There are various ways of resolving conflict in the workplace, from having an adult conversation through mediation, to a ‘formal’ process. The purpose of a workplace grievance procedure is to have a fair and equitable process in place for employees to resolve issues and all of these processes are intended to resolve the conflict in order to return to a mutually acceptable professional working relationship.
Unfortunately, I am witnessing an increasing propensity of dissatisfied employees who immediately focus on financial recompense as opposed to resolving grievances at work. It may be because of the litigious age in which we live, together with the prevailing ‘we know our rights’ attitude, that is causing the increasing number of solicitors‘ letters received by employers.
Many of these letters result from the employee being advised by family or friends to move straight to the ultimate option of seeking legal advice. There is an equally increasing trend towards the employment solicitor readily accepting the version of events of their client and, in some cases, expanding on the potential claims their client could bring, rather than taking a step back and asking what other actions to resolve the conflict could have been undertaken.
There could, at this point, be various ways of resolving this dispute and yet these solicitors letters invariably conclude with something to the effect of, ‘my client does not wish to enter into a protracted dispute with you, their employer, and would look to resolve this issue by way of a compromise agreement of ‘X’ thousands of pounds, together with you paying their costs to us, which currently run to ‘X’ thousands of pounds’.
It may not be the responsibility of the employment solicitor to make any attempt to find out whether the version of events given by their client is in any way accurate, but it does tend to negate the historic stance of ‘innocent until proven guilty’, as it is now for the employer to prove their innocence. At this point the employer’s only option is to engage the services of an employment solicitor themselves – and a terrible ‘game’ begins!
There is a theme to events that lead to these letters that the majority of HR professionals will relate to. It starts with a manager, often having just become the line-manager of the employee, identifying a lack of performance by the employee and deciding to challenge this poor performance. Challenging poor performance is a stressful task for any manager or HR adviser, as it involves a few of those ‘difficult conversations’ that are hard enough; now made worse because you are aware that every word you say may get twisted, misrepresented and taken out of context. When I coach managers and leaders on such HR issues, I always emphasise the need for them to follow ACAS guidelines. Unfortunately, even when they do, they often receive letters from solicitors representing their employee.
However, having had the difficult conversation, notes of the meeting are sent to the employee to sign, as a true representation of the meeting, and an action plan is agreed. The employee then starts challenging the need for them to be performance managed as ‘everyone’s been happy until now’ and this results in them raising a grievance against their line manager for picking on them.
They then go sick with ‘work related stress’ and when and if they return to work they anticipate that the performance management will cease. When it doesn’t they go sick again and at this point, often on the advice of a friend or family member, engage the services of an employment solicitor.
Even where the employer is adamant that the process they have followed is absolutely correct, their own solicitor’s bill quickly reaches the point where they are advised that the cheapest option is to reach a settlement with their employee. This is where we have lost our moral compass as no longer is it a question of right or wrong or justice. It becomes a question of choosing the cheapest option; which is normally to reach a compromise agreement with the employee.
This cannot be right, as although in law the issue is resolved, the only winners of this ‘game’ are employment solicitors and, occasionally, the employee. The losers are the employer and, more specifically, the manager and the HR adviser.
These managers and HR advisers often feel that their skills and abilities have been brought into question and the psychological contract between them and their profession has been broken. They also feel damaged and the consequence is an increasing number of managers and HR professionals who tell me, “I am never challenging anyone’s poor performance again!”
And who can blame them? More importantly, what is the solution?
The government are intending to change the qualifying period for employment rights from one year to two. I cannot understand this, as it used to be two years and I would suggest this will be an opportunity to allow the poor management practices the reduction to one year was supposed to address to blossom again. Also, there has been an increase in the number of ET claims based on unfair dismissal which is not subject to the qualifying period, so the two year qualifying period will just increase these, instead of reducing Employment Tribunal cases, which this change is intended to achieve.
The long term solution is to develop a process whereby financial recompense is the final solution to workplace conflict, rather than the first. Only when all avenues to resolve the conflict have been exhausted, should a financial settlement be considered. Otherwise, what has a disgruntled employee got to lose by pursuing a claim?
The urgency for this moral compass to be repaired is simple. Until it is, there will be increasing numbers of managers, HR advisers and owners of SMEs damaged by a system that only benefits solicitors!