Early resolution of workplace issues before they escalate is clearly the best outcome for employer and employee. Litigation is usually the worst outcome – uncertain, costly, time consuming, career-limiting and stressful for all concerned.
Lawyers and law-makers appear to believe that grievances will solve workplace problems. How? The employee raises a complaint; the employer denies allegations that may lead to a tribunal claim. The scene is set for battle, not resolution. The grievance processes I have seen could not be more different to mediation.
Of course an employee should raise their concerns but the focus should be on finding a solution. Grievances are usually limited to what has gone wrong without looking at possible solutions. If a lawyer is involved, a grievance will be phrased so the possible legal claims are clear and comprehensive. The employer must defend themselves, so is only safe making admissions which do not give rise to legal liability.
In 20 years I have only known one grievance to be upheld. That was when an outside lawyer carried out the investigation. In many cases, a grievance is the opening shot in the litigation, so all complaints are included. Employees can pay thousands to get through the grievance process after which negotiations are often more difficult as attitudes are entrenched. Of course I only see failed grievances, not successful ones.
Grievances are most harmful when the allegations include discrimination or whistleblowing. Employers freely admit that the ‘shutters comes down’ when there are discrimination allegations. The alleged perpetrators feel, understandably, defensive. The employment relationship between the parties often suffers irretrievable damage and in most cases the employee leaves.
Some employers encourage an employee to file a grievance because then there is a process to follow, which may be easier for the less experienced HR person. With allegations of whistleblowing or harassment an employer may, rightly, feel that there needs to be a full investigation to ensure there is no repeat behavior. However, there is no reason why an employer cannot investigate concerns raised by an employee outside a formal grievance process with a view to providing an explanation, a solution and even an apology for things that have gone wrong.
Grievances may be necessary but ‘airing the issues’ (AIR) should be the first step to avoid a dispute arising. Sometimes an employee will have to put in a grievance because failure to do so could lead to a reduction in compensation under the ACAS Code. A grievance may be a last resort to persuade an employer to take notice of a complaint. There is no one rule that fits all circumstances.
After two years of negotiating – or coaching employees to negotiate – without reliance on grievances, aggressive legal threats or litigation, I have no doubt that this achieves the best result for employees – and employers. The outcome is more likely to be amicable. It is easier to have a transitional period during which the employee can remain employed to make it easier to get another job. In short, resolution is quicker, cheaper and less stressful.
The grievance process should be replaced with a procedure that is more akin to mediation, where employees feel their concerns will be listened to and where solutions are discussed, possibly with the help of a mediator. This has been adopted by one large financial institution which has seen a drop in the number of grievances and an increase in the early resolution of issues.
Another advantage in informal dispute resolution is that it might keep lawyers out of the frame, encouraging the employer and employee to have a constructive dialogue and move forward. If it does not work, then ratcheting up with lawyers may be necessary.
In my view:
- Grievances cement rather than resolve disputes. Good communication and alternative dispute (or issue) resolution should be the starting point.
- Threats, overstatements and aggression are best avoided when raising issues or defending allegations. It should be enough to state the facts, which speak for themselves.
- It is not a sign of weakness to be the first to open ‘a discussion’ about how to resolve matters – including through settlement.
- A good way of starting a discussion is to talk about the options going forward, focussing on solutions.
- It helps to try and put yourself in the shoes of the other side, including what they are trying to achieve. Consider how any letter/email you write will resolve, not entrench, any disagreement or conflict. It helps to suggest an outcome or next step.
- The parties should be clear with each other about what they want. Thinking ‘outside the box’ about possible solutions, considering all options, will help.
- It is often easier to find a solution without lawyers doing the negotiating. Legal arguments more often lead to battle, not resolution.
- It is easier to maintain a continuing working relationship with positive negotiations which may enable an employee to remain employed.
- Constructive dialogue is less stressful and time-consuming – for employer, employee and their advisers.
Life’s too short to litigate. It’s a ‘win-win’.
