alana Lowe-Petraske 

The recent House of Lords decision in Majrowski v Guy’s and St Thomas’ NHS Trust (2006 UKHL 34) has caused a stir among employers, because it has confirmed an employer will be liable for employees’ acts of harassment if they take place in the course of their employment. 

Majrowski was employed by the trust as a clinical auditor. He complained of being harassed by his manager, saying she had used abusive behaviour, fuelled by homophobia. The trust investigated his complaint and found harassment had occurred. Majrowski was later dismissed for an unrelated reason. 

Four years later he began county court proceedings under section 3 of the Protection from Harassment Act 1997, legislation intended to deal with stalkers. He claimed damages for distress, anxiety and consequential losses caused by the harassment. The claim was made against the trust rather than his manager on the grounds that it was vicariously liable as her employer. 

The claim was struck out on the grounds the act could not create another level of liability in employment law. Majrowski appealed successfully to the Court of Appeal and the trust appealed to the House of Lords. 

The House of Lords decided against the employer. The court accepted that the common law principle of vicarious liability should apply to harassment under the act, partly because the section applicable in Scotland appeared to provide for it. But the Lords confirmed employers’ liability would only arise where harassment occurred during employment and the employee’s actions were closely connected to the employment itself. So, employers can be held liable for their employees’ acts of harassment committed in the course of their employment, whether the victim is a co-worker or a third party. 

“Harassment” has no statutory definition under the act, but would appear to cover any unwanted behaviour that is oppressive and unacceptable. It must be a “course of conduct”, happening on at least two occasions. Victims can claim any time within six years of the conduct happening. 

Unlike harassment under anti-discrimination legislation, there is no defence available under the act for employers who have taken all reasonably practicable steps to prevent the harassment from occurring, and no requirement for the employee to raise a grievance in the first instance. 

There may be legal arguments that an employer can use once a claim is brought under the act. If the employee has already claimed for harassment under the discrimination legislation, or for personal injury resulting from harassment under the law of negligence, normally the law will prevent them from taking a “second bite at the cherry”. Employers may also be able to argue the alleged perpetrator has not engaged in a “course of conduct” or that it was not “in the course of employment”. 

Employers may be faced with a multiplicity of unfounded, speculative claims from employees as a result of this decision. 

Blame and claim 

Under the Protection from Harassment Act 1997, victims have the right to claim damages from the employer for the anxiety caused by the harassment, among other things, even though this outcome may not have been foreseeable and the employer has taken all reasonably practicable steps to prevent the harassment from occurring. Unlike a personal injury claim, there is no need for victims to produce medical evidence. 

How to avoid a tribunal 

The steps employers can take to avoid claims are broadly the same as those it should be taking to prevent harassment at work as part of an anti-discrimination strategy. These include:

• giving managers anti-harassment training to help them spot workplace bullying and, perhaps, modify the behaviour of potential bullies;
• providing clear guidance to employees about what behaviour is unacceptable;
• monitoring rates of employee turnover that might indicate bullying is taking place;
• taking any bullying complaints seriously and dealing with them without delay;
• ensuring the waiver of claims by employees as part of a compromise agreement is carefully worded to include possible claims under the act.

Mediation at Work: A Case Study

Written by: Leatham Green – Assistant Director of Personnel & Training – East Sussex County Council

East Sussex County Council is a large, complex and dynamic organisation. It employs around 16,000 people, in over 500 locations, with in excess of 350 different job types and an annual budget of around £1 billion. Like any modern business, the Council is constantly seeking ways to improve the way it delivers services in the most cost effective way possible. This changing environment inevitably has an impact on its employees and despite the professional industrial relations climate that exists locally, the Council does experience a degree of workplace conflict that is costly both in terms of resources and human impact.

Over the past couple of years discussions have taken place with recognised Trade Unions and managers to establish what, if anything, could be done to reduce conflict at work, and where it does exist, improve our practices and procedures in such a way that any dispute is resolved quickly. The Council has taken the opportunity to strengthen the training and support that is offered to all managers to ensure they are better skilled and more confident in dealing with difficult situations and conversations, as well as providing coaching and mentoring as and when required. In addition to this, the Council also strengthened the level, quality and accessibility of the HR advice, providing a professional service that adds value to the business with an emphasis on finding pragmatic solutions rather than getting bogged down in process and bureaucracy.

The next step was to agree improvements to strategy and processes and the consensus from both managers and Trade Unions was to move away from a process that was reactive to one that was proactive with an emphasis on outcomes, shifting resources to support early intervention and resolution. Mediation was identified as the most effective solution.

A proposal to introduce mediation into the workplace was developed and presented to the Council’s Chief Officer (Directors) Management Team and was positively endorsed. The proposal was supported by a clear business case setting out the high level cost of the existing approach to tackling workplace conflict, the cost of introducing mediation, and the potential short and long-term benefits. It was agreed that the formal introduction of mediation would be made in line with the changes in employment legislation from April 2009.

Preparations for the proposed changes commenced in January 2008. We worked with Globis to train a pool of in-house mediators selected from different professional groups at a senior level across the Council. This also included the involvement of senior Trade Union officials. The mediation training was first class. We now have 12 accredited mediators including two from the recognised Trade Unions. Wherever possible, the Council will engage one of its in-house mediators to undertake a mediation, however it reserves the right to engage external mediators as and when agreed by both parties.

The following actions were also undertaken:

• Revised “Dignity at Work” and Grievance Policies to establish mediation as the first stage in resolving the conflict/dispute.
• Agreed the clause to be inserted into the contract of employment, for employees recruited from April 2009, which establishes mediation as the Council’s preferred method to resolve workplace conflict and dispute.
• Offered mediation on a voluntary basis to any employees with outstanding disputes.
• Raised the profile of mediation as an effective tool in conflict resolution with managers and employees across the organisation.
• Achieved formal endorsement from the Cabinet of the Council to changes in policy and procedure.

The foundations for the positive introduction of workplace mediation have now been achieved.

Throughout our planning phase we have successfully mediated on a dozen cases and all have achieved an effective outcome for the parties concerned. A number of cases involved employees who had been absent from work due to the workplace conflict and they have now returned to work and are making a valuable contribution to the Council. There is still much work to be done and no doubt the cultural shift away from an adversarial standpoint to one of a speedy and satisfactory resolution may take time. However, the success we have had so far bodes well for a brighter future.

1. Accept that change is here to stay. Leaving one organisation for another might only bring a short term reprieve if you are trying to escape change. Change is happening everywhere.
2. Find out more about the organisation you work for. Speak to senior management. Read organisational information. Ask questions about the future plans for the Company. It will help you prepare for any eventual changes.
3. Increase your knowledge of what is happening at other organisations. This will give you a better understanding of the issues affecting your sector and help you to spot trends. You can also use your new knowledge to suggest new ideas for your organisation.
4. Think about the things you are good at. Is your job allowing you to exhibit your skills regularly? If not find a way to work in a role that matches your skill set.
5. Build better relationships with your colleagues. Working life is always better when there is a nucleus of colleagues with which you get on with. This will mean that you find it easier to get things done when you have to rely on others for help.
6. Work on your personal development. Focusing on and addressing areas of self improvement often builds confidence. It can also make us less concerned when change comes because we may feel better prepared to cope with it.   

Accepting the inevitability of change will mean that we are less likely to be caught off guard when it comes along. Embracing some or all of the tips above may also mean that we can begin to welcome change as an opportunity.Clive LewisManaging Director

It’s in my genes
The MBTI describes two distinct types: one with a preference for Perceiving (or ‘Ps’ as they are commonly described for short), and the other with a preference for Judging.  For ‘Ps’ time just happens, it flows, and managing it doesn’t feel right at all.  Whereas ‘Js’ like to control and organise, indeed the very phrase ‘time management’ sounds like something a ‘J’ could have coined. The starting point for ‘Js’ is that free time is what’s left over after planned activities, while for ‘Ps’, the premise is that all time is free apart from what’s planned. 

These differences can be seen in clashes in the workplace, schools, not to mention homes all over the country.   ‘Ps’ often feel their approach is wrong “You always leave it until the last minute”.  Some of the rules advocated in standard time management courses are heavily ‘J’ flavoured: “Finish one task before starting another”.  However, this is not about what’s right and wrong, but more about managing yourself in a way which suits your strengths and doesn’t put others out.  In other words personality difference doesn’t give you an excuse to not develop your skills. 

But I procrastinate…
… Procrastination is often used in connection with time management, but it’s little more than a disempowering label.  Research shows it affects most of us; people of all types put off doing, and particularly starting, tasks.  The behaviour is actually a symptom which may have a number of root causes.  Some of the main reasons are:
Over-stimulation – too many ideas and possibilities�
Perfectionism or avoiding tasks which stimulate feelings of incompetence�
Task doesn’t ‘grab’ you

So they key is to notice what you are telling yourself when you are not starting or doing the task.  Consider these:

“Hmmm, not sure where to start, what am I doing ? Oh yes, project X. Maybe I’ll do it like this, or project Z is linked, hang on, here’s an idea…”
“I can’t do it, it might not be good enough, so I can’t even start it”
“I really must do that job.  But I’d really rather be doing the other one due next week.  Wish I didn’t have to do it, oh well”.
You get the idea.  Often these messages are out of our awareness, scripts that we have been running around our heads for many years.  But even catching these comments can really help overcome the blockage.  Identify what you say to yourself and see if one of these strategies helps get you started.

Make use of checklists
Make a checklist which breaks down the component parts of a task.  Once you have jotted down the items involved, you have a visual image of your workload.  This means, firstly, the job looks more manageable – small single step tasks you can face, and secondly, you will spot any gaps (e.g. before I do that I need to establish who’s available).  Thirdly, and most importantly, you won’t have to keep mentally revising what stage you’ve reached and what’s next.  This can be liberating indeed and great for sustaining momentum. 

Set a time limit 
Very few jobs need to be done perfectly at first go (brain surgeons can ignore this advice!)  It can feel daunting to try and find a level that is ‘good enough’ in completing a task, rather than perfect.  A simple, yet effective, way of doing this is to time yourself and do just 15 or 20 minutes – it can be revitalizing knowing you have to stop when the alarm goes, rather than struggling to get it all done.  It’s surprising then how often people then find the energy to continue with the task.

Reward yourself
A much underused yet powerful technique is to give yourself an incentive.  If it sounds far too simple, try it.  Choose something really enjoyable to do on completion of the task – not too far ahead or it won’t be sufficiently enticing.

Good luck, as they say: ‘no time like the present!’

Julia Cusack Head of Coaching & Learning

‘Furthermore, my client has incurred legal expenses, accountants fees, costs for employing lawyers, time spent meeting with lawyers, time spent researching, writing letters, photocopying documents, sleepless nights, precious time lost, stress worry, psychosomatic symptoms such as headache, migraine, depression, suicidal thoughts, weight loss due to loss of appetite, strained relationship with family, sleep depravation, loss of earnings, total waste of precious time and energy. The defendant has also been unable to open her mail box without trepidation since receiving a letter from X’. 

The intensity of these words hit me. During our discussions, the GP had to make frequent trips to the lavatory – one of the effects of the dispute. That it was a GP suffering made it somehow more poignant, though of course conflict impacts us all, irrespective of our occupation or seniority.

In your pursuit of better well-being, you would do well to think about how your relationships at work can contribute towards better health. Here are a few questions to help you think about how to maintain good relationships at work.

• How can you best respond rather than react to a situation?
• Generally, how important is this issue on a scale of 1-10 (10 being life and death)?
• Are there any learning points for you from previous interactions with your colleagues?
• Will this issue be important in a year?
• What can you do to turn the issue into something positive?
• Pursue solutions to these questions, and you are much more likely to not only have better relationships at work, but have better health too!

Clive is founder and Managing Director of Globis
You can also view this article on-line at Opportunities Magazine 
http://opportunities.modezero.net/default.asp?title=It’smakingussick%2CsaysCliveLewis&page=article.display&article.id=181 

• Define the problem – what is and isn’t acceptable
• Provide managers with appropriate training courses – such as managing difficult conversations, influencing and making an impact 
• Provide individual support – through HR teams and other departments
• Support the bully and the bullied – both parties can benefit from on-going interventions such as coaching

This article is also published in the Opportunities Magazine

The recent news that years of wrangling and legal actions over the new Wembley Stadium have come to an end is great news for advocates of conflict resolution processes. After a debacle that has impacted the lives of many thousands of football fans the way was finally cleared for completion and a showpiece FA Cup Final in May 2007. It is estimated that the project, initially budgeted at £458 million will, some 8 years on, close with little change from £800 million.

Lord Carter of Coles has played a role that encouraged the main parties to come together to discuss differences and a workable solution that will result in achieving one main aim of opening the brand new 90,000 seat stadium. Before he was brought in, executives at WSNL and Multiplex were barely on speaking terms, with their lawyers the only conduit for discussion, each threatening to sue the other. One imagines the FA and government will be breathing a huge sigh of relief that the seemingly endless round of arguments that would have benefited no one but the lawyers is over.

What this public, high profile case demonstrates is the real value organisations can derive from engaging with conflict resolution tools such as mediation in a commercial setting. Whilst it is unlikely that the sheer size of this project is replicated as an everyday occurrence, organisations up and down the country will recognise many of the themes that have emerged from the Wembley case. It is all too easy to stand at a distance and criticise the Wembley project when in reality similar scenarios on a smaller scale happen regularly due to a failure of individuals to strike up open meaningful dialogue when issues arise.

When mediation – third party assisted negotiation – was introduced to the UK in the early 1990s, there was much resistance to the concept with clients and lawyers protesting that it would not work in the UK and that it was not relevant to the English or European legal systems.

The last few years, however, have seen developments within the government and judicial system that are leading to the beginnings of an acceptance for mediation within the UK.

The new English law Civil Procedure Rules (CPR) were introduced in April 1999. The overriding objective of the new rules was to enable the courts to “deal with cases justly” through active case management. Active case management was partly defined as“encouraging the parties to use an alternative dispute resolution procedure…” and this, the courts were able to do with or without the agreement of the parties. Thus mediation was firmly placed as a central feature of the new landscape of civil litigation.

Two case judgments, Dunnett v Railtrack in February and Hurst v Leeming have even greater implications for anyone bringing cases to court. Dunnett broke new ground as the first example of a successful litigant winning at trial, but losing the subsequent costs award because of an unreasonable refusal to follow the court’s earlier suggestion to mediate the dispute. In Hurst v Leeming the claimant withdrew his claim, but argued that costs should be borne by the defendant because he had refused offers to mediate both before and after proceedings had been issued. In this judgment, Mr Justice Lightman explained why he viewed the refusal to mediate as reasonable in the particular circumstances of the case but warned that refusal is a “high risk course to take”.

It is now widely expected that these two decisions will have a significant impact on the numbers of parties considering mediation before English court proceedings.

However, it should become increasingly less necessary to use legal cases to justify why organisations should attempt to use mediation prior to going to court or taking other rights based action.

For example, with the Wembley case we have seen costs spiral out of control due to an inability or unwillingness for parties to get together and talk things through leading to, amongst other things, wasted down time. Recently, research indicated that the cost of conflict to the UK is £33bn. This ranges from Customer disputes through to board room tensions that may result in a senior executive leaving the company.

Practitioners in the field of conflict resolution generally agree that there are only three ways in which disputes can be resolved – through power, rights or interests. Power based conflict resolution techniques such as coercion, and one way communication from someone in higher authority, 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, rules and 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. Both power and rights based methods focus on suppressing or settling conflict and issues of difference rather than resolving and preventing them.

Interest based processes such as mediation in a commercial setting 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 towards objectives.

Mediation also offers the advantage that it can be undertaken in tandem with any legal or statutory that may have begun, as it is without prejudice. If mediation doesn’t work (and it does in more than 80% of cases) then any legal process can continue its 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 be responsible for solutions. It is future-oriented and less concerned with deciding who is right or wrong than with solving problems so they do not occur again.

There are many reasons that can explain why mediation is now becoming an increasingly used method of conflict resolution for commercial cases. These include the high increase in the number of company court cases – a 3 fold year on year increase in 2005 – the higher levels of compensation and, for many, the realisation that the formal litigious process can in some circumstances be so adversarial and stressful to all concerned that any possibility of people working together again is minimal. The alternative in the Wembley case was a battle in the High Court that would have lasted years and cost tens of millions.

There is also the issue when the litigious route is taken that any work initially identified still needs to be carried out, so organisations may need to go through the tortuous tendering process from scratch again, adding even more costs to the process. Government too is also beginning to utilise mediation with the Lord Chancellor’s Department’s announcement in 2001 that all government departments would seek to avoid litigation by using mediation and other neutral-assisted dispute resolution procedures wherever possible.

Globis is beginning to see a steady increase in the number of commercial cases that are being referred for mediation. The business case for commercial mediation is clear. It can save organisations thousands of pounds. Mediation is quick, economic, private, confidential and flexible and can allow the commercial relationship between the parties to be preserved. Mediation can also be arranged within days or weeks rather than the months or years which are typical of litigation.

In a time of increasing shareholder and customer scrutiny, the commercial benefits of mediation can only be good news.

Source: People Management

Conducting an internal investigation into alleged employee misconduct requires skill and tact. Those carrying it out must balance thoroughness with fair treatment towards those under investigation. This isn’t easy but can be achieved with a little forethought. 

Before holding a disciplinary hearing, it is crucial that employers have sound evidence on which to base their decisions. Failing to conduct a full investigation, in all but the most exceptional of circumstances, may render a dismissal unfair and result in costly consequences in terms of tribunal awards, staff morale and stakeholder confidence. 

1 How serious is it? 

An investigation must establish the seriousness of the alleged misconduct and be proportionate to it. So, your response may range from a brief discussion with the employee to establish the facts, to a full-scale investigation involving other agencies such as the police. The objective should be to provide sound evidence for any subsequent disciplinary action. Investigators should ask themselves what they can reasonably expect to achieve given the time and resources available. Any internal investigation should follow the ‘Lift’ principle – it should be logical, impartial, fair and time-bound. 

2 Separation of powers 


Those conducting the investigation should not also hear the disciplinary complaint. These two functions should be kept separate in the interests of natural justice. Tribunals and the Acas code of practice on disciplinary and grievance procedures acknowledge this will not always be possible, especially for small businesses (www.acas.org.uk). Even so, if funds permit, employers should consider commissioning an independent investigator for more serious cases. For larger organisations, it is important that HR and the investigating manager work together. Protocols need to be agreed and good communications maintained throughout the investigation.

3 Keep an open mind 

Do not assume guilt or innocence. Decide whether the employee should be suspended on full pay pending the investigation. Make sure this is described as a precautionary measure – it should be made clear it is not a disciplinary sanction. Such action should only be considered in more serious cases where the employee’s continued presence in the workplace might have a disruptive effect or enable employees to undermine the case against them.

4 Establish the evidence 

Identify the types of evidence you need to gather. Don’t rely merely on witness statements. Think about gathering files, documents, CCTV footage or computer records, if available. Policy documents and training records can also be used. If any evidence is likely to perish or be removed, gather it as a priority. Decide who you need to interview and do it as soon as possible before memories fade. You are entitled to interview the employee against whom the allegation has been made, but it should be made clear it is an exploratory interview and not a disciplinary hearing. Identify what you need to establish from each interviewee and prepare accordingly. It is not advisable to have a pre-prepared list of questions as you may need to explore particular responses in more detail during the interview. It is better to prepare a list of topics and decide on the order in which you wish to deal with them.

5 Interviewing witnesses 


Make full notes when interviewing witnesses. At the end they should be invited to read through the notes and sign them. Draft statements should be taken back to the witness for signature and the notes on which the statement was based retained until the conclusion of any disciplinary hearing or subsequent appeal. Don’t put words into witnesses’ mouths or suggest answers. Your questions should encourage them to recall their version of events in their own words.

6 Manage witness expectations


Witnesses should be informed at the end of the interview that if the case results in a disciplinary hearing, they may be required to give evidence. They need to be aware that anonymity cannot be guaranteed unless there is a genuine fear of reprisal. 

7 Is it criminal? 

Some of the more serious allegations of misconduct may potentially be criminal offences. If you suspect this is the case, you may need to inform other agencies – for example, the Health and Safety Executive or the police. The evidence you gather for your internal investigation may also be required for a parallel criminal investigation. If this is the case, continuity of evidence is important. For your evidence to be admissible in a criminal prosecution, you need to be able to demonstrate its physical location at any point in time. Seek legal advice at an early stage on how continuity can best be achieved.

8 Handle confessions with care 

If an employee admits to a criminal offence during the course of an internal investigation, it is advisable to make a note of it in case it needs to be used as evidence in any subsequent criminal proceedings. The note should be timed, dated and signed by the person taking it and the employee should read and sign it. Where the employee disagrees with the record, note the details and ask them to read and sign them to the effect that they accurately reflect the disagreement. Any refusal to sign should also be recorded. The investigation should then be terminated with a view to involving the police or any other appropriate investigatory body. Failure to do this is likely to make such unsolicited comments inadmissible in a criminal court. 

9 When it’s over, it’s over 

Once you feel you have sufficient evidence on which to base a decision, finish the investigation. The standard of proof for most internal investigations and any subsequent disciplinary hearing will need only to be “on the balance of probabilities”. You do not have to prove your case “beyond reasonable doubt” for it to stand up in a tribunal. 

Key Points 

• Those conducting the investigation should not be involved in the decision-making at any subsequent disciplinary hearing. • For more serious cases, consider suspending the employee on full pay.• Approach investigations with an open mind and decide in advance what evidence you need.• If you decide to interview the employee against whom the allegation has been made, make it clear that it is not a disciplinary hearing.• The civil standard of proof (“on the balance of probabilities”) is an acceptable standard to work to.

• the impact of the statutory dispute procedures 
• training to manage conflict at work 
• mediation 
• formal disciplinary and grievance cases 
• employment tribunal claims 
• causes of conflict at work 
• sources of advice for UK employers in managing employment disputes 

Click here to review the report in full. (This link will take you to the CIPD’s website) 
http://www.cipd.co.uk/subjects/empreltns/general/_mngcnflcwk.htm

• fairness 
• trust 
• delivery of the deal between organisations and employees.

And research has shown that a positive psychological contract is the best guarantee of good performance outcomes.


Analysis of the causes and consequences of the psychological contract



This research report outlines the state of the psychological contract on the main dimensions of trust, satisfaction and commitment. Findings suggest that organisations are now more successful in delivering on their promises than they were in earlier years. But there are real issues in relation to employees’ feelings of fairness and trust, levels of which have been decreasing over the last two years or more.


The survey concentrated on four distinctive themes – the concept of the good employer, effective supervisory leadership, the high-quality workplace and the link to work-related stress, and contemporary career preferences.


The concept of the good employer


A cluster of practices are associated with the concept of the good employer. These include the presence of a range of progressive HR practices, the adoption of flexible family-friendly practices, effective supervisory leadership and the delivery of promises leading to perceptions of fair treatment and high levels of trust.


The composite measure of the good employer is strongly associated with higher levels of worker satisfaction, commitment and excitement at work, as well as higher levels of motivation, positive behaviour at work and a lower intention to leave the job. The findings therefore confirm that engaging in good employment practices brings benefits not only to workers but to the organisation as well.


Effective supervisory leadership


One of the biggest challenges for HR is to support line managers in their role of managing and developing people. Line managers have emerged from earlier surveys of employee attitudes as the ‘good guys’. Employees have reported feeling significantly more trust in them than in senior managers or in the organisation as a whole. The picture that emerges this year is less positive. A majority of line managers seem to be failing in many or most of the basic elements of good management – including providing regular feedback or offering to help improve individuals’ employment.


The high quality workplace and stress


Stress has been moving steadily up the workplace agenda in recent years and the survey asked a number of questions about possible sources of stress. These questions were designed jointly with the Health and Safety Executive (HSE). The survey shows that on a number of dimensions respondents are reporting stress levels that exceed those incorporated in the HSE standards on stress management.


The survey provided a preliminary measure of six criteria identified by the HSE as likely to be associated with lower levels of stress at work.


Contemporary career preferences


There has been much debate about what’s happening to careers. The survey identified three distinct groups of employees in terms of their attitude towards their career:


Traditional – working longer hours than most, displaying high commitment and motivation. These people wanted long-term tenure in one organisation and upward mobility, and tended to be younger workers. 


Disengaged – work is not a central life interest, and they want no emotional ties to the organisation. These employees tend to be older, long-tenure, low-income workers, displaying low levels of motivation and a reluctance to do anything extra. 


Independent – low commitment and satisfaction. They want career success, but on their own terms and without being tied to any one organisation. They tend to be graduates on high incomes and with a short tenure. They report lower organisation commitment, lower satisfaction, a poorer psychological contract and a higher intention to quit.

• fairness 
• trust 
• delivery of the deal between organisations and employees.

And research has shown that a positive psychological contract is the best guarantee of good performance outcomes.


Analysis of the causes and consequences of the psychological contract



This research report outlines the state of the psychological contract on the main dimensions of trust, satisfaction and commitment. Findings suggest that organisations are now more successful in delivering on their promises than they were in earlier years. But there are real issues in relation to employees’ feelings of fairness and trust, levels of which have been decreasing over the last two years or more.


The survey concentrated on four distinctive themes – the concept of the good employer, effective supervisory leadership, the high-quality workplace and the link to work-related stress, and contemporary career preferences.


The concept of the good employer


A cluster of practices are associated with the concept of the good employer. These include the presence of a range of progressive HR practices, the adoption of flexible family-friendly practices, effective supervisory leadership and the delivery of promises leading to perceptions of fair treatment and high levels of trust.


The composite measure of the good employer is strongly associated with higher levels of worker satisfaction, commitment and excitement at work, as well as higher levels of motivation, positive behaviour at work and a lower intention to leave the job. The findings therefore confirm that engaging in good employment practices brings benefits not only to workers but to the organisation as well.


Effective supervisory leadership


One of the biggest challenges for HR is to support line managers in their role of managing and developing people. Line managers have emerged from earlier surveys of employee attitudes as the ‘good guys’. Employees have reported feeling significantly more trust in them than in senior managers or in the organisation as a whole. The picture that emerges this year is less positive. A majority of line managers seem to be failing in many or most of the basic elements of good management – including providing regular feedback or offering to help improve individuals’ employment.


The high quality workplace and stress


Stress has been moving steadily up the workplace agenda in recent years and the survey asked a number of questions about possible sources of stress. These questions were designed jointly with the Health and Safety Executive (HSE). The survey shows that on a number of dimensions respondents are reporting stress levels that exceed those incorporated in the HSE standards on stress management.


The survey provided a preliminary measure of six criteria identified by the HSE as likely to be associated with lower levels of stress at work.


Contemporary career preferences


There has been much debate about what’s happening to careers. The survey identified three distinct groups of employees in terms of their attitude towards their career:


Traditional – working longer hours than most, displaying high commitment and motivation. These people wanted long-term tenure in one organisation and upward mobility, and tended to be younger workers. 


Disengaged – work is not a central life interest, and they want no emotional ties to the organisation. These employees tend to be older, long-tenure, low-income workers, displaying low levels of motivation and a reluctance to do anything extra. 


Independent – low commitment and satisfaction. They want career success, but on their own terms and without being tied to any one organisation. They tend to be graduates on high incomes and with a short tenure. They report lower organisation commitment, lower satisfaction, a poorer psychological contract and a higher intention to quit.

5 Steps to Risk Assessment

Well-being Solutions
Employee well-being is an important critical success factor in the modern organisation. Corporate health and well-being programmes that include building relationships provide more than an attractive and workable employee benefit, they can actually be a profitable investment. The ill health of employees is a key detriment of long-term profitability and competitiveness.In 2001, the HSE published “Tackling work-related stress: A managers’ guide to improving and maintaining employee health and well-being” (HSE Books). These guidelines encourage managers to manage and minimise the health risks associated with stress by taking a stress risk assessment approach.  They advise managers to use the same five steps to assess stress risks as are used for other health and safety risks.  These five steps are:

1. Identify the hazards
2. Decide who might be harmed and how
3. Evaluate the risks, by: Identifying what action you are already taking; Deciding whether it is enough; If it is not, deciding what more you need to do
4. Record the significant findings of the assessment
5. Review the assessment at appropriate intervals

Risk assessment and the Management Standards
HSE launched the Management Standards on 3rd November 2004.  The Standards cover six categories of work-related stress ‘hazards’:

• Demands
• Control
• Support
• Relationships
• Role
• Change

THE MANAGEMENT STANDARDS (HSE 2004) DEMANDS 
Includes issues like workload, work patterns, and the work environment

The standard is that:

• Employees indicate that they are able to cope with the demands of their jobs; and
• Systems are in place locally to respond to any individual concerns.

What should be happening / states to be achieved:

• The organization provides employees with adequate and achievable demands in relation to the agreed hours of work;
• People’s skills and abilities are matched to the job demands;
• Jobs are designed to be within the capabilities of employees; and
• Employees’ concerns about their work environment are addressed.

CONTROL 
How much say the person has in the way they do their work

The standard is that:

• Employees indicate that they are able to have a say about the way they do their work; and
• Systems are in place locally to respond to any individual concerns.

What should be happening / states to be achieved:

• Where possible, employees have control over their pace of work;
• Employees are encouraged to use their skills and initiative to do their work;
• Where possible, employees are encouraged to develop new skills to help them undertake new and challenging pieces of work;
• The organization encourages employees to develop their skills;
• Employees have a say over when breaks can be taken; and
• Employees are consulted over their work patterns.

SUPPORT 
Includes the encouragement, sponsorship and resources provided by the organization, line management and colleagues

The standard is that:

• Employees indicate that they receive adequate information and support from their colleagues and superiors; and
• Systems are in place locally to respond to any individual concerns.

What should be happening / states to be achieved:

• The organization has policies and procedures to adequately support employees;
• Systems are in place to enable and encourage managers to support their staff;
• Systems are in place to enable and encourage employees to support their colleagues;
• Employees know what support is available and how and when to access it;
• Employees know how to access the required resources to do their job; and
• Employees receive regular and constructive feedback.

RELATIONSHIPS 
Includes promoting positive working to avoid conflict and dealing with unacceptable behaviour

The standard is that:

• Employees indicate that they are not subjected to unacceptable behaviours, e.g. bullying at work; and
• Systems are in place locally to respond to any individual concerns.

What should be happening / states to be achieved:

• The organization promotes positive behaviours at work to avoid conflict and ensure fairness;
• Employees share information relevant to their work;
• The organization has agreed policies and procedures to prevent or resolve unacceptable behaviour;
• Systems are in place to enable and encourage managers to deal with unacceptable behaviour; and
• Systems are in place to enable and encourage employees to report unacceptable behaviour.

ROLE 
Whether people understand their role within the organization and whether the organization ensures that the person does not have conflicting roles

The standard is that:

• Employees indicate that they understand their role and responsibilities; and
• Systems are in place locally to respond to any individual concerns.

What should be happening / states to be achieved:

• The organization ensures that, as far as possible, the different requirements it places upon employees are compatible;
• The organization provides information to enable employees to understand their role and responsibilities;
• The organization ensures that, as far as possible, the requirements it places upon employees are clear; and
• Systems are in place to enable employees to raise concerns about any uncertainties or conflicts they have in their role and responsibilities.

CHANGE 
How organizational change (large or small) is managed and communicated in the organization

The standard is that:

• Employees indicate that the organization engages them frequently when undergoing an organizational change; and
• Systems are in place locally to respond to any individual concerns.

What should be happening / states to be achieved:

• The organization provides employees with timely information to enable them to understand the reasons for proposed changes;
• The organization ensures adequate employee consultation on changes and provides opportunities for employees to influence proposals;
• Employees are aware of the probable impact of any changes to their jobs. If necessary, employees are given training to support any changes in their jobs;
• Employees are aware of timetables for changes;
• Employees have access to relevant support during changes.

How will the Management Standards influence management practice?

Organisational action the main emphasis

The Management Standards are more about organizational action in terms of risk assessment and benchmarking than individual management action.  The model underlying the Standards is one of constant improvement.  HSE want employers to conduct organizational stress risk assessments using the Management Standards as a template, in order to establish a benchmark of how well the organization is doing at preventing and reducing stress at work.  Once a benchmark has been established, the employer should work to improve its performance over time.  The ultimate goal is to reach the standards set now by the best 20% of employers (measured in 2004).  HSE have developed tools and guidance to enable employers to conduct suitable and sufficient risk assessments.

Managing ongoing risks

However, the Management Standards will also have a significant impact on all managers, because they are the people on the ground who manage stress risks in an ongoing way, and it is managers who must implement improvements introduced as a result of carrying out risk assessments.  Notice that for each Standard, systems should be in place to respond to individual concerns.  In reality, it is likely to be managers that will be responding, because if individuals have concerns about stress at work, managers will need to work with them to make adjustments so that risk is reduced.  Managers can be trained to work proactively with teams to prevent stress at work, and to respond appropriately when stress-related problems occur, in order to reduce the risk of stress.  

For more information on the Standards, visit the HSE website: www.hse.gov.uk/stress

• what factors have affected performance – both within and outside the individual’s control ? 
• what actions could be taken by both parties to develop or improve performance ?  
• what objectives might be agreed for the next review period ?  

Most however do not pay enough attention to ensuring the performer is equally prepared.  How often have you specifically asked your appraisee to think in advance about those same questions and others such as:

• What do you enjoy about the job and how might you want to develop the role ? 
• What are the aspects of your work where improvement is required and how might this be achieved ? 
• What level of support and guidance do you require from your manager ? 

In the review itself, let the individual begin with their thoughts on their performance and they will typically take more responsibility for the appraisal and be more committed to the output.  You will also gain a clear idea of their opinion and avoid the mistake of making assumptions about how well they think they have performed.


3.         Reduce surprises


Waiting until the annual or bi-annual review to tell direct reports about their performance is a definite no-no.  There should be no surprises: we all know this so it’s surprising that we still have surprises!  Generation Y performers in particular need constant feedback and affirmation.  To them, no news is not good news, unlike the baby boomers; if they didn’t hear from their boss it meant everything was fine, but that is no longer true.  Take the surprise out by giving frequent affirmative and remedial feedback between appraisals.


Try these three steps, see how they make a difference.  Happy New Appraisals!


This article is also published in the Opportunities Magazine

It was when the journalist said: “Your boss gave me your home number,” that Liz Jones, then a junior personnel manager, felt the final straw had come. Jones (not her real name) was due to give birth that day – and, no, she had not agreed to take press enquiries for the office.

“I was furious,” she recalls. “The bullying from this one middle manager had been going on for 18 months. I’d gone on maternity leave as early as possible to escape it and I knew I would have to take action before returning.” (See below)

Bullying happens in HR departments just as it does everywhere else. As with all bullying, it’s hard to quantify, because the vast majority of cases go unreported. But when PM recently published a news story about bullying in HR, the magazine was flooded by emails from readers sharing their experiences of being bullied within the profession.

Tracy Walters, head of diversity at Brent Council, thinks the function is bad at facing up to bullying in its own ranks. “HR doesn’t like being the patient,” she says. “We have a role in telling other people what to do, and we’re not very good at taking our own medicine.”

What this means is that if HR professionals are being bullied, they can feel even more isolated than other victims. “They are more likely to think they should be able to solve the problem themselves,” says Charlotte Rayner, professor of HRM at Portsmouth Business School, who has just completed a study on workplace bullying on behalf of the DTI and union Amicus. “HR people are habitually inward-looking when solving problems because they are guardians of confidentiality.”

On a practical level, there’s often nowhere for an HR person to go if the bullying occurs within the department, because anti-bullying policies are usually channelled through HR. Rayner, who has seen dozens of anti-bullying policies as part of her research, says very few offer multiple channels for people to go through. The advice is usually to contact your line manager or HR manager, formally or informally.

A consultant in this field, recently mediated in a bullying case where the alleged bully was a senior HR executive and “great mates with the head of HR”. The company policy simply “didn’t work for HR”, “Most anti-bullying policies don’t have a range of options that are low-level, informal and people-friendly,” she adds.

Rayner agrees that informal approaches are the way forward. Describing the DTI/Amicus research, she says: “We had gone into the exercise expecting to find that if an issue reached tribunal, everyone would feel it had been a failure. But what we actually found was that people felt it was a failure if it went to formal grievance. Changing the perception of the complaints system is difficult, so organisations need to find other, informal ways of tackling bullying.”

One problem, says Rayner, is that some HR practitioners believe complaints have to be made formally before they can be investigated. “HR people come from a careful culture, and for many the constant thought is: what if this ends up in court? HR as legal guardian is a classic role, and one it is highly valued for.”

The threat of legal action is, of course, a real one (see panel, above). Last summer Deutsche Bank in the City of London was ordered to pay £800,000 in damages for psychological injury and loss of earnings to an employee who had been bullied. Ben Willmott, CIPD adviser, employee relations, points out that if a legal case were ever brought against an HR professional, the courts might take an even dimmer view.

Ironically, says Rayner, the fear of legal action sometimes stops organisations probing the scale of the problem. “Organisations are sometimes told by their lawyers not to ask on the staff survey whether people have been bullied, because you will be more liable if you know there is a problem. The best companies receive that advice and ignore it, because they feel it’s more valuable to know.”

Rayner believes that while HR does have a role as legal guardian, the profession must not let that determine its thinking. “A legal mindset is not necessarily conducive to solving a human problem,” she explains. And bullying is very much a human problem. “Respondents to the DTI/Amicus survey said they thought 80 per cent of bullying was down to miscommunication that escalated into real interpersonal problems,” says Rayner.

This is the main reason why informal approaches are often so successful – because most alleged bullies don’t intend to be nasty. “Very few people deliberately go out of their way to make others’ lives a misery,” says Herbert. “Most people don’t realise how hurtful they are being. In a case I dealt with recently, when the woman found out the impact she was having on this man’s life, she burst into tears. Actually, she simply had a poor management technique and didn’t know how to handle someone who was driving her nuts, because he was very old-fashioned.”

Rayner says it’s often useful to make a first approach without using the “B” word – which is very loaded and ups the emotional ante before you’ve even started. “You can talk to someone off the record about management style or diffusing conflict, without mentioning bullying. The idea is to pop the balloon, not to blow it up further, to take the emotion out of it. None of us need to like each other, we just need to be able to work together,” she argues.

The experts also say it’s important to tackle the issue as early as possible, so that bad behaviour doesn’t become entrenched and end up defining the relationship between the people in question. As Herbert puts it: “If you talk to someone after the first time they have behaved unacceptably, it’s easier than after the twenty-fifth time. Apart from anything else, their first question will be: ‘Why didn’t you say anything before?’”

Charlotte Coupe, founder of Personnelise, a consultancy that helps people with problems at work, is a good example of why early action is so valuable. After being bullied herself for several months, Coupe eventually decided to keep a diary, and confronted her manager in a private meeting with chapter and verse on their unacceptable behaviour. “At first, my manager was outraged, but when they realised I had evidence, they admitted everything,” Coupe recalls. “They even apologised. I asked them why they had done it and they said it was because I had everything they wanted.”

Although Coupe was successful in putting an end to her boss’s bad behaviour, it was a hollow victory. “After the confrontation, my manager’s behaviour improved dramatically and everyone in the department benefited. But I just felt I had to get away. It had drained me so much, I was a wreck. I had gained little from the confrontation,” she says.

Coupe advises individuals who are being bullied to keep records of incidents. Despite her own experience, she believes relationships can be rebuilt after an allegation of bullying if the complaint is handled properly. “Often, a bully is misunderstood. They may have more insecurities than the person being bullied,” she says. “Throwing disciplinary action against people is usually a substitute for spending time getting to the root of the problem.”

Tracy Walters, who oversees Brent’s anti-bullying strategy as part of the authority’s Dignity at Work policy, says a huge effort has gone into changing the culture at Brent and setting up a series of avenues for individuals facing a problem. She says that since the introduction of Dignity at Work four years ago, most allegations of bullying have been sorted out at a low level, by talking to the harasser. “Usually the harasser doesn’t realise they’ve caused offence, or else it’s a line manager who is having problems managing someone,” she says.

Brent has trained advisers who can talk to both parties and facilitate. Anyone with a problem can pick an adviser, who is a member of staff combining the role with their day job. Since the system was introduced, says Walters, the number of formal grievances has fallen, although the number of people coming forward with issues has gone up.

“We don’t have a problem with bullying now, and I say that advisedly. We’ve put a lot of resources into it. The culture of the organisation has changed and morale has improved,” she says. “In my experience, people will only raise a formal grievance if there is no alternative.” And people in HR are perhaps the most reluctant to do so.

One person’s experience

“I was bullied for a couple of years as a junior personnel manager, by one of the middle managers in a public-sector organisation,” says Liz Jones (not her real name).”She did all sorts of things, some of which were very subtle and difficult to name – because they were done with such apparent reasonableness. She would watch me very closely; literally stand over me as I was working. She would put red lines through things I had written like a teacher at school. She would move goalposts. She removed some of my lines of authority without informing me and made inappropriate personal comments about my appearance that I found intrusive. She was just very destructive.

“It wasn’t only me,” Jones continues. “She was bullying two of us, but the other person left. We tried to raise the issue with her together once, but she just blanked us.

“As part of my job, I even sent her on harassment training and she came back and said: ‘Liz, I realise that all those behaviours they were talking about, I do them to you.’ I thought, great, now she knows. But she just carried on.

“I raised it with the HR director, but he was reluctant to do anything because she was his appointee. It did occur to me to speak to someone else, but the person I would have been happiest approaching was PA to the chief executive, and she would have told him and all hell would have broken loose. Plus, by that time I had developed a victim mentality.

“It was quite a long time before I really decided I had to do something. She gave a journalist my home number while I was on maternity leave, without warning me, on my due date. I was furious. I knew I couldn’t go back without doing something about it. I contacted my union rep and we went through mediation.

“The mediator was very skilled. I found it really upsetting to recall events and to listen to this manager defending herself. She thought it was just ‘robust management’. I spent a lot of time crying. She did acknowledge that she had hurt and upset me and I had a lot of forgiving to do. Mediation is hard. You have to go into it being prepared to make yourself vulnerable, and you have to be prepared for resolution.

“Things were better after the mediation, but it was too late: the damage had been done. I stayed on for 18 months and she left before me. I was determined that she would go first because, apart from her, I loved my job.”

Bullying and harassment: where the law stands

Bullying claims are often complex both to bring and defend. Although “bullying” is not defined by statute, discrimination law sets out a legal definition of harassment. It is unwanted conduct that violates an individual’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for an individual. The motive is irrelevant.Employees can resign and claim constructive dismissal on the grounds of bullying or harassment under the Employment Rights Act 1996, but they must establish the employer has breached a contractual term for example, the duty to provide a safe place of work. Those subjected to harassment and bullying can also bring claims in the civil courts, the most common being for personal injury.

Employees have also used the Protection from Harassment Act 1997, which applies to “a course of conduct” causing anxiety or distress in the workplace, rather than a single incident.

Remedies vary depending on the statute and type of court involved. Awards for breach of contract will be capped at £25,000 in employment tribunals, but there is no limit on damages in the civil courts, or under the discrimination legislation.

Ranjit Dhindsa is an employment partner and head of the Midlands practice at Reed Smith

What does bullying cost your business?

Use the following information to calculate the direct and indirect costs of bullying and to make a business case for tackling the problem in your organisation.Direct costs
Cost of people leaving:
Research suggests that 25 per cent of people who have been bullied and 20 per cent of witnesses leave the organisation. So first calculate the average employee replacement cost, including HR and management time before, during and after interview, plus training costs and time before a new recruit becomes fully effective. Bullying rates are likely to be similar throughout the hierarchy so use an average replacement cost.

Now consider the incidence of bullying in your organisation. Estimate a “normal figure” of 10 per cent if you have no data. Then multiply the total number of people in the organisation by the estimated incidence rate of bullying and by 0.25 (the typical proportion of people who leave) to get to the cost of replacing employees who have been bullied. Add to this witness replacement costs, based on a conservative estimate of two witnesses per situation.

Take, for example, an organisation with 1,000 employees, 10 per cent bullying incidence and £10,000 average replacement costs.

Cost of replacing targets of bullying:�
1,000 x 0.1 (incidence) x 0.25 (proportion who leave) x £10,000 (replacement cost per person) = £250,000

Cost of replacing witnesses:�
1,000 x 0.1 (number of targets) x 2 (witnesses per target) x 0.20 (proportion who leave) x £10,000 (cost per person) = £400,000�
Targets + witnesses = £650,000 in totalOther direct costs include early retirements and severance payments of other types that can be tracked back to bullying. Investigations and legal action are also costly. The largest component will usually be management time, followed by HR time and legal costs.

Indirect costs

Bullying has a ripple effect on employees’ commitment and morale and therefore reduces productivity. Putting a number on this can be difficult, but if you are making a business case, anecdotes can be as effective.

Bad publicity from legal cases damages an employer’s reputation and makes recruitment harder. Customers and buyers may also be affected. In the voluntary sector, funding may be jeopardised.

Charlotte Rayner is professor of HRM at Portsmouth Business School

How can organisations deal with bullying?

• Define the problem – Bullying comes in many guises, so consult widely with the workforce and trade unions and define bullying. Create local or organisation-wide statements about what is and is not “okay behaviour”, and make sure everyone understands them. Update these statements annually.
• Povide managers with appropriate skills – Give managers the skills to deal informally with bullying before problems escalate. They must understand that they must not bully others. Do not appoint managers who have no people management capability.
• Overhaul organisational systems – Monitor levels of bullying, complaints, sickness and exit rates and the activities of support groups, including harassment advisers and union reps. Get a team together to create objectives, such as reductions in the incidence of bullying. Look at the data annually and use it to inform training and coaching. Watch out for hot-spots of leavers and carry out further investigations – for example, via exit interviews – but recognise that even ex-employees may be reluctant to mention anything negative. Have a formal anti-bullying policy, but try to use it as little as possible. It needs to include ways of dealing with malicious complaints and of reintegrating employees who complain about bullying, as well as a route for HR staff to take complaints.
• Provide individual support – Offer as many forms of support as possible, both for victims and anyone accused of bullying. If your organisation is unionised, give reps time to develop informal relationships with local managers and HR staff. That way, all three will be able to deal with situations early and informally.
• Support the supporters – Ensure everyone concerned is aligned to the anti-bullying strategy, and gives and receives feedback, while at all times protecting identities.

Compiled by Charlotte Rayner, professor of HRM, Portsmouth Business School | charlotte.rayner@port.ac.uk. | See www.port.ac.uk/workplace bullying for the full Amicus/DTI report on bullying.

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.

Line managers need to focus on working with employees individually to identify and manage their causes of stress

It is simply not possible to remove all sources of stress at work but, according to our recent research, empowering line managers to manage stress among their teams will help to reduce some of its consequences, such as: poor morale, reduced performance and team conflict. The research, Managing Stress, shows that line managers, rather than HR, are predominantly responsible for managing stress within their teams, and 67 per cent of these say they would “probably” or “definitely” benefit from training or development in this area.

Taking time off was the least commonly reported way of managing stress. Survey respondents were more likely to take on work challenges than to avoid them, and to manage their stress proactively through planning, prioritising and delegating work.

Yet 33 per cent said the support they got was “rarely” or “never” adequate, and 42 per cent said they were unable to prevent repeated stress from the same cause. Line managers therefore need to focus on working with employees individually to identify and manage their causes of stress.

1 Create a supportive culture

Macho cultures where stress is denied are at risk of extreme reactions when it does occur. A supportive work culture is one where employees feel they can speak openly about stress, and where asking for help is not seen as a sign of weakness. One way of encouraging such a culture is to ensure that one-to-one and team meetings explicitly address issues such as workload and clarity of objectives.

Research consistently shows that the most effective support comes from people’s direct managers. Employees who feel their line manager is willing and able to support them suffer fewer negative effects of stress. In contrast, those who do not have the benefit of their manager’s support experience poor health and reduced job satisfaction during times of change and peaks in workload. A supportive manager can therefore “buffer” the impact of work stresses, as can support from peers and colleagues.

2 Appreciate people’s differences

Although some jobs are inherently stressful, one person’s stress can be another person’s challenge. For example, while some people are terrified at the prospect of giving presentations, others thrive on public speaking.

People’s reactions depend not only on whether they can do the tasks necessary for their role, but also on whether they will find it enjoyable or stressful to be doing these things as often as is required. Identifying the personality characteristics as well as the key competencies that suit different job roles can help to ensure the right people are matched to the right job, particularly when recruiting.

3 Recognise the signs of stress

When under stress, people react in different ways. One person will become reflective, thinking through the issues and potential solutions, whereas another can become verbose, seeking advice and support. Under extreme pressure, one person may “explode”, while another will withdraw completely.

Line managers need to be able to recognise these different signals and know their team members well enough to understand what type of support they need in times of stress. While some employees will appreciate the opportunity to talk things through and discuss their reactions, others will want practical advice to get them through the situation. Personality questionnaires can help to identify these individual needs.

4 Resolve issues as they arise

Left unresolved, even apparently small issues can grow into a source of stress. Be prepared to address issues such as workload prioritisation, office layout and personal disagreements as they arise. Anticipate that any kind of workplace change, from a complete organisational restructure through to repainting the walls, can unsettle employees. Make sure that the people factors in any change are thought through and addressed.

5 Consider teambuilding

Developing good working relationships can be crucial to preventing work stress  84 per cent of survey respondents say relationships can cause stress and 90 per cent believe relationships can help to manage stress.

Focused teambuilding events can help to build effective work relationships. They can raise awareness of individual differences in the experience of, and reactions to, stressful situations, and help team members to understand how they can work together effectively and resolve interpersonal conflicts.

Unfortunately, all too often the progress achieved during a teambuilding event can dissipate once everyone is back at work. Effective teams embed the lessons learnt into their everyday business processes. Regular team meetings enable staff to share what they are doing, understand their own and each other’s workloads and build a supportive team culture.

6 Enable autonomy

A demanding, high-pressure job need not be stressful. There is a considerable body of research demonstrating that people can manage sustained high workload without negative effects if they have control over how they manage this workload. There are many ways to provide flexibility for your employees, including flexible work hours, homeworking and devolving decision-making within the role. When employees are more satisfied with their working conditions, their working hours will be more productive.

7 Remember remote workers

The rise of remote working has great potential to reduce stress. Relieving individuals of a tedious daily commute can help them to manage their work-life balance, and working from home typically provides considerable autonomy for managing individual work tasks.

However, out of sight can mean out of mind. Talk to your remote workers and find out what support they need. Requests could be varied in nature, covering requirements such as regular virtual team meetings, IT support, or access to information from the wider business.

8 Have a contingency plan

While it is desirable to prevent stress occurring, it is inevitable that symptoms of stress will arise from time to time, whether as a result of unavoidable work pressures, or personal events outside of work. Whatever the cause, it is important to have plans in place to enable an effective response when the need arises. Options include employee assistance programmes, peer support networks and stress management interventions. For many people, simply being aware that such support is available can reduce anxiety.

Checklist

Top tips for preventing stress

• Carefully assess different job roles to identify the skills and competencies required.
• Consider the personality characteristics required by a role at the recruitment stage, to ensure a good match between people and job roles.
• Remember that people respond in different ways to pressure.
• Give staff control over their workload and a high level of autonomy to buffer the negative effects of stress.
• Understand your employees’ individual needs and responses in times of stress.
• Use teambuilding to create a supportive work environment that will help people to manage the effects of stress.

Further info

The CIPD and the Health and Safety Executive have commissioned research aimed at identifying the line management behaviours associated with the effective management of stress at work. See Study notes, PM 1 June 2006, and the next edition of PM for more details.

This factsheet gives introductory guidance. It:

• outlines the decline in formal industrial relations work in organisations
• describes what HR professionals think of as ‘employee relations’
• assesses the state of the employment relationship
• discusses how to secure an engaged workforce and the skills required of employee relations specialists
• includes the CIPD viewpoint.

What is employee relations? 

The term ‘employee relations’ was conceived as a replacement for the term ‘industrial relations’ but it’s precise meaning in today’s workplaces needs clarification. In 2004/5 CIPD undertook research into the changing nature of employee relations work in UK organisations, through interviews with HR and Employee Relations managers to provide a snapshot of current attitudes and practice. The findings are reported in our recent Change Agenda1 and are summarised in this factsheet. 

The decline of ‘industrial relations’ 

‘Industrial relations’ is generally understood to refer to the relationship between employers and employees collectively. The term is no longer widely used by employers but summons up a set of employment relationships that no longer widely exist, except in specific sectors and, even there, in modified form. 

The decline can be measured on a number of different dimensions. From a peak of some 12 million plus, union membership has fallen to around 7 million today. Between 1980 and 2000, the coverage of collective agreements contracted from over three-quarters to under a third of the employed workforce. At the same time, the range of issues over which bargaining took place decreased massively. The Workplace Employment Relations Survey (WERS) 19982 showed that union officials spent most of their time not on negotiating pay and conditions but in supporting grievances on behalf of individual members. Even where collective bargaining continued, its impact on the exercise of management discretion was greatly diminished. 

The shift in the coverage and content of collective bargaining has been reflected in a dramatic reduction in industrial action since 1980. The number of working days lost per 1,000 union members decreased from an annual average of 1,163 in the 1970s to 76 in the 1990s. 

What do employee relations mean for employers? 

Some broad conclusions emerging from research are: 

Employee relations can be seen primarily as a skill-set or a philosophy, rather than as a management function or well-defined area of activity. The emphasis of employee relations continues to shift from ‘collective’ institutions, such as trade unions and collective bargaining, to the relationship with individual employees. The ideas of ‘employee voice’ and the ‘psychological contract’ have been accepted by employers and reflected in their employee relations policies and aspirations (see our factsheet on Managing the psychological contract for more information). Employee relations skills and competencies are still seen by employers as critical to achieving performance benefits through a focus on employee involvement, commitment and engagement. 

Employee relations is seen as strategic in terms of managing business risk: both the downside risk of non-compliance with an expanded body of employment law, and the upside risk of failing to deliver maximum business performance. What is the state of the employment relationship? 

The early findings of the WERS 20043 give a mixed picture of the state of employee relations. Managers in 30 per cent of workplaces report that relations have improved a lot since 1998. However, employees’ views have changed little over the period. Despite the introduction in April 2005 of the Employee Information and Consultation Regulations (see our Employee Information and Consultation Regulations factsheet), the current survey records a decline in the incidence of joint consultative committees. 

A key issue for managers is focus. Are they directing their attention to the issues that will make a real difference to business performance? There is strong evidence that a positive psychological contract with employees will lead to superior economic performance, but managing the psychological contract appears to figure fairly low in the list of management, and specifically of the HR function’s, priorities: in our survey Where we are, where we’re heading4, only one in two respondents placed employee involvement among the top five priorities for the HR function in their organisation. 

What is employee engagement? 

The achievement of business goals and financial returns is increasingly dependent on delivery by front-line employees. ‘Engagement’ has been described as a combination of commitment and organisational citizenship. These are both shown by CIPD surveys to be routine outcomes of a positive psychological contract. 

There is no shortage of evidence about people management policies and practices that contribute to building employee engagement. They include: 

Employee voice: Research for the CIPD by Professor Mick Marchington5 shows that managers are much more convinced than they were a decade ago that involvement produces business benefits. This is confirmed by the range of methods for direct communication and recognising individual employee contribution that HR departments now implement and operate.�
Teamworking: WERS 19982 commented that ‘training, teamworking, supervisors trained in employee relation matters and problem-solving groups are all associated with one another. In combination, this group of practices might be construed as a model of direct employee participation in decision-making.’�
Work-life balance: Policies on work-life balance are being used by employers to underpin positive workplace behaviours. Our various surveys of employee attitudes, for example Guest and Conway6, have underlined the link between work-life balance, commitment and performance, and there is strong support by employers for the current legislation giving employees the right to request flexible working. See our factsheet on Work-life balance for more information on this topic.

There are clear links with the business performance model constructed by John Purcell and his colleagues at Bath University7. The model focuses on the implementation of HR practices by line managers, and on employees’ ability, motivation and opportunity to practise discretionary behaviour. Employee relations can be seen as a critical ingredient in the ‘black box’. 

How do HR professionals display employee relations competencies? 

Communication is the glue that makes policies real and without which they are ineffective. The fact that communication is necessarily a two-way process, involving dialogue rather than simply instruction, is well established. Yet many organisations perform badly in this area, failing to give communication the priority it deserves. 

Getting communication right involves both professionalism and persistence. The qualities required include focusing on positive behaviours and outcomes, taking a positive, problem-solving approach, anticipating problems, recommending solutions and being able to offer sound advice to senior managers about implementation. Negotiating skills are still useful but needed less often. A much wider area of knowledge is now required, along with the skills to apply it, including surveying and interpreting employee attitudes, communications and conflict management. Most important is the ability to ‘fit’ policies and practices to suit the organisation’s goals and the character of its workforce. 

Managing workplace conflict 

Although workplace conflict is no longer reflected in high levels of industrial action, the ability to manage conflict remains a key issue for many organisations. Mediation as a method or technique of resolving workplace issues represents an important shift from the traditional industrial relations framework, with its emphasis on formal discipline and grievance procedures, towards more of a ‘win-win’ approach consistent with the philosophy of HR management. 

The decline of industrial relations means that managers may need to be reminded that employees’ interests are not necessarily identical with those of their employer; that despite the decline in strikes and other forms of industrial action, workplace conflict still needs to be managed; and that HR management philosophies may understate the ‘messy realities’ of managing people. 

What is the continuing value of employee relations? 

To a considerable extent, it is only in the public sector that trade unions retain a measure of their former strength and influence in the workplace. This is partly through the existence of institutions of collective consultation, reinforced by continued reliance in many cases on industry-level bargaining and the public policy emphasis on ‘partnership’. 

Union influence in the private sector, on the other hand, continues to decline. The main areas of the private sector where industrial disputes are still experienced from time to time, for example, public transport, are those where there’s a clear public or political interest and/or the Government is seen as the ultimate ‘banker’. ‘Employee relations’ as a term remains ambiguous, with no clear boundaries. Few organisations outside the public sector now have employee relations departments, and most HR people don’t use the term on an everyday basis. It is not calculated to help managers focus on what they need to know and do to increase performance – the language has echoes of a historical era that offers few insights into contemporary practice. 

The traditional academic models of industrial relations have only limited relevance to what managers do today. Employers are in charge and the role of ‘joint control’ and ‘rule-making’ by employers and trade unions has been substantially replaced by employment regulation and organisational values. Employee relations can nevertheless point to an underlying philosophy and attitudes and skills that are still needed by HR practitioners. The current ‘business partner’ model is helpful in identifying an ‘added value’ framework within which HR practitioners need to operate, but an unreflecting business focus may lead to a neglect of the softer skills, which are essential to managing the employment relationship, and of employee interests and influence. Employers also need HR managers with a positive, ‘can do’ attitude who will resist the temptation to adopt a defensive or compliance-led HR culture. Commitment and engagement are crucial to performance but they are not consistently high enough in the hierarchy of line management – or, often, HR – priorities. The Employee Information and Consultation Regulations may be helpful in raising the profile of employee voice and involvement, but the WERS 20043 findings give little basis for optimism that this will happen. 

More effort needs to be put into training and supporting line managers in, for example, teamworking and change management as the basis for establishing and maintaining motivation and commitment, which is a critical role for employee relations managers. Issues about ‘alignment’ of HR and business strategies have mostly to be resolved within this area. There is too much focus within organisations on strategy formulation and planning, and not enough on implementation and delivery. Managing the employment relationship rests heavily on the shoulders of line managers, but their competence in this area is, in general, seriously neglected. The concept of engagement is helpful in promoting wider interest in the measurement of HR outputs, including through the widespread use of employee attitudes surveys and in performance management/appraisal systems. 

Conclusion 

Engagement offers managers a framework for monitoring a range of indicators, including employee attitudes and behaviours, of the state of the employment relationship. But beyond that, it represents an aspiration that employees should understand, identify with and commit themselves to the objectives of the organisation they work for. What does this mean for employee relations specialists? It means being more strategic and seeing the ‘bigger picture’. It means being familiar with a wide range of techniques and skills, including mediation and communications. But, ultimately, it may also mean asserting more strongly the employee interest and agenda. This may not fit well with a management culture still based on ‘command and control’: it’s a genuinely transformational message. But without some significant progress in this direction, both high-performance working and strategic business partnering are unlikely to succeed (see our factsheets on High performance working and Strategic business partnering for more information on these topics). 

CIPD viewpoint 

CIPD research underlines the continuing significance of good employee relations: 

Managers see employee attitudes and commitment as contributing to business performance via better employee contributions and productivity gains. The psychological contract model, validated by successive employee attitude surveys, suggests that HR practices strongly affect the way people feel about their work. 

The informal climate of involvement and consultation appears to be more strongly associated than collective machinery for negotiation and consultation with employee satisfaction and commitment. Mechanisms in use for employee voice include two-way communications, project teams and joint consultation but there is also growing interest in electronic media, attitude surveys and ‘partnership’. 

The major constraints on employee commitment are lack of skills and enthusiasm on the part of managers and employees. 

References

• CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2005) What is employee relations? Change Agenda. London: CIPD. Available at http://www.cipd.co.uk/changeagendas
• CULLY, M., WOODLAND, S. and O`REILLY, A. (1999) Britain at work: as depicted by the 1998 Workplace Employee Relations Survey. London: Routledge.
• KERSLEY, B., ALPIN, C. and FORTH, J. (2005) Inside the workplace: first findings from the 2004 Workplace Employment Relations Survey (WERS 2004). London: Economic and Social Research Council.
• EMMOTT, M. (2003) HR survey: where we are, where we’re heading. Survey report. London: Chartered Institute of Personnel and Development. Available at http://www.cipd.co.uk/surveys
• MARCHINGTON, M. et al. (2001) Management choice and employee voice. Research report. London: Chartered Institute of Personnel and Development.
• GUEST, D.E. and CONWAY, N. (2004) Employee well-being and the psychological contract: a report for the CIPD. Research report. London: Chartered Institute of Personnel and Development.
• PURCELL, J. at al. (2003) Understanding the people and performance link: unlocking the black box. Research report. London: Chartered Institute of Personnel and Development.

Further reading 

CIPD members can use our Advanced Search to find additional information on this topic. Books DANIELS, K. (2006) Employee relations in an organisational context. London: Chartered Institute of Personnel and Development. Journal articles

• BRADLEY, D. (2004) Polar vision. People Management. Vol 10, No 18, 16 September. p17.
• CRAIL, M. (2005) Beyond dispute? Prospects for workplace peace in our time. IRS Employment Review. No 824, 27 May. pp9-13.
• EGAN, J. (2005) Evolution, not revolution: the changing face of the workplace. IRS Employment Review. No 832, 30 September. pp8-15.

This factsheet was written by CIPD staff.

This factsheet gives introductory guidance. It:

• defines diversity and how it has developed
• discusses the difference between equal opportunities and diversity
• outlines the business case for diversity
• suggests ways in which to manage diversity, with tips for action
• includes the CIPD viewpoint.

This factsheet summarises the key issues on diversity, an area where CIPD has played a central role in setting the agenda and developing debate. It is based on our guide Managing diversity: people make the difference at work – but everyone is different1. It does not cover legal aspects in any depth as these are covered by separate factsheets – see the links within the text below. 

What is diversity? 

People are not alike. Everyone is different. Diversity therefore consists of visible and non-visible factors, which include personal characteristics such as sex, race, age, background, culture, disability, personality and work-style. Harnessing these differences will create a productive environment in which everybody feels valued, their talents are fully utilised and organisational goals are met. 

CIPD defines diversity as valuing everyone as an individual – valuing people as employees, customers and clients. 

But there is no single way of treating employees, as each one will have their own personal needs, values and beliefs. It follows that the notion of best practice, while helpful in a theoretical setting, will not provide all the answers in reality. There are multi-variables and many shades of grey – a fuzzy and complex world that relies on approximate reasoning. 

How the concept has developed 

Changes in the social and economic landscape led to legislation covering equal pay, sex and racial discrimination in the 1970s, followed by disability laws in the 1990s. More recently, discrimination on grounds of sexual orientation and religion has been added to the list covered by the law, at least partly driven by European legislation. All these initiatives were grounded in developing a level playing field for disadvantaged groups; in other words, ending or reducing discrimination and improving social justice. They can therefore be described as being about equal opportunities rather than diversity, and by the 1990s it was being recognised that they had had limited success in achieving their goals. 

In the early 1990s, American writers argued for a shift from equal opportunities to diversity because the equal opportunities approach was insufficiently holistic in its attempts to eradicate discrimination (some disadvantaged groups were not represented, or were not adequately represented), and because those who were represented were regarded as homogeneous groups (although, for example, each disabled employee requires individual consideration). At around the same time, researchers were also finding that culturally diverse teams were more creative than homogenous teams and contributed more effectively to meeting organisational goals. Thus there was a business case for diversity, although coping with it would be much harder than simply managing equal opportunities to meet legal requirements. 

Three separate commissions have been established, covering gender, race and disability discrimination, to promote equality and monitor their particular aspects of the legislation. Under the Equality Act 2006, a new Commission for Equality and Human Rights is to be established in 2007 to cover all equality issues, including the new age discrimination legislation being implemented from October 2006, as well as issues of human rights. 

Some statistics 

Unemployment is twice as high among people from ethnic minorities, although there are relatively more Chinese, Indian and Black African graduates than white graduates. Only 12 per cent of white men are in professional occupations, as opposed to 21 per cent of Chinese and Indian men. 

White men have the lowest rate of participation in full-time education between the ages of 16-24 (37 per cent), followed by white women (40 per cent). 41 per cent of white women in employment work part-time, but only 7 per cent of white men do so, as opposed to 38 per cent of Bangladeshi men. 

Black and Asian people are 2.5 times less likely to have jobs than whites. Ethnic minorities account for 8.1 per cent of the overall population. Because they are relatively younger, it is projected that ethnic minorities will account for half the growth in the working population to 2009. 

In the past ten years, the employment of the over-50s has risen by almost 25 per cent. The number of people aged over 60 is forecast to rise by 40 per cent in the next 30 years.

The social justice or equality case 

The social justice argument is based on the belief that everyone should have a right to equal access to employment and when employed should have equal pay and equal access to training and development, as well as being free of any direct or indirect discrimination and harassment or bullying. This can be described as the right to be treated fairly, and nowadays the law sets minimum standards in terms of pay, race, disability, gender, sexual orientation, harassment and bullying, and from October 2006, age. 

For more information on these topics, see our factsheets on: Age and employment, Disability and employment, Harassment at work, Race, religion and employment, Sex discrimination, sexual orientation, gender reassignment and employment. 

The business case 

Why should any employer want to push the boundaries set by the law? Equal opportunities is often seen as meaning treating everyone in exactly the same way. But to provide real equality of opportunity, people often need to be treated differently in ways that are fair and tailored to their needs. Arguably, the social justice and business case arguments for diversity are complementary, because unless people are treated fairly at work they will feel less than fully committed and will therefore under-perform. But diversity takes equality forward, and evidence indicates that organisations that are serious about diversity show better overall financial performance. 

There are three broad strands supporting the case for going beyond what is required by legislation and introducing diversity policies: people issues, market competitiveness, and corporate reputation. Organisations which follow them are also more likely to find it easier to comply with increasingly complex legal obligations, not least because diversity will be embedded in their cultures. 

People issues 

Research shows that people aspire to work for employers with good employment practices, and to feel valued at work. To be competitive, organisations need to derive the best contributions from everyone. Skill shortages and difficulties in filling vacancies are forcing more organisations to recruit from more diverse pools and to offer different employment packages and working arrangements. Creating an open and inclusive workplace culture in which everyone feels valued helps to recruit and retain good people.

• Employers who offer good working conditions benefit from more positive and committed employees, who are less likely to leave.
• Employees who are happier at work are less likely to suffer from stress or become sick, leading to fewer disruptions in production or service.
• Good employers will receive more applications for jobs, leading to a larger pool of talent to choose from.
• A diverse workforce will be more creative and innovative.

Diversity policies also help organisations to:

• Quality assure policies and working practices because diversity fits well with business excellence models and initiatives such as Investors in People and total quality management.
• Create an environment in which people from all backgrounds can work together harmoniously by combating prejudice, stereotyping, harassment and undignified and disrespectful behaviour.
• Bring about cultural change.
• Market competitiveness

A diverse workforce can help to inform the development of new or enhanced products or services, open up new market opportunities, improve market share and broaden an organisation’s customer base. Examples include:

• Financial institutions addressing the needs of ethnic-minority businesses.
• Local authorities seeking to improve the way they provide services to diverse groups within their communities.
• The Foreign Office recruiting from a wider pool so that embassy staff give a more accurate and balanced image of Britain.
• Supermarkets offering products to satisfy a wider range of eating preferences.
• Health services seeking to provide more choice for patients recognising their backgrounds and requirements.

Corporate reputation 

Healthy businesses flourish in healthy societies and the needs of people, communities and businesses are interrelated. Social exclusion and low economic activity rates limit business markets and their growth. Thus businesses need to consider corporate social responsibility (CSR) in the context of diversity. CSR is usually thought of as being linked to environmental issues, but an increasing number of employers take a wider view, seeing the overall image of an organisation as important in attracting and retaining both customers and employees. Indeed, it can be argued that CSR is part of the psychological contract between a firm and the community or communities in which it operates. CSR measures may include:

• Employing people who are representative of the local community.
• Seconding employees to charities.
• Supporting other initiatives designed to stimulate economies and employment, locally, nationally, or (in the case of multi-nationals) even globally.

Ethical behaviour is important too. Setting standards by means of value statements (and ensuring that they are adhered to) sends messages to present and potential customers, suppliers and employees. 

Leading-edge ‘dignity at work’ policies require that all forms of intimidating behaviour, including racial harassment and bullying, are regarded as contravening the values of an organisation and are treated as serious disciplinary matters. 

Managing diversity 

Managing diversity is about ensuring that all employees have the opportunity to maximise their potential and enhance their self-development and their contribution to the organisation. It recognises that people from different backgrounds can bring fresh ideas and perceptions, which can make the way work is done more efficient and make products and services better. Managing diversity successfully will help organisations to nurture creativity and innovation and thereby to tap hidden capacity for growth and improved competitiveness. 

But how to go about it? It is a complex task and every organisation will have to do it differently. The lead needs to come from the top. Unless the chief executive and board members are committed, change will not occur. It requires systematic management action, with a focus on the development of an open workplace culture in which everyone feels valued and can add value. It is a continuing process, and is at least partly about managing conflict, complexity and ambiguity. 

Ultimately organisations should aim to make managing diversity a mainstream issue, owned by everyone so that it influences all employment policies and working practices. 

Excellence in communications is central. People must be willing and able to talk to each other and listen to each other, and respect different views and ideas. 

Figure 1 suggests how organisations can move from where most are at present to a situation in which diversity enters the mainstream.�
Figure 1: Managing diversity – how to move equity forward�

Tips for action 

Although there is no single ‘right way’ to go about managing diversity, the following tips may help organisations considering diversity policies. 

Overall strategy

• Ensure that initiatives and policies have the support of the board and senior management.
• Remember that managing diversity is a continuous process of improvement, not a one-off initiative.
• Develop a diversity strategy to support the achievement of business goals, including ways of addressing the diverse needs of customers.
• Focus on fairness and inclusion, ensuring that merit, competence and potential are the basis for all decisions about recruitment and development.
• Keep up to date with the law and review policies through checks, audits and consultation.
• Address work-life balance challenges in ways that take account of employee and organisational needs and offer suitable choices and options.
• Encourage ownership and discourage risk aversion, aiming to create an empowering culture so that decisions are not passed upwards without good reason.
• Design guidelines for line managers to help them respond appropriately to diversity needs, as they are vital change agents, but give them scope for flexible decision-making.
• Link diversity management to other initiatives such as Investors in People and total quality management.
• Be aware that if your organisation operates internationally, its approach to managing diversity will need to take account of the ways that individual working styles and personal preferences are influenced by national cultures.

Workplace behaviour

• Introduce a value system based on respect and dignity for all.
• Aim to describe the desirable behaviours to gain positive commitment.
• Make clear that everyone has a personal responsibility to uphold the standards.
• Introduce mechanisms to deal with all forms of harassment, bullying and intimidating behaviour, making clear that such behaviour will not be tolerated and setting out the consequences of breaking the organisation’s behaviour code.

Communication

• Develop an open culture with good communication channels based on open dialogue and active listening.
• Use different and accessible methods such as newsletters, in-house magazines, noticeboards and intranets to keep people up to date with diversity policies and practices.
• Consult people for ideas.

Training

• Build diversity concepts and practices into management and other training and teambuilding programmes to increase awareness of the need to handle different views, perceptions and ideas in positive ways.
• Consider awareness-raising programmes about diversity and skills training to help people work together better in a diverse environment.
• Include diversity issues in induction programmes so that all new employees know about the organisation’s values and policies.
• Train line managers about diversity, aiming to help them understand the issues and drive them into organisational and operational policies and practices.
• Measure, review and reinforce
• Regularly audit, review and evaluate progress and keep qualitative data to chart progress and show business benefits.
• Use employee surveys to evaluate initiatives, to find out if policies are working for everyone, and to provide a platform for improvement.
• Track actions to see if they have had the intended results and make appropriate changes if necessary.
• Include diversity objectives in job descriptions and appraisals, and recognise and reward achievement.
• Benchmark good practice against other organisations and adopt and adapt relevant ideas where appropriate.
• Network with others from inside and outside your organisation to keep up to date and to share learning.
• Celebrate successes and identify learning opportunities from failures, to use them as building blocks for further progress.

CIPD viewpoint 

CIPD believes that recognising and valuing diversity is central to good people management practices. HR practitioners have an important role to play in creating inclusive workplaces where everyone can contribute to the success of the organisation. There is a compelling business case which should encourage organisations to look beyond legal compliance with anti-discrimination laws to a value-added approach enabling competitive benefits to be gained from developing good practice. Employers who sit on the sidelines regarding diversity will quickly become less attractive to existing and prospective employees. 

References 

WORMAN, D., BLAND, A. and CHASE, P. (2005) Managing diversity: people make the difference at work – but everyone is different. Guide. London: Chartered Institute of Personnel and Development. Available at: http://www.cipd.co.uk/guides CIPD has carried out annual surveys and various research on the psychological contract. 

Further reading 

Books

• CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2006) Diversity in business: how much progress have employers made? First findings. Surevy report. London: CIPD. Available at: http://www.cipd/co.uk/surveys
• DANIELS, K. and MACDONALD, L.A.C. (2005) Equality, diversity and discrimination: a student text. London: Chartered Institute of Personnel and Development.
• MACDONALD, L.A.C. (2004) Equality, diversity and discrimination: how to comply with the law, promote best practice and achieve a diverse workforce. London: Chartered Institute of Personnel and Development.
• MULHOLLAND, G., OZBILGIN, M.F. and WORMAN, D. (2005) Managing diversity: linking theory and practice to business performance. Change agenda. London: Chartered Institute of Personnel and Development. Available at: http://www.cipd.co.uk/changeagendas
• PEARN KANDOLA. (2006) Managing diversity. 2nd ed. CIPD toolkit. London: Chartered Institute of Personnel and Development.
• TATLI, A., OZBILGIN, M.F. and WORMAN, D. (2006) Managing diversity: measuring success. Change agenda. London: Chartered Institute of Personnel and Development. Available at: http://www.cipd.co.uk/changeagendas
• THOMAS TAYLOR. W., PIASECKA, A. and WORMAN, D. (2005) Managing diversity: learning by doing. Change agenda. London: Chartered Institute of Personnel and Development. Available at: http://www.cipd.co.uk/changeagendas
• WORMAN, D. and WILLIAMS, P. (2005) Driving diversity progress: messages from a showcase of CIPD research. Change agenda. London: Chartered Institute of Personnel and Development. Available at: http://www.cipd.co.uk/changeagendas

Journal articles

• ALLEN, K. (2004) Implementing a diversity strategy. Equal Opportunities Review. No 126, February. pp13-19.
• ARKIN, A. (2005) Hidden talents. People Management. Vol 11, No 14, 14 July. pp26,28-30.
• THOMAS, D.A. (2004) Diversity as strategy. Harvard Business Review. Vol 82, No 9, September. pp98-108.
• Understanding the change process is key to diversity success. (2005) IDS Diversity at Work. No 13, July. pp7-11.

This factsheet gives introductory guidance. It:

• introduces the forthcoming statutory regulation
• explains about employment practices which do not discriminate on the grounds of age
• sets out recommendations and an action plan for avoiding the use of age and age-related criteria in employment
• concentrates on discrimination against older workers
• includes the CIPD viewpoint.

What is age discrimination? 

Although there is no statutory definition of age discrimination as yet in the UK, age discrimination can be explained as occurring when someone treats a person less favourably because of that person’s age, and uses this as a basis for prejudice against and unfair treatment of that person. 

Age discrimination in employment can:

• affect anybody regardless of how old they are
• reduce employment prospects for older people, younger people and parents returning to work after a period of full-time childcare
• favour people in the age group 25 to 35
• prevent the full consideration of abilities, potential and experience of employees.

Our recent survey1 found that age discrimination remain a significant problem in the workplace with 59 per cent of respondents saying they have been disadvantaged because of their age. 

The legal position 

Age discrimination is the main area of discrimination which is protected in some other countries but which is currently not directly protected in the UK. This will change from 1 October 2006 when the government will introduce age discrimination legislation – the final version of the regulations was published on 9 March 20062. The October date is in advance of the December deadline set by the Equal Treatment Framework Directive (2000/78/EC) which requires the UK to implement national legislation preventing age discrimination. 

Age discrimination can take many forms. In legal terms, it will follow the same pattern as existing forms of discrimination law in the UK, namely direct and indirect discrimination, victimisation and harassment. CIPD members can find details of the new regulations and their legal implications for employers, including the transitional procedures for retirements, in our Age discrimination and retirement FAQ in the Employment Law at Work area of our website. 

Go to the Age discrimination and retirement FAQThe Age Partnership Group (APG), of which CIPD is a founder member, is funded and co-ordinated by the Department for Work and Pensions (DWP). It is comprised of organisations that represent the different needs of small, medium and large employers, as well as those who work directly with or provide information to employers and employees. APG has issued guidance3 which lists 10 key points about the new regulations: 

Age regulations are due to come into force on 1 October 2006. The regulations cover employment and vocational training. This includes access to help and guidance, recruitment, promotion, development, termination, perks and pay. The regulations cover people of all ages, both old and young. All employers, providers of vocational training, trade unions, professional associations, employer organisations and trustees, and managers of occupational pension schemes will have new obligations to consider. 

Goods, facilities and services are not included in the regulations. Upper age limits for unfair dismissal and redundancy will be removed. A national default retirement age of 65 will be introduced making compulsory retirement below age 65 unlawful (unless objectively justified). 

All employees will have the ‘right to request’ to work beyond the default retirement age of 65 or any other retirement age set by the company and all employers will have a ‘duty to consider’ requests from employees to work beyond 65. Occupational pensions are covered by the regulations, as are employer contributions to personal pensions. However, the regulations generally allow pension schemes to work as they do now. The regulations have more details. The regulations do not affect state pensions. 

In June 1999 the Government published a voluntary Code of Practice Age diversity in employment4 together with implementation guidance and case studies to show how a number of employers have tackled age discrimination. The Code sets out good practice principles to adopt in recruitment, selection, promotion, training and development, redundancy and retirement and reflects the advice given in this factsheet. There is growing evidence, through initiatives such as Age Positive, that UK employers are already taking voluntary action to regulate their own working practices. 

The business case 

It is estimated that age discrimination costs the economy between £19 and £31 billion a year in lost output. To be successful in an increasingly competitive market place, organisations need to attract and retain valuable employees and develop the talents of all their employees. 

Some key points:

• More people are living longer, active and healthier lives5.
• Evidence shows that differences in absenteeism between age groups are slight.
• Older workers stay in their jobs longer than younger people.
• Age discrimination leads to under-achievement, reduced self-confidence and motivation, lower self-esteem and loss of personal income and status.
• Findings from many studies show that younger and older workers are on average equally effective in their work.
• Research shows that, given the right training, older people are just as capable of learning new skills as younger people.

As life expectancy increases and the birth rate remains low, the proportion of the population aged over 65 will increase dramatically. Older people will become an ever more significant proportion of the population and society will increasingly depend upon the contribution they can make. In their publication Opportunity age: meeting the challenges of ageing in the 21st century6 the DWP gives details of the demographic shifts that are expected over the next few decades. The Government has stated that the best way to offset the impact of future changes in the age structure of society is to reduce levels of inactivity. Around 1 million people choose to work beyond state pension age already and the Government aspires to encourage a million older workers to do so, thereby maintaining the ratio of workers to non-workers in the economy at about the same in 2050 as it is now. Research information1 shows that there is a keen appetite amongst older employees for flexible working and flexible pensions and statistics indicate that activity levels for older female employees are expected to continue to rise. 

Recommendations for employers 

Employers need to prepare now for the new legislation by bringing all their policies and procedures into line with the new requirements, and seeking advice where necessary. Many employers have already taken action on age discrimination as a way of keeping ahead of their competitors and some companies, including B&Q, Asda, HBOS, Barclays Bank, GlaxoSmithKline and Nationwide, have adopted policies specifically to attract older workers. 

Age discrimination is a pervasive issue and the challenges of tackling it and ‘age proofing’ employment policies and practices are complex and take time. Each stage of the employment cycle should be examined as discrimination can occur throughout a person’s working life. All those involved in making decisions about the employment and training of people need to understand the implications of age-stereotyping. 

Recruitment and selection 

Age, age-related criteria or age ranges should not be used in advertisements other than to encourage applications from age groups which do not usually apply. Where this is the case, it should be clearly stated. 

It is desirable to state that age criteria will not be taken into account in employment decisions but used only for monitoring purposes. This information can be asked for in a ‘tear-off’ section of the application form and be kept separate from the application process. 

Interviewers and those concerned with selection must not be subjective on the basis of physical characteristics and unfounded assumptions, and must ensure their decisions are based on objective criteria, relevant to the job and merit. 

Medical advice 

An individual’s age should not be used to make judgments about their abilities or fitness. Where such a judgment is required, an occupational health or medical practitioner should be consulted. 

Reward 

Pay and terms of employment should not be based on age, but should reflect the value of individual contributions and standards of job performance. 

Training and development 

All employees should be eligible for training and development programmes as there is the potential to waste talent if particular age groups, eg those near retirement, are automatically excluded. 

Retention and redundancy 

When releasing employees, the organisation’s future needs for knowledge, skills and competencies should be taken into account – the ‘corporate memory’ needs protection. 

Alternatives to redundancy should be considered, such as shorter hours, part-time working, contractual arrangements, secondments and perhaps employment breaks. 

Retirement 

Alternatives to retirement may be considered, such as shorter hours, part-time working, contractual arrangements, secondments and perhaps employment breaks. 

Seventy per cent of 50-year olds stay on in work until state pension age. Research from CIPD1 indicates that many older workers would welcome an opportunity:

• for phased retirement for flexible working
• to work beyond the normal retirement age
• to work on a self-employed basis
• to work in the voluntary sector.

Organisations should also consider the advantages of using retirees as mentors to pass on experience and develop other employees through use of their knowledge and expertise. Our research shows that many organisations do this. 

An action plan 

Review 

Scrutinise all personnel policies, practices and procedures because age discrimination can:

• occur anywhere in the employment cycle from recruitment to redundancy
• be blatant or subtle, direct or indirect.

Policy

• Implement policy as part of an approach to diversity and equality.
• Use only objective criteria essential for satisfactory performance, and ensure these can be objectively justified.
• Communicate policy to all managers and employees, and offer training where necessary.

Stance and key actions

• Undertake an age audit.
• Do not rely on age, age guidelines and age-related criteria.
• Challenge the use of age and age-related criteria in every aspect of employment decision-making.
• Educate and train all staff about the implications of age discrimination.
• Use dates of birth only for monitoring purposes and administration. Give written assurances on this to gain the confidence and trust of job applicants and ensure staff making employment decisions follow this commitment.
• Monitor the age profile of the organisation at regular intervals to identify evidence of unfair discrimination against particular age groups.
• Consider ways of making sure that all age groups have access to development and promotion opportunities.

CIPD viewpoint 

CIPD is committed to the removal of age discrimination in employment because it is wasteful of talent and harmful to both individuals and organisations. The use of age, age bands and age-related criteria reduces objectivity in employment decision-making and increases the likelihood of inappropriate decisions. 

Employment decisions based on age are never justifiable because:

• age is not a genuine employment criterion
• age is a poor predictor of performance
• it is misleading to equate physical and mental ability with age
• when age is used, it tends to be a proxy for underlying factors, such as health or ability to drive, for example.

The efficient and effective use of people’s skills requires that employment decisions should be based on competencies, qualifications, skills, potential and objective job-related criteria obtained through careful analysis of job requirements and job performance. 

CIPD believes there is an important business case for employers to take action to remove age discrimination and has undertaken research and published guidance to raise awareness and educate personnel practitioners and employers about the issues involved. Organisations need to understand this business case and appreciate how competitive benefits can be gained from developing good practice. This will motivate them to implement progressive change and interpret the impending legal duties in positive ways which go beyond a minimum approach to compliance. 

Although CIPD recognises that the law can help to effect change in employment practice, self-regulation based on increased understanding is favoured as the best way to encourage employers to deal with age discrimination. 

References

• CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT and CHARTERED MANAGEMENT INSTITUTE. (2005) Tackling age discrimination at work: creating a new age for all. London: CIPD. Available at: http://www.cipd.co.uk/surveys Equality and diversity: age discrimination in employment and vocational training [online]. (2006) London: Department of Trade and Industry. Available at: http://www.dti.gov.uk/employment/discrimination/age-discrimination/index.html
• AGE PARTNERSHIP GROUP. 20 key facts your business needs to know. London: Department for Work and Pensions. Available at: http://www.agepositive.gov.uk/newsDetail.cfm?sectionid=44&newsid=590
• DEPARTMENT FOR EDUCATION AND EMPLOYMENT. (1999) Age diversity in employment and Age diversity in employment: guidance and case studies. Code of practice. Nottingham: Department for Education and Employment. Current version available at http://www.agepositive.gov.uk/
• SEAGER, A. (2006) Government statistician counts on us living and working longer. The Guardian. 13 January. Available at http://business.guardian.co.uk/story/0,16781,1685360,00.html
• DEPARTMENT FOR WORK AND PENSIONS. (2005) Opportunity age: meeting the challenges of ageing in the 21st century. London: DWP. Available at: http://www.dwp.gov.uk/opportunity_age/

Further reading 

Journal articles

• SMETHURST, S. (2006) State of mind. People Management. Vol 12, No 1, 12 January. pp.24-29.
• SUFF, R. (2004) Using age-diversity policies to attract and retain older workers. IRS Employment Review. No 808, 24 September. pp42-48.
• VICKERSTAFF, S. (2005) Managing the older workforce. Equal Opportunities Review. No 137, January. pp6-10.

This factsheet gives introductory guidance. It looks at:

• why organisations change
• defines the different models for change
• introduces change strategies
• comments on organisational and individual issues
• considers HR’s role and how change can be managed more effectively
• includes the CIPD viewpoint.

Why organisations need to change 

Many things cause organisational change. These include:

• challenges of growth, especially global markets
• changes in strategy
• technological changes
• competitive pressures
• customer pressure, particularly shifting markets
• to learn new organisation behaviour and skills
• government legislation/initiatives.

Research indicates that organisations are undergoing major change approximately once every three years, whilst smaller changes are occurring almost continually. There are no signs that this pace of change will slow down. 

In this context managers have to be able to introduce and manage change to ensure the organisational objectives of change are met, and they have to ensure that they gain the commitment of their people, both during and after implementation. 

For these reasons, it is important that the way change is managed is carefully considered by organisations. Whilst each change situation will be unique, there are still a number of common themes that will help ensure that the change process stands the greatest chance of success. 

The different models of change 

Much has been written on the subject of change, and various models of change proposed. The three main, contrasting models are from Lewin and Beer1 and Shaw2. 

Lewin’s model 

This model considers that change involves a move from one static state via a state of activity to another static status quo. Lewin specifically considers a three-stage process of managing change: unfreezing, changing and re-freezing. The first stage involves creating a level of dissatisfaction with the status quo, which creates conditions for change to be implemented. The second stage requires organising and mobilising the resources required to bring about the change. The third stage involves embedding the new ways of working into the organisation. 

Beer’s model 

Beer and colleagues advocate a model that recognises that change is more complex and therefore requires a more complex, albeit still uniform set of responses to ensure its effectiveness. They prescribe a six-step process to achieve effective change. They concentrate on ‘task alignment’, whereby employees’ roles, responsibilities and relationships are seen as key to bring about situations that enforce changed ways of thinking, attitudes and behaving. Their stages are:

• Mobilise commitment to change through joint diagnosis.
• Develop a shared vision of how to organise.
• Foster consensus, competence and commitment to shared vision.
• Spread the word about the change.
• Institutionalise the change through formal policies.
• Monitor and adjust as needed.
• Shaw’s model

This model looks at change in a different form. Change is seen as both complex and also evolutionary. The starting point for their (and a number of other more recent models) model is that the environment of an organisation is not in equilibrium. As such the change mechanisms within organisations tend to be ‘messy’ and to a certain extent operate in reverse to the way outlined by Lewin. It is not appropriate to consider the status quo as an appropriate starting point, given that organisations are not static entities. Rather the forces for change are already inherent in the system and emerge as the system adapts to its environment. 

Such different models will have implications on the way organisations and their leaders view change, the way they manage change and the effectiveness of any change initiative. 

Some example change strategies 

These can be considered as the different strategies and procedures that are used to categorise the change environment. The relevance of different change strategies is that they build upon different assumptions about human motivation and hence willingness to engage in change at a particular point in time. Four differing views are presented below. These strategies are not intended to be mutually exclusive. Rather they may each be appropriate at a different stage of a particular change process. Once the environment is identified, an effective implementation plan can be composed. 

Normative-re-educative strategy 

This approach believes that changing the norms, attitudes and values of individuals will lead to changes in their behaviours. (As such this strategy is the reverse of the model Beer et al propose above.) It is based upon core beliefs, values and attitudes. So change will occur as individuals change their attitudes and this leads them to want to behave differently. 

Rational-empirical strategy 

This strategy is based on persuasion, and assumes that individuals are rational and as such they will follow their own self-interest once this is made clear to them. The benefits of a change therefore need to be highlighted and sold to the individuals as being of personal benefit to them. 

Power-coercive strategy 

This strategy is based on the application of power, with the belief that most people are compliant to those who have greater power. A potential issue with this process is that once the power is removed, individuals may revert to previous behaviours. 

Action-centred strategy 

This focuses on problem solving, looking at problems and focussing on remedial actions. 

Why is change management relevant? 

Change management is relevant as though the research finds that change is taking place at an ever-increasing pace, the evidence suggests that most change initiatives fail. For example, recent CIPD research suggested that less than 60% of re-organisations met their stated objectives which are usually bottom line improvement. This is consistent with other published research. 

The impact of failures to introduce effective change can also be high: loss of market position, removal of senior management, loss of stakeholder credibility, loss of key employees. 

Finally, one organisational response to change is that organisational forms are themselves evolving. Therefore, the change management response will have to be adaptive. For example, the increased competitive challenges and the need to be responsive to the changing environment are resulting in emerging organisational models. Traditional organisational models following functional or matrix lines are being supplemented by new models. These might rely on project teams, on networks, on virtual structures. 

In theory, certain of these newer models, for example virtual and project-based structures, allow increased flexibility to respond to change. However such models are not always introduced uniformly, and in practice often introduce other issues that also impact upon change management, for example ability to share knowledge and to operate efficiently. Also, as more companies rely on these ‘new structures’, for example, sub-contractors and agency staff, the traditional psychological contract between organisation and employee can no longer be relied upon to elicit employee engagement, motivation and ultimately superior performance, all of which are particularly important in times of change. These ‘structures’ may also impact effectiveness of communication, which again has implications for change effectiveness. 

What issues have been identified in the change management process? 

A large number of issues have been identified as having negative impact on effective change management. Some of the key themes are identified below, covering organisational issues and individual resistance to change. 

Organisational issues 

Individual change initiatives are not always undertaken as part of a wider coherent change plan, for example through considering linkages between strategy, structure and systems issues. Therefore a change that considers a new structure but fails to establish the need to introduce new systems to support such a structure is less likely to succeed. 

Lack of effective project management and programme management disciplines can lead to slippages in timings, in achievement of desired outcomes, in ensuring that the projects do deliver as planned. 

Insufficient, relevant training, for example in project management, change management skills, leadership skills can all impact negatively on the effectiveness of any change initiative. 

Poor communication has been linked to issues surrounding the effectiveness of in achieving effective change in various ways. For example, imposed change can lead to greater employee resistance (see section below also). 

Finally, lack of effective leadership has been identified as an inhibitor of effective change. 

Individual/group resistance to change 

Resistance to change can be defined as an individual or group engaging in acts to block or disrupt an attempt to introduce change. Resistance itself can take many different forms from subtle undermining of change initiatives, withholding of information to active resistance eg via strikes. 

Resistance to change can be considered along various dimensions:

• individual versus collective
• passive versus active
• direct versus indirect
• behavioural versus verbal or attitudinal
• minor versus major.

Similarly two broad types of resistance can be considered: 

Resistance to the content of change – for example to a specific change in technology, to the introduction of a particular reward system. 

Resistance to the process of change. This concerns the way a change is introduced rather than the object of change per se, for example, management re-structure jobs, without prior consultation of affected employees. 

Management need to be aware of these different criteria to ensure they respond appropriately. 

Suggested reasons for resistance include: loss of control, shock of new, uncertainty, inconvenience, threat to status, competence fears. It is important to try to diagnose the cause of employee resistance as this will help determine the focus of effort in trying to reduce/remove the issue. 

What can be done to make change management more effective? 

From the issues raised in the section above, it can be seen that change is complex and there is not a single solution. However, a number of key areas of focus emerge. 

Effective leadership is a key enabler as it provides the vision and the rationale for change. Different styles of leadership have been identified, for example coercive, directive, consultative and collaborative. These different styles may each be appropriate depending on the type and scale of change being undertaken. For example, when there is a large-scale organisation-wide change a directive style has been identified as most effective. 

Appropriate and timely training is frequently identified as key to effective change. Examples of training requirements might include:

• Project and programme management skills to ensure change initiatives are completed both on time and to budget.
• Change management skills, including communication and facilitation. leadership coaching.
• Two-way communication with employees (see our factsheet on Managing the psychological contract) and their active involvement in implementation has also been identified as a key enabler of change. Active participation is one suggested means of overcoming resistance to change. However, research has indicated that part of the communication/participation issue might arise from a potential mismatch between what the employer and employee opinions are regarding levels of communication. For example, in a recent study of both employers and employees, employers believed they were involving and communicating with employees at a considerably higher level than was reported by employees.

Finally, linking all the change initiatives within an organisation coherently, rather than completing changes in isolation is vital to ensure that change effectiveness is maximised. CIPD research has identified seven areas of activity that make successful change happen – ‘the seven c’s of change’:

• Choosing a team.
• Crafting the vision and the path.
• Connecting organisation-wide change.
• Consulting stakeholders.
• Communicating.
• Coping with change.
• Capturing learning.

HR’s role in change management 

People management and development professionals have significant role to play in any change management process. Arising from CIPD research, HR’s involvement in certain areas was identified as sometimes being the difference between successful and less successful projects:

• Involvement at the initial stage in the project team
• Advising project leaders in skills available within the organisation – identifying any skills gaps, training needs, new posts, new working practices etc
• Balancing out the narrow/short-term goals with broader strategic needs.
• Assessing the impact of change in one area/department/site on another part of the organisation.
• Being used to negotiating and engaging across various stakeholders.
• Understanding stakeholder concerns to anticipate problems.
• Understanding the appropriate medium of communication to reach various groups.
• Helping people cope with change, performance management and motivation.

Organisational change is increasing, yet the high levels of failure indicate that effective management of these changes is still lacking. Such a gap indicates that there is much to learn about how to manage change more effectively. From this fact sheet it can be seen that there is no single model of change and no single solution to effective management. 

At present, HR professionals are not always seen as having the appropriate skills to lead on change management initiatives, and are therefore not actively included within the change process. However, many of the issues that are identified concern the ‘people aspects’ of change. HR would therefore appear to be ideally placed to ensure such issues are appropriately and effectively addressed. To achieve this aim HR will need to ensure it has the skills and credibility within the organisation to act as champions of change in the future.�

This factsheet gives introductory guidance. It:

• sets out the many forms and grounds of harassment at work
• outlines how harassment affects people and organisations
• examines the legal implications if employers allow such behaviour to go unchallenged
• gives guidance about the key steps to eliminate harassment and what policies are needed
• includes the CIPD viewpoint.

What is harassment and why does it happen?

Harassment is any unwanted behaviour that violates dignity or creates an intimidating, humiliating or offensive environment. Harassment can take many forms and occur for a variety of reasons. It may be related to age, sex, race, disability, religion, sexuality or any personal characteristic of an individual. It may be directed at one person or many people. Often it takes place when there are no witnesses, but not always. It can be persistent behaviour over a period of time, but a one-off act may also amount to harassment. 

It is not the intention of the perpetrator that is key in deciding if harassment has occurred, but whether the behaviour is unacceptable by reasonable normal standards and is disadvantageous or unwelcome to the person or people subjected to it or witnessing it. In the CIPD survey1 13% of respondents reported experiencing harassment or bullying in the past 12 months. It is important to distinguish sexual harassment from sexual relationships freely entered into and acceptable to those involved. 

Harassment thrives in a workplace culture where it is ignored rather than challenged. No complaints do not mean no harassment is happening. Harassment can lead to illness, absenteeism, less commitment, poor performance and resignation. The conflict which harassment creates should not be underestimated. Employees can be subject to high levels of personal stress which can damage morale and lead to higher labour turnover, reduced productivity, lower efficiency and divided teams. 

There needs to be a clear, well-communicated policy so people know the process to follow if they have concerns about the way they, or their colleagues, are being treated. They need to be confident that making a complaint will not result in further intimidation or victimisation for themselves or anyone else involved. 

What are the grounds and forms of harassment? Grounds 

UK discrimination law was amended in 2003 to cover harassment on a variety of grounds including disability, colour, ethnic or national origin, race, religious belief or other similar philosophical belief, and sexuality. Since October 2005 implementation of the Equal Treatment Amendment Directive means the Sex Discrimination Act contains a specific prohibition against harassment and sexual harassment. 

There is no one checklist of what defines harassment as it is often specific to the person, relating to their feelings of respect and dignity. 

Individuals are protected from discrimination both while applying for a job, during it, and after the working relationship ends (for example in terms of the provision of a verbal or written reference). There is also protection for people against harassment on the basis of their membership or non-membership of a trade union and, in Northern Ireland, against harassment on the basis of political belief. 

Forms 

Harassment and bullying can range from extremes such as physical violence to less obvious forms like ignoring someone. Forms of harassment include:

• physical contact
• jokes, offensive language, gossip, slander, sectarian songs and letters
• posters, graffiti, obscene gestures, flags, bunting and emblems
• isolation or non-cooperation and exclusion from social activities
• coercion for sexual favours
• pressure to participate in political/religious groups
• intrusion by pestering, spying and stalking
• failure to safeguard confidential information.

Harassment can also exist as a result of the general prevailing culture, for example one in which it is acceptable to tell homophobic jokes. 

Who is responsible when harassment happens at work? 

Harassment has a negative effect on employees and employers, and both have responsibilities when it happens. 

Employers’ responsibilities 

Employers need to take action to prevent harassment, encourage incidents to be reported, respond promptly and ensure policies are followed correctly. Legally, they have a common law duty of care, and responsibilities under health and safety and discrimination legislation. CIPD research shows that employers need to provide a positive working environment to satisfy employees’ expectations under the psychological contract (see our factsheet on the Managing the psychological contract). 

Employers’ responsibilities extend to any environment where work-related activities take place. These include social gatherings organised by the employer such as work parties or outings (when they are held at a time or place associated with the workplace). Organisations must maintain their commitment to promoting an open and non-threatening environment on these occasions. If they do not, the employer could be liable unless they were able to show they took reasonable steps to prevent harassment. 

An employer can be ordered to pay unlimited compensation where harassment has occurred, including the payment of fines for injury to feelings. 

Individual responsibilities 

Individuals can be prosecuted under criminal as well as civil law and they could be personally liable and have to pay compensation themselves, as well as any payment the organisation may be ordered to make. 

Individuals also have a responsibility to behave in ways which support a hostile-free working environment for themselves and their colleagues. They should play their part in making the organisation’s policy a reality and be prepared to take appropriate action if they observe or have evidence that someone else is being harassed. 

What actions are needed to tackle harassment? 

Policies, communication and training 

The sensitivities surrounding harassment have important implications for the design of effective policies and procedures to prevent it occurring. A well-designed policy statement is an important first step in addressing harassment and should cover all the complexities of intimidating behaviour, including bullying. Policy statements should be agreed with union representatives. Another CIPD survey2 showed that in 2004, 91% of organisations had a diversity or equal opportunities policy, 83% had harassment or bullying policy and 39% had a policy covering dignity at work. A policy does not automatically change cultures and behaviours, so senior management support and communicating the policy is essential, through staff handbooks and intranet, induction and training programmes, and appraisal interviews. 

Policy statements should:

• give examples of what constitutes harassment and intimidating behaviour – it is also useful to define positive and supportive behaviours
• explain the damaging effects and why it will not be tolerated
• state that it will be treated as a disciplinary offence
• clarify the legal implications of harassment
• describe how to get help and make a complaint, formally and informally
• undertake that allegations will be treated speedily, seriously and confidentially
• promise protection from victimisation for making a complaint
• clarify the responsibilities of line managers, HR departments and the role of union or employee representatives
• make it the duty of supervisors/managers to implement policy and ensure it is understood
• emphasise that every employee carries responsibility for their behaviour.

Policies should be communicated so that all employees:

• know their rights and personal responsibilities under the policy
• understand the organisation’s commitment to deal with harassment
• are aware of who to contact if they want to discuss their experiences in order to decide what steps to take
• know how to take a complaint forward and the timescales for any formal procedures.

Any policy should be monitored for effectiveness, including:

• records of complaints, who was involved and where, why and how they occurred
• individual complaints to ensure resolution and no victimisation.

Regular reviews are important to ensure policies and procedures are appropriate and effective. Employers can find out about experiences of harassment and levels of confidence in the policy and procedures through general employee attitude questionnaires or specific surveys, or through informal feedback, return-to-work interviews after periods of absence, appraisal discussions, training feedback or exit interviews. 

Training can prevent harassment being accepted or condoned. Those with responsibility for implementing the policy should be given specialist training. 

Dealing with complaints 

Complaints should never be ignored but investigated swiftly and confidentially ensuring the rights of all are protected. An employer who fails to investigate has little defence at an employment tribunal. Procedures should provide informal and formal mechanisms for raising complaints. Clear time-scales should be set for the resolution of complaints, taking account of legal limitations. 

Advice and counselling 

Employees should be able to contact a nominated person, who may be a trained volunteer colleague, to discuss their experiences in the strictest confidence. This can help complainants decide what course of action to take by exploring their options. The decision to progress a complaint should rest with the individual. However, complainants should be encouraged not to ignore behaviour that makes them uncomfortable, but to take appropriate action so that the behaviour stops. The consequences of not taking action should be explained. 

Nominated contacts for harassment should be carefully selected and trained. Their role should be independent of investigations and they should not be required to provide evidence in proceedings. They should receive ongoing support from management to fulfil this brief. They should understand the nature of the issues related to different forms and grounds of harassment and intimidating behaviour. They should also be able to talk with complainants freely and confidentially in a private environment. They can come from all departments and levels of an organisation. 

Mediation is an increasingly useful tool in managing conflict at work, including harassment issues where difficult personal issues are involved, and it is often one individual’s word against another’s. Mediators can come from outside or inside an organisation. 

Guidance and counselling can be offered to people whose behaviour is unacceptable, as well as those affected by being harassed. Simply punishing those responsible for the harassment risks isolating individuals who may not understand how their behaviour is affecting their colleagues. Sometimes people are unaware of, or insensitive to, the impact of their actions and counselling can help them to accept the impact of their behaviour, change behaviour or prevent further incidents. Being clear about what is acceptable behaviour at work, as well as defining unacceptable behaviours, will prevent ambiguity and stop harassment flourishing. 

Informal procedures 

Ideally, complaints should be dealt with internally and informally. Solutions can be reached quickly, with minimum risk to confidentiality. It pays to act quickly to reduce personal embarrassment and suffering, avoid disruption to work and working relationships and, where complaints are contested, expensive litigation costs and damaged business reputations. 

In many cases it is sufficient for the recipient of harassment to raise the problem with the perpetrator, pointing out the unacceptable behaviour. But if an employee finds this difficult or embarrassing, informal procedures should enable support from a colleague, an appropriate manager or a personnel department representative. A choice of contact should be available in case the person’s manager is the harasser. 

Formal procedures 

Formal procedures are needed if the harassment is serious, if it is the individual’s preference or where an informal approach has failed. Some modification to grievance procedures may be needed for this and employees must know to whom they should make a complaint – for more information see our factsheet on Discipline and grievance procedures. 

Investigation 

Harassment should be treated as a disciplinary offence. Investigation procedures should provide:

• a prompt, thorough and impartial response
• independent, skilled and objective investigators
• representation for both parties
• complaint details, the right to respond and adequate time to respond
• a time-scale for resolving the problem
• confidentiality for all parties.

A record of complaints and investigations should always be made. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. All sensitive information should be treated confidentially and meet the requirements of the Data Protection Act 1998 – for more information see our factsheet on Data protection. 

After the procedure 

Where a complaint is upheld it may be necessary to relocate or transfer one party. It should not automatically be the complainant who is expected to move, but they should be offered the choice where practical. 

Where the perpetrator is transferred, no breach of contract must occur or a claim of constructive dismissal could arise. Transfers on disadvantageous terms can be offered to the perpetrator where allegations are proved, as an alternative to dismissal. 

If a complaint is not upheld, a voluntary transfer of one of the employees should be considered. It is important to check the harassment has stopped and there has been no victimisation or retaliation. 

CIPD viewpoint 

Achieving high levels of performance from people at work is essential in today’s competitive market place. Organisations should treat any form of harassment seriously not just because of the legal implications, but because it can lead to under-performance at work. Eliminating all forms of harassment and bullying makes good business sense. A workplace environment which is free from hostility enables people to contribute more effectively to organisational success and to achieve higher levels of job satisfaction. People cannot make their best contribution when under fear of harassment, bullying or abuse. 

An organisation’s public image can be badly damaged when incidents of harassment occur, particularly when they attract media attention. This can affect relationships between an employer, their current and future employees, as well as their customers. 

Developing and implementing preventive policies and procedures creates a climate of greater confidence in being able to challenge harassment. The right policies and procedures enable employers to tackle individual complaints quickly and effectively. 

An organisation’s goal should be to develop a culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal. Everybody needs to feel responsible for challenging all forms of harassment and for upholding personal dignity. 

References 

• CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2004) Employee well-being and the psychological contract. London: CIPD.
• CHARTERED INSTITUTE OF PERSONNLE AND DEVLOPMENT. (2004) Managing conflict at work: a survey of the UK and Ireland. London: CIPD.

Further reading 

Books

• ADVISORY CONCILIATION AND ARBITRATION SERVICE. (2005) Bullying and harassment at work: a guide for managers and employers. London: ACAS. Available at: http://www.acas.org.uk/
• TEHRANI, N. (2005) Bullying at work: beyond policies to a culture of respect. Guide London: Chartered Institute of Personnel and Development. Available at http://www.cipd.co.uk/guides

Journal articles

• CORSI, J. (2005) A goodbye kiss for harassment. People Management. Vol 11, No 19, 29 September. p20.
• Mind your language. (2003) People Management. Vol 9, No 18, 11 September. p17.
• SIMPSON, S. (2002) How to deal with aggression at work. People Management. Vol 8, No 8, 18 April. pp52-53.
• WOLFF, C. (2006) Ousting the workplace bully: learning from experience. IRS Employment Review. No 841, 17 February. pp8-17.

The front page of the business section of the Sunday Times, March 12 2006, detailed a rather public falling out amongst some of the key members of the board of Vodafone. The story being articulated wasn’t particularly unusual. In its simplest form, it appears to be a case of a relatively new Chief executive (Arun Sarin) attempting to put his mark on the business and run it in line with his conviction. However, other members of the board, including the current chairman Lord MacLaurin appear to have different views about the direction in which the company is going and the way in which it is being led. This dispute has now spilt into the domain of key investors who have themselves called a meeting with the Chairman to discuss the company’s lack of strategic direction. 

Although the detail may differ slightly, this type of scenario probably takes place in numerous organisations across the country. What was unusual about this one however, was the candid way in which we the public have had a blow by blow account of events. We have our good friends in the media to thank for this. 

A similar scenario unfolded before our very eyes a few years ago when a Chief executive of a well-known retailer went through a prolonged exit. The CEO was leaving the company with what was considered to be rather generous elements of his remuneration package, including bonus and pension, intact. The corollary of his departure made headline news because of what was being billed at the time as ‘reward for failure’. The Company’s performance during his tenure was viewed to have been less than staggering, this also being reflected in the share price. 

What many people don’t know however was that this particular scenario went to mediation. One day it was on the front pages, then it disappeared and nothing else was heard of it. Two of the countries most senior and experienced mediators were called in to try and resolve the dispute that had developed. They succeeded. 

The fact is that there will always be disputes at senior levels in organisations. People who occupy very senior positions in organisations are usually blessed with a personality where they are not backward in coming forward to express their feelings. This is often done with some force. 

Even if an employee dispute doesn’t hit the front page of the business section of The Times, it is likely to attract its own media within an organisation. An example of this is the smoker’s corner. Quite often, if you want the latest gossip on organisation happenings you need to listen in to the conversations that take place amongst employees who gather for their regular nicotine catch up sessions. Someone in the group will have heard about fallout and then has to demonstrate to fellow smokers that knowledge is power. Others replicate the same approach, now sharing it with less privileged non-smokers. Within a few hours you could have a workforce of hundreds talking about the dispute. Of course, while they are talking, they are probably not working.

Growing trend of workplace mediation

In the UK the use of mediation within the workplace has been steadily growing, with more employers using it as an informal method of dispute resolution. With an increasing number of employment related cases being drawn into the media spotlight, organisations can save time, money and quite often their reputation by engaging mediation skills early on when major disputes arise. 

But what is workplace mediation? 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. It is a voluntary, confidential informal process that helps people who are in dispute start talking again, and to jointly agree how to work together better in the future. One of the real values of workplace mediation is that the process can take place, without any employment rights being lost. For example, if an employee is engaged in the tortuous grievance and disciplinary procedure, which came into effect in October 2004, they can still opt for mediation whist the disciplinary process continues. Mediation is ‘without prejudice’. 

For maximum effect, the mediator should be a neutral, third-party, and be seen as such by those with the dispute. The mediator should have with the skills required to cope with emotion, grievances and strong opinions. He or she must be a very effective listener and observer, as well as having the ability to understand the real cause and core of the problem. It is also important to be able to take the parties in conflict to a different ‘space’ of potential solutions. Integrity, neutrality and the dexterity to cope with crises, hidden agendas, long-standing conflict and animosity, as well as unexpected disclosures are absolutely essential. Disputes can often involve more than one party and be culturally diverse, so understanding the power and balance of the relationship is fundamental. In the Vodafone case for example the mediator would need to consider the views of the noted board members but also the key investors that are voicing their concerns. Workplace mediation skills can produce very sound and satisfying rewards. Helping people to overcome blockages and prejudices and to reach their own agreement, which may often involve significant movement on their part, invariably demands sensitivity, determination and patience. One of the most important factors is that the resolution of the dispute remains in the hands of the parties. The mediator will facilitate a process to help them get there.

The Business case

Figures from the last CIPD Managing Conflict at Work survey of 1,190 employers suggest that dealing with conflict is taking up more and more HR time. Over 60 per cent of respondents say they have seen an increase in the use of HR departments to resolve individual disputes in the past 12 months. And it is time-consuming and costly: employers say they are spending an average of 10.5 days per case dealing with disciplinary and grievance issues little less than the 12.5 days they say is spent preparing for a tribunal case. 

There are many reasons that can explain why workplace mediation is now becoming an increasingly used method of dispute resolution for employee conflicts. The high increase in the number of employee complaints, 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. 

HR directors are often asked to justify various HR interventions. Workplace mediation has a sound business case. Conflict decreases productivity, whilst increasing stress and sickness levels. Mediation adds real value by taking these issues away without attracting huge legal fees. HR professionals are often best placed to deploy the skills required to be a successful mediator. But it is not an exclusive HR activity. Line managers of other functions can also become workplace mediators if they possess the key people interaction skills required to do so. 

The principles of mediation can also be used to support other areas such as

• Engaging key employees to collectively work towards business priorities
• Supporting the merger and acquisition process
• Helping to implement change
• Facilitating board level interaction

In summary

The Vodafone case is a great example of demonstrating the value that workplace mediation could add. It is a little unfortunate that due to the nature of the mediation process for handling disputes, its success is often not realised, due to confidentiality restrictions. However, the more it is used, the more the value will be seen by those who have used and the more it will be recommended as a valuable process to be adopted.

HR professionals seem to be faced with the constant challenge of demonstrating how their functional expertise adds real value to their business. We often hear new HR speak, but as these areas come and go, do they make any difference to lives and organisational effectiveness? In the past 10 years for example we’ve heard about NLP, mentoring and now coaching to name just three. Now a seemingly new term has raised its head – Employment mediation.

Mediation has been practised in the US since the 1960′s. When the term mediation is used, most people probably think of things on two very opposite ends of the spectrum such as matrimonial disputes, or the UN’s role in cross-border dispute resolution. But, increasingly mediation is being used as a method to help solves differences and conflict in the business arena. 

Although painful and maybe embarrassing for the parties involved, encouraging the settlement of disputes through dialogue without the presence of an individual in a white wig has been proven to be an acceptable route to follow. 

The number of organisations choosing to use mediation to help solve employment disputes has been rising steadily over the last few years. Countries like New Zealand have had a statutory employment mediation process since the late 1980′s and are now well versed in handling disputes in this way. But, does mediation in the field of employment really add value or is it just another fad being used in the HR world? 

The changing landscape

The field of employment is doing very well at adding to the legislative arena of the UK’s judiciary. For example we have recently had the introduction of bullying and harassment legislation, anti discrimination legislation, sexual orientation and religious beliefs legislation and the need to follow formal disciplinary grievance and disciplinary process to name just a few. It is becoming more and more difficult for HR generalists to keep abreast of UK employment law and as a result organisations need to retain in-house lawyers, specialist employment teams or outsource employment law issues to third parties. One of the reasons for doing this is that organisations realise – mainly through the proactive role played by the media – the costly implications of making wrong decisions or failing to follow correct procedural process. At the same time, employees are only too aware of the power they can yield over their employers and are often only too willing to use, or at least threaten, to use this power to potentially bring harm to their employers. 

The business case

Research has shown that a huge cost is associated with handling disciplinary or grievance issues. The recent CIPD Managing conflict at work survey report highlights that:

• On average there are 30 formal disciplinary cases and 9 grievance cases per year per employer
• In total, internal staff spend an average of 10.5 days managing disciplinary and grievance cases
• Where employers train in mediation skills they are more likely to have fewer disciplinary and grievance cases

It is probably unlikely that Chief Executives welcome any lowering of productivity levels at a time when shareholder value and shareholder return are very high on the corporate list of objectives and measures for success. Of course, where the organisation has done an exemplary job in following correct procedure, and is therefore convinced that it has every right to defend itself as a commercial business treating people fairly, it has every right to take tough decisions where required in order to help it maximise shareholder value. 

Where organisations cannot be so bold, exploring mediation may be a pragmatic cost effective solution to help all concerned move on. 

Although perhaps the most obvious need for employment mediation is to prevent the pain and distress of an employment tribunal or court process, practitioners have been using the skills associated with mediation in the field of employment in other areas such as helping organisation change and dealing with conflict. 

Individuals who are in the world of work in the 21st century would do well to recognise that the only thing likely to be constant with the organisation they are associated with is change. With change being an integral part of the organisational backdrop, using a process to help oil the wheels for any change can only be good news. We have seen only too often the effect of what happens when change is handled badly. One of the latest methods of expressing discontent is for employees to voice their concerns, or vent their anger, through employee ‘Blog’ websites. Although freedom of expression and employee feedback should be welcomed, this is probably not the forum in which it should be aired. 

One of the strengths of using mediation to help the process of change is that it can be used with key individuals to help prevent derailment of any kind. 

Organisations are likely to have key individuals who are able to either help or hinder the process of change by the attitude they display toward the change agenda. This may be particularly more acute when they themselves are personally impacted by the change. Key individuals can be (but are not exclusively) senior individuals who are likely to carry much weight through the organisation. Other individuals, who are akin to a disposition of being difficult, or have an issue that could prove difficult to handle but are not necessarily senior, may fit this category. 

Getting key individuals on your side can pay huge dividends. Key individuals can play a major role in holding up the change process and preventing a new vision or way of working being established. If other employees become aware of dissatisfaction with a key individual it could have a devastating and rippling effect on psychological contracts and future commitment amongst those an organisation may want to retain and keep engaged.

Case study

As an Ex HR director in the private sector myself, I have experienced first hand the added value that mediation can bring in an organisational change context. The organisation needed to change from being a parent company with two subsidiaries to one business. This involved the disposal, through MBO, of one subsidiary and equity dilution of the other, relinquishing the burden of day-to-day management and statutory reporting. We also significantly reduced the number of employees in the remaining core business.
As mediator, some key parts of my role are to:

• Establish a trusted relationship with the parties
• Work towards win-win solutions
• Help the parties work towards acceptable solutions
• Reality check and explore possible alternatives to settlement

This process quickly highlighted key individuals for whom a traditional discussion would have no doubt protracted the course of action. This included things such as agreeing compromise agreements with senior individuals and agreeing settlement terms with employees on long term absence who were holding up the due diligence process. We also used the skills of mediation to reach agreements with employees who were entitled to rather generous TUPE terms and conditions from a previous joint venture we had negotiated with a public sector employer. This aspect also included union representation. 

Through using this approach, the business was able to effect change in a relatively short period of time. There were also added employee relations benefits such as; 

• reducing conflict
• preserving relationships and
• establishing common thinking amongst the remaining senior team
• saving money

A rewarding measure of the success of managing the transition when a senior employee looked me in the eye shook my hand and thanked me for the way the process had been handled. He moved on with his ‘integrity intact’ 

On the point of saving money, the HR function was able to demonstrate how it saved the business a considerable six-figure sum from using this approach. 

Summary

The business case for employment mediation is sound. The potential for it to add real value also appears to be evident. The challenge for organisations is to ensure that this emerging area does not become an obscure set of skills only retained by individuals within the HR function, but a pragmatic method that line managers can also use to ensure that organisations remain effective. 

If an organisations’ competitive advantage lies within its people, one would envisage that it would be beneficial investing in the development of mediation skill sets. 

Well, it seems that this may not be a fad after all, but a real opportunity for organisations to consider against areas such as marketing, loss prevention, sales and logistics as being a business to focus on to enhance the top or bottom line.

As HR director of a technology organisation going through a substantial change programme I have recently experienced the value that mediation can bring to the change arena. 

The context was that the parent company wished to dispose of its two subsidiaries and reduce fixed costs to allow for one organisation with one purpose. As part of the process the organisation needed to exit a number of its senior individuals.

The CEO and I held initial discussions with affected individuals and I was asked to ‘work through the detail’. A traditional discussion would not have worked as it would have potentially protracted the process and been too inflexible. Mediated discussions took away immediate and potential issues and provided a cost effective solution.

Why mediate?

With an increasing number of cases hitting the media spotlight, organisations can save time, money and quite often their reputation by engaging mediation skills early on in the organisation change process. Often, senior HR professionals are not as involved as they should be in the planning stages of a major change programme. This is probably because people issues are not considered a priority during this stage. However, if handled incorrectly, the people issues are likely the most costly and time-consuming aspects to try and recover from. Unfortunately the tangible benefits of utilising mediation to smooth the way for organisation change are often most visible when things have not gone well. The media is littered with such examples. Executives will often only realise the true value mediated solutions could have brought when they are on the wrong side of the fence. They then have to repair the damage that would not have experienced, if mediation skills had been properly deployed.

Most organisations have key individuals who are able to either help or hinder the process of change by the attitude they display toward the change agenda. This is particularly the case when they themselves are personally impacted by the change. Key individuals can be leaders (but are not exclusively) or senior individuals who are likely to carry much weight through the organisation and often, the balance of calm or progress is at their fingertips. Other individuals, who are akin to a disposition of being difficult, or have an issue that could prove difficult to handle but are not necessarily senior, may fit this category. 

Getting key individuals on your side and dealing with all people fairly and professionally during change can pay huge dividends. Key individuals can play a major role in holding up the change process and preventing a new vision or way of working being established. If junior or middle ranking employees become aware of dissatisfaction engendered by a key individual it could have a devastating impact on the future commitment of employees an organisation may want to retain and keep engaged.

As it became clear that certain key individuals would be exiting the organisation (in this instance a number of directors), mediation skills played a vital role in ensuring a smooth course of change took place. Much of the mediator’s role is to:

• Encourage a trusted relationship with the parties
• Encourage win-win negotiations
• Assist the parties to work to acceptable solutions
• ‘Reality check’ possible solutions and alternatives to settlement

Based on the above, a number of ‘mediated discussions’ were held. These started with the individual ranked as the most influential. All stakeholders recognised the requirement for change, which was a great starting point. The concluding position was that compromise agreements were reached, incorporating of course, the appropriate legal representation. In most cases, termination packages were comfortably into six figures and any future employment dispute against the company was effectively safeguarded against. 

But it became clear that it was not only senior individuals who should be classed and treated as key. One example of this was where there were two employees on long-term sick leave. The status of these employees meant that the due diligence process for one of the subsidiary disposals was being held up. The company had to act quickly in a pragmatic way to bring an acceptable resolution to both parties. The arrangements included home visits in the presence of nominated representatives to discuss possible solutions. ‘Settlements’ were reached within a surprisingly short timescale. 

Another example involved reaching settlements with individuals who benefited from generous TUPE arrangements, resulting from a joint venture with a former government department. Even with active union involvement, mediation brought an agreeable and practical solution, keeping the commercial needs of the business as top priority.

These examples illustrated the use of mediation as a genuine value-added, cost effective tool that could be used to help the organisation achieve its objectives whilst not needing to worry about revisiting any issue in future months – such as preparing for tribunals or facing legal claims. 

In these instances, mediation was used as a method of helping a number of people leave the business. This is not, of course, always the outcome one would desire or use mediation for. The principles of mediation can be used to assist people issues in other ways such as:

• Managing conflict
• Preserving positive working relationships
• Engaging key employees to collectively work towards business priorities
• Increasing effective working at ‘top level’
• Merger and acquisition process

A mediation approach goes a long way towards preserving good relationships between employee and employer. For example, many of the discussions referred to were held in a non-threatening environment i.e. away from the workplace. This encouraged affected individuals to be less defensive than perhaps they could have been within a work setting. The outcome for these conversations was ultimately going to lead to departure. However, the personal attention and flexibility of approach individuals received meant that dignity was preserved and goodwill was retained. A measure of this was some of the expressions of gratitude received for the ‘way it was handled’ after a satisfactory conclusion had been reached.

Benefits

The financial benefits of using mediation skills to assist organisational change can be substantial. Of course, benefits can also be measured indirectly in ways such as management time, employee goodwill and company reputation. 

Employment tribunal awards of six and seven figure compensation sums are now common. A lawyer from a leading investment bank was recently awarded £1m after her case was taken to employment tribunal. With new changes in employment legislation ever more likely, the number of cases of fallout and dissatisfaction are likely to proliferate. Unfortunately for employers, the media does a superior job at broadcasting such cases. Human resources directors and other heads of functions are increasingly required to provide justification of costs. It appears that there could be a major role for effective dispute resolution (in particular mediation skills) to add value in the workplace and have a positive impact on the bottom line. 

In summary

Mediation should not be considered as a soft option or easy way out, but a sensible and practical solution that can help oil the wheels of what organisations are now accepting is part of every day activity – managing change! Such change is not always viewed as positive or is indeed welcome by all, but engaging individuals and establishing dialogue to reach solutions can overcome blockages and resistance on a sustainable basis.