Employment Mediation Process
Mediation can be a very cost-effective way for businesses to resolve disputes between staff or teams in the workplace and help maintain good working relationships.
Disputes involving employment rights are a particularly contentious – and potentially costly – aspect of workplace conflict and disputes. This could be, for instance, allegations of bullying or harassment in the workplace, or if an employee feels particularly aggrieved with a performance, appraisal or disciplinary interview, or when an employee’s contract is being terminated for whatever reason. Everyone usually benefits if these conflicts can be resolved amicably rather than ending up being decided by an Employment Tribunal, which can prove very costly, both in terms of legal fees and time invested, for the employer to defend.
Normal management or company processes are normally enough to resolve many low-level disputes. HR mediators in larger organisations are often a bridge between the parties in conflict. But what can be done if no agreement is reached? This article will explain how mediating employee conflicts can help to satisfactorily negotiate mutually acceptable terms and how the employer can use the agreement that comes out of the mediation to protect against Employment Tribunal actions.
Bullying or harassment at work
Harassment is unwanted conduct which ends up offending an individual’s dignity, whether it is intentional or not, or creates an intimidating or hostile environment based on a person’s disability, sexual orientation or identity, race, religious beliefs, or age.
Bullying is more of a grey area. It doesn’t have any legal definition, but often features an abuse of power or authority. It might also be workplace ‘banter’ or ‘constructive criticism’ that goes too far. The effect leaves the victim feeling intimidated or humiliated. It is often a significant cause of stress-related absence and could include such things as the employee:
- Feeling they’re being repeatedly set up to fail.
- Being frozen out of meetings they should be included in.
- Being excluded from events generally open to others.
- Being given poorer performance appraisals than their work justifies.
- Being repeatedly blocked from training or promotion opportunities.
- Receiving intrusive emails, texts, phone calls, or social media contact.
This list is not exhaustive, but indicates how wide-ranging the causes can be.
Employers must take any complaints of bullying or harassment in the workplace seriously. Apart from the obvious potential risk to the victim’s health and the need to prevent such behaviour in the workplace, the employee might hand in their notice if the problem is not resolved, which could result in an Employment Tribunal claim for constructive dismissal and compensation.
Mediation can be an effective way of resolving workplace conflict, particularly if the complaint involves the person’s line manager. The mediation outcome in these cases is likely to identify corrective action or training that needs to take place to make sure the behaviour is not repeated in the future, as well as agreeing terms on how the parties involved might continue to work together.
Employee leaving their job
There can be a range of reasons for an employee leaving a permanent job:
Employer’s reason: This could be for redundancy or disciplinary reasons, for example. There is likely to have been an ongoing communication process leading up to the end of the employment. The terms of leaving should have been laid out and/or negotiated as part of this ongoing communication, following the terms of the employee’s contract and the employer’s disciplinary procedures as appropriate.
Larger organisations may have their own HR departments who will ensure that contractual and legal requirements have been complied with and that the employee has access to appropriate advice and representation. Smaller-sized employers might need to enter into detailed negotiations with the employee, in which case the employee mediation process can be a non-confrontational and cost-effective way to achieve a negotiated outcome that is acceptable to both sides.
Employee’s reason: The employee might, for example, have accepted a job offer elsewhere, or chosen to take a sabbatical from work to pursue other interests for a while, or any number of reasons – including as an unfortunate result of them suffering harassment or bullying in the workplace. From the employer’s point of view, it is important to invite the employee to an exit interview. This can alert the employer to whether the reasons for the employee’s decision to leave are cause for concern – e.g., if the employee might have grounds for a claim for constructive dismissal. If this is the case, mediation can help the employer and employee reach a satisfactory agreement for both parties and, importantly from the employer’s perspective, gives them the opportunity to identify and resolve problems in the workplace.
Negotiating employee leaving terms
Mediation can be a particularly cost-effective way of negotiating the terms under which an employee leaves, particularly if the circumstances are contentious or unusual. Mediated negotiations take much of the heat and emotion out of the situation and help the employee feel more of an equal party to the discussions.
The employment contract, or the law, specifies minimum entitlements. However, some aspects might be more open to negotiation, depending on the employee’s role, for example:
- Bonus entitlement, performance-related pay up to time of leaving.
- How and when any work equipment is to be returned (laptop, mobile, etc).
- The exact wording of references.
Employment mediation process
Direct discussions between employer and employee on employment matters can be particularly tense and difficult. A conflict mediation process can be a great help in keeping these discussions on track, focused and objective and making sure both sides are able to have their say.
The mediator will speak individually and confidentially with both sides to explain the process and understand each side’s perspective on the issues to be discussed.
The employee often has someone with them helping them with their case in these discussions – a solicitor, for example, or Trade Union representative, or a trusted friend or colleague. Similarly, the employer might have someone from their HR department or a solicitor advising them. This means that either or both sides may need some time for confidential discussions with their advisors during the process.
An effective way for the mediator to work here is often with shuttle mediation for at least part of the discussions. This means the two sides are in separate rooms and the mediator ‘shuttles’ between them, relaying proposals between the parties. The mediation will probably conclude with all parties in the same room when agreement has been reached and the mediator can summarise the agreed outcomes, which will be documented for both parties. As well as financial settlement terms, this can also include the agreed wording of an employer’s reference, apologies, or remedial training in the workplace, depending on the individual circumstances.
Clean break agreement
It is normal in these sorts of mediations for the employer to require the employee to sign a legally binding agreement that in view of the agreement that has been reached, they will not take any further legal or Employment Tribunal action. This is likely to be drawn up by the employer’s HR department or legal advisors.
Employment disputes or complaints have the potential to be very contentious, delicate and costly for an employer to satisfactorily resolve. Mediation is often a cost-effective solution to resolve these conflicts, particularly for smaller organisations who have limited HR or legal resources. A skilled mediator keeps the discussions focused, on track, objective and respectful for all concerned. A mediated solution can save the business huge amounts of time and expense involved that defending Employment Tribunal or other legal actions that dissatisfied former employees can bring.
Want to know more about workplace mediation?
Talk to our experienced and friendly workplace mediation team on 0113 468 9593 for a discussion, without obligation, to discover how mediation can help resolve disagreements around employment rights.
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Frequently Asked Questions
Can mediation help in employment disputes?
Mediation can be a very cost-effective way for businesses to resolve disputes which could end up being taken to an Employment Tribunal. These disputes are often resolved by normal management interventions, but mediation can be effective either when these interventions are not effective, or if the issue is with the complainant’s manager.
An employee has complained about bullying. What can I do?
Employers should always take allegations of bullying or harassment seriously. If not resolved effectively and comprehensively, there can be serious consequences both for individuals and the business itself. An external mediator can often be much more effective in achieving a lasting solution.
When can employment mediation help?
Conflicts around employment issues are part and parcel of normal working life. These can usually be resolved using normal company processes – direct discussions between the members of staff involved, including management, or discussions involving HR, for example. However, for more complex or contentious issues where the usual processes do not bring results, having an experienced, impartial mediator help facilitate the conversation can be a really effective way of having an objective, constructive and mutually beneficial conversation.
Is there any benefit to the business of using mediation for employment issues?
Mediation can be a very cost-effective option for the employer to resolve employment issues. It is often the best option to achieve a mutually acceptable outcome quickly, without involving expensive and time-consuming legal processes or Employment Tribunal cases. Mediation can often be a great help in improving working relationships and can help demonstrate to the workforce that the employer truly cares about creating a productive and friendly working environment.
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