Understanding Individual Employment Disputes - Reflections and Emerging Themes from Seminar 1
Professor Charlie Irvine, University of Strathclyde.
Dr Richard Saundry, Institute for Research into Organisations, Work and Employment (iROWE), University of Central Lancashire.
This paper provides a summary and analysis of the key themes that emerged from the first seminar of the series held at the University of Strathclyde on October 11th. It is intended to inform, and provide a link to, the rest of the series. It is important to note that the contents reflect the views of the authors and not necessarily the views of those presenters and contributors referred to below.
1. Scale and scope of individual employment disputes
The debate over individual conflict in the UK has tended to revolve around concerns over rapid and sustained increases in the volume of employment tribunal applications. Indeed the potential threat of litigation has framed the development of government policy in this area, focussing on employers’ perceptions of rising numbers of weak and groundless claims. However, evidence presented to the seminar painted a more nuanced picture. As Gill Dix (Head of Strategy, Acas) pointed out, following substantial increases in applications during the late 1980s and 1990s, the underlying trend in the last 5 to 6 years has been relatively flat with variations largely explained by the growth of multiple claims (across more than one jurisdiction) and also large numbers of claims related to issues such as equal pay. Delegates suggested that in Scotland, tribunals were, if anything, experiencing reduced rates of employment tribunal applications. However, delegates suggested that here there is also a concern that, within the current industrial and economic climate, conflict could be ‘driven underground’ as individuals fear possible repercussions of challenging decisions and raising difficult issues. Therefore, headline volumes of employment tribunal applications or employee grievances and disciplinary disputes may be misleading.
The seminar examined a range of drivers for individual employment disputes. Andrea Broughton (Principal Research Fellow - Institute of Employment Studies) set these out in her presentation, based on a wide ranging review conducted for the Department of Business, Innovation and Skills (BIS). Firstly, there is evidence that the number of ET applications is shaped by the business cycle – for example, a period of recession may provide conditions for disputes through downsizing, while high unemployment increases the potential cost of dismissal, perhaps making claims more likely. Secondly, the increase in applications has also been associated with the erosion of trade union organisation. Thirdly, it has been suggested that there is a lagged compensation effect with potential applicants spurred on by the prospect of significant sums of compensation. It was observed by both presenters and delegates that such rewards were often illusory – however, there was a broad view that the development of the ‘compensation culture’ and the availability of ‘no win-no fee’ legal representation has also played a role.
In terms of contemporary developments that may affect the incidence of individual employment disputes, two major themes emerged from the seminar. The first related to the management of change and new approaches to issues such as performance and absence. For example, Phil Taylor (University of Strathclyde) argued that the development of newsystems of performance management, lean and sickness absence within the public sector may intensify work and create new sources of discontent and conflict.This may lead to increased use of disciplinary sanctions but also grievances as employees challenge managerial decisions and approaches which they see as bullying and harassment.
Discussion among delegates certainly suggested that many ‘interpersonal’ disputes appeared to be triggered by re-organisation and attempts to manage change. There had been an erosion of wellbeing as work had intensified. There was increased anxiety about performance and related lack of job security, particularly among longer serving employees who both had greater financial commitments but also felt the impact of change much more keenly. Restructuring was a problem for both those leaving organisations but also those staying as working teams and relationships were reconfigured.Therefore, it could be argued that continuing pressures on costs and spending in the public sector and intense competition in the private sector create an environment in which such conflict is inevitable.
2. The dynamics of individual employment disputes
A key aim of the Strathclyde seminar was to trace the dynamics and trajectories of individual employment disputes. As discussed above,key triggers for individual conflict seem to increasingly be attempts to manage performance, re-organise work and impose norms of conduct and performance. Crucially, as Rachel McCloy (Reading University) explained in her presentation, norms play a key role in shaping workplace behaviours – however, it could also be argued that such norms are changing or are becoming increasingly contested as employers seek to find increased efficiencies. Thus, workers may find their performance closely scrutinised for the first time or subject to new tightly defined rules over absenceor conduct. Furthermore, a number of delegates also described how, within their organisation, attempts to manage performance or discipline staff could lead to ‘retaliatory’ complaints from staff through grievance procedures.
Whether or not such issues escalate into formal disciplinary issues and grievances would appear to depend on three inter-related factors: the way in which the issue is managed; the reactions of the employee; and the potential role played by third parties. As Charlie Irvine, from Strathclyde University, discussed, conflict can escalate through a ‘vicious circle’ as both manager and managed rely on ‘attributions’ to make sense of the situation they find themselves in. In short, disputants look for internal explanations of the other’s behaviour (i.e. their poor personality traits), while rationalising their own behaviour in terms of objective, external factors. In this way each individual sees the other as acting in an unreasonable manner. According to Andrea Broughton, such ‘attribution bias’ is particularly relevant to the management of performance and change. Employees may see a manager’s approach as confrontational and bullying while the manager may see the employee’s reaction as unreasonable and obstructive. In this way, what Rachel McCloy referred to as the ‘emotional context’ of disputes needs to be given due weight alongside social, and environmental factors. Furthermore, Charlie Irvine pointed out that, once involved in a dispute, individuals are often ‘cognitively busy’ – in short they are under significant stress and find it difficult to view the situation through an alternative lens.
Crucially, the trajectory of a dispute and the positions taken by the disputants may be aggravated by a number of forces. As suggested above, both parties may be driven by unrealistic expectations or as Rachel McCloy put it, during her presentation, an ‘insensitivity to the probabilities’ of either litigation or the outcomes of formal grievance procedures. As Andrea Broughton pointed out, data from the Survey of Employment Tribunal Applications (SETA) shows that 70 per cent of claimants and 60 per cent of employers involved in tribunal claims believe that they are likely to be successful. Unrealistic expectations of outcomes may also be exacerbated by external advice of (often well-meaning) family and friends and, in some cases, legal and employee representatives. Interestingly, practitioners among the delegates argued that the involvement of family and friends in particular in employment disputes could intensify rather than help to resolve disputes.
Moreover, if these expectations are dashed, attitudes can become further entrenched. Andrea Broughton pointed out that evidence suggests that individuals’ perception of justice is a vital issue in the escalation of workplace conflict. In particular, whether they believe that a fair process has been used (procedural justice) is especially powerful and may overcome concern over outcomes. Crucially,Charlie Irvine argued that the nature of policy and procedure was important. He suggested that policies could provide certain frames of reference which encouraged parties to define their concerns in crude terms – as a consequence, the perspectives of disputants could be frozen at an early stage. He cited the example of a bullying and harassment policy which asked complainants to categorise their experiences under a number of headings – while these could accurately reflect what the individual was experiencing, they also led to specific events (often contested) being ascribed an objective reality.
However, it could be suggested that by solely focussing on psychological and behavioural issues, we adopt an individualised focus that places responsibility for conflict on the disputants, underplaying the broader impact of employer and union strategies. Richard Saundry (University of Central Lancashire) pointed to the importance of workplace relations and in particular to the role played by key organisational actors. He argued that employee representatives and HR practitioners, acting as third parties were often able to provide a degree and objectivity that those involved in the dispute found difficult. They were able to step outside the process and potentially ‘unfreeze’ perceptions to bring disputants to a point where resolution was possible.
Saundry argued that where positive and high trust employment relations existed, informal processes took place alongside formal procedure allowing representatives and managers to ‘break out’ out of what could be the inevitable trajectory for formal procedures. Trade union representatives in particular were found to help to manage the expectations of their members, negotiate early resolutions and provide an early warning to the employer of emerging problems. Delegates also saw representation as crucial but felt that this could also be problematic, as disputants may be resistant if representatives suggest attempting to resolve the issue rather than ‘seeking justice’ through organisational procedures. In such cases representatives could be seen as being ‘on the side of management’. Furthermore, where adversarial relations existed, individual disputes could become a venue in which struggles between management and union were played out – often resulting in formal and confrontational approaches with little prospect of resolution.
There was a broad view however, that the development of a ‘representation gap’ in UK workplaces (as Taylor pointed out union density had fallen to below 30 per cent) was contributing to,what Richard Saundry referred to as, a ‘resolution gap’ whereby the absence of employee representatives coupled with the shift of HR practitioners to more ‘strategic’ roles had left line managers with the responsibility for conflict management. This gap was becoming more acute as trade unions were struggling to recruit new shop stewards and representatives as union members feared being branded as ‘troublemakers’. Moreover, Saundry, drawing on the findings of an Acas funded research programme argued that line managers may lack the training and confidence needed to deal with issues at an early stage and found it difficult to maintain communication with staff in the face of over-riding operational pressures. Instead their default position was to resort to the relative safety of rigid procedural adherence. Again this, as we note above, could be a key ingredient in dispute escalation.
This point was also reflected in the discussion by delegates. It was argued that managers have increasing responsibilities yet less time to deal with them, partly due to management de-layering. This tends to lead to neglect of ‘soft’ issues such as communication. The HR function had also been slimmed down and in some organisations outsourced, leading to managers feeling isolated and insecure.
3. Processes of resolution and public policy
A number of pressures towards the formalisation of workplace dispute resolution processes were noted and discussed during the seminar – the perceived threat of litigation; the lack of confidence of line managers; the growing remoteness of the HR function; and the decline of socialised processes associated with employee and union representation. While there was a general view that organisations had made attempts to embrace early resolution and encourage less formal approaches to dispute resolution in the wake of the revisions to the Acas Code of Practice on Disciplinary and Grievance Procedures in 2009, this remained difficult. A crucial issue was trying to balance the desire for less formal processes and the need to ensure fairness, consistency and legal compliance. For example, attempts to streamline procedures to reduce formalisation could also be seen as sidestepping ‘due process’ and providing for more draconian application of organisational rules, noted above in respect of absence and performance.
In achieving this balance, a recurrent theme was the importance of representation. Not only were informal social processes more likely to be found where representatives were present, but they potentiallyensured that a degree of fairness and equity was maintained even outside formal process. Without the protection offered by workplace representation it could be argued that informality simply becomes an exercise in managerial discretion. However, employee representatives and in particular trade unions also have to balance the best interests of their members (which may often be early resolution) with the determination of members to pursue their rights and have their ‘day in court’.
There was a broad view that many organisations and individuals feared departing from written procedures as they were seen to provide a degree of legal protection and legitimacy for decisions. In some cases, trade union representatives saw processes as a way of bringing managers to account and asserting employment rights. However, procedures could also provide a ‘route-map to dismissal’, with little chance of disputants breaking this chain. Even in cases in which employees brought grievances, where these were not upheld it was common for the complainant to leave the organisation.
While there had been some changes to workplace disciplinary and grievance procedures, it was pointed out, during discussion within the seminar, that that the fundamental nature of basic disputes procedures had changed very little since the introduction of the original Acas Code of Practice in 1977 (35 years ago). Fundamentally, procedures were still essentially adjudicative – with decisions in the hands of senior managers. Thus, save for exhortations to resolve issues through informal means at an early stage – which forms the preamble of most processes, conventional procedures embed unilateral decision-making as a way of concluding disputes as opposed to mutually agreed resolution. Furthermore, grievance procedures revolve around whether grievances are upheld – this in turn tends to reinforce adversarial positions. In the same way, disciplinary procedures often involve managers bringing a case against an individual, hence the decision is defined in terms of managerial authority. Nonetheless, some issues (in particularly disciplinary matters) generally required a more formal adjudicative approach – for example there was little room for negotiation and accommodation in some instances of misconduct. Therefore, it was important to understand that the potential for resolution differed markedly depending on the nature of the dispute.
A key question is therefore whether organisations can possibly redesign processes in a more radical way to facilitate joint problem solving. Gill Dix of Acas argued that not only was there a need to embed conflict management, but that organisations perhaps needed to adopt a more ambitious approach to designing policies and procedures by including strategies for dispute resolution.
In discussing possible policy responses, delegates gave significant consideration to the potential of workplace mediation. For Charlie Irvine, one of the key benefits of mediation was in the way it helped participants ‘unfreeze’ attitudes to a dispute,allowing more data to emerge and explore the issues underlying a conflict. Crucially, he argued that mediators can encourage discussion of situational and dispositional factors relevant to each side. He rejected arguments that mediation was a ‘soft option’ for dealing with bullying and harassment as the mediator ‘honours each person’s account of the situation’.
As Gill Dix (Acas) explained, the use of mediation has been stimulated to some extent by the revision of the Acas Code of Practice on Disciplinary and Grievance Procedures. Furthermore, it has become a central strut of government policy, which has suggested that the power of mediation may extend beyond the resolution of specific disputes to the transformation of workplace culture. However, at present,the use of mediation remains mainly limited to larger organisations and the public sector. Delegates suggested that while there was heightened interest in mediation there was less evidence that this was being converted into mediation cases.
Acas funded research highlighted by Saundry has found that the introduction of in-house mediation schemes can have a transformative impact on attitudes to conflict resolution but that this may be limited to specific contexts. There was also a widespread view among delegates that mediation was often seen as a last resort – limiting the chances of a successful and sustainable resolution. While there was strong evidence that users of mediation are generally positive about its use, managers, employees and employee representatives can be sceptical. Line managers viewed mediation as a sign of their own failure to effectively manage a situation, while employees and employee representatives could feel that mediation involved surrendering their ability to enforce their employment rights.