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Why nothing good ever comes from an employment tribunal

Firms are abandoning the usual methods to solve disagreements between employer and employee in favour of broader policies that focus on resolving conflict before it escalates to court action. Do they work – and where to start?  
Mcdonalds Employment Tribunal Oped
McDonald’s is just one of many firms who has grabbed headlines recently amid accusations of poor treatment of staff

A glance at the headlines will tell you that the employee’s lot at work is often not a happy one. The Metropolitan Police, McDonald’s and the NHS are just some of the organisations that have recently been in the glare of the media spotlight, amid criticisms of racism, misogyny and bullying behaviours.

Hardly surprising then that, according to a recent XpertHR survey, employee grievances are on the rise. Nearly a third of employers questioned reported an increase in the number of grievances lodged. Bullying or harassment and relationships with managers or colleagues were the most common catalysts, with concerns over pay or grading also featuring heavily.

A worrying amount of these cases fail to be resolved internally and end up in front of an employment tribunal. As a result, we have a tribunal system that is bursting at the seams. Latest figures from the HM Courts & Tribunals Service show that more than 50,000 cases were awaiting a hearing or decision at the end of last year, with complex cases often taking more than two years to get to final judgement.

This situation isn’t good for anyone. It causes untold stress for the people involved, eats up inordinate amounts of HR time and costs the organisation dearly, not just in terms of money but also in declining employee engagement, productivity and corporate reputation.

Employment tribunals do, of course, have their place. An employee who is on the receiving end of abusive, discriminatory or unfair behaviour at their place of work must be able to protect their rights and seek legal redress. But how many of the cases that end up in front of a tribunal need to be there? How on Earth have we got ourselves into a situation where issues that could often be sorted out with a simple conversation are ending up in the courts?

The fundamental problem is that many organisations lack any kind of formal strategy for dealing with the conflicts, complaints and concerns that are an inevitable part of working life.

Managers lack the confidence, competence and courage to spot issues arising and nip them in the bud. In the absence of skills such as listening, negotiation, problem-solving, influencing and empathy, which would help to stop conflict in its tracks, they engage in either extensive inaction or expensive over-reaction. 

Either they brush issues under the carpet, hoping they will go away – which of course they never do.

Or they allow situations to escalate, to the point where they have to go knocking on HR’s door looking for a solution. The employee lodges a formal grievance. The manager invokes the disciplinary procedure. And before we know it, all parties have become embroiled in bureaucratic, long-winded and frankly ineffective formal policies.

These traditional ‘rules-based’ processes are damaging and destructive. They present a mirage of justice and an illusion of fairness. They push people into intractable right-or-wrong, win-or-lose mindsets. Conversations become combative and vitriolic, positions become entrenched, relationships are damaged beyond repair.

People cannot find a way out of these toxic situations and, in desperation, look to the legal system to sort it out. Judgements are made – but ultimately, no-one wins.

There is a better way. We need a complete shift in mindset. That starts with moving away from the perception that all conflict is bad. Constructive debates and differences of opinion are the lifeblood of organisations. Different perspectives and diversity of opinion are what help us to deliver the new insights and innovations that all companies need.

We need to shift away from punitive, retributive policies and towards a restorative approach to workplace justice. The forward-looking organisations I am working with are ditching their divisive HR policies and instead developing broader frameworks to help them resolve conflict, complaints and concerns.

These frameworks allow the organisation to take a more constructive, collaborative approach, drawing on processes such as mediation or facilitated conversations to help them solve issues at the earliest possible stage – while still allowing them access to formal, legal routes in the few cases where this is necessary.

The reality is that most problems at work can be solved by adult, face-to-face dialogue that allows people to be heard, to learn from their mistakes and to move forward so they can concentrate on their jobs.

If organisations want to build the happy, healthy and harmonious workplaces they need to succeed in these challenging times, they need to transform the way they approach organisational justice and get people talking to each other.

David Liddle is CEO of The TCM Group and founding president of the People and Culture Association. He is the author of the recently published book Transformational Culture.