There have been many attempts over the years to incorporate dispute resolution into laws, guidance, codes of practice and regulation to encourage employers and employees to sort out their differences at work before resorting to litigation.
The most disastrous of these were the ill-fated statutory disciplinary and grievance procedures, which came into force on 1 October 2004 and were abolished on 6 April 2009; they spawned so much satellite litigation that they were almost a field of employment law in themselves.
These were replaced in April 2009 by the Acas Code of Practice, which tribunals must take into consideration in claims for unfair dismissal. One of its stipulations is that if a grievance process has not been completed then the offending party will face either a reduction in compensation (employee) or an increase in compensation (employer) of up to 25 per cent.
The hope was that this would lead to more dialogue between employer and employee. Instead, in practice it has led to employees simply going through the motions of raising a grievance to protect the compensation they think they will receive once they start to litigate. Few employees start a grievance with the view that this will genuinely try and improve the situation – they view it as pushing the ‘no way back’ button.
Encouraging dialogue in this formulated way creates a virtual battleground where a manager, often unknown to either party, decides whether to uphold the grievance or not. And then in many cases both parties are just expected to go about their business as if it had never happened. It is rarely successful.
In a further attempt to get employees and employers to talk rather than litigate, the government introduced the Acas early conciliation process on in April 2014. But despite the soft wording of the title, this is essentially another compulsory step that employees must take before bringing a claim in tribunal. The idea is that Acas will try and resolve the dispute, but in reality it is not about getting an employee back into work and happy, it is about negotiating an exit – going with a sum of money subject to signing a COT3 agreement, which is similar to a settlement agreement but shorter and cheaper, and controlled by Acas.
By the time a dispute gets to early conciliation it is generally going in one direction. So what can employers do if they genuinely want to resolve a workplace dispute and get the employee back and happy?
- Often the problem is about communication, so don’t put both parties back into the same situation without any help as this won’t resolve the issue.
- Consider involving the services of a professional mediator. Mediation is not about taking sides but trying to understand how the situation has arisen and what measures can be put in place to try to prevent it happening again.
- Consider ways for senior managers to better understand the changing nature and demands of a younger workforce, through training or appointing ‘millennial mentors’ who can help bridge the gap between expectations in the workforce. This is especially important in this social media-led world and with an increased inability to talk to one another. Those at more junior level do not understand the pressures of management and managers do not understand the changing needs and aspirations of the younger generation – they need a clear career path, to feel valued and that they are adding value.
Some enlightened employers are already recognising the changing needs of the workforce and that grievances and early conciliation are not going to fix the problem of workplace disputes. They are recognising the importance of genuine mediation in the workplace.
Beverley Sunderland is managing director of Crossland Employment Solicitors