How to avoid tribunals

The rush for employment tribunals since the scrapping of fees has meant a major bottleneck. Some tribunals won’t now be heard until 2020, according to the employment tribunal National User Group – who also point to a 165% increase in numbers of claims compared with the previous year.

In the meantime, employees waiting for some kind of resolution and closure on their issues are a headache for HR. There’s the potential for negative feelings and grievances to be escalating further and spreading among colleagues, or growing costs from long-term absence.

At the core of the problem is how HR deal with workplace relationship issues, and even more fundamentally, the culture of how people deal with difficult conversations. Taking a more thoughtful and concerted approach is the way to handling both these areas better – and avoid the tribunal route in the first place.

Any conversation can be made constructive, balancing what needs doing with looking after relationships. It takes a commitment in a manager to some particular qualities and skills.

1. Encourage managers to face up to difficult conversations

Managers need to decide actively that a conversation is needed – not bounced into it by circumstances or emotions. They should plan what they want to accomplish: ’what do I need to talk about? what do I really want for myself, for them, for the relationship?’. And set out a clear purpose with benefits for both sides: if a conversation feels risky to a manager, it will be feeling risky to the other person too. All conversations need to be based on honesty. Managers need to always feel able to express and be open about both their thoughts and feelings. They need to have a sense of benevolence – to genuinely want the best for the organisation and other individuals as well as themselves. And courage – essentially – to be willing to initiate sometimes awkward situations, to speak honestly and be vulnerable personally for the sake of dealing with situations that are harming other people.

2. Don’t allow managers to rely on assumptions of blame

Senior staff can be tripped up by believing their experience means they already have the answers. They need to ask exploratory questions and show a meaningful interest in what an employee thinks, believes, fears and wants. Curiosity – letting people know they have been heard and understood – is a really strong working relationship building tool. It also gives managers the deeper information needed to help with the problem-solving. Managers need to be able to recognise their version of events is a mix of fact, fiction and assumptions, and separate what they know, believe, and what’s uncertain, before they open their mouth.

3. Start a culture of conversation

Businesses want action and efficiency without debate. But conversations only improve through being a natural and regular part of working lives, not as an event – being summoned to a meeting, or into a weekly team slot. Frequent, open and trusting conversations need to be part of the culture, encouraged and supported. Managers should be making sure there are consistent messages about open conversations, the support and development available, putting more time and resources into supporting people away from escalating their negative feelings, and towards dialogue with each other. Line managers should be made more aware of the importance of catching grievances before they can escalate into formal action. Managers and their reports need good ‘Conversational intelligence’ – skills which can be learnt and practiced – until no-one should ever feel as if their problems are unimportant or unsolvable, there’s always a constructive way to reach a resolution.

4. Make sure there’s early mediation

Offering mediation early on allows for confidential conversations to begin without the need to resort to the more formal processes. Conversations that provide a basis for a resolution, more understanding and clarity, will begin to loosen rigid positions – and build trust in you as an employer. Employers benefit most of all from having an established service that people can turn to as the standard, informal route. Mediation then becomes part of the culture, commonly used and trusted, with nothing remarkable or uncomfortable about it.

5. Guarantee professionalism of response

Don’t make the mistake of using untrained managers as mediators. Experienced managers in an organisation can often assume they know best – they know the people, the situation – and don’t listen with an open mind. Instead they make assumptions and want to get to a black and white resolution as soon as possible. Without training, in-house mediators struggle to deal with sensitive situations, to take feelings into account, and only want to work with clear facts. But in many disagreements, indisputable facts can be hard to come by. Mediation also needs to be timely, taking place when it’s needed and not just when mediators can find the chance to be available. Delays always lead to the risk of escalation, for conflicting positions to harden. So internal mediators need to have some scope for flexibility within their schedules, and be able to shift their focus to mediation with support from their line manager.


Interested in conflict resolution?  We recommend this Mediation Skills training course





Arran Heal is Managing Director at workplace relationships specialists CMP. CMP is a pioneer of approaches to conflict management and works to improve workplace relationships - a prime mover in the development and adoption of professional approaches to mediation services, investigations and Conversational Intelligence. For the past 25 years it has been working with some of the UK"s biggest employers, including the NHS, British Army, government departments and universities.