It is a fact of the employment relationship that, as in all relationships, frustrations and disputes can arise, or existing disputes may be amplified.
This is particularly likely during the current pandemic, given the additional pressures and challenges many are facing – whether that be through increased workloads, reduced workloads, navigating remote working for the first time, or indeed the impact of the pandemic on personal and family life.
Under health and safety legislation, the employer has a legal obligation to provide a safe working environment as far as possible, and this includes an environment where employees are not at risk of psychological harm – not just physical danger – to minimise the risk of personal injury claims.
A failure to do so, or to address grievances, may also put the employer at risk of potential constructive dismissal claims, or other claims such as discrimination on the basis of a protected characteristic, where applicable.
For these litigation as well as reputational reasons, and in order that the workplace is a productive and pleasant place to work for all, the employer should ensure, as far as possible, that staff may enjoy a dignified and non-hostile working environment.
Mediation can be the key where workplace conflict arises between staff, if both parties are willing to engage, and provided that the behaviour does not constitute a disciplinary matter. If so, the employer should instead follow their disciplinary procedure.
What is mediation?
When there’s a disagreement or dispute between two or more people in the workplace, mediation can help sides come to an agreement. It’s normally used to settle disputes about working relationships. It may also be agreed as part of a formal grievance outcome.
Mediation is held by a neutral person (a ‘mediator’). The mediator is impartial. Their role is to help find a solution that all parties are prepared to agree to.
In contrast to litigation, mediation is a quicker and cheaper way to resolve a dispute. It is:
Less formal than other procedures
Usually not legally binding on the employer or parties to the mediation.
Larger employers may have their own mediation schemes, but employers may use informal mediation by appointing, for example, a manager with appropriate attributes to act as a mediator.
If using an external mediator, the cost for mediation is usually paid for by the employer. Mediation conducted by an external mediator usually involves a separate meeting with each party, followed by a joint meeting, sometimes at the workplace or in a neutral venue.
Where agreement is reached, a written record of what’s been agreed will be kept. The agreement will be confidential and will only be shared with the parties involved in mediation and anyone they give consent to share it with. A number of organisations offer mediation services, including the Advisory, Conciliation and Arbitration Service.
How can FSB help?
The FSB legal advice line often advises on how to proceed where workplace disputes arise when implementing grievance procedures.
However, the benefits of exploring mediation can be overlooked where employers are focused on following their own procedures, rather than exploring the benefits of additional, alternative approaches.
FSB Legal Hub has a consultancy team that offers competitive quotes for providing legal assistance to FSB members in resolving workplace disputes or tricky grievances.
In one example, two employees were in conflict, largely due to a ‘personality clash’.
The mediation proved successful and two agreements were drawn up. The first agreement was confidential to the two parties. This involved a commitment and an apology to the other party. The second agreement was for circulation to their manager and set out agreed changes in how they would work together in future, with agreed monthly review meetings with their managers to ensure the changes were being successfully implemented.
Hannah Thomas is an employment solicitor at FSB Legal Hub. FSB members
should ring the FSB Legal Helpline on 03450 727 727 to discuss legal issues.