December, 2009

Guidance on Mediation

December 14th, 2009

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It was reported in July 2009 that there has been a 22% increase in unfair dismissal claims to 55,000 in the last year; with blame for the increase landing squarely at the feet of the Statutory Dispute Resolution Procedures and the much publicised recession. The new ACAS Code of Practice which replaced the Statutory Dispute Resolution Procedures, places less emphasis on the mechanics of how to manage disciplinary and grievance issues and offers more flexibility to resolve problems at an earlier stage.

One of the recommended steps in handling a grievance is exploring the possible benefits of resolving the issue through mediation either before a full fledged grievance lands on the desk, or as an alternative to following the grievance procedure. Whilst it is not a compulsory element to the grievance procedure, it can help to resolve disputes in the workplace. But what is “mediation”? We’ve had many calls from clients querying whether they should include mediation in their policies, and what it involves in practice, so we’ve put together the following information to guide you through the concept of mediation in the workplace.

What is mediation?
Mediation is a tool for resolving disputes by bringing employees together to reach agreement on how they can work together in the future. In order for mediation to work, the parties need to enter into it voluntarily and with an open mind, in the spirit of aiming to agree on actions for both parties to undertake in order to resolve any future conflict. Many grievances and workplace differences are caused by poor communication, and mediation can bring out into the open the issues faced by both parties in a controlled environment with a mediator ensuring both parties are heard.

When is mediation a good solution?
Mediation can be a tool to resolve many issues in the workplace, specifically in instances where someone feels bullied, harassed or there is a breakdown in communication. The key to its success is whether the two parties have the skills and willingness to change their own behaviour. Many disputes in the workplace come down to personality clashes; and mediation can deconstruct the problem and uncover actions that remove the personal element of the problem so both sides can focus on moving forward.

Who should be the mediator?
Ideally, the services of a trained, external mediator should be retained to ensure that all parties are comfortable with the independence of the mediator. However, this is not always possible for various reasons including lack of budget and lack of well known providers of this type of service. Many companies nominate a mid management level, sensible, discrete employee for this type of role, and this can work well if that person is respected, diplomatic, has excellent communication skills and can take a legitimately impartial view of the situation.

What is the process?
The first step is to invite them to a mediation meeting, explaining the purpose, confidential nature and structure of the meeting. Both parties should be advised to prepare for the meeting, that they will be a given a certain period of time each to air their concerns about their working relationship and hear any constructive proposals.
The mediator plays a key role in the process during the meeting; keeping the employees to their respective timeslots and facilitating discussion around topics in dispute. It can be helpful to take a break and for each party to reflect on what has been said, and to reconvene in order to structure a way of working together that is acceptable to both sides. The mediator should draw up a written set of actions for both parties to sign and agree to and both employees should be given a copy.

Advantages of mediation
Effective mediations allow issues to be resolved quickly and with minimal disruption to the workplace. It can prevent absence due to stress and lost productivity for everyone involved in a lengthy grievance procedure. But of most value, it can prevent issues spiralling into a heat of the moment resignation, and a constructive dismissal/discrimination claim landing on your desk, and, of course, the cost of the resulting Tribunal.

Disadvantages of mediation
Not all grievances concern disputes where mediation can be used as a tool for resolution. Due to its voluntary nature, it is also limited to cases where resolution and compromise are within the capability of employee’s; can they put their differences aside and work together? It also requires both employees to want to maintain their working relationship, and by the time a grievance is raised, their relationship may have gone past the point of no-return.

If you have a topic that you’d like us to cover in a future update, please let us know by emailing us at Adviceline@vizualhr.com.

The information contained above is for guidance only and represents our understanding of employment law and employee relations issues as at 14th December 2009. VizualHR cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on any individual matter.

Tips on Avoiding a Successful Tribunal Claim

December 9th, 2009

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With the number of Tribunals still on the increase, we thought we’d focus on what you can do to be best prepared for an Employment Tribunal, at every stage of the process, from disciplinary invite letters to briefing witnesses.

Who should hear the disciplinary and appeal?
1. Where an investigation has been carried out have a separate person hear the disciplinary. The Tribunal will look for independence at each stage of the process.
2. Ensure the person hearing the appeal is independent and has not been party to the original decision.
3. Don’t discuss the details or outcome of a disciplinary with any other staff member, at least until the outcome of the appeal has been confirmed. If the decision is overturned at appeal stage, it will leave you red-faced and it could land you in hot water.

Document Management
1. Be specific in disciplinary invite letters: state the allegations and the possible outcomes (particularly dismissal, if that is being considered)
2. Print out, and enclose, the disciplinary policy with all invites to disciplinary hearings.
3. Be specific in outcome of disciplinary letters: state what mitigating factors were offered and, if appropriate, why they weren’t considered satisfactory
4. Ask the employee to agree to the accuracy by initialling the bottom of the handwritten pages.

Tribunal Orders: Don’t Ignore
The Tribunal will send “orders” to instruct both sides on when to disclose the list of documents they will rely upon, to the other side. Don’t ignore any instructions from the Tribunal and avoid turning up to the Tribunal with fresh evidence that the other side hasn’t seen; the Tribunal will not be impressed.

Ensure that the witnesses write their own Witness Statements detailing their involvement in the process. This will ensure that their evidence will be given more naturally and it is a good exercise to remember.

If you have a topic that you’d like us to cover in a future update, please let us know by emailing us at Adviceline@vizualhr.com.

The information contained above is for guidance only and represents our understanding of employment law and employee relations issues as at 9th December 2009. VizualHR cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on any individual matter.

Belief in climate change is a “philosophical belief”

December 4th, 2009

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This month saw the judgement in Grainger Plc v Nicholson: an Employment Appeal Tribunal has held that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable of being a ‘philosophical belief’ for the purpose of the Employment Equality (Religion or Belief) Regulations 2003.
This is the interesting case where Nicholson, the head of sustainability, was made redundant from property company Grainger Plc and claims he was unfairly dismissed because of his belief in climate change.

The Employment Equality (Religion or Belief) Regulations 2003 (the Religion or Belief Regulations) came into force in December 2003 and implement the religious discrimination aspects of the Equal Treatment Framework Directive 2000/78/EC. They prohibit direct discrimination, indirect discrimination, discrimination by way of victimisation or harassment in the workplace by reason of any religion or belief. The term ‘belief’ is defined as ‘any religious or philosophical belief’.

This is the first reported case where a claimant has successfully argued a belief not related to a religious belief may be protected under these regulations. Previously, tribunals have taken a slim interpretation of what could amount to a “belief” so watch out for further updates on other protected beliefs.

If you have a topic that you’d like us to cover in a future update, please let us know by emailing us at Adviceline@vizualhr.com.

The information contained above is for guidance only and represents our understanding of employment law and employee relations issues as at 4th December 2009. VizualHR cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on any individual matter.

You don’t qualify!: What constitutes a break in service?

December 2nd, 2009

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Continuous service is a fundamental concept that most HR professionals are all too aware of. After all, for staff it means the difference between qualifying, and not qualifying, for a number of benefits; including entitlement to request flexible working, maternity and paternity pay, and of course, it is an important factor in assessing period of notice and any compensation which may be due, for example, redundancy pay and unfair dismissal compensation.

Some staff may, at some point, leave your employment, perhaps to study, perhaps to travel or for a career break and return within a short period. But what constitutes a break in service for the purposes of employment?

The law states that an employee’s continuous service is broken if their employment is interrupted by “a week or more”. Sounds straightforward? At first glance yes, it is. However, a week is defined as “a period of seven consecutive days that begin on a Sunday and ends at midnight on the following Saturday”. Again, sounds straight forward until you’re faced with someone who leaves your employment on a Tuesday and is re-hired 10 days later, on the Friday. Although your employee has been out of the business for 10 days, the requirement of a Sunday to a Saturday interruption has not been met, and therefore, their employment is continuous.

Several of our clients have come across this exact issue: and have experienced problems when calculating length of service for redundancy pay. We advise employers who re-hire staff after a short period to leave a gap of 2 weeks and to re-issue them with a whole new contract, making it clear that their employment starts on the new date, and that no period of service prior to this date counts towards their continuous service.

If you have a topic that you’d like us to cover in a future update, please let us know by emailing us at Adviceline@vizualhr.com.

The information contained above is for guidance only and represents our understanding of employment law and employee relations issues as at 2nd December 2009. VizualHR cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on any individual matter.