Getting to YESS : Dispute resolution without litigation

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WORKPLACE DISPUTE RESOLUTION WITHOUT LITIGATION

Life is too short to litigate: this is the view of most employees.  Most disputes can be resolved by constructive dialogue between the parties if they focus on finding a solution rather than legal threats. Camilla Palmer, summarises the experience of YESS in achieving resolution without litigation.

Workplace disputes are enormously varied.  They include failure to pay the minimum wage for hours worked, the imposition of long or anti-social hours, discrimination, harassment, re-organisations and redundancy, performance management, harassment or marginalising employees (such as ignoring employees on maternity or other family leave). Solutions also vary hugely.  Our objective, at YESS, is to try and prevent problems becoming disputes and, when they do arise, to resolve them by finding a solution through constructive dialogue between the employer and employee.

Sometimes employers are unaware of their legal obligations; some ignore them hoping there will be no challenge; and some employers deliberately take advantage of vulnerable workers, particularly if there is no union for support. The employee’s response will be influenced by the employer’s attitude and how the employer is likely to react to any proposal. Even if there is no legal claim, there may be a role for the legal adviser to help find a solution. For example, where the employee is on long-term sickness absence and contact has broken down the adviser can act as a bridge and broker a deal between the parties.

Preventing workplace disputes is hard, as is finding the right solution. Most employees do not raise concerns at an early stage for fear of upsetting their employer and losing their job. Many employees are shocked when they suffer poor treatment at work, particularly when they have previously been treated as a valued employee; this regularly happens to pregnant women and new mothers.

The employee usually only seeks advice when things are too bad to tolerate. By that time the employee may be very upset and have lost confidence in their employer– rightly or wrongly.  Some employees want, and are encouraged by a friend or adviser, to assert their rights by putting in a grievance.  Too often this leads to positions becoming entrenched so that finding an agreed solution becomes more difficult.  Our view is that grievances often do more harm than good; they rarely resolve disputes and should be used as the last step after constructive communication has failed to resolve matters.

THE PROBLEM WITH LITIGATION

The majority of employees do not want to litigate.  They know it is uncertain, expensive, time consuming, stressful and might be career suicide.  It is for them a last resort as it should be for their advisers. The reduction in affordable advice because of legal aid cuts, and the introduction of high employment =tribunal fees means that for many employees litigation is not even an option.  That does not mean that employers should adopt a ‘devil may care’ attitude because they think the risk of a legal challenge is low. Employees may still raise a grievance which will take time and money and may not solve anything. Workplace acrimony can fester and spread.

We need to find another way of resolving disputes – at least until we can prevent them happening at all by encouraging employer and employee to ‘air the issues’ before they become disputes (see below).

GETTING TO YESS : HOW TO NEGOTIATE

Our experience is that aggressive tactics and legal threats are met with the same and the scene is set for battle not resolution.  We, believe that it is best to start negotiations by constructive dialogue with the employer to try and find a solution. If resolution fails, that is the time for legal threats and a tribunal claim.

In the excellent book ‘Getting to Yes: negotiating agreement without giving in’, Fisher and Ury talk about 3 types of negotiation: Soft (where participants are friends), hard (where participants are adversaries) and principled (where participants are problem-solvers). In the latter (the best position) they make the following points:

  • Be soft on the people, hard on the problem,
  • Explore interests and avoid having a bottom line,
  • Develop multiple options to choose from,
  • Be open to reason; yield to principle, not pressure,
  • Put yourself in the other party’s shoes to understand their position,
  • Under attack the other side will become defensive and attack back,
  • An apology may be one of the least costly and most rewarding investments.

WHAT IS THE BEST WAY OF GETTING THE BEST DEAL FOR YOUR EMPLOYEE CLIENT?

The first question is ‘what does the employee want’.  The employee must decide if they want to ‘stay’ (if it is not too late) or ‘go.’ There may be a middle way of staying for a period and then leaving.  Options include:

  • Negotiating different hours of work,
  • To return to the same job after maternity leave,
  • To avoid redundancy,
  • Better/equal pay, commission or bonus,
  • Action to stop harassment or discrimination,
  • Redeployment,
  • Working for 3-6 months with time off to seek other employment, followed by termination,
  • An immediate exit package – or enhanced redundancy payment.

Top tip

Think outside the box when considering options and be willing to explore and discuss each side’s concerns. The employee is likely to be worried about finding another job; can the employer help? Can restrictive covenants be easily waived or limited? If the employer is concerned about paying out because it would set a precedent, the employee can promise confidentiality.

DISCUSSING THE STRATEGY FOR ACHIEVING THE OBJECTIVE

The next step is to discuss a strategy with the employee to achieve their objective. The preferred outcome and likely response from the employer will inform the strategy.

Sometimes it is clear that the employer is intent on unlawful action and is very unlikely to negotiate positively.  Some employers refuse to negotiate, handing over to their lawyers, who may be more focussed on litigation than resolution.  In such cases legal threats and litigation may be the only option.  The majority of employers, in our experience, are willing to have a conversation about resolution particularly if they do not feel under attack so are not focussing on defending themselves from legal liability.

THE STEPPED APPROACH

Follow a stepped approach, starting ‘softly’ (but firmly). It is important to remember that the possibility of litigation is always present because otherwise the employee would have no negotiating power.  If resolution fails, the employee will have time to lodge a claim – after filing with ACAS under Early Conciliation.

Step 1 is a conciliatory, problem solving, solution based approach without legal threats aimed at:

  • Finding a solution based on constructive dialogue, after considering all options;
  • Avoiding, if possible, the employer getting their lawyer to do any negotiations; this may be easier if the employee is negotiating, not the legal adviser. Lawyers are not always best at constructive negotiations and unhelpful aggression creeps in along with legal threats including costs;
  • Enabling the employee to leave on as positive note as possible, which is what most employees want and need to get a positive reference. The employee may be able to remain employed for a transitional period if the relationship is maintained.

Step 2, a lawyer or adviser may get involved and write a ‘more legal’ letter but still (usually) without legal threats, and explaining that the purpose in writing is to seek a solution, though sometimes it may be worth saying that the client will litigate if not properly compensated.

Step 3 might be a formal grievance setting out all the allegations.  Raising a grievance is sometimes the only way an employee will be taken seriously. However, there is a risk of the grievance leading to a breakdown in the employment relationship, particularly if there is no union to support the employee and guard against victimisation. However, often grievances are not upheld because to do so would make the employer legally liable.  The most likely ‘best’ outcome is ‘We could have managed this better and will make changes’.  Sometimes the defensiveness can be minimised by avoiding explicit allegations of unlawfulness and instead asking the employer to explain the reason for their actions – or inaction – and requesting a solution.  It is also important to note that an unreasonable failure to raise a grievance may lead to a reduction in compensation awarded by the tribunal.

ENGAGING WITH THE EMPLOYER

It is important to know if the employee has already tried to sort matters out, with whom and the outcome.  Understanding the employer’s position and where the power lies within the organisation is key.  If the client is being harassed by someone senior to them but the perpetrator has the support of more senior management, it will be more difficult (perhaps impossible) to get support to stop the harassment.

It is the employee who is most likely to know where the power lies, the employer’s vulnerability, what and who is likely to respond positively and how other employees have been treated.

WHO SHOULD DO THE NEGOTIATIONS ?

Some steps can be taken by the employee, either meeting with the employer, having a telephone conversation or writing an email or letter. It is important to decide who the employee should approach.  It should be someone who is supportive of the employee, will take the employee’s concerns seriously and who has the power to help find a solution.  It could be Human Resources, a mentor or a higher level manager. Sometimes, there is no such person.

Coaching employees to negotiate themselves often works best if the employee feels sufficiently confident. It reduces the likelihood of the employer handing over to their lawyer, who may well take a tougher line. Sometimes a deadlock in negotiations is broken by the employee speaking directly to their employer. It then transpires that the intransigence is down to the lawyer’s advice, not the employer’s concern. Direct conversations between the parties removes these misunderstandings. The parties are more likely to talk about what matters to them not what matters to their lawyers and advisers.

The language used is important. Employees should be advised to avoid aggression, exaggeration or accusations. The facts should speak for themselves; backing the employer into defensiveness will not encourage resolution.

To bolster their arguments, the employee might say that s/he has taken advice and been advised that she has been treated unlawfully. This has the advantage of clarifying the legal position but also distancing the employee from the allegations – by ‘blaming’ the adviser.

If the employee does not feel strong enough to approach their employer or the employer refuses to engage with the employee, the adviser will need to write to the employer, setting out the facts, putting the record straight, asking for a discussion or putting forward a solution (often financial).

WRITTEN COMMUNICATION WITH THE EMPLOYER

If a letter or email is likely to be most effective, the employee’s concerns should be summarised factually, a solution suggested or a meeting proposed.   The level of detail will depend on the circumstances.  For example:

  • If there is a dispute about the facts (particularly in a letter or email), the employee’s account should be set out;
  • If the employer may not be clear about what the employee is complaining about, the key issues should be made clear.

The letter should usually be short, stating that ‘we do not intend to go into details at this stage except to say that ….’  then summarise the key issue in brief such as ‘my client would not have been made redundant if she had not been on maternity leave’…

Top tips for the contents of email/letter are:

  • State the facts: they should speak for themselves. For example, ‘I was not told about the re-organisation when I was on maternity leave and if I had been at work I would have been able to apply for the new jobs’;
  • Avoid general allegations such as ‘bullying’ and ‘harassment’; this is only unlawful if related to a protected characteristic (such as age, race, sex): just explain what happened and the impact, such as work related stress/depression etc;
  • Stick with the main concerns rather than including every incident; it is often worth saying: ‘I do not intend to go into all the details at this stage but want to highlight the following ….; this reserves the position about further incidents;
  • Understate rather than overstate; overstatement will be impossible to prove and will undermine the strong allegations;
  • It is best to avoid legal threats at this first stage;
  • Set out what the employer should do in response.

Remember if the discussion starts with legal threats, it is much harder to move back into conciliatory mode as by then the damage has often been done; both employer and employee are angry and defensive. It is much easier to do it the other way round.

LESSONS WE’VE LEARNT AT YESS

  • Most employees want to settle and not litigate;
  • Many employees are nervous about putting in a grievance for fear of repercussions and losing their job; grievances should generally be the last not first resort. With a positive constructive approach, it is sometimes possible for the employee to remain employed.It is key to consider all possible options for settlement – what the employee wants – and a strategy for how to best achieve this quickly and cost-effectively;
  • Many employees prefer to negotiate themselves with coaching about what to say, who to approach and what to ask for, i.e. possible solutions. Advisers can help write a script for a meeting or draft an email;
  • Emotions are often running high (understandably) but translating that into blame and threats does not encourage resolution. The question is whether legal threats will achieve what the employee wants. If it is early resolution, the answer is generally ‘No’;
  • It is important, at stage 1, to focus on a positive way of finding a solution preferably without legal threats; If it is necessary for the employer to be informed of the legal position, the employee can refer to having taken legal advice;
  • Constructive dialogue will not work in all cases, but it is worth a try in many.

ALTERNATIVES FOR EMPLOYERS

In an ideal world, there should be systems in place to avoid workplace problems becoming disputes.  One option is for the employer to replace their grievance procedure with a ‘resolution procedure’.  This allows for formal or informal mediation as a first step to address workplace issues before triggering a formal grievance process. This has been adopted by an international financial services company and early signs are that it is working and has reduced the number of grievances. It is also good for morale. It also saves time and stress for all.

CONCLUSION

With the costs and risks of litigation we have to consider different ways of protecting employees.  The law is crucial because without legal protection, rogue employers have no incentive to treat employees well.  There also has to be ‘stick’ of litigation in the background but it is best kept ‘in the back pocket’ until it is necessary to pull it out.  Our experience is that most employers respond more positively to the suggestion of a conversation to discuss solutions, rather than legal threats. As a result, many cases are settled in a shorter period, with as much compensation but with less stress, lower costs and, importantly, a more positive relationship.

 

Life's too short to litigate