Employers are increasingly using workplace mediation, but should it be used earlier?

The ACAS Research Paper “Analysis of how grievances and disciplinary procedures affect workplace mediation using WERS2011” examines both the Workplace Employment Relations Study of 2011 (and its predecessor, 2004).

Particularly, the ACAS Paper:

(1) The nature and scope of Grievance and Disciplinary Procedures.

(2) Workplace mediation in Britain and the key factors that determine its use.

(3) The relationship between workplace mediation, workplace procedures and key outcomes: employee grievances and disciplinary action, Employment Tribunal application and employee attitudes.

The nature and extent of disciplinary and grievance procedures

Between 2004-2011, the percentage of workplaces that have written disciplinary procedures grew from 84% to 89%. The proportion of workplaces that have written grievance procedures grew from 82% to 89% during the same time.

Over 4 out of 5 workplaces had drafted disciplinary procedures that adhered to the three-step approach which comprised the regulations. These are the core principles of the ACAS Code of Practice for Disciplinary & Grievance Procedures. These three principles are that the matter must be submitted in writing, that a meeting be held to discuss it and that employees have the right of appeal against any decision. There was less compliance with grievance procedures in Britain, with 46% not adhering to the three principles.

There was a noticeable difference in grievance and disciplinary procedures when you consider the ACAS Code’s three key principles. The number of British workplaces that applied the three core principles in all disciplinary cases has increased from 73% to 81%. For grievance procedures, 44% compared to 42% (in 2004), applied all three of the key principles. According to the authors, external legal factors are more important than workplace and structural factors for increasing adherence.

In larger organizations, written procedures were less common than in smaller ones. A third of organizations with between 5 and 9 employees didn’t have a written grievance process, while 31% did. Only 11% of organisations with between 10 and 49 employees did not have written disciplinary processes, while only 12% had written grievance procedures. This is not surprising to me as a Workplace Mediator, practising Solicitor and a mediator. Certainly I would expect SME’s to be less likely than larger organisations to have dedicated HR personnel/departments and/or pro-actively seek advice on written procedures).

There were differences between industries. For example, all electricy, gas, and water businesses had written grievance and disciplinary procedures. Only 74% of construction companies had written disciplinary procedures, while 75% had written grievance processes.

However, a written set or procedures is not a guarantee that they will adhere to the ACAS Code’s three key principles. For example, while 100% of the electric, gas, and water companies had a written grievance process, only 59% of them adhered to the three key principles in the ACAS Code.

The key factor in having written grievance and disciplinary procedures was organisational size. The industry sector and the presence of HR professionals are also key factors. After controlling for industry and size, union recognition did not impact the likelihood that written procedures would be developed. However, when procedures were in place union recognition and HR expertise were positive associations with compliance with the ACAS Code for managing disciplinary matters.

Introduction and use of workplace mediation in British workplaces

In the aftermath of the 2007 Gibbons Review, there has been a greater emphasis on workplace mediation.

Within 62% of written workplace grievance and disciplinary procedures, mediation was available. It was used less frequently. It was used by only 7% of workplaces to resolve disputes in the past 12 months. However, 17% of workplaces that had suffered employee grievances (issues potentially amenable for mediation) had used mediation. 14% of those who had handled disciplinary cases in their workplaces had used mediation. One-third of workplaces that had written procedures for mediation were more likely to use mediation (11%), compared to 3% where mediation was not available. Mediation in the workplace was more likely to be used in those that had written procedures, and where the procedures adhered to three of the key principles set forth in the ACAS Code.

The WERS 2011 found no correlation between workplace size and inclusion of mediation into written discipline or grievance processes. There was a correlation between the size of the workplace and the use mediation. In 6% of grievance and disciplinary cases, workplace mediation was used by workplaces with less than 10 employees. The percentage was 14% for workplaces with between 55 and 99 employees. This percentage was 42% for workplaces with more than 500 employees. These authors point out that mediation might be more appropriate for larger workplaces with more employees. However, there was no direct relationship between workplace size and orgnaisation. Mediation was more common in the construction, education, and public administration industries.

One in five workplaces that experienced an increase in disciplinary actions had used workplace mediation. This is in contrast to the 5% who had seen no change in their disciplinary measures or had had them fashioncentral fall. According to the authors, mediation could be used as a result of rising conflict levels and litigation.

The Incidence of Individual Employment Disputes

WERS 2011 found that the following were the top causes of employee grievances:

Relations with supervisors/line managers – 39%

Pay, terms and Conditions – 28%

Bullying and harassment – 23%

Promotion, job grading, and career development – 16%

Work time – 15%

Safety, health, and working conditions – 10%

Redundancy selection – 9%

Another grievance – 9%

Discrimination – 6 %

In the past 12 months, these were the most common reasons for disciplinary sanctions.

Poor performance – 58%

Poor timekeeping and unauthorised absences – 44%

Personal use of premises, equipment, theft or dishonesty — 22%

Bullying, abusive or violent behavior, harassment or bullying – 19%

Disobedience – 16%

13% Health and Safety Infractions

Alcohol and drug abuse – 7%

Other – 15%

The highest rates of disciplinary sanctions (7.06/100) and Employment Tribunal application (0.49/100) were found in the smallest organizations (5-9 employees). Organisations with 250 to 499 employees had the lowest rates of disciplinary sanction (2.72 per 100), dismissals (0.90/100) and Employment Tribunal application (0.02 per 100).

The rate of dismissals decreased from 1.85 per 100 to 1.23 for 100 between the 2004 and 2011 WERS. The mean rate of disciplinary sanctions fell from 9.16 per 100 down to 4.73 per 100. Formal employee grievances rose from 21% to 28% between 2004 and 2011.

According to the authors, there is no strong correlation between adhering to the key principles and the severity of individual grievances or the application of the Employment Tribunal. There was however a strong correlation between compliance and the severity of disciplinary sanctions or dismissals. It was clear that managers should pay special attention to legal and procedural compliance when removing workers.

One argument in favor of workplace mediation is the fact that it can be used early to resolve conflicts before they escalate into full-blown disagreements. The authors found that workplace mediation was associated with higher rates for individual employment disputes.

When workplace mediation was used, the rates of sanction and dismissal in disciplinary cases were higher. This could be because workplace mediators are more likely to be used in high-conflict workplaces, or as a means of repairing existing employment relationships. According to the authors, evidence doesn’t support that mediation was used before procedures were established.

In cases of grievances, the average grievance rate in workplaces that used mediation to resolve disputes was 6 times higher than in those where it had not been used. This could be due to organisations resorting to mediation to address high levels of grievances. It may also indicate that employees are more comfortable voicing their concerns and raising grievances in a mediation-friendly environment.

According to the report, the average rate of Employment Tribunal application in workplaces that had used workplace mediation was significantly higher that those that did not. The data does not indicate whether or not mediation was used in Employment Tribunal cases. This could indicate that organisations may have turned to mediation after experiencing litigation, according to the authors.

Conclusions

Conclusions of the authors included: