We have a couple of staff members in one of our teams, who for one reason or another do not get on and cause tension for the whole team. We have attempted to hold mediation meeting for them to resolve their differences, however whilst one of them is very open to the process, the other refuses to attend any such meeting, stating that it can only make matters worse.

What action can we take now - should we discipline the employee for refusal to co-operate?

Claire

Claire,

Not an uncommon problem, and sounds like you are doing the responsible thing.

Yes, of course, you could take disciplinary action for ‘failure to comply with reasonable request by management’, but I would not go down the disciplinary path as yet and not for this reason anyway.

Hopefully, you have everything in writing in terms of the invite to mediation or at very least notes of meetings where have discussed it. Will come in very useful for any future action against you, such as formal grievance or grievance before going to tribunal.

I would meet with them both, either together or separately. Maybe together, if that works, as they both get them same message at the same time.

Cover the background and acknowledge there are problems between them, but not going to discuss those now, but as an employer you want to resolve them in a constructive way, and mediation is that process. Inform them that this is the last chance to resolve it informal and by mutual co-operation.

Then discuss what happens if they don’t go and the problems continue. Tell them that as an employee they have a duty to behave to acceptable standards (outline what they are for your firm), and that if this behaviour continues then you will treat the matter as a conduct issue, and one or both of them may find themselves in a disciplinary.

See if they agree to it then. If not prepared to give you an answer then, give them a deadline to comeback to you. Then confirm the offer of mediation again in a letter, and then the potential consequences should they decline the offer and the poor conduct continues, and the deadline for them to comeback to you by.

There was a case, but for the life of me cant remember the name ( last 2 yrs think) where an employee had a personality clash with another. Employer tried to resolve and couldn’t and the bad behaviour continued. In the end, the employer dismissed the main instigator. They made an application to a tribunal for UD, and lost.

Tribunal held that certain minimum standards have to be maintained at work – yes people do have personality clashes, but these need to be overcome to provide a workable working relationship.

Hope this helps.

Adrian

As a qualified mediator I think Adrian's advice is very comprehensive.  An essential ingredient for successful mediation is that the parties enter into it willingly.  It may be worth Claire stressing to the reluctant party the impartial nature of mediation and that information disclosed during the course of mediation and any agreement reached between the parties is not shared with anyone else.  In my experience this message is often best delivered by the mediator themselves and usually caries more weight is the mediator is external to the organisation.

I think the case Adrian may be refering to is Perkin -v- St George's Healthcare Trust where Mr Perkin's disruptive behaviour was considered to fall short of misconduct but was nevertheless regarded sufficient to breach the trust and confidence between employer and employee.  Dismissal was for SOSR.

Regards.

Colin

The advice given is all excellent and Colin's comments mirror my experience as a workplace mediator that often the reluctance to take part in mediation is the fact that the mediators are 'in-house' and there is genuine concern regarding the confidentiality / impartiality of the mediators. 

Clients often think, whether right or wrong, that in-house mediators will take the 'side' of the manager or the employer and will find it difficult to challenge the conflict that is taking place.  If one party is being bullied by the other or there is a power imbalance they may not be able to see how someone employed in the same company can be impartial etc.  Just because someone says no does not mean they do not want to find a solution and will always say no!

regards,

Peggy