Out of the blue last week came a formal consultation in relation to a proposed re-write of the ACAS Code of Practice on disciplinary and grievance procedures, the first major look at it in nearly 20 years.
The new Code contains 95 paragraphs to its predecessor’s 47, but just the last six of them usher in without fanfare what may be the biggest, perhaps only, positive change in recommended practice for employers in, well, ages. Businesses which fully grasp the opportunity which this change would present may laugh in the face of interminable AI-assisted grievances and cut through complaints of dubious good faith with renewed confidence that The Law will back them.
Superficially, the change is small – a simple transposition of the encouragement to address workplace grievances through mediation from the Foreword into the main body of the Code. That small change is nonetheless a very big deal because it brings mediation under the penalty regime attached to the Code, i.e. a possible 25% uplift or reduction in compensation for any unreasonable departure from that suggestion.
And the reason that matters is because (assuming the revised Code is implemented as it stands) employers should now regard mediation (including permutations such as facilitated conversations) as the default starting point, not just a possible outcome, in tackling a workplace dispute, to the extent that a failure to start there could lead directly to claims for an uplift in compensation against them. Enlightened employers may be there already, but the rest will now need to catch up quickly.
That shifts the whole grievance conversation away from who did what to whom at some point in the more or less distant past, and towards what has to happen now to allow everyone to move on with their lives. It minimises the need to find fault as a fact, a bruising and destructive process which generally leaves no-one untainted, and instead focuses on the parties’ common interests in getting past whatever it was. That is the part which may help pull the rug from under lengthy AI-assisted complaints, since AI will struggle to tell an employee when he is or ought to be adequately content with any particular proposal for resolution. The employee must do his own thinking, and nothing concentrates the mind quite like that.
The new mediation provisions in the draft Code are very short and sweet for the extent of the changes in practice which they may bring:
- paragraphs 90 and 94 remind us that mediation is not appropriate in all cases.
- Paragraph 91 says that the independent third party helping the process should be “an accredited mediator or trained facilitator who is impartial and does not take sides”, either external or a trained independent individual within the organisation. That suggests that some investment by the employer will be in order, either on a PAYG basis on external professionals or in the training of internal practitioners. If you have ever wanted to broaden your professional skillsets, now is the time to put your hand up. No employment law expertise necessary.
- Paragraph 92 states that a mediation or facilitated conversation can be suggested by either party at any stage and that any such process is voluntary, or at least as voluntary as any other decision on which hangs potentially whopping adverse financial consequences for you, at least.
- Paragraph 93 confirms that if it is agreed to use mediation, any imminent or ongoing formal disciplinary or grievance procedure should be paused.
- Paragraph 95 delivers the goods: “These processes may not be available in every organisation but it is good practice to offer them in appropriate cases where possible”. The circumstances in which it will not be possible are in reality very limited.
Embracing mediation as a first step will help employers with those long lists of petty miseries going back a decade, because they are almost all overtaken by the simple first question which underpins the mediation process – irrespective of what you say has led us to this point, what do you need to get past this? It also helps with those AI-assisted grievances which recite endless “areas of concern” but are noticeably light on what the employee actually wants done about them.
Also offering mediation also helps with grievances used as weapons against the employer or other employees because it is a rare employee indeed who will admit in answer to that question that he wants a colleague to suffer. Instead he is likely to convert it into an altogether more palatable proposition. This may be the difference between “I want my manager to stop bullying me” which is a legitimate aim, and “I want him sacked”, which very definitely isn’t. One you can work with as employer, but the other not so much. This is a change in the Code which the mediation community has been seeking for years, but it may separately represent the beginning of a solution to the current delays in the ET system. If the Government is not going to go as far as actually spending any money on the problem, it can at least take steps to relieve the pressure at the bottom of the system. Not every successfully mediated workplace dispute would otherwise have turned into an ET claim, but it is a fair bet that many of them now won’t. It may take a while for the benefit of a resolution culture to work through in that way, but the more employers which robustly embrace the use of mediation as a front-foot tool, the sooner it will be visible.