June 13, 2021

Volume XI, Number 164

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June 11, 2021

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Handling Grievances webinar follow-up questions, Part 6 (UK)

As nearly the last of our answers to queries raised at our Handling Grievances Webinar last month, here are two very important questions about how far HR can or should act as a neutral in the resolution of an employee grievance.

10. Can you train an HR person to be a qualified mediator rather than go external?

11. If someone in HR is the Grievance Manager, then is it ok for them to behave as Grievance Manager and have an opinion?

10. Can you train an HR person to be a qualified mediator rather than go external?

In principle you can certainly dispense with the services of an external mediator if you have someone internal with the same qualifications and skill set, but that it not always the end of the question in practice.

First, the ability to mediate is not strictly about having a formal qualification or training, just about the ability to cajole two opposing parties to see (bit clichéd, this, sorry) that there is more that unites them in terms of their best interests going forward than separates them in terms of whatever may have happened in the past.  It is a frame of mind, a way of thinking, not a certificate, but nonetheless much harder to acquire than you might think, hence the desirability of formal training in most cases.

I went into my own mediation training many years ago as a City Partner with two decades of settling employment disputes behind me – how hard could it be, really?  Very, as it turned out, because workplace and employment mediation requires a skillset which is not just different from that of lawyer or HR Manager but often directly contradictory of it.  All your painfully-acquired legal and HR knowledge becomes substantially irrelevant.  You don’t identify a solution and push towards it, because that is for the parties.  You obviously don’t represent one protagonist over the other, you stop doing most of the talking, and above all, you have to shelve years of dealing with the questions of fault and procedure which clog up most employee grievances before you can get on the way to assisting the parties themselves to find their own solution.

Even if the necessary skillset is acquired, whether through formal training or not, the next question becomes whether the intended parties to the internal mediation will accept that.  A mediator must be (and be seen to be) totally impartial, but if either of your parties has ever been on the wrong end of a decision made by HR, they will immediately doubt that.  Even if there is agreement to go into mediation with someone from HR, how confident will your employees be that the other key plank of the process, confidentiality, will be maintained afterwards once that person puts aside their mediator’s hat and becomes HRBP again?

Our experience has been that it is these latter issues which prevent the wider use of in-house formal mediations.  Most organisations where that is done successfully are very large, possibly geographically dispersed, such that it is genuinely possible for the HR Manager acting as mediator not to know the parties in advance and not to have to deal with them in an HR capacity afterwards.  That said, even in smaller single-site operations, nothing prevents HR from doing a lot of similar spade-work pre-grievance.  There is nothing wrong (in fact, a great deal right) with encouraging each party to focus on how the situation may be resolved rather than who caused it, especially if they do so backed by a grievance policy which refers expressly and repeatedly to the importance of resolution over process.

11. If someone in HR is the Grievance Manager, then is it ok for them to behave as Grievance Manager and have an opinion?

This is almost the reverse of the question above – when is it ok for HR to throw off the burden of studied impartiality and in their newly liberated state decide that one person or the other is definitively and gloriously in the wrong?

Nothing at law prevents HR from being the Grievance Manager, but it has its risks.  In particular, once you have found against an employee in a grievance process, and especially if any challenge or appeal is then made against the way you conducted it, that employee will never again accept as unbiased your involvement in any process concerning him, e.g. recommendations on bonus, redundancy scoring, assisting in a pure HR capacity in any future disciplinary or grievance procedures, etc. If his grievance related to a protected disclosure for whistleblowing purposes or an allegation of discrimination, any subsequent unfavourable treatment of that employee in any of these respects by HR may be alleged to retaliatory detriment or victimisation.

Additionally, care must be taken to ensure that the HR/Grievance Manager has the outward authority, technical expertise and senior management air-cover to make unpopular decisions if the facts require it.  The HR/Grievance Manager must therefore be seen not just as a passive implementer of senior management decisions but also on occasion a driver of them.  It follows that the more senior the HR person concerned, the more convincing they will be in their role as Grievance Manager.

So yes, HR people are most definitely entitled to opinions on grievances – the question in each case will be whether it is an opinion which would more convincingly be voiced by someone within the employee’s line management, leaving the HR function free to operate untainted by the outcome.

And finally, on that note, do avoid the temptation to act as Grievance Manager when you are not.  HR’s pulling strings behind the scenes (as opposed to merely advising) will generate evidence disclosable in litigation or through a DSAR, and then you run a significant risk of coming catastrophically unstuck in the ET like this.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 132
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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