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1 GRIEVANCE PROCEDURES AND WORKPLACE MEDIATION: THE CASE FOR PEACEFUL COEXISTENCE Virginia Branney Drawing on contributions made by speakers at the recent ESRC seminar series ‘Reframing Resolution - Managing Individual Workplace Conflict’, this paper argues that despite their weaknesses, grievance procedures should not be abandoned. It is suggested that the ‘peaceful coexistence’ 1 of grievance procedures with workplace mediation has the potential to enhance workplace justice. It is also argued that from the perspective of union representatives who may harbour doubts about workplace mediation, calls to abolish grievance procedures are likely to hinder rather than help in winning support for its adoption in unionised organisations. (The author is a part-time PhD student at UCLAN researching the role of unions in workplace mediation. She is a mediator and arbitrator and a former trade union officer.) Introduction Historically, the debate about the pros and cons of ADR (alternative dispute resolution), in the Anglo-American world at least, has been characterised by a certain polarisation. To put it at its most simplistic, mediation is ‘good’ and litigation is ‘bad’. Ironically, dispute resolution professionals (be they academics and/or practitioners) have been known, on occasions, to slug it out in print - favourite epithets being mediation zealot’ and ‘litigation romanticist’. Recently, there have been signs of rapprochement – talk of ‘triage’ is trending. (Readers may be more familiar with the medical use of this ghastly term the practice or principle of sorting casualties in battle into categories of priority for treatment which happens to fit nicely with my call for peaceful coexistence. 2 ) In the dispute resolution context, ‘triage’ might be understood to mean what the North Americans call ‘fitting the forum to the fuss’ (Sander and Goldberg, 1994) in my view, an eminently sensible idea that the mechanism or procedure used to try to resolve a dispute ought to be that which suits the nature of that dispute and the interests of the parties. Judging by the contributions to the ESRC seminars, in employment relations circles, among the cognoscenti, the ‘pros and cons’ debate has become more nuanced. It came as something of a surprise then, to me, to hear an impassioned plea to abolish grievance procedures. 3 In assessing this avowedly revolutionary call, this paper gives an overview of the statutory position on grievance procedures and their prevalence in British workplaces. It makes the case for retaining grievance procedures alongside workplace mediation, suggesting that their coexistence has the potential to enhance workplace justice. Lastly, given the focus on my research, the paper comments briefly on issues raised for UK trade unions. While union representatives have had positive experiences of mediation, the individualised nature of workplace mediation makes it prone to be regarded with caution if not suspicion. Consequently, the way in which it is marketed matters. Of course, mediation is almost always introduced at the behest of management (at least in the UK) and it is a ‘management process’ (Banks and Saundry, 2011:10) but in organised workplaces, arguably union support and cooperation is important if not critical to its successful introduction. The evidence is that UK organisations are not flocking to adopt workplace mediation despite its professed advantages over

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GRIEVANCE PROCEDURES AND WORKPLACE MEDIATION:

THE CASE FOR PEACEFUL COEXISTENCE

Virginia Branney

Drawing on contributions made by speakers at the recent ESRC seminar series ‘Reframing Resolution - Managing Individual Workplace Conflict’, this paper argues that despite their weaknesses, grievance procedures should not be abandoned. It is suggested that the ‘peaceful coexistence’1 of grievance procedures with workplace mediation has the potential to enhance workplace justice. It is also argued that from the perspective of union representatives who may harbour doubts about workplace mediation, calls to abolish grievance procedures are likely to hinder rather than help in winning support for its adoption in unionised organisations.

(The author is a part-time PhD student at UCLAN researching the role of unions in workplace mediation. She is a mediator and arbitrator and a former trade union officer.)

Introduction

Historically, the debate about the pros and cons of ADR (alternative dispute resolution), in the Anglo-American world at least, has been characterised by a certain polarisation. To put it at its most simplistic, mediation is ‘good’ and litigation is ‘bad’. Ironically, dispute resolution professionals (be they academics and/or practitioners) have been known, on occasions, to slug it out in print - favourite epithets being ‘mediation zealot’ and ‘litigation romanticist’. Recently, there have been signs of rapprochement – talk of ‘triage’ is trending. (Readers may be more familiar with the medical use of this ghastly term – the practice or principle of sorting casualties in battle into categories of priority for treatment – which happens to fit nicely with my call for peaceful coexistence.2) In the dispute resolution context, ‘triage’ might be understood to mean what the North Americans call ‘fitting the forum to the fuss’ (Sander and Goldberg, 1994) – in my view, an eminently sensible idea that the mechanism or procedure used to try to resolve a dispute ought to be that which suits the nature of that dispute and the interests of the parties. Judging by the contributions to the ESRC seminars, in employment relations circles, among the cognoscenti, the ‘pros and cons’ debate has become more nuanced. It came as something of a surprise then, to me, to hear an impassioned plea to abolish grievance procedures.3 In assessing this avowedly revolutionary call, this paper gives an overview of the statutory position on grievance procedures and their prevalence in British workplaces. It makes the case for retaining grievance procedures alongside workplace mediation, suggesting that their coexistence has the potential to enhance workplace justice. Lastly, given the focus on my research, the paper comments briefly on issues raised for UK trade unions. While union representatives have had positive experiences of mediation, the individualised nature of workplace mediation makes it prone to be regarded with caution if not suspicion. Consequently, the way in which it is marketed matters. Of course, mediation is almost always introduced at the behest of management (at least in the UK) and it is a ‘management process’ (Banks and Saundry, 2011:10) but in organised workplaces, arguably union support and cooperation is important if not critical to its successful introduction. The evidence is that UK organisations are not flocking to adopt workplace mediation despite its professed advantages over

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established forms of dispute resolution (Latreille, 2011; van Wanrooy et al, 2013). Indeed, the call for a ‘resolution revolution’ (Liddle, 2013) may stem partly from frustration that use of workplace mediation has not taken off. If a paradigm shift is needed in how workplace disputes are dealt with, then perhaps ‘shock and awe’ tactics are understandable to kick-start the process.4 Whether they will prove effective is another matter.

Grievance procedures – the statutory background

In reviewing the development of grievance procedures in UK law and practice, it struck me that they are the poor relations of workplace dispute resolution (DR) procedures, yet they impact significantly on the lives of thousands of employees, managers and trade union representatives. Arguably, since the advent of the right to claim unfair dismissal, grievance procedures have been overshadowed by disciplinary procedures. Prior to the relatively recent codifying of individuals’ employment rights, it is worth recalling that for much of the last century, little distinction was made between an individual worker’s grievance and a collective grievance, in law or on the shop floor.5 Even today, in a different world of much weakened union organisation, diminished collective rights and (thanks largely to the EU and New Labour) an explosion in individual employment rights, the dividing line between individual issues and collective issues can be a contested frontier between managers and union representatives. Indeed, the potential for mediation to (further) ‘de-collectivise’ conflict might cause union representatives to reject it, particularly in organisations where the industrial relations climate is one of low trust or where there is a culture of union militancy.

Returning to the statutory background, the scope of the employer’s duty to provide a written statement of contractual terms (introduced by the Contracts of Employment Act 1963) was widened by the infamous Industrial Relations Act 1971 and the Employment Protection Act 1975 to require reference to means for the employee to seek redress for grievances and disciplinary matters. As expressed in the Employment Protection (Consolidation) Act 1978,6 the statement had to include a ‘note’ specifying (among other things) ‘a person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him’ and ‘a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment, and the manner in which any such application shall be made’.

Not everyone welcomed these provisions – they were later to be described as ‘burdensome’ for business - from 1993 to 2002 employers with less than twenty employees were exempted from the provisions relating to disciplinary procedures (but not grievances).7 It would also be fair to say that in the 1970s, most trade unions were not as keen to champion rights (and ‘procedures’) for individuals as they would be in later years. In this century, following the brief and unhappy experiment with statutorily mandated disciplinary and grievance procedures (2004-2009),8 legislative provision reverted to basic requirements, particularly in relation to redress of grievances. We have ended up where we began – in a faintly ironic twist, the current statutory wording on the content of the ‘note’ about grievances (in the written statement of particulars) is very similar to that of the Industrial Relations Act 1971.9

Compared to disciplinary procedures, it seems that grievance procedures were regarded as being of secondary importance by all stakeholders, as exemplified by the title of the first

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ACAS Code of Practice on Disciplinary Practice and Procedures in Employment (1977). When revised in 1997, the Code of Practice retained this title and only mentioned grievance procedures en passant in the section on disciplinary appeals. It was not until the statutory right of accompaniment came into being (in 1999) that the ensuing ACAS Code (2000) became the Code of Practice (Disciplinary and Grievance Procedures) with a section specifically on grievance procedures, in addition to that on the right to be accompanied. The new right gave rise to definitions of a ‘disciplinary hearing’ and a ‘grievance hearing’ – previously absent from legislation. The statutory right to be accompanied to a grievance hearing applies only to one ‘which concerns the performance of a duty by an employer in relation to a worker’.10 This means there is no right for a union to accompany a member who is seeking to re-negotiate the terms of his or her employment through a grievance procedure. Given the hard-fought negotiations between the Government and social partners over the statutory right of recognition for trade unions, it might be surmised that while the right to be accompanied would ‘head off at the pass’ attempts by unions from using grievance procedures in non-unionised organisations as a Trojan horse for seeking improvements to individuals’ terms and conditions, in unionised workplaces, the statutory stipulation would keep the horse in the collective corral, protecting the recognised union’s (or unions’) function as the bargaining agent.

With the introduction of statutory disciplinary and grievance procedures, another Code of Practice came (in 2004) - and went (in 2009) with their repeal. In keeping with the new emphasis on setting out principles of fairness in preference to specifying detailed procedure, the current ACAS Code of Practice 1 – Disciplinary and grievance procedures has a brief section on grievance procedures – the most detailed paragraphs being on the right to be accompanied. Mention of workplace mediation is confined to the foreword – a fact that disappoints many fans of mediation – as does the implication that mediation is a measure of last resort, when ‘it is not possible’ to resolve issues in the workplace.11 However, it could be argued that keeping mediation out of the body of the Code has done it a great favour, sparing mediation processes from the legalism that bedevilled the statutory procedures. The potential risk of legal intervention lay most glaringly in relation to claims for uplifts to awards where it could have been alleged that the Code’s provisions had not been followed. Of course, judicial scrutiny of what is a private, closed arena might have been welcomed in some quarters; although to date, in employment cases, UK courts have shown themselves unwilling to interfere with substantive questions about the fairness of mediated (or more precisely, conciliated) outcomes.12

Grievance procedures – part of the furniture

Surprisingly, the first findings of the 2011 Workplace Employment Relations Survey (WERS) reveal that ‘provision for mediation is included in 62% of grievance procedures and 61% of disciplinary and dismissal procedures, covering 63% and 56% of employees, respectively’ (van Wanrooy et al, 2013:27). At the ESRC ‘Reframing Resolution’ seminars, Richard Saundry and Paul Latreille expressed doubt as to the conclusions that could be drawn from this data. Although there is evidence that, for example, the ACAS Code (2009) prompted some employers to change organisational policies or practices to put more emphasis on early and informal resolution (Rahim et al, 2011:39). I concur with their conjecture that many WERS respondents may have interpreted ‘mediation’ broadly to include provisions that entreat employees to raise problems informally with their manager first (and vice versa) so that the

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manager can try to resolve matters by (in effect) mediating. Internal procedures and collective agreements might also make reference to the option of ACAS or other third party assistance at some point. (Despite the efforts of ACAS, for example, in my experience, there is still confusion among employees and even employment relations practitioners as to the distinctions between ‘conciliation’, ‘mediation’ and ‘arbitration’ in relation to individual and collective disputes.) Alternatively, it is possible that various forms of third party assistance (internal or external) are written into procedures but are not widely used. The WERS 2011 first findings reported that ‘of all workplaces, 7% had used mediation to resolve an individual dispute in the 12 months prior to the survey’ (van Wanrooy et al, 2013:27). As ‘this figure includes workplaces which did not report experiencing disciplinary action or employee grievances… it may understate the use of mediation…’ (Saundry and Latreille, 2013:7).

Turning to the prevalence of formal dispute resolutions mechanisms in the workplace, Dix et al (2008:18) noted that in 2004, grievance and disciplinary procedures were ‘universal where one or more union was recognised’. In 2011, 88% of workplaces had procedures in place for dealing with individual grievances, covering 96% of employees (van Wanrooy et al, 2011:27). Despite the repeal of the statutory grievance and disciplinary procedures, the percentage of workplaces that have all three steps in place for handling grievances had increased from 66% (in 2004) to 80% in 2011 (covering 89% of employees), albeit less than half of managers reported practising the three steps all the time (van Wanrooy et al, 2013:27). Going back to the 1990 Workplace Industrial Relations Survey, 27% of managers in workplaces with individual grievance procedures said they had been activated at least once in the past year. However, in organisations with 1,000 or more employees, 73% of managers said they had been activated, compared with 20% of managers in establishments with 25-49 employees (Millward et al, 1992:205). Differences in managers activating procedures were also reported in the public and private sector. Moreover, ‘establishments employing substantial proportions of people from ethnic minorities also reported a higher than average use of grievance procedures’ (Millward et al, 1992:206).13

Focussing on employees, the 2011 WERS found that in 30% of workplaces, an employee had raised a grievance in the twelve months prior to the survey (van Wanrooy et al, 2013:26). Even though the majority of employees do not raise formal grievances, it can be seen that grievance procedures are part of the furniture of UK workplaces – along with disciplinary procedures.14 Consequently, (recalling an old IKEA advertisement) calls to ‘chuck out the chintz’ are revolutionary and liable to be resisted by those who have a fondness for the fusty but familiar. But should these admittedly well-worn procedures be thrown in the skip?

Problems with procedures: is it the people or the procedure?

Given that grievance procedures are the counterpart of disciplinary procedures, it is not surprising that they are adversarial in that both ‘sides’ make their case; it is tested and a decision is taken – the grievance is upheld or not (a win-lose scenario). It could be argued that in unionised workplaces, the ‘structured antagonism’ (Edwards, 1986) between the employer and the union will inevitably be reflected to some extent in the procedures.15 The extent of adversarial behaviour in the process depends on the quality of the relationships between the key actors (which will be related to the employment relations climate in the organisation); their personalities, to some extent; and how the process itself is run.

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The expansion of individual employment rights and accompanying case law has contributed markedly to the formalisation of grievance and disciplinary procedures, particularly in large organisations. However, the WERS 2011 first findings indicate that, in practice, employers adopt a more compliance-oriented approach to handling disciplinary or dismissal cases than individual grievances. In all workplaces (with five or more employees), WERS asks the workplace manager how they handle disciplinary and grievance issues – do they require the issue to be set out in writing; do they require that a meeting is held to discuss the matter; and do they provide an opportunity for employees to appeal? In 81% of all workplaces, managers said they used these three steps all of the time in disciplinary or dismissal cases. In contrast, 46% of workplaces used all the steps all of the time in individual grievance cases (Forth, 2013). It is likely that the shadow of the law looms larger over disciplinary and dismissal cases, and not all grievances entail grounds for legal claims. The more flexible approach to handling grievances might also suggest that employers are more inclined to view grievance procedures as routes to resolution, although there will be sectoral differences in the extent of procedural formality and how rigidly procedures are applied.

There is probably widespread agreement among DR commentators and practitioners (including union representatives) that a quasi-legal process does not work well for complaints where there is no clear breach of the employer’s rules or policies but something has gone wrong in the working relationship, often to do with an employee’s sense that they have been treated unfairly or without respect, even if wrongdoing cannot be proved. The longer it takes to process grievances, the more damage is likely to ensue – for example, as each step in the process is ascended, the psychological commitment an individual has to their grievance tends to escalate (Polster, 2011). The problem of the deeply entrenched dispute is widely recognised by DR practitioners and often disputants themselves. In evaluating mediation, parties often comment that their dispute would have benefitted from earlier intervention (ACAS, 2012; Saundry et al, 2013). There are, of course, many advantages of early, informal methods of dispute resolution which could be mentioned, notwithstanding the difficulties in defining and measuring success in workplace mediation (Latreille, 2011).

But, for all their faults, my guess is that few dispute resolution practitioners would favour abolishing grievance procedures. It is widely recognised that some cases will be best suited to a grievance process (which is most likely to be preceded in any event by an informal attempt at resolution). There will always be cases where, for good or ill, the grievant may want a decision to bring finality to her complaint, as may her line manager. In some cases, a ruling will be more appropriate than a negotiated deal. HR, line managers, employees and union representatives are likely to be concerned that there is consistency of treatment and decision-making in relation to complaints. Of course, this may not happen even within formal mechanisms but (compared to mediation) grievance outcomes are more likely to be open to scrutiny. In these respects, grievance procedures can be seen as an essential component of organisational justice. Consequently, it might be expected that union representatives would regard entreaties to shred grievances procedures with suspicion, if not hostility, fearing the erosion of justice not just for the individuals concerned but also for employees collectively (as will be discussed later).

In parts of the public sector where unions have longstanding rights to be consulted over dispute resolution machinery, there may also be a sense of psychological attachment to grievance procedures as jointly owned even though they are management processes. It is

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conceivable that some union representatives’ investment in the established procedures may have escalated as unions’ collective power has declined.16 Without a meaningful alternative role in prospect, it would scarcely be surprising if union representatives baulked at the prospect of the abolition of grievance procedures. The WERS 2011 first findings indicate that the most common issues that union representatives spent time on were discipline and grievances.17 After staffing levels (cited by 20% of reps), 17% said that ‘discipline and grievance’ was the most important issue they are dealing with and 17% said it was pay (van Wanrooy et al, 2013:17). While it might be argued union representatives could be doing better things with their time, it is evident that representing individuals is seen as an important part of their role, giving them legitimacy in the workplace.18

In some cases, where industrial relations are poor, the grievance procedure can become a ‘battle ground’ where a ritualised form of warfare can be waged (Saundry et al, 2011: 14). In the 1970s, the shop steward could stop the production line, whereas his modern equivalent might throw a spanner in the works by launching a stream of grievances. However, grievance procedures do not exist in a vacuum – how they are used will reflect the culture of the organisation and the degree of trust between managers, employees and (in organised workplaces) union representatives.19 Conflict is inclined to escalate to formalised disputes where there are low-trust relationships between managers and union representatives (Saundry, 2012). Introducing mediation (while retaining the grievance procedure) can have a positive effect on the ‘conflict culture’ of organisations, although the UK evidence as to the extent of its impact is mixed. The ‘QualCo’ case study, for example, produced little evidence that the introduction of mediation had an impact on the culture of conflict management (Saundry and Wibberley, 2012b). As discussed below, the experience of East Lancashire Primary Care Trust (Saundry et al, 2011) was different.

As an aside, it will not escape the notice of union representatives and sceptics that promoters of workplace mediation seem to pay far less attention to the reform of disciplinary procedures. In theory and practice, terminology matters. It is true ‘grievance’ carries negative connotations and works against the notion of resolution. However, to my knowledge, no one has suggested that disciplinary procedures be abolished or re-labelled. If grievance and similar procedures were to become ‘resolution procedures’ what might disciplinary procedures become - ‘rehabilitation procedures’ possibly? One instantly senses an Orwellian credibility gap, even though good disciplinary procedures are designed to avoid dismissals wherever possible. In a healthy employment relations climate, perhaps ‘grievance’ isn’t such a damaging descriptor?

My digression serves to highlight a serious point made by Keith Mizon (formerly of ACAS) at the Swansea ESRC seminar – it’s the skills and competencies of the people operating the procedures that really count rather than the labels per se. Similarly, Louise McArdle observed that, on its own, grafting non-adversarial procedures onto an adversarial workplace culture won’t work. This was demonstrated in East Lancashire Primary Care Trust (ELPCT), where the introduction of workplace mediation did transform a low-trust grievance culture (Saundry et al, 2011). But there were certain enabling factors: prior management commitment to a partnership approach in the Trust; a newly arrived HR manager unencumbered by the Trust’s industrial relations baggage; granting increased facility time to union representatives; involving key union representatives as equal partners from the outset in bringing in a mediation scheme; training union representatives along with managers to be mediators; and offering the lead steward the role as co-coordinator of the

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scheme. The latter bold move meant that the personal and ‘legitimacy power’ of the leading steward – and the union - was altered but preserved, if not enhanced.

In any workplace mediation scheme, power resides at the point of ‘triage’ – with the gatekeeper/s and those who decide the criteria which guide the gatekeeper’s decisions about which dispute goes where in the procedures. (Power is also exercised in choosing the mediation model and the mediator/s; and in determining who may attend mediation meetings.)20 Crucially, in East Lancashire PCT, the grievance procedure was not abolished. This meant that if mediation did not work, employees could fall back on the grievance procedure. But as a consequence of the successful introduction of mediation, it was used less often (possibly allaying managers’ fears that mediation might simply add another step to internal DR). Saundry et al (2011) note that the union still robustly advanced members’ cases. This suggests that the grievance procedure was also used more appropriately, for the ‘avoidance of war’ (Marsh, 1966:4) rather than the waging of it. The findings from this small-scale UK case study are supported by outcomes reported for the largest workplace mediation scheme in the US, run by the Postal Service (USPS). The USPS REDRESS program was set up to deal with equal employment opportunity (EEO) complaints. Its implementation ‘corresponded with a drop in formal equal employment opportunity (EEO) complaints of more than 17% annually’ between 1997 and 2000 (Bingham and Pitts, 2002:143-144). It is evident from the East Lancashire PCT case study and REDRESS experience that notwithstanding positive outcomes such as high party satisfaction and case closure and/or settlement rates, mediation is not the best fit for all cases, and that the coexistence of mediation with formal procedures offers the best opportunity for the realisation of workplace justice. Perhaps this is not really in contention – usually proponents of mediation readily acknowledge it is not a panacea – rather the issue is that it is commonly perceived by employers to be a measure of last resort whereas experience shows that it is likely to be most effective when used early in conflicts between individuals. It is debatable whether mediation should be deployed as the default option for dealing with individuals’ grievances in the first instance – possible encroachment on voluntary participation is an issue in this respect21 – but it seems to me that as long as mediation is treated as an ‘informal’ way to resolve disputes, it can sit happily alongside ‘formal’ processes. If grievance procedures were to be abolished, it is likely that mediation would be subject to more judicial scrutiny. An unintended consequence could be increasing formalisation of what is meant to be an informal procedure.22

On the theme of procedural coexistence, it is worth noting that the Association for Conflict Resolution (based in the US) identifies, as a ‘characteristic of an integrated conflict management system [that it]…should allow users the choice of more than one option for resolving a problem or dispute [and] more specifically… should contain both rights-based and interest-based options for addressing conflict. Moreover, one of the ‘essential elements of a fair …system’ is that it ‘must be consistent with an organisation’s existing contracts, including collective bargaining agreements’ (Lipsky and Seeber, 2003:467). As was discussed at the Queen’s University seminar, there is little evidence that organisations in Great Britain and Ireland have integrated conflict management systems as such however there is no obvious reason why the ACR guidance would not be equally applicable in unionised organisations where the employer is planning to reform its DR procedures.

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Enhancing workplace justice through coexistence?

At the Swansea seminar, Rory Ridley-Duff outlined the conceptual model of dispute resolution in the workplace he developed with Tony Bennett (Ridley-Duff and Bennett, 2011). The model locates mediation at the ‘radical’ end of Fox’s (1974) industrial frame of reference, suggesting it is least likely to be used by unitarist employers. The predominant use of workplace mediation in the UK by ‘pluralist’ employers (mainly in the public and third sector) has been borne out by recent research (Bennett, 2013) and this finding was supported by two of the conflict management consultancies attending the ESRC seminars. They thought that their clients would best fit the pluralist employer frame of reference (Fox, 1966). Katherine Graham of Conflict Management Plus, observed light-heartedly that employers using facilitative mediation might be surprised to find they had Marxist tendencies, in that the model posits that mediation ‘errs not just towards pluralism, but towards the Marxian perspective on emancipation and transformation’ (Ridley-Duff and Bennett, 2011:115). Arguably, ‘democratic’ might be a more apt description for the opposite end of the unitarist frame in this context. Indeed, Bennett (2013:190) concurs that ‘the model theorises that, when appropriate, mediation can potentially be more ‘democratic’ than other approaches in … giving disputants a greater say in terms of how the process is conducted’ and also greater control over the outcome. The extent to which democracy can be realised in mediation depends on a host of factors too numerous to discuss here. However, an allied question arises: might the coexistence of mediation and grievance enhance workplace justice? It is only possible here to raise some considerations as this is a complex area that should take into account how procedures operate in practice – in this regard, mediation, in particular, has chameleon-like qualities. The framework for such an analysis could be the fourfold model of organisational justice (distributive; procedural; informational; and interpersonal) devised by Conlon (2006) and developed by Nabatchi et al (2007) to take account specifically of workplace mediation.

Applying their models to non-evaluative forms of workplace mediation (the most commonly found in the UK setting), there is evidence to support the contention that mediation has strengths in respect of procedural justice (for example, there is more scope to challenge partiality on the part of a mediator than the chair of a grievance panel/ manager hearing a complaint; mediation relies on disputants doing the talking rather than having someone else do it for them; disputants have more say over what is discussed;23 and the disputants determine the outcome – not a third party or the employer). Arguably, a well-run grievance hearing would be likely to have the edge on mediation in terms of informational justice. Although good mediators will strive to ensure that disputants understand what mediation is and what it entails, the degree to which mediators are transparent as to the techniques they employ during mediation will vary, but in my experience, it would be unusual to find a mediator who reveals all in this respect. Then again, a grievant may feel unclear as to why her complaint was not upheld. Confidentiality in mediation can be seen as antithetic to informational justice (discussed below) although it helps disputants to talk to each other more freely and resolve their differences. (Confidentiality may also be imposed in grievance and disciplinary cases however it is a precondition in workplace mediation that what is said stays in the room, unless - and only to the extent that- the parties agree otherwise.)

There are two dimensions to interpersonal justice – the quality of the interaction between the mediator or adjudicator and the disputant/s, and between the disputants themselves (Nabatchi et al, 2007). Again, one would expect that the adjudicator (like the mediator)

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would treat the parties with respect and dignity albeit the rapport building undertaken by a mediator probably enhances disputants’ experience of interactional justice. When it comes to the interactions between the parties, a well-run, successful mediation is liable to be a more satisfying experience for disputants than an adversarial process. In terms of distributive justice, mediation (or more precisely, conciliation) has been criticised for delivering second-class justice (compared to awards of compensation, for example) but in regard to conflicts that are relational, fairness of outcome is harder to gauge and in mediation, this is a matter for the parties to decide. An agreement reached in mediation is likely to be a more satisfying outcome for disputants than a handed-down decision which does not focus on the disputants’ needs or interests.

Of course, in workplace mediation there is an implicit imbalance of power between the employer and the employee, and as many mediations involve a person in authority and a subordinate, failure to mitigate power imbalance renders a potentially just process and outcome unjust. On the other hand, within grievance procedures, in most cases, the outcome is determined by the employer, and there may be little scope for negotiation, even where the grievant is represented. While it is very difficult to assess empirically which element of workplace justice might be better served by one or other process, published evaluations of participants’ experiences of workplace mediation indicate that in relational conflicts, disputants may particularly value elements of procedural and interpersonal justice experienced in mediation. (A classic example of a manifestation of the latter is the giving and receipt of a genuine apology.) Where mediation and grievance procedures co-exist, an employee who is not satisfied with what mediation offers or delivers should be able to pursue her complaint in search of the form of justice that most matters to her.

However, workplace justice is not solely concerned with the individual complainant (or the other disputant/s). All conflict, and certainly all disputes (that is, formalised conflict) have an organisational dimension, and some disputes will have wider importance. It is precisely the individualised, private and confidential nature of mediation that has led to concerns about the quality of ‘informal justice’ it might deliver (Dolder, 2004). Mediated settlements could not only short-change the individual but also society (Fiss, 1984; Hunter and Leonard 1997; Genn, 2010). Instances of unlawful discrimination, for example, might never see the light of day. It would not be surprising if union representatives echoed these concerns, particularly as mediation is being promoted at a time when ‘access to justice’, that is, access to the employment tribunal, is seen to be under attack (Renton and Macey, 2013). Nonetheless, leaving non-justiciable complaints to one side, there are limits on unions’ capacity to pursue litigation. Moreover, at the University of Westminster seminar, a union official observed that the standard approach of assessing members’ chances of success at the tribunal may be of less benefit than asking what is most likely to improve the situation for them, particularly when the employment relationship has not ended.

While workplace mediation has won converts among trade unionists, as a means of resolving disputes it may not always sit comfortably with them. There could be objections to it in principle or concerns about aspects of the process, as is discussed briefly in the next section. It is argued that some received wisdom about workplace mediation could do with being critically examined and more widely debated among practitioners, academics and, crucially, employers and unions – following up on some of the discussions started at the ESRC seminars.

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Union involvement in workplace mediation

From a trade union perspective, the right to representation is a fundamental element of workplace justice. In large measure, this has been statutorily secured (in limited form) in respect of disciplinary and grievance hearings. However, in UK workplace mediation, the prevailing view, supported by ACAS and the TUC (2010) is that representation ought to be the exception because relational mediation works best when the disputants engage with each directly. We lack detailed research on what is happening in practice but the available evidence suggests that typically disputants are not represented and are discouraged from attending with a representative (Saundry et al, 2013). This discouragement is largely based on an underlying belief that representatives attending workplace mediation would corrupt the process. Speaking as a mediator, I accept that representation - in the sense of advocacy on someone’s behalf – is inappropriate in workplace mediation, but the provision of advice and support (where it is requested by a disputant) is not.24 Indeed, the denial (or absence of the offer) of such support may work against resolution and procedural justice. There is evidence that, of unrepresented participants (95%) in ACAS individual [workplace] mediation, 61% were content with that arrangement, however, ‘21% would have preferred to have been accompanied and … 18% answered ‘don’t know’ (ACAS, 2012:4).25 The USPS REDRESS program is also worthy of mention in this respect. It is an EEOC stipulation that disputants (supervisors and complainants) have the right to representation of their choice. Evaluation of the programme has shown that the highest rate of partial and complete resolution occurred when union (or professional association) representatives were present on behalf of complainants (Bingham and Pitts, 2002:140). Of these complainants, 91% were satisfied with mediation fairness, as was the same percentage of unrepresented complainants. 97% of those without representation were satisfied with their opportunity to participate in the mediation, compared to 96% of those with union representatives (Bingham and Pitts, 2002: 141-142). ‘Interestingly, representatives perceive listening and learning, and hear apologies and acknowledgments more [my emphasis] than the parties they represent’ (Bingham, 2009:36). To me, this is not surprising as most likely the union representative will be less emotionally engaged in the conflict (whether it is dealt with in mediation or, for that matter, in other procedures). But it does serve to highlight (and it chimes with my experience) that their presence may facilitate rather than hinder resolution. Of course, some representatives will play a more constructive role than others but the REDRESS outcomes suggest that fears that the presence of union representatives would inhibit direct interaction between the disputants and somehow interfere with the magic of mediation are not well founded. (In contrast, REDRESS evaluations show less favourable results when legal representatives were present.)

In the UK context, it might be anticipated that there would be objections to mediation on the grounds that it ‘de-collectivises’ workplace conflict and enhances managerial control of dispute resolution (Colling, 2004). As Saundry and Latreille (2013) observe, some commentators argue that at the micro level, unfair treatment can be re-packaged as a personality clash, individualising the issues and stripping out organisational responsibility. ‘At the macro level, mediation can be seen as … bypassing traditional collective processes of dispute resolution’ (Saundry and Latreille, 2013:8). Where unions are accorded a role in workplace mediation, this could be seen to be at odds with an organising approach in that instead of engaging with conflict to recruit and mobilise members, unions are co-opted into managing conflict. Similar criticisms can be levelled at union participation in grievance and

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disciplinary procedures but (even if a representative attends) the stress on confidentiality in mediation means that the scope for reporting back to members is restricted and in the absence of ‘wins’, what is there to be built on for organising purposes? On the other hand, in an era when unions are struggling to maintain and improve members’ living standards, positively engaging with non-traditional and (in some cases) more effective ways of dealing with disputes concerning dignity and fair treatment at work (which rank highly as serious problems for individuals)26 may make them a more attractive proposition to workers who feel unions have little to offer them. It could be hypothesised that the centrality of union representatives’ activity in servicing individual members and the decline in the use of collective action to pursue individuals’ employment rights would suggest that in practice (with some exceptions) UK unions would be unlikely to resist mediation on the grounds that it is inherently ‘anti-union’ (although in the US, it has been introduced by non-union firms as part of their union avoidance strategy).

While there may not be objections to mediation in principle, because of its private and confidential nature, union representatives (and some managers, for that matter) will have concerns that issues raised in mediation which have wider ramifications may be barred from being addressed or learnt from collectively to the possible detriment of the union and the organisation. Every dispute occurring in the workplace has, by definition, an organisational element. The British Workplace Behaviour Survey (2008) showed that respondents’ experiences of incivility and disrespect – generally concerning perceptions of others’ behaviour – overlapped (by 33%) with experiences of unreasonable treatment, and overall both types of ill-treatment involved a manager and subordinate more often than co-workers (Fevre et al, 2011:12-13; 16). Indeed, Fevre et al (2011:15) state ‘… for the most part, it would not be too far-fetched to rename unreasonable treatment as ‘unreasonable management’. Mediations could well involve issues to do with incivility or disrespect as well as unreasonable treatment. While careful gate-keeping should limit inappropriate cases going to mediation, ways need to be found to enable the transmission of issues that should be taken up in negotiating or consultative fora, without compromising confidentiality in mediation. (To extrapolate from a point made by John Purcell at the University of Westminster seminar about the role of line managers, if the underlying problem requires a response from senior management, then a representative structure is needed to resolve it.) There is nothing to stop individuals from agreeing to share aspects or all of their mediated agreement with others in the organisation (usually on a ‘need to know’ basis) but it takes two to tango; and mediators are highly constrained in what they can report back to the gatekeeper or commissioner. Anonymising outcomes and feedback does not get round the confidentiality constraints in small organisations and in large ones with low mediation caseloads (as is typically the case in the UK). Involving union representatives as co-coordinators and/or trained mediators, as well as permitting the option for representatives to attend mediations with employees (if those individuals so wish) provide some safeguards against the loss of knowledge to the organisation and possible injustice to individual employees.

Conclusion

Grievance procedures are not likely to disappear from the UK employment dispute resolution landscape in the foreseeable future. They are underpinned by law and have survived the test of time because in their basic form they represent an orderly and common

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sense approach to dealing with individuals’ disputes at work. It should not be overlooked that many differences are resolved informally by employees with their managers or that a significant amount of conflict at work never surfaces as a dispute. For all their faults, grievance procedures remain an important channel for employees to raise their concerns and seek some degree of justice at work, particularly for those whose employers will have little interest in best practice or in embracing alternatives such as mediation. Where procedures in large, unionised organisations are producing diminishing returns, a shift to mediating most individual disputes as the preferred first option is likely to be more achievable where union representatives are fully engaged in achieving this transformation. Evidence from the UK and elsewhere suggests that mediation can co-exist with grievance procedures and that where trust is built between employers and unions, grievance procedures are used less frequently and/or less inappropriately. They remain, however, an important option in internal DR procedures. In my view, mediation must be a voluntary choice for complainants. Even when apprised of the process and its benefits, not all employees will choose mediation. It would be unfortunate if efforts to increase the take-up of mediation were to become associated, in trade union eyes, with parallel moves by Government to reduce union presence and effectiveness in the workplace and restrict employees’ access to justice. Although grievance procedures are management processes, I would suggest that unions would be likely to perceive calls to abolish them as an attack on workers’ rights. Potentially, the coexistence of mediation with grievance and related procedures could enhance workplace justice, especially (I would argue) where union representatives have a meaningful role in these processes.

I would like to thank my supervisors, Dr. Tony Bennett (UCLAN) and Dr. Richard Saundry (Plymouth University) for their comments on the draft paper and encouragement.

ENDNOTES

1 Readers of a certain age will remember the Soviet doctrine of peaceful coexistence developed during the

Cold War. In brief, it posited that socialist states could co-exist peacefully with the capitalist bloc. (The alternative was a real possibility of mutual destruction.) This was in contrast to the principle of ‘antagonistic contradiction’ that capitalism and communism could never co-exist in peace. 2 ‘Triage’ can also mean ‘the principle or practice of allocating limited resources, such as food or foreign aid,

on the basis of expediency rather than according to moral principles or the needs of recipients’ (Collins English Dictionary, 1991). In the employment context, there are strong criticisms of the British Government that this is precisely what is happening in relation to access to employment tribunals, for example. 3 From David Liddle, Managing Director, Total Conflict Management (TCM), at the Swansea University and

Queens University ESRC seminars. 4 I say ‘shock and awe’ because notwithstanding the call to ‘abolish grievance procedures’, the TCM Resolution

Policy does not rely solely on mediation and proposes a ‘comprehensive triage process which HR and ER professionals can use to assess the most suitable route to resolution’. This may include ‘formal action’ in certain cases (Papakostis, 2013). 5 Marsh (1966:12) observed ‘it is relatively uncommon to find clear distinctions [between]… the functions of

procedure in interpreting and applying substantive agreements, and those dealing with grievances’. It is to be noted that historical industrial relations writing on this topic largely concerns male manual workers as they

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were the principal group of employees covered by collective agreements. In 1964, for example, 60.3% of male manual workers were unionised compared to 34.9% of male white collar workers. 28% of female manual workers were unionised, as were 22.6% of white collar female workers (Bain, 1967:19). There had been little change in these figures since 1948. (The 1970s saw an upsurge in white collar unionisation in particular.). Flanders (1975:158) noted that in the late 1960s, one in four male manual workers and one in two female manual workers’ terms and conditions were covered by Wages Councils which ‘cannot set up and operate a disputes and grievance procedure’. 6 Employment Protection (Consolidation) Act 1978 s.1. (4)(b)(i) and (ii). Not all employees were covered by

these provisions. As a rule, those working less than 16 hours per week were exempted. 7 Enacted by the Trade Union Reform and Employment Rights Act 1993; repealed by the Employment Act

2002. In 1995, the Employment Appeal Tribunal – noting section 3(1) of the Employment Protection (Consolidation) Act 1978 as amended and the Codes of Practice – ruled that ‘Parliament considered that good industrial relations requires employers to provide their employees with a method of dealing with grievances in a proper and timeous fashion…that being so…the Industrial Tribunal were entitled to conclude that there was an implied term in the contract of employment that the Employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have’ (Morison, J.) W.A. Goold (Pearmak) Ltd v McConnell & Anor. [1995] IRLR 516 (EAT). 8 The Employment Act 2002 (Dispute Resolution) Regulations 2004 came into force on 1 October 2004 and

were repealed by the Employment Act 2008 as from 6 April 2009. 9 See Employment Rights Act 1996 s.3(1)(b) and (c) and Industrial Relations Act 1971 s.20(2)(b) and (c).

10

Employment Relations Act 1999 s.13 (5). 11

However, advice on mediation is included in Discipline and Grievances at Work - the ACAS Guide (2011). ACAS has also published joint guidance with the TUC (2010) and the CIPD (2013). 12

See Clarke & others v Redcar & Cleveland Borough Council and Anor. [2006] ICR 897 (EAT); Moore v Duport Furniture Products Ltd [1982] ICR 84 (HL); Slack v Green (Plant Hire) Ltd [1983] ICR 617 (EAT); and Hennessy v Craigmyle & Co Ltd [1986] ICR 461 (CA). 13

To date, there seems to have been little or no analysis of UK workplace mediation from a theoretical perspective in relation to discrimination. (A study of ET claimants’ experience of discrimination on multiple grounds by Hudson (2012) includes some information on attempts to resolve disputes before submission of a claim.) 14

The focus of this paper is on employees (as opposed to workers) and unionised workplaces. An important caveat is that WERS 2011 excludes workplaces with less than five employees whereas the Unrepresented Worker Survey (conducted in 2004) did not. The URWS reported that only 62% of their employers had formal grievance procedures. Where they existed, relatively little use was made of them, and respondents ‘who had a formal grievance procedure were not significantly more likely to get a conclusion or satisfactory result than those who worked in a workplace without such a procedure’ (Pollert and Charlwood, 2009:353). 15

Historically, disputes procedures have been described as ‘both treaties for peace and devices for the avoidance of war…In the sense that they handle grievances, they are devices for hearing appeals’ (Marsh, 1966:4). 16

The decline began in the mid to late 1970s. In 1984, when WIRS first collected this data, the proportion of employees in Britain covered by collective bargaining was 70% (Millward, et al, 2000:197). In 2012, only 29.2% of UK employees’ pay and conditions were affected by a collective agreement (BIS, 2013:30).

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17

77% of union representatives spent time on grievances or discipline compared to 43% of non-union representatives (van Wanrooy et al, 2013:16-17). 18

This is not to suggest that self interest lies at the heart of union representatives’ resistance to moving away from traditional modes of workplace dispute resolution but that individuals’ perception of their role and status (and how others see them) is a factor in understanding their reactions to changing established workplace dispute resolution procedures. (The same could be said for line managers.) I would also not wish to over-emphasise resistance to change or satisfaction with traditional procedures. In the UK, workplace mediation is found most commonly in the unionised public sector (CIPD, 2008; Bennett, 2013) and generally it is supported by the recognised unions/ employee representatives (Saundry and Wibberley, 2012a; 2012b). Bennett (2013:199) qualifies this by noting that support was ‘still tempered by a concern that as a process it could be in conflict with their traditional role of representing members in a dispute’. 19 Rahim et al (2011:33; 42) found that organisational culture was seen by HR staff (for example) ‘as having a

key influence on the balance and level of disciplinary and grievance cases’ and ‘… on how cases were handled’.

20

Complainants also exercise power in the process, more so than in grievance procedures, but I would argue this is ‘bounded influence’ exercised within limits set by the organisation and by what actually happens in mediation. 21

Voluntary participation is a core tenet of mediation. However, there is evidence that there are degrees of voluntariness. For example, according to ACAS data, 19% of workplace mediation participants ‘felt pressured …such that it would have been difficult to say no… and 6% were give no choice’. In most cases, the pressure was said to have been exerted by the employer (ACAS, 2012:4). In the USPS REDRESS program, participation is mandatory for supervisors.

22

If grievance procedures were abolished, would access to mediation be regarded by the courts as fulfilling statutory requirements and the implied term in the contract of employment of the right to obtain redress of a grievance? (The absence of an internal mechanism for obtaining redress in circumstances where mediation did not result in agreement creates an obvious difficulty.) 23

Although in my view the degree of ‘process control’ exercised by disputants in facilitative mediation can be exaggerated. For example, typically, disputants adopt ‘ground rules’ proposed by the mediator and the basic structure (agenda) suggested or outlined by the mediator, and cooperate with the way the mediator structures the discussions. 24

Exceptionally, advocacy may be appropriate, for example, where an employee intends to leave and wants union representation in negotiating an exit package or a justiciable complaint settled without recourse to an ET claim. But in general, it is important that representatives appreciate the differences between grievance/disciplinary procedures and workplace mediation. For practical reasons, some mediators and/or scheme coordinators may be reluctant to raise the prospect of wider attendance. Arranging and agreeing who may attend a mediation (other than the disputants) can generate conflict and delays, at a time when one or more disputants’ willingness to proceed may be fragile. 25

These responses are interesting to consider alongside analysis of ACAS and CIPD data by Latreille (2010:6; 9). Where the most recent mediation had completely resolved issues, 19.6% of participants agreed that ‘some employees see mediation as denying them access to justice’. 25.5% agreed where issues had been partially resolved. 46.7% agreed where issues were not at all resolved. 26

13% of respondents to the 2008 Fair Treatment at Work Survey reported that ‘unfair treatment’ was a problem they had experienced at work with 7% (of the 13%) saying that unfair treatment was part of their most serious problem. ‘Pay’ was cited as a problem by 10% and as the most serious part of their problem by 5% (Fevre et al, 2009:81). ‘Most reported unfair treatment… was probably not related to discriminatory

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behaviour …covered by …legislation at the time. It also fell outside the individual employment rights framework.’ (Fevre et al, 2009:82). Similarly, a CIPD survey showed that 83% of mediations conducted by respondent organisations ‘were not related to a [ET] claim’ (CIPD, 2008:2).

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