Do disciplinary and grievance procedures help bridge the ‘Resolution Gap’?

In 2013, Richard Saundry coined the phrase ‘resolution gap’ when arguing the need for informal conflict resolution as an intervention to mitigate the rise in Employment Tribunals. Following Ury et al.’s (1998) argument that conflict is best resolved locally, informal resolution interventions such mediation or facilitated discussions should always be an organisation’s primary approach to conflict.

However, what happens when informal resolution fails? To me, there are two stages of Saundry’s ‘Resolution Gap’ – the informal resolution stage and the formal resolution through the disciplinary and grievance procedure. When informal resolution fails, individuals and organisations have recourse to utilise the disciplinary or grievance procedures.

Currently academics take a mixed view on how formal resolution impacts on the levels of workplace conflict: Williams (2020) argues that disciplinary and grievances help “contain and accommodate” (p321) workplace conflict, to the extent that managers rely on them as a default option when they are unable to resolve the issue informally (Saundry 2020). Nurse and Devonish (2007) argue that such procedures ‘institutionalises’ the conflict. Containment and institutionalising the conflict does not necessarily lead to the conflict being resolved. 

I agree with Saundry and Dix’s (2014) research that invoking such procedures is an escalation of conflict. Not that this should be perceived negatively. Sometimes an issue can only be resolved if it is escalated. However, mismanagement of the procedure has been known to lead to further escalation in the conflict (Bennett et al., 2020, Cappelli and Chuvin, 1991).   

Currently I do not feel that there has been sufficient attention to what needs to happen to ensure that conflict is appropriately managed during formal procedures. What we do know is that conflict escalates when employees feel dissatisfied in how their issue has been managed (Abbot, 2007). We also know that on occasion, parties become entrenched in their positions and as such find it difficult to reach an mutually agreeable resolution (Gibbons, 2007).

Certainly, the formality of disciplinary and grievances has an impact – not just on the employee. Ainsworth (2017:80) describes the process as “a kind of contest”, where individuals are “striving to prevail” which suggests an underlying sense of competition. The enactment of procedures has also been found to impact on relationships between HR professionals and operational managers (Fisher et al.’, 2017), arising from mis-managed expectations (Gennard and Judge, 2005).

Amanda Oates of Mersey Care NHS Foundation Trust describes the situation quite nicely:“it is ironic that the very people processes that are designed to keep staff safe and legally protected are often the vehicle with which we do the most harm to our own people” (2022: 146). 

From a research perspective it suggests that further work is required to be able to say that formal procedures can offer effective conflict resolution. From a practitioner perspective, this is a real need. My team and I hear first hand accounts from individuals who are embroiled in conflict, talking about the impact that it has had on them professional and personally. There is a need to understand how organisations can manage this better - or does there a need for a fundamental policy shift? I don’t have the answer, but I do know that there is no silver bullet.

References

Abbot, B. (2007) ‘Workplace and employment characteristics of the Citizens Advice Bureau client’. Employee Relations. Vol 29 (3) pp. 262-79.

Ainsworth, J. (2017) ‘Procedural Justice and the Discursive Construction of Narratives at Trial’,  Languages Cultures Mediation. Vol 4.

Cappelli, P., Chauvin, K. (1991) ‘A test of an efficiency model of grievance activity’, Industrial and Labor Relations Review, Vol. 45, pp. 3–14.

Fisher, V., Kinsey, S., Saundry, R. (2017) ‘The myth of devolution? The role of HR practitioners in the management of workplace conflict’. Paper presented at the CIPD Applied Research Conference, University of Strathclyde, Glasgow.

Gennard, J., Judge, G. (2005) “Employee Relations”, London, England: CIPD, 4th edition.

Gibbons, M. (2007) “A review of employment dispute resolution in Great Britain”. London: DTI.

Nurse, L. Devonish, D. (2007), ‘Grievance management and its links to workplace justice’. Employee Relations, Vol. 29(1), pp.89-109.

Saundry, R. (2013) Plugging the Resolution Gap? ESRC Seminar: Reframing Resolution. Glasgow: University of Strathclyde.

Saundry, R. (2020) The Impact of Covid-19 on Employment Relations in the NHS. Available at: www.socialpartnershipforum.org/sites/default/files/2021-09/NHS-Covid-ER-Report.pdf

Saundry, R., Dix, G. (2014) ‘Conflict resolution in the UK’.  In Roche, W., Teague, P., Colvin, A. (Eds.), “The Oxford Handbook on Conflict Management”. Oxford: Oxford University Press

Ury, W.L., Brett, J.M., Goldberg, S.B. (1988) “Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict”. San Francisco, CA: Jossey-Bass.

Williams, S. (2020) “Introducing employment relations: a critical approach”. Oxford: Oxford University Press. 5^th edition.

The issue of less favourable treatment?

I heard a story today about an ET case that took an interesting turn.

The case related to discrimination.  The employee (we’ll call him Jim) had been bullied and discriminated against for many years by a  manager (we’ll call her Flora).    I once employed a HR Manager who had been bullied by Flora  and I spent the best part of two years trying to pick up the pieces.  So I was aware of her reputation, but I had never met her.

What frustated me is that “everybody” knew that Flora was a bully, but the senior leadership team at that Trust seemed to be blind to her behaviour.  Flora helped a lot of under-performers “move-on”, and perhaps this is the reason why?

Jim decided to tackle this issue head-on by submitting an ET1 claiming discrimination.  Not only did Jim need to demonstrate to the Tribunal that he had been discriminated against, but that he had been subject to less favourable treatment as a result.  

The case was listed for a hearing, and witnesses were called.   Flora’s line-manager took the stand, and said: 

Yes, Jim had been discriminated against….but Flora behaved like this with everybody. 

In other words, the Trust admitted to the Tribunal that Flora was a known bully, and that she bullied a lot of people. The Trust won their case, as Jim could not prove that he had been subjected to less favourable treatment.   Everyone had been treated badly by Flora.  

Whilst this was an interesting legal move for the Trust, what benefits did it bring?   And now that Flora is a known bully, what actions are the Trust going to take?

I don’t know Jim, but I can imagine that taking the Trust to a Tribunal was a very difficult decision to make, and I applaud him for it.  I’m just sorry that some clever lawyers found a way to defend the Trust which, in the end, does not benefit anybody.

What are your chances of being disciplined?

These days there is a whole host of information that we can access about the NHS workforce. This comes from a variety of routes including the Trust’s staff survey results and data published in response to the equality legislative requirements.

A few weeks ago, I discovered that if you look carefully at the figures of the top Teaching Hospitals in London, you’ll see that you’re more likely to be disciplined if you are a BME member of staff, working in a lower-paid job.

But why should this be the case? And why is it happening in more than one NHS Trust?  So far, I’ve only focussed on the larger Inner-London Hospitals, and I wonder if this is a nation-wide issue?

And what are the links to Bullying?   In a number of these Trusts, more BME staff are likely to report that they are being bullied.  There’s no way of determining if these are the same staff that have been subject to disciplinary procedures…..but there question is still there to be answered.

Over the next few months I’ll be looking into why this is the case, and what Trusts can do about it.   In the meantime, I would be grateful for any comments or suggestions on this topic.

The Impact of the Equality Act in the NHS

 We all know that the Equality Act 2010 received Royal Asset on 8 April 2010 (blah, blah) and that it replaced 9 major pieces of existing discrimination legislation (plus 100 other instruments) with one single Act and also introduced new law.  But what does it specially mean for NHS Trusts?

1. We need to start using new language:  “protected characteristics” is the new phrase to represent the different diversity strands:   age, disability, gender reassignment, marital and civil partnership  status, pregnancy and maternity, race, colour, nationality, ethnic origin, religion or belief, sex and sexual orientation.                                  
2. The Act harmonises the definitions associated with equality (ie: direct discrimination, indirect discrimination, harassment & victimisation).  Although it isn’t advisable, some HR departments include the different definitions in their policies.  Therefore, if you are one of these Trusts, you should review your policies – ideally taking out the section that provides the definitions, but otherwise updating them as appropriate.
3. From next April, there’s a requirement to publish data relating to gender pay.  Whilst it may seem that Agenda for Change has already embedded equality into the system, it is worth taking a look at the average pay between men and women per pay banding.  You might get some interesting results!
4. One of the most challenging areas will be to determine how best to implement the use of positive action in recruitment.  I think that this subject is so broad (and new) that a separate blog post should be dedicated to this.  But for now….spend time thinking about it and built it into your “Inclusion” action plan.
5. In terms of Tribunals, there are two new points to consider.  The first is the new freedoms for Judges to make recommendations that will (apparently) benefit the wider workforce, not just the claimant, where the Tribunal makes a finding of unlawful discrimination.  Let’s hope that Judges are up to date on current thinking in relation to health-care management and clinical practice.  I envisage this area will be a minefield.
6. And secondly,  The introduction of dual discrimination:  outlawing discrimination on the basis of two (and no more) protected characteristics (eg an asian woman can claim race and gender); This will make ET cases more interesting.

All Trusts need to keep a look out for the CEHR‘s new Employment Code of Practice and take action as appropriate (and again, another blog post will be coming once that’s published).

And on a serious note, the spirit of the new legislation is to ensure that organisations, such as the NHS, demonstrate they have a real commitment to equal opportunities not just by having in place a policy but also by demonstrating that the policy is actively implemented, monitored and reviewed, and that responsive action is taken;  How many Trusts can say they have “real commitment”? And that’s where the real challenge lies.

ETs are good for your HR Health

Last month I was working with a group of HR Managers.  In the middle of a workshop I made an observation about how they approach a particular element of their work: I have worked with a wide range of NHS organisations over the last decade and it was the first time that I had seen this practice.

Their response was interesting: they worked through all the risks associated with their current practice in comparision to that in other organisations, making reference to relevant legislation where appropriate. In the end they decided that although what they do is different to other Trusts, they saw no reason or benefit for changing their practice.  And I agreed with them.

But what impressed me most about this discussion was their approach:  their knowledge of legislation is current and embedded into their every day practice.  This group of managers regularly get involved in ETs and I began to wonder if this had an impact on their approach?

To give another example: sometime last year, I worked with a Trust which was very proud of the fact that they had not a single employee submit an ET claim for 10 years.  But when I worked with the HR Managers, I discovered that they had limited understanding of best practice, current legislation or national guidance.   These managers had not had their practice challenged in court and so they and their organisation had allowed the quality of their work to slip.

The comparisons are easy to make, but in an ideal world we (as HR professionals) shouldn’t have to go invest a disproportionate amount of time working on ETs to make us good practitioners.  There are ways to ensure that we are maintaining our understanding, embedding it in our every day conversations without having to defend our manager’s actions in court. The Trust with poor HR practice also demonstrated a lack of challenge and accountability with the HR Team, which no doubt contributed to their limited knowledge and understanding of their profession.

I’m not saying that regularly fighting ETs is the only way to stay sharp, but it certain helps.

Does Your Relationship With The TUs Represent Good Staff Engagement?

The local TU representative (staff side representative) carries the enormous responsibility of being an advocate of the local members of his department or professional group.  In an ideal scenario, your staff side rep should be able to reliably inform the Trust on what the local members think of proposals and service developments.   It is not uncommon to “test the temperature” around a new idea by running it past (informally) the local staff side rep first.

In organisations (and I mainly refer to NHS Trusts) where there is a sense of trust between management and staff side, this relationship can be dynamic, collaborative and very constructive.  Where there is little trust, the organisation can find itself with a dysfunctional and disruptive workforce.  I have been struck this week by how important staff side relationships are.

Let’s take Job Evaluation:  The NHS has a national, bespoke system called Agenda for Change.  Implemented in 2005, thousands of managers, HR staff and staff side reps were trained in this system.  It’s not a perfect system, but it has helped to reduce the potential of pay inequity and attempts to bring transparency to a creative art form.

Although there is national guidance, I find that with each Trust I work with there is local interpretation: this ranges from how each factor is scored to how the process is carried out.    For example:

• The Trusts where there is poor staff side relationship, the process is long and drawn-out. 
• In other Trusts, management have worked with staff side to streamline the process. 

In one Trust, the time it takes to evaluate a set of 10 posts is 8 times longer than another one!  This has an obvious impact on productivity and carries a significant cost to the organisation.

The key to driving efficiences lies with the local staff side.  There needs to be an element of trust between all parties with any radical changes to an established system. 

The Trust that has significantly stream-lined its process has high staff engagement.  The staff trust the process and their local representatives to ensure that the right outcome is reached.

On the other hand, the Trust who has a long, labourious process has poor staff engagement.  The local staff side are fighting to protect the status quo as they fear that the staff may be disadvantaged if any efficiences are built into the system.

Job evaluaton may seem a dry topic to reflect upon in relation to staff engagement, but the underlying outcome is money.  And money matters to staff.  If staff are engaged  they will allow their local staff side reps to work collaboratively with managers.  This can only result in a win-win for everybody.

I’ve written about Staff Engagement before, and my views haven’t changed.  It’s important to recognise that staff engagement permeates through-out all elements of the organisation, and it all starts with the Trade Unions.

Making Work Experience A Positive Experience

My Dad recently reminded me of when I did two week’s work experience in an HR Department.  It was a dreadful experience and after two weeks I had resolutely decided “I am NEVER going to have an office job”.  The problem was that my two weeks with an International IT company were not planned.  I was left for hours doing nothing, and so I learnt little.*   I now find it quite ironic that I work in HR.  It is not as a result of the experience I had as a teenager.

Considerable time has passed since, and there is a wealth of literature about how to make Work Experience a meaningful experience and the business reasons for doing so.  It is particularly important in the NHS, with its ageing workforce, that we capture the idealism of the younger generations so that they will actively want to work within healthcare once they leave education. 

However, I still see poor practice:   for example, I recently saw a 15 year old, sitting on a chair in the corner of the office (as there are no spare desks), sending out mail shots.  He had been stuffing envelopes for two whole days.  He obviously wasn’t happy, but he didn’t complain.   Although confident amongst their peers, most 15 year olds can be intimidated by the adults that surround them.  How many Work Experience students will speak up and demand a better “experience” during their two weeks with your organisation? 

We owe it to the younger generations to provide them with a structured programme, where there are defined learning outcomes.  Work Experience is just as much for the student as it is for the organisation.   This approach can’t be created overnight; it will require investment of time and energy (and possibly cost implications too).   As local employers, we need to get it right, otherwise it will affect our recruitment in years to come.

Work Experience isn’t an excuse for “slave labour” for two weeks.   Work Experience is about giving school leavers a positive “experience” of your organisation. 

*Being the kind of person I am, I didn’t waste my time:  I got to meet Martin Coogan who at the time worked at the company:  For those who aren’t into Manchester Indie Music of the late 80s / early 90s –  Martin (who is also the brother of Steve Coogan, comedian) was the Lead Singer of The Mock Turtles of “Can You Dig It?” fame.  At the time I was more into music than being in an office, and I managed to land a day “hanging-out” with The Mock Turtles in their recording studios in Stockport.  Cool hey?

Moving difficult staff isn’t the answer

This weekend, I had lunch with a good friend.  Duncan is the Head of a Learning & Development department for a business in the City, and his team sit within the HR Department.  We don’t normally talk shop, but Duncan’s currently managing a “difficult employee”, and is receiving absolutely no help from his HR colleagues.

I’ve come across such difficult individuals before: One member of staff that I had the luxury of managing, many moons ago, had the misfortune of loosing a close relative every six months.  In between she would also experienced a range of terrible personal tragedies.  And when she ran out of ideas, she put in a grievance.    I was lucky enough to have a solid line-manager who decided to look into her situation more carefully: the death certificates did not seem to exist and the counter-fraud team were unable to unearth any police incident numbers. Finally my boss “called her bluff”.   At that point, the employee gracefully handed in her notice.

Duncan described to his “difficult employee’s” antics to me, and she is demonstating similar behaviour.   Her negative behaviour is becoming destructive for both Duncan and the other members of his team.   But their HR department are not prepared to support Duncan in taking a tough line with this member of staff.  With a significant sickness absence record (not really a surprise), the “difficult employee” has little chance of being successful in finding another job.   However, light is at the end of the tunnel:  she has just applied for a transfer to another part of the organisation.  The Head of HR is endorsing the application and so it is likely that soon she will move from Duncan’s team, only to be a burden for another part of the organisation.

Duncan is incensed by what is happening:  with an HR team who are advising a “hands-off” management approach,  he feels paralysed by the situation.  He is also angry that the HR team aren’t demonstrating best practice by actively support him in managing this difficult member of staff.  For me, I feel that the HR team in this organisation is letting  our profession down.  And whilst City institutions continue to handsomely reward their Executives (which I have no issue with, but then I don’t always agree with the Daily News) they are also continuing to waste money and resources by not appropriately managing their staff.  Surely it is cheaper to dismiss this individual and then fight any claims via an Employment Tribunal than to retain them and their difficult behaviour in employment indefinitely?

I have been lucky in my career to have worked with strong and professional HR and Occupational Health practitioners who have supported me when I’ve been working on cases concerning difficult employees.  It’s our responsibility as HR practitioners to consider all the options, the risks and benefits of each, as well as the cost implications when we work with line-managers who are trying to manage “difficult employees”.  And let’s face it, moving staff is the easy solution.   The one thing that I truly believe is that in such situations moving the difficult employee isn’t the answer.  Whilst it might seem to solve today’s problem, it does not help anybody (the manager, the employee, the team or the organisation)  in the long-term.   So why do it?

Can you teach a manager to delegate?

 

@thehrstore recently tweeted the following question:

So what can done to make it easier for managers who find it tough to delegate? Any suggestions?

This is an interesting question.  My observation is that some people find delegation easy and for others it’s impossible.  And there’s a whole group of people in between who, with the appropriate support and advice, can become great delegators.

The first part of my answer would be to look at the recruitment process.  How are delegation skills tested in the assessment process?  The kind of qualities you are looking for are:

1. The ability to see the bigger picture
2. Good time management skills
3. Focusses on outcomes as opposed to method
4. Adopts a supportive and developmental approach to others.

When recruiting for a 1st level manager with no prior experience, you won’t be able to fully assess their ability to delegate.  Instead you’ll be looking for their potential.  In essence, you want to avoid recruiting the manager who believes “It’s Quicker If I Do Everything Myself”.   Unfortunately, some managers are appointed despite having this approach, as their techical expertise is valued more than their ability to manage.

The second part of my answer deals with the development of a manager once they are in post.   Any areas of development highlighted during the interview process should be factored into the new manager’s development programme.  And with regular supervision, 1:1 support, and informal intellegence, any other issues that arise within the first six months – particularly around  their management style and ability to delegate should be picked up.  

I always advocate a bespoke approach to a manager’s development.  You need to consider what their key learning needs are and their preferred learning style before investing in any training and development activity.  Motivation, level of committment and amount of time the manager has to invest in their development should also be considered.  One of the most effective and cost effective methods of developing a skill like delegation is through coaching.  I’m also a big advocate of thinking creatively about development  http://bit.ly/bvKoKa.

So, you can teach a manager to delegate, but only if you’ve appointed someone who has the ability to demonstrate this skill.   If it’s all about the recruitment process, I’d be interested to hear about any other qualities you believe contribute to good delegation skills.  Also, keen to hear bout any experiences of working with managers to improve their ability to delegate.