ER&ETT – Strategies and Procedures for Dealing with Grievances and Disciplinaries to Ultimately Avoid Legal Dispute

Hand shakeThese are the thoughts and takeaways from the latest Employee Relations & Engagement Think Tank (ER&ETT) held on Thursday 28th May 2015 hosted by Microsoft’s Julia Munday (Head of Employee Relations) titled ‘Strategies and Procedures for Dealing with Grievances and Disciplinaries to Ultimately Avoid Legal Dispute’.

The following summary has been prepared to reflect a segment of the discussion held amongst senior HR and ER professionals from leading national and international businesses. Specific company details, experiences and examples have been omitted from this summary as all discussions are held under ‘Chatham House Rules’

Many companies have invested in creating robust and fit for purpose grievance and disciplinary policies which are not only compliant with local legislation but also reflect company best practice. However, it is now quite common for employees to try (and even expect) to circumvent these policies and push their employer into negotiating a settlement. Often managers may see this approach as the quick and easy way to get rid of a problem but the danger is what message is this sending to the rest of the business? How can consistency and clear lines be drawn if employers are not engaging people to follow the internal processes and how can HR coach and support managers to “stop and think” and work within the spirit of the policies?

This Think Tank summary aims to discover best practice in developing strategies and procedures for dealing with grievances and disciplinaries thoroughly, legally, fairly and expeditiously, as well as looking at ways that HR can influence the business leaders to leverage their support in applying consistent policy and best practice. How can disputes be seen as a way to act responsibly and send a positive message rather than be seen as a mess that needs to be swept aside as soon as possible?

Business Drivers for Having a Robust, Fit for Purpose and Consistently Followed Policy

  • Changing the business’s philosophy and message that is given out when dealing with grievances that settling quickly isn’t always the right things to do even if it is the easier option
  • For key companies where public money and public scrutiny is involved as just settling quickly is often not good enough
  • Employees now have very strong commercial arguments for the costs of settling quickly or creating grievances which can be hard to disagree with unless a clear policy and reasoning is in place
  • Line managers are often not wanting to take responsibility in processes – they palm problems off to HR instead as “don’t have time”
  • Creating a culture shift – if people see employees around them getting away with stuff easily will they copy this?
  • Making managers know when to put someone on a PIP and when issues are just conduct issues that honest discussions need to be used instead

Best Practice

Utilising Data to be a Commercial Business Partner

Are employee relations teams utilising data to support decisions and gain business buy in for decisions and policies? ER should be collecting data on cases for a number of reasons. Data can help articulate the business case and address gaps in management capabilities. This data can be used as evidence by showing managers how they are performing in terms of cases compared to the rest of the business. This means businesses can be proactive rather than reactive and put accountability back on to management. It is crucial to get all data into one place so that it can be analysed. When deciding what data to collect it is important to know what does the business want? What data do they need from ER? ER should be supporting and underpinning the business and key decisions. HR and finance should agree on points of data collection to ensure it is useful and accurate.

When trying to gain business understanding and buy in ER and HR issues need to be demonstrated in a commercial way by calculating things such as the cost of not resolving or people’s time or employees being out of the business. It is essential that ER teams have commercial acumen!

How can ER learn from the marketing function and how they capture data on customers to learn how to collect data for employees and departments?

Cultural Shift

Less and less businesses are of the mindset that they just want to settle cases. More are following proper procedure and pushing back. However for this to work, culture within the company needs to change – adult conversations need to be had which can include independent witnesses if necessary.

Case avoidance is key to many organisations. For this to be possible there needs to be early intervention and clearly communicated processes that people realise are there for the right reason and are aware of before issues arise. Many companies now have mediation (discussed in more details later in this summary) running through their policies, especially as a first step to try to deal with these issues way earlier and find the best and fairest solution. The ER team can mediate or internal managers can be trained and also external mediators can be brought in for more serious cases.

Protected conversations / pre termination negotiations are being used more and more and can encourage cultural change – there is a very subtle but important difference between poor and underperformance. This also means that separating performance management and disciplinaries is crucial. Trying to differentiated between a complaint and a grievance is also important.

Something that can make a big impact on culture is a company’s policy for appeals. Companies usually let employees appeal the process which was used to reach a decision within grievances but not to appeal the decision / outcome. This is because some people just appeal because they do not like the outcome not because there was any wrong doing. Some companies validate an appeal during the process to decide if an employee is able to appeal.

Line Manage Effectiveness

Pushing back to managers can be a real struggle when trying to get them to follow process and take their time to ensure everything is done correctly. Education and coaching is key for this as managers may well not be practiced in policies. How can you make managers realise they are the decision maker and responsible; not HR? How can they be held accountable?

One suggestions was including ER skills or experience in job descriptions for certain managers. Having training in ER in manager induction training is essential. However, attendance numbers tend to be higher for just in time training. A manager may only deal with a grievance once in a blue moon so training them 2 years ago on certain policy is not good enough which means that training needs to be regular so would work best if it was clear and concise.

As well as training managers, employees need to be trained on process and what is right and what is wrong treatment. Having policy and clear communications on people portals and the intranet is essential so employees can access this whenever they want to be able to look up guidance.

Training is one thing but to ensure managers still know the training and are following the right process annual or 6 monthly testing could be used that gives managers a rating on their knowledge on how to deal with ER cases. This then helps ER teams know how much input is needed from them when cases come up. For example if a manager has a very high score they may well need far less input. These ratings could be included in reviews to understand a manager’s capability.

Another thing to track are the timelines managers are taking within a policy to be able to hold them accountable through some parts of the process.

Mediation

Mediation is being used more and more for things such as bullying and harassment within the workplace.  Companies are trying to use mediation to get employees to have conversations as these adult to adult honest conversations are important and create respect. Mediation works best when it is used as a stage within a dispute, preferably an early stage to try to resolve problems in this way first. However, it is important it is used for the right cases to not let people lose trust in the process when issues that are far too big are being dealt with. Mediation sometimes isn’t about the actual process it is about encouraging both sides to come along with a solution rather than expect someone else to come up with it.  Education is needed that there does not always need to be someone who wins and someone who loses and finding a mutual agreement can be beneficial. Mediation can be tricky for some global cases as different cultures react differently to mediation as a form of resolution. HR are often brought into mediation processes to contribute.

Challenges

  • Individual differences – managers and employees just not getting on and having different perceptions of what is right. Can this ever be eliminated?
  • Managers not following / understanding correct process – can thorough training completely combat this or are some people just not willing or don’t work in this way and understand these types of processes?
  • Encouraging people to follow process even when it may take a lot of work and time
  • Getting the right culture towards grievances and disciplinaries
  • Encouraging everyone to take accountability rather than just pass issues onto HR to deal with as this seems the most hassle free option
  • Making people realise every case is different and therefore not to expect the same compensation every time
  • Knowing the right time to settle and having the confidence to go to court
  • Should the investigator and the hearing decision maker be the same person or is this bad?

Measuring Success – What will resonate with the business in demonstrating the success and impact of ER?

  • Many businesses currently focus on success being keeping the business out of court. However, rather than this should it be number of court cases / tribunals won? Rather than trying to always avoid court which makes people see the business as one that will roll over and pay out straight away
  • Using data to demonstrate things such as time spent, potential savings etc
  • Cost and value of coaching and training – could be demonstrated by number of near misses?
  • Manager effectiveness – are managers making good decisions and the right judgements? Can managers be scored?
  • Great place to work scores
  • Getting the business to rate the trust in and awareness of ER policy
  • CIPD quotes 9 days of management time for the average grievance policy dispute but is this a realistic benchmark?

What resources are ER professionals using to stay up to date?

CIPD – communities board
Xpert HR – webex and line manager briefings
Lexology
Newsletters from legal advisors and training from legal advisors
Corporate executive board
ACAS videos

Oasis HR

Written by , Network Driven HR Recruitment

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