A major employment dispute is a disaster for both employer and employee.
Employment disputes are notorious for escalating to legal action quickly and uncontrollably. As the costs mount, the dispute becomes increasingly disruptive to productivity. And for both sides there is mounting stress.
Mediation offers a fast, effective and confidential way of resolving employment disputes such as unfair dismissal. On the rest of this page we explain the main type of dispute where it can be effective, and the benefits that it can bring.
We can offer a free 30-minute telephone consultation if you want to discuss your problems in confidence.
Everyone goes to great lengths to avoid employment disputes. Yet they can flare up unpredictably. Sometimes they are disputes over facts, figures or process. And sometimes an almost trivial issue triggers a major row, with employers and employees each becoming increasingly assertive and aggressive.
Employment disputes can lead, inevitably, to Employment Tribunals, which are slow, unpredictable and rigid.
Using mediation before going to employment tribunal is increasingly being seen as ‘good practice’. Failing to do so is increasingly being seen as acting in bad faith.
Why do employment disputes arise?
Common themes in employment disputes are:
- Unfair dismissal
- Harassment and bullying
- Flexibility, part-time working, Terms and conditions
- Racial, gender and other discrimination
- Assessment of qualifications/documentation
- Sickness and absence
- Fairness of panels (recruitment and disciplinary)
- Insensitive handling of a dispute
Why do these disputes escalate so quickly?
Employment disputes can rapidly escalate. It seems that going to court is the only solution. This rapidly produces a hostile and litigious atmosphere. Each side often blames the other for this.
Sometimes trade union and other legal representatives are involved. These disputes can become expensive. The mounting financial pressures can lead to a situation in which both sides feel that they have no alternative other than to continue escalation, so they can recoup the costs they have already incurred.
Claims for compensation will increase these pressures.
Employment tribunal claims in the UK are taking an average of eight months to be heard, as the system struggles under funding cuts and a surge in complaints.
Mediation and disciplinary processes
Mediation can take place in parallel with a disciplinary process. In many organisations the possibility of mediation is offered to the employee at any stage. Until the mediation is complete other steps are placed on hold.
But it is important to recognise that the mediation and disciplinary processes are actually very different.
A grievance process tends to look backwards and is primarily punitive. It is judgemental and rigid. And whilst addressing issues of the past it gives little guidance for what should happen in the future.
Mediation looks forward. If is non-judgemental and pragmatic. And it focuses on finding solutions that work for both parties in the long-term.
The benefits of mediation
Privacy and secrecy
Mediation offers the chance to discuss the dispute in private. This spares the employer from any possible embarrassment or reputational damage that could ensue if a disgruntled employee criticised the company in a public hearing. And it means that the exact terms of any agreed settlement do not need to be made public or shared with other employees. Maintaining strict silence can be a key agreed outcome in a mediated settlement.
Pragmatic and relevant solutions
Mediation allows the parties to tailor the outcome of a dispute to meet their exact needs. Often a single point of detail can stand in the way of reaching a solution. Paying meticulous attention to the exact circumstances of the agreement is a great benefit.
This is ultimately more productive. Above all it allows the parties to feel the satisfaction from getting what they really wanted. It also protects long-term relationships with staff and colleagues.
Allows for open and frank discussion
Some employees feel that their cases and views have never been properly heard. A day in court offers them the prospect of being able to honestly and openly vent their feelings. Yet mediation also offers them this prospect. It allows organisations and HR departments to have the opportunity for full and frank discussions, with absolute confidentiality, in a relatively calm and constructive format.
Faster and cheaper
The legal and administrative costs of formal processes can be largely avoided by going to mediation. Disputes can be resolved much quicker – often in a few weeks rather than months or years.
Good employment practice
Organisations are increasingly viewing mediation as being a good workplace practice that should be made available to all employees. It is seen as being progressive, helpful and a positive step in improving relations.
Many NHS Trusts now incorporate mediation in their grievance processes. Richard has worked with his own and neighbouring hospitals in getting this established.
Workplace disputes cost the average UK council nearly £200,000 over the past three years.
How and when does mediation work?
Mediation can start at any time after a dispute has been raised. It can commence as soon as employers are aware that a dispute requires a formal solution, or it can happen as late as the day of a tribunal hearing.
Usually it is the employer that initially suggests mediation, although this may not always be the case. Once both sides have agreed to consider mediation then the next step is to appoint a neutral and impartial mediator. Both sides need to feel that the mediator has no conflicts of interest that could prejudice their case.
The mediator requires that an “Agreement to Mediate” is signed by both parties. This agreement specifies the terms of the mediation and in particular it clarifies and formalises the duties of confidentiality.
During the course of the mediation then both sides have an opportunity to present their case, and then look for constructive and workable solutions. The outcome of a mediation is a written and agreed agreement, signed by both parties.
Mediation can be abandoned if no agreement is reached. Tribunals, courts or other procedures will then need to be used. Because mediation is confidential and without prejudice then nothing that has been said, or offered by either side, can be taken out and used in subsequent legal procedures. Because of this then mediation is risk-free and allows both parties to keep control. We have written a guide explaining this aspect.
We have also written a step-by-step guide to how a Civil mediation works.
Bullying and harassment
Accusations of bullying and harassment are unfortunately very common. This behaviour may be obvious and blatant, or it may be insidious and hard to spot. In the worst cases there are allegations of violence too.
There is an overlap between the civil/employment procedures used to deal with harassment and criminal enquiries.
Bullying and harassment are, at heart, conflicts that arise through an imbalance and abuse of power. Mediation can help to minimise this imbalance. But it requires an acknowledgement by the alleged bully of the impact that their behaviour is having on the victim.
Fear of reprisals can be very strong. As a result employees may be reluctant to agree to mediation unless these fears are properly addressed.
For much of his career Richard has been involved in NHS Employment and Recruitment roles. Particular roles that he has held include:
Director of Training Programme
Richard was responsible for recruitment and employment planning of 150 young doctors in North London. This threw up many difficult disciplinary and related problems.
Head of Policy, RemedyUK
“Modernising Medical Careers” was a badly-managed government change to the recruitment and employment of doctors. It was deeply unpopular and led to many unfairnesses.
Richard was instrumental in setting up RemedyUK – a vocal and active pressure group that opposed these changes. It fought two judicial reviews intended to reverse these changes and sanction those responsible. He also led the legal team in a successful challenge to the Department for Business, Enterprise and Regulatory Reform, in a challenge over the employment of doctors.
National Lead for Recruitment of Anaesthetists / London Lead for ST3 Recruitment
Richard was the chair of the Royal College group responsible for overseeing recruitment across the UK of junior anaesthetists. He personally dealt with many individual disputes and problems including many around the fairness of person-specifications and flexible/part-time careers. He was appointed regional lead for London ST3 recruitment in 2007.
Consultants and non-Consultants
The NHS employs 40,000 consultants. But it also employs around 20,000 doctors in the SAS grade – these are doctors that carry out similar work to consultants but with very different (and inferior) terms of service, salary and levels of autonomy. Richard was involved in national negotiations to get this group a better deal and recognition of their significant contribution to patient care.
Whistleblowing and the dual loyalty
Staff working in many industries, particularly in the public sector, have a dual responsibility of loyalty. On the one hand they have a duty to maintain the confidentiality and reputation of their employer. But they also have a professional duty to maintain quality of service. In healthcare, for example, this duty requires them to take action if patient safety is being compromised or if they are aware of bribery, financial fraud or serious mismanagement.
On occasions this dual-loyalty can lead to a clash. Employees with serious concerns that are not acted upon can feel they have no alternative to making them public. Despite their noble intentions, these employees get labelled as “Whistleblowers”. They can be suspended from work, gagged, ostracised and hounded out of their jobs. Accusations of mental illness, often self-fulfilling, are sometimes made against whistleblowers.
The Public Interest Disclosure Act was intended to strike a balance between the need to promote the public interest and the need to protect the interests of employers and their employees. It defines the circumstances where a worker might reasonably believe they may disclose information. But defending themselves in a dispute is expensive, and requires employees to demonstrate ‘good faith’.
Richard has been involved with the legal team defending several high-profile whistleblowers. He understands the complexities of the law and the critical importance of confidentiality and protecting interests of both parties.
- A step-by-step guide to Civil mediation
- Legal , property and personal issues
- Employment and recruitment disputes
- Mediation lets you keep control
- Questions about Mediation