If employees are encouraged to air grievances early on, they won't go to industrial tribunals, argues Richard Peachey

Industrial tribunals are going to be a serious headache for employers in 2017. HM Courts and Tribunals recently made verdicts public – and searchable online by issue and employer – as part its “open justice” policy.

Pressure to remove fees for employment tribunals is increasing, with another challenge to the legislation from Unison awaiting a verdict. The introduction of fees in 2013 led to a 70% fall in the numbers of cases brought by employees, leading to a fierce debate over whether employees are being denied justice because of the costs involved (potentially up to £1,200), or it's weeded out insubstantial cases. Either way, the end of fees is expected to lead to a sudden rush of cases bottled up over time.

On the one hand the situation is a threat to reputations, ways in which the inner worlds of organisations are opened up and exposed to criticism. Employers need to demonstrate responsible – and open – handling of staff disputes. That means, in particular, sensitive treatment of the more serious cases of alleged bullying, discrimination and sexual harassment. So employers should be looking again at the grievance and complaint standards in place, making sure they are watertight. The stage beyond the basics is to think about whether staff across the organisation have the skills to manage and deal with issues effectively and sensitively to avoid any unnecessary escalation of cases - making sure employees are getting a good “service” in terms of how their grievances are dealt with, as well as avoiding situations that blow up into stories for media and problems for operations.

The other side of the issue, though, is the opportunity for demonstrating best practice, a positive working culture where people have enough belief and trust in their organisation that they’re willing to talk openly about problems; to admit failures and weaknesses. The biggest mistake organisations can make is to see any kind of conflict – even at the level of minor disagreement – as unwelcome and a problem, something to be avoided, and where it occurs, should be immediately swept into grievance processes. This attitude leads to pretence, to secrecy and reticence, and to a workplace culture where trust and honesty is in short supply. People become rigid with uncertainty, bottled-up grievances, and there’s a burble of low-level conflicts that have the potential to escalate. The working environment becomes uncomfortable, and there’s a block on people willing to express themselves, to challenge conventions, to contribute thinking from diverse experiences and perspectives. Innovation and change is stifled.

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Managing numbers of tribunal cases is one thing, but introducing better systems around conflict and conversations should be a platform for improving the working culture as a whole, encouraging trust and openness. The best employers should be able to demonstrate they aren’t just trying to shut down conflict but are willing to listen and support.

Most organisations concentrate their “conflict-resolution” resources in the top layer: a fire-fighting and reactive approach which is expensive and does not add value to the organisation. There is usually some ad hoc attention in the middle level, with perhaps access to trained mediators or external mediators, but little outreach taking place to normalise mediation or to position it squarely within a range of options for resolution. Most financial and human-resource investment is directed at fighting a small number of highly contested, high-risk conflicts. 

Meanwhile investment in the bottom layer of the pyramid, where most conflicts actually take place, is reduced; the majority of conflicts go unsupported and unmanaged, and remain invisible until someone goes off with stress, leaves the organisation, or a crisis demands management attention. The return from adopting this pattern is poor – with high expenditure but little long-term return. Staff and managers may be aware of your values and their rights and responsibilities, but they do not believe in them, or even in you as an employer.

A useful starting point for change is to carry out a conflict audit to identify the strengths and weaknesses of your current provision in terms of what happens to complaints, whistleblowing, complaint handling, grievance resolution, performance management, absence management and the relevant learning and development.

Richard Peachey of CMP Resolutions

Push for involvement and role models from the leadership team. Encourage senior executives to consider what it means to actively encourage “good conflict”, supporting opportunities for open conversations, respecting alternative views, and what it will mean for levels of trust. Make sure there’s a consistent message to managers and staff generally on the value of open conversations. Some managers have the inbuilt skills to manage conflict constructively. Others, perhaps more technically minded, will need support if they are to have difficult or courageous conversations.  Review your management programmes to ensure they include the soft skills involved in embracing positive conflict and defusing negative conflict. Motivate and train employees to have difficult conversations with each other and with their manager. Such training is needed not only for challenging banter or perceived bullying by a manager but as the basis for dealing with all types of difficult situations with staff at all levels. 

When conflict reaches the formal stages of a grievance or disciplinary hearing, it’s critical that the decision-makers involved, typically senior managers, are always consistent and untainted by subjective perceptions. No individual should ever be seen to be treated differently from another while also demonstrating the same behaviours. Managers need to have the objectivity and confidence to reach a determination against someone where the evidence leads clearly to that outcome, and sometimes that means training in how to weigh and assess the evidence fairly and consistently.

Honesty and transparency in organisations needs to start with the day-to-day conversations of employees – and the pressures from tribunals may well be the necessary spur for change.

Richard Peachey is dispute resolution consultant for CMP Resolutions.

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