How can it help in the workplace in support of the more traditional Human Resource (HR) approach?
The original HR approach is rooted in the Employment Act 2004, which effectively set out a relatively strict set of procedural steps that the employer (HR) and employee had to follow. Strict timings were laid down for each step. Failure to observe those procedural steps and timings could result in almost automatic findings of unfair dismissal.
The effect on HR managers was to force them to be process creators and followers; to avoid deviating from the ‘path’ or seeking less formal/adversarial methods of dispute resolution.
The Employment Act 2008 formally replaced the 2004 Act and removed the statutory Disciplinary and Grievance Procedures, replacing them with a new ACAS Code of Practice on disciplinary and grievance procedure. This Code (unlike the previous statutory procedure) is not legally binding, but the Code’s principles are essentially the same and the Tribunal will consider them in deciding whether a dismissal is fair and in considering any compensation award.
Although the Code’s procedures are more flexible and do seek to encourage informal dispute resolution, the Tribunal can ‘adjust’ any compensation award by up to 25%, if the Code hasn’t been followed ‘correctly’.
The 2015 Code does seek to make resolution of disciplinary problems and grievance procedures less confrontational – but if matters cannot be resolved informally – then a formal process will effectively need to be followed.
The 2015 Code suggests the possible use of external independent third-party Mediators.
Many HR practitioners will still be concerned to follow formalised procedures for fear of falling foul of the ‘rules’.
The Chartered Institute of Personnel and Development (CIPD) have looked at how employer organisations manage workplace conflict and have found that while 82% of public sector employers will use mediation, only 47% of the private sector will; but that in any case, most employer organisations still predominantly use (1) disciplinary action; (2) grievance procedure or (3) compromise agreements ending employment, to resolve employee disputes rather than turn to an informal HR led ‘facilitated discussion’ or even less frequently, external mediation.
The result for many employers is a disruptive conflict in the workplace, using up physical time and emotional resource where ‘formal fixes’ don’t resolve the underlying problem. Worse, where those ‘formal fixes’ don’t ‘work’ – tribunal proceedings involving more use of management time and resource and requiring outside legal representation can also result; with concomitant reputational damage to both employers and employees in the wider public world.
The ‘Cost of Conflict’ has been outlined by the CIPD in its survey ‘Conflict Management at Work’ 2015 as being, in broad terms;
Disciplinary Procedure – @£250 per day for all involved, requiring 20 days of time for all involved @£5,000 in total.
Grievance Procedure – @£250 per day for all involved, requiring 15 days of time for all involved @£3,750 in total.
Mediation – @£800 per day for all involved, requiring three days of time for all involved @£2,400 in total.
Why Use Mediation?
The main reason for using mediation (aside from its significantly lower cost) is because mediation can improve relationships between employees and reduce internal workplace conflict-making people happier and making their workplace more productive.
Let’s face it – Grievance or Disciplinary Procedure won’t make people feel better about each other and is unlikely to improve their interpersonal relationship.
Use of mediation also means that HR managers do not have to step out of the formal company/procedure process – to try and ‘informally’ resolve employee disputes, where they can run the risk of being seen to take sides or breach their own formal process – thus rendering them vulnerable at any subsequent Tribunal hearing.
An outside external mediator is not an employee of the company (as an HR manager is) – they do not require to follow formal process and they can be seen to be independent of the company; they are neutral and impartial.
The mediation process is also confidential, making it easier for people to be open about their own failings and foibles-a frank and full (nothing held back) conversation between two people who are upset with each other – in the safe environment of mediation where the Mediator keeps the peace – can result in people realising the negative effect they can have on each other and lead to a genuine rapprochement between them; which in turn leads to happier more productive employees. These employees solve their own relationship problems in dispute; solutions aren’t imposed on them by a damaging grievance/disciplinary procedure enacted by HR following due process which is then perceived as part of the problem by the unhappy employees.
Mediation, by contrast to formal procedure, makes dialogue and a genuine conversation possible between people; it opens up the possibilities for healing change, rather than the fear of being penalised for wrongdoing.
Of course, mediation can’t fix every broken relationship or solve every employee’s problems. In those circumstances, it may be that parties don’t want to continue in their employer/employee relationship or remain as employees. Sometimes it is in everyone’s interest to part company as amicably as possible and to that end, if that’s what parties want, Mediators can assist in the negotiation of a Compromise Agreement, where both parties get the external appropriate legal advice they need (from their solicitors); and where, as well as compensation, an appropriate reference can be part of any resolution, avoiding the reputational damage and loss for everyone that can follow a public tribunal hearing.