Do the latest changes to dispute resolution procedures represent a return to the good old days or just a cost-cutting exercise? Pf’s Diana Spencer investigates
.
Facing a disciplinary procedure is never a pleasant experience, neither for the employee nor the company management or HR personnel involved. Even raising a legitimate grievance can be fraught with complications as a result of following the lengthy and restricting formal procedures established in 2004. Employees could hardly be blamed for taking matters in to their own hands, such as a recent extreme case where 3M factory workers in France kidnapped their boss overnight to protest against company redundancies.
However, under a revision to the guidelines by the Advisory, Conciliation and Arbitration Service (Acas), the government believes they are offering a ‘better way’: a way of simplicity, flexibility and communication, under which disputes can be dealt with quickly and efficiently. Many have welcomed this new approach, but others are sceptical about what impact it will have.
The Gibbons Review
From April this year, the previous dispute resolution procedures have been repealed, and a less prescriptive set of guidelines will define how disciplinary and grievance cases are managed. These aim to encourage more direct workplace communication and avoid, wherever possible, cases going to an employment tribunal. This is in direct contrast to what existed before, which recommended taking even minor claims to court.
An independent review of the previous dispute resolution practices revealed that, not only were the procedures unnecessarily complicated, but this complication also lead to a high cost burden for employers and employees, both in terms of money and time. It was decided that the earlier resolution of issues would be preferable to a lengthy formal procedure.
The aims of the new guidelines are to ensure:
· productivity is raised through improved workplace relations
· justice for both employee and employer
· the cost of resolving disputes is reduced
· disputes are resolved before they are allowed to escalate
· employment rights are not diluted.
On this basis, Acas was invited to revise its Code of Practice on disciplinary and grievance procedures, providing companies and tribunals with guidelines for assessing each case individually, rather than following prescriptive procedures. Tribunals were also given the power to increase or decrease any awards by up to 25% should either party fail to comply with this Code.
In an attempt to encourage the earlier resolution of disputes, the government also committed to provide more funding for the conciliation of issues which have not reached the tribunal stage.
The feel-good factor
Overall, the new procedures encourage a more relaxed and flexible way of dealing with issues in the workplace, yet still within the three-step format of letter, meeting and right of appeal. One of the main differences in is the focus on ‘mediation’, whereby a neutral party will work with both sides to help identify areas of common interest and resolve the dispute.
The Chartered Institute of Personnel and Development (CIPD) has welcomed this approach, commenting: “It is good practice and also more efficient that such issues are addressed informally, as and when they arise. Only when informal options have been exhausted and where there is no alternative should managers enter a more formal disciplinary or capability procedure.”
The CIPD’s Workplace Mediation 2008 survey found that more than 90% of organisations see informal discussion as the most effective tool for resolving a dispute, 83% believe that mediation improves employee relationships and 71% believe it cuts the stress of using a formal process.
“Part of the current problem is that the handling of a grievance immediately creates a distance between the parties that is not always helpful,” Amanda Bucklow, an independent commercial mediator, told Personnel Today. “Worse than that, it almost certainly means the claimant will go sick because they don’t want to be in the same environment as the person they have an issue with. Dealing with grievances earlier through mediation will make things easier for all concerned.”
This will not be a new approach to many people in pharmaceutical sales, as mediation is a method already in use within the pharmaceutical industry. As one industry personnel advisor points out: “It is good HR practice anyway so has always been an option that has worked on a significant number of occasions when the matter under dispute is resolvable in this manner.”
The way we were
Many people have welcomed the reversal of the old procedures as a return to the simpler way of working that existed before. One exponent of this view is HR Insights’ John Pinder. He told HR magazine: “We are reverting to the way things were before disciplinary and grievance procedures came into effect in October 2004 when everything ticked along nicely.”
But is this tendency to think that the old ways were better just misplaced nostalgia? As part of the changes, companies have been encouraged to introduce a mediation stage into their dispute resolution practices and to train managers on how to resolve issues at the earliest possible stage. However, many companies already have such policies in place.
Traditionally, the pharmaceutical industry has been good at dealing with such issues and, although companies are reviewing their guidelines, most have the new requirements covered. The current policies are already in line with the focus on mediation and early discussion with management. A pharma company personnel manager describes her company’s approach: “We provide formal employment law and performance management training to our line managers. Personnel are always involved in any grievance or disciplinary investigation, meetings and resolution and, in addition, we coach, support and advise managers ‘on the job’. If we identify an informal resolution then we facilitate this on a case-by-case basis.”
Currently, any cases where the subject of the dispute took place before April 2009 are being dealt with under the old practices, so the effect of the new guidelines remains to be seen and some are doubtful whether there will be an impact at all.
Fiona Colquhoun, Director of the Centre for Effective Dispute Resolution, comments: “In effect, it hasn’t really changed anything at all. The most likely outcome is that over time the brighter organisations will understand that mediation is a cultural asset and use it to build on what is already working within their existing policies.”
There is some cynicism that the changes were purely driven by the need to cut costs. Indeed, others even predict a negative impact: “This greater flexibility may also prove a double-edged sword as the lack of specific detail may lead to employers being found in breach,” suggests Marian Bloodworth of law firm Lovells.
Peace and prosperity?
So, what effect will the recent changes have on disciplinary and grievance procedures? Will they mean a return to an easier way of solving disputes? The simple answer is that it is hard to tell until the new Acas Code really comes into effect.
However, the mood is generally positive. Concerns that the repeal of the old procedures will result in a ‘woolly’ approach to dispute management seem unfounded, as it is down the individual companies to develop their own internal guidelines based on the Acas document. And despite cynicism about the motivations behind the changes, a less bureaucratic and prescriptive Code will give companies greater flexibility in how they manage such issues and should make the process quicker and less painful. It is also widely agreed that the focus on mediation and discussion is a positive move, and could go a long way towards creating more peace-loving workforces.
It is now in the hands of companies to review their procedures and take advantage of the chance to establish a more relaxed and informal approach that will work for every