At last month’s Acas annual conference, the employment minister Justin Madders was told by one delegate – Pete Colby, founder and director of Pragmatism – that the government’s plan to recruit more employment judges was misconceived.
Colby said a radical departure from the adversarial approach of employers, employees, management and unions was needed if UK firms were to improve productivity and stop wasting time and money on avoidable disputes.
Here, Adam McCulloch asks Colby where the government, employers and unions may be going wrong.
Will the Employment Rights Bill lead to more tribunal cases? If so, what needs to change to avoid this?
The Bill will give significantly increased protection for employees, and in my view rightly so – I see too many decisions based on what employers are allowed to do in the first two years of service, rather than what is the fair and reasonable thing to do.
The change required is to enable organisations to deal more effectively with people issues. The vast majority of tribunals could be avoided. The change needed is to support organisations to nip issues in the bud much earlier, and to ultimately prevent formal conflicts in the first place.
Every organisation’s grievance procedure will have a first stage which says every effort will be made to resolve the issue informally – but most don’t have the skills, tools, techniques and (critically) the confidence to have the right conversations.
It’s all about leadership. We don’t develop leaders to gain the confidence to have these conversations, and we scare the living daylights out of them because of the risk of litigation. There’s no wonder they throw their issues over the fence to HR! Developing HR’s capability in this area is also key – there are far too many formal grievances which should have been resolved informally early.
Life really is too short for unnecessary tribunals”
How is the drive to recruit more judges misguided?
I would say it’s equivalent to a manufacturing company with a significant waste problem seeing the solution as buying more waste bins – it doesn’t solve the problem, eventually you’ll run out of space, and money will just be flooding down the drain.
The answer is to deal with the root cause of the waste and stop the flow. The only difference for me in this analogy is that high wastage only results in a small amount of stress – tribunals have a huge impact on people.
Wellbeing and mental health is a massive factor, which just doesn’t seem to be on the radar of the government’s plans. They have an opportunity here to massively reduce costs, make huge productivity gains and (most importantly) improve the wellbeing of so many people. Life really is too short for unnecessary tribunals.
Employment Rights Bill latest
Peers propose change to work experience rules
If more judges isn’t the answer, what would be a better strategy?
In my view, the government needs to utilise taxpayers’ money in much better ways. In the short to medium term, the answer is mediation.
There are many highly talented workplace/employment specialist mediators out there who have incredible resolution rates, and the cases they deal with include difficult ones that are already registered for tribunal and for which nobody can see a resolution.
Within my business at Pragmatism we run at over 97% resolution, but even if you took a rate of say 85% (which is a poor resolution rate for any mediator worth their salt) that would mean the current backlog of 49,800 cases would reduce to 7,470.
Even more significantly, if you took the number of people who are trapped in the stress of a tribunal as a low estimate of four per case, that would be around 170,000 people who will have stress lifted from their shoulders, they can quickly move on with their lives and focus on what’s important.
The longer-term answer (which needs starting as soon as possible) is to support organisations to develop the skills required to resolve issues informally, and ultimately prevent them going into formal processes in the first place.
Doesn’t the tribunal system already have mediation with judicial mediation?
They have a process with mediation in the title, i.e. judicial mediation. Although judicial mediation does have a level of avoiding the full tribunal going ahead, it’s more about talking to both sides about the strength of their case.
One of the key attributes of a brilliant mediator is to be non-judgmental, and there’s a clue in the word “judge” as to what their role is. Having said that, I do feel judicial mediation is a good thing – my only preference is that they call it judicial conciliation, so there are two levels of conciliation if things get that far.
By implementing proper, professional workplace/employment mediation into the process, there will be relatively few cases requiring judicial conciliation/mediation in the first place, and by utilising mediation prior to Acas conciliation, it would remove the burden on that process.
To what extent are those engaged in disputes motivated by the possibility of compensation?
It varies. When we mediate disputes that are heading for tribunal, employees vary in their expectations. Some believe they’re going to win £250,000 because they’ve claimed discrimination and read about a case in the press. Others simply want justice – for their employer to be proven wrong. Money isn’t the motivator for many.
There are employees who play the system and are just looking for a payout, but they are rare in my experience. I find the saddest cost in litigation to not be the financial one, it’s very much the toll it takes on the people and their families. Stress consumes people – usually for at least a couple of years, before they get to tribunal. It’s very sad.
When parties are in long-standing disputes, they have entrenched positions and they can’t be seen to lose – so they fight until somebody loses”
The UK has wider economic inequality than many developed countries; are industrial disputes the result of this sense that people at the top of companies are claiming a disproportionate wage relative to employees?
The continuously escalating costs of living are obviously impacting those with the least disposable income, and it doesn’t help when people who are struggling to feed their families see fat cat payouts.
I feel that we don’t have the transparency that many other countries do in terms of genuine information sharing and consultation with employees and their representatives, and this contributes to the frustration of people who are struggling.
How would you tackle a deeply embedded dispute such as the Birmingham bin strike?
I wouldn’t see this as any different to any other dispute – the decision-makers need help to “disagree well”, actively listen (not necessarily agree) and work together to brainstorm all the possible solutions. It’s what mediation is all about.
When parties are in long-standing disputes, they have entrenched positions and they can’t be seen to lose – so they fight until somebody loses. If they lose, they usually want revenge. Something else will crop up in future. If those involved genuinely want to resolve the situation, then they will be able to do so – and when they do, they then need to look at the lack of trust and relationships they have – there are always key foundational relationship issues when these situations occur.
We don’t give managers the skills and confidence to have the right conversations and nip issues in the bud”
Does the UK working culture favour conflict rather than resolution?
My personal view is the UK working culture generally only knows about conflict, and while resolution sounds good, it’s a bit of an idealistic dream for many. We don’t teach HR professionals about resolution – instead they’re taught to revert to grievance and disciplinary procedures.
In my eyes any grievance is a failure – and 99.9% of the time, it’s a failure of the organisation to resolve things informally. We don’t give managers the skills and confidence to have the right conversations and nip issues in the bud.
When somebody signs a contract saying “manager”, the magic fairy doesn’t suddenly appear to sprinkle leadership dust over them! We appoint many managers based on high technical competence, and leadership capability isn’t seen as key for these leadership roles. We scare the living daylights out of managers (and HR) so they don’t have the right conversations – what if I get it wrong? How can I as a man talk to a woman about menopause? If I talk to that person with different coloured skin will I be accused of something? How do I talk about mental health?
Managers are, in my view, dealt a really poor deal – we expect everything from them, but rarely do we develop them. Performance improvement plans are a classic – they should be all about resolution, but they just drive conflict. Why? Because they’re often used as documentation, so a perceived path of fairness can be demonstrated if/when that employee is dismissed. Employees and unions are not daft! The best performance improvement plans are the genuine conversations that happen between managers and employees who have earned the trust of one another.
Are union leaders “rewarded” for being uncompromising?
Union leaders vary enormously, and I have to say in my almost 40-year career, some of the best and most rewarding people to work with have worked for trade unions. That has been because we have built solid and trusting working relationships.
I’ve been there on many occasions where negotiations or consultations are really stuck and there’s no resolution in sight – there’s nothing more powerful than standing shoulder-to-shoulder with a trade union leader and telling the workforce “we don’t agree, but we’re going to keep working together until we find a solution”. When you have that relationship, you will always find a solution.
Having said that, I do think some poor behaviours by unions are rewarded. It’s all about trust and relationships and unions have just as much of a requirement to be professional, courteous and respectful. The main two issues I see in organisations when it comes to unions is not understanding/fearing them and, really importantly, not understanding the true meaning of consultation.
“Consultation is for life, not just for redundancies” is something I often say – if organisations had a genuinely consultative approach, there would be far fewer issues in workplaces. It’s amazing how much more accepting people are of decisions when they’ve been genuinely listened to – and it’s incredible what better decisions organisations do make when they genuinely listen.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Latest HR job opportunities on Personnel Today
Browse more human resources jobs
