The new Acas code gives mediation a much higher profile. But just how popular is it with employers?
- 80% of firms rely on the training of HR managers as their primary tool for handling workplace conflict.
- More than 90% of organisations see informal discussion as the most effective tool for resolving a dispute; mediation comes in second place at (76%).
- Nearly half of organisations use mediation more often than they did three years ago. About 20% have also started using it in the past three years.
- 83% of organisations believe mediation improves employee relationships; 71% believe it cuts the stress of using formal processes.
- 49% of organisations believe mediation allows them to cut the cost of defending tribunal claims.
- Cost is seen as the biggest single issue inhibiting the greater use of mediation.
- Less than one in 10 organisations include mediation in their employment contracts. However, mediation is written into policies on diversity, harassment or bullying in 46% of organisations.
Source: CIPD Workplace Mediation survey 2008
George Boyce, senior policy adviser, Acas
The code is designed to help individuals deal with disciplinary situations and grievances efficiently, fairly and – most importantly of all – in the workplace rather than at a tribunal. We feel the new code will help achieve early resolution of disputes and prove both simple to understand and easy to use. The guidance contained in the code is based on Acas’s long experience of dealing with individual disputes at work and is centred on the time-honoured principles of natural justice such as: letting people know about the problem; giving them a chance to have their say; and providing a right of appeal.
Marian Bloodworth, counsel, Lovells
While the new regime promises a relaxation of the current rigid procedural requirements, it is not yet clear how tribunals will approach the new code when hearing employment claims. The code is more principles-based, which may well allow employers greater flexibility. Yet this greater flexibility may also prove a double-edged sword as the lack of specific detail – and, therefore, the scope for tribunal interpretation of what is unreasonable – may lead to employers being found in breach. Suggestions that employees should be allowed to cross-examine witnesses at disciplinary hearings may also cause concern to employers that do not currently allow this.
Huw Cooke, associate, Burges Salmon
Employers must ensure that managers are fully trained and that existing policies are reviewed in light of the code. Employers who fail to reasonably comply will find that any award to an employee can be increased or decreased by up to 25% by the employment tribunal. In addition, it is not clear whether the code applies to certain types of dismissals, such as ill-health dismissals. While it is only the code and not its comprehensive guidance, notes that should be taken into account by employment tribunals, it is likely that they will also treat the guidance as a baseline requirement.
Fiona Colquhoun, director, Centre for Effective Dispute Resolution
In some respects the code is good because it takes people back to using guidelines and encourages mediation. But, in effect, it hasn’t really changed anything at all. It possibly may make organisations with a grievance-orientated culture more aware of mediation. But having said that there have always been grievances and a lot of these have been resolved by conciliation anyway. So 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. Obviously, the effects of this cultural change aren’t going to be felt immediately.
Q Just how much difference will the Advisory, Conciliation and Arbitration Service (Acas) code make to the way a grievance is handled? And will it reduce the number of claims going to tribunal?
Nigel Youngman, director, HR consultancy Marshall James
No. The damage has already been done. It’s going to be beneficial in a minority of cases where employers feel obliged to go through the grievance process to tick all the boxes, but in the majority of cases – because most medium and large employers have embedded the statutory dispute procedures into their company policies – it is going to be very hard to undo the old regulations. In fact, it will be just about impossible for a large employer.”
Amanda Bucklow, independent commercial mediator, In Place of Strife Chambers
In one sense the code is good because it’s basically saying: don’t throw the baby out with the bath-water – all the hard work you put in to build the dispute resolution and grievance procedures into your company policies wasn’t wasted. But I don’t think it is really the answer. It is not the code that is going to affect the level of grievance, but organisations and the way they operate.”
Q Will it reduce the number of grievances reaching tribunal?
Youngman I don’t see it making any difference as employees and trade unions are much more savvy than they used to be. Employees know that if they follow the procedures their case is going to be protected. Employers know that any kind of procedural irregularity is still potentially damaging.
Bucklow The new regulations are driven by a need to reduce the costs of disputes and tribunals. It is to make people think twice about raising a grievance and going to tribunal. At heart it is a financial thing. But I don’t see that it’s going to make any difference at all because people will continue to see the procedure and want to use it.
Q How important will the increased focus on mediation be?
Youngman Mediation is very useful in a situation where you have got somebody who is still your employee. But I am sceptical about whether pre-claim conciliation is going to work. It gets described as mediation and is going to be included in the new process as a role for Acas, yet by the time things get to Acas the situation is often beyond redemption.
Bucklow It will make a huge difference. Part of the current problem is that the handling of a grievance immediately creates a distance between the parties that is not always helpful for solving the dispute. Worse than that, it almost certainly means the claimant will go sick because they don’t want to be in the same working environment as the person they have an issue with. Dealing with grievances earlier through mediation will make things easier for all concerned.
Q How important will the role of Acas be?
Youngman By the time Acas gets involved it is really too late. You are normally into damage limitation. So I don’t know if the new Acas role is going to work or how much money they are genuinely going to pump into it. A figure of £6m has been mentioned, but how much of that is actually going to be new money? Despite this, I think the enhanced role of Acas will increase the flow of free information, which will be a benefit – particularly for small and medium employers.
Bucklow The Acas code infers that if the spirit of the code is followed then that is a reasonable definition of fairness. But people with grievances have different opinions of what fairness is according to their needs. The whole concept of ‘fair’ is a pretty subjective thing. Dealing with this in-house is more about line manager training and communication as the Acas code only really kicks in when people feel they have exhausted mediation and need to do something officially – when they want their day in court.
Q What is the most positive aspect of the new code?
Youngman When people approach HR they should now see it as a great opportunity for mediation. In cases where it is suitable, then mediation always moves the situation on, so you either get a complete resolution, part resolution or just manage the disagreement better and short-circuit the system by about six months.
Bucklow I think the document is good for what it is: it is very clear and is really saying that organisations have got to take responsibility for having a fair and transparent method of dealing with grievances. I don’t think anyone can disagree with that, as the way grievances are dealt with is at the bottom of a huge proportion of workplace disputes.
Q What should employers do to get the most out of the new code?
Youngman I wouldn’t advise employers to unpick their disciplinary and grievance procedures because for a lot of larger employers the 2004 regulations didn’t make much difference in the first place. Employers like the NHS, Civil Service or local government already complied with the three-step process anyway. I don’t think it is going to be a wholesale change. And I think it will be difficult for employers to reduce the strength of their existing policies and procedures. A lot of employers are just going to leave things as they are.
Bucklow Very often, when you get down to the bones of what a grievance is about, it’s not actually what the people say the grievance is about. That’s because there is a company procedure and people look at the website and if they have a problem they raise it in such a way that it matches the policy. They become like lawyers: the whole case is built around what they can get the company on – not the actual issues. In reality it requires communication and people with huge curiosity, persistence and optimism, to ensure that the process is fair and true. That’s why the Acas code is great for what it is, but it is only part of the landscape.
The new regulations give Acas the lead role in resolving workplace issues. But just how effective is the organisation at resolving workplace disputes?
- From 1 April 2007 to 31 March 2008, Acas dealt with 227,782 cases, when primary, secondary and other complaints are all included. Of these, 25.7% were for equal pay, 19% for unfair dismissal and 12.6% for working time.
- When just the main complaints are considered, unfair dismissal is by far the most common workplace issue dealt with by Acas, with 33,352 of the 51,935 primary cases involving that main issue.
- In 2007-08 Acas settled 43.3% of unfair dismissal cases through conciliation. A further 34.8% were withdrawn, while 21.9% reached an employment tribunal.
- Over the same period, Acas conciliation helped save 75% of potential tribunal hearing days and resolved more than 51,000 local authority equal pay claims.
- 81% of workplaces recorded improved employment relations following Acas intervention
- The Acas mediation service was successful 82% of the time.
Source: Acas Annual Report 2007-2008