Informal Not Casual in New Acas Guidance on Responding to Discrimination Complaints in UK
New ACAS (Advisory, Conciliation and Arbitration Service) guidance on handling discrimination allegations in the workplace has been issued this week. This is particularly interesting because of the degree of prominence which it gives to informal resolutions of discrimination complaints in place of the often process-driven guidance which Acas has issued in the past.
Seeking an informal resolution of a discrimination complaint is a fraught area for employers. There is the ever-present risk of being accused of not taking the matter seriously, of ignoring misconduct, of leaning on the complainant to go away quietly, of a cover-up and generally of your approach to try to do the right thing blowing up in your face. The recognition in the Acas Acas guidance that an informal resolution can be a legitimate way forwards is therefore very welcome.
As to the means of actually getting to that agreement, however, the guidance is slightly less helpful. The various booby-traps touched on above are all very much real concerns and treading clumsily or over-eagerly towards an informal resolution could well set them off. So here are some thoughts for those initial steps:
Ask the complainant what he wants by way of resolution. Secretly, this may well be an exit, cash and his accused’s head on a spike, but most people will limit themselves to restoring a decent working relationship if the question is asked early on.
The very least likely means of achieving that decent working relationship tends to be formal grievance proceedings, especially if either of the parties or their lawyers insist on fighting the whole thing from entrenched positions like an artillery duel on the Somme.
The guidance implies that mediation should usually take place only following an initial investigation of the complaint. I have mixed feelings on this. It is often said that a properly-informed mediation stands a better chance of success. Equally, the investigation process can itself be almost as gruelling and confrontational as the full blown grievance. The purist approach to mediation would say that what matters is what the parties can agree facing forwards, and not what happened behind them. Perhaps best to decide the point on the circumstances of each case, but without any assumption that there must necessarily be a prior investigation every time.
“If the investigation finds evidence suggesting such a [discrimination] complaint may have basis [in fact]“, says the guidance, “it is very likely to require a formal approach“. If that is intended to imply that informal dispute resolution only has a place where the allegation is considered ill-founded, I think that would be wrong. Especially where the complaint arises from inadvertent misunderstanding or a moment’s acting out of character, an informal resolution would seem to have many advantages.
Aside from mediation, the guidance refers to an informal process whereby the manager hears what each party says and then proposes a solution. I think this is to be avoided at almost any cost – the line between such an approach and an inadequately-conducted formal process is too thin. It would also debar that manager from participation in the later formal process on the grounds that he has clearly made his mind up already.
Acas says that ultimately any participation in a mediation process must be voluntary, and that is clearly correct. However, it is surely a reasonable management request that the employee at least consider means of dispute resolution less destructive of work relationships than a formal grievance process. If his refusal even to explore that possibility could be seen as unreasonable, therefore, the employee’s stubborn stance could be taken into account by the employer in its final decision.
Last, how to broach the loaded question of an informal resolution to someone potentially very wound up about actual or perceived discrimination? There are no magic words here, but you will stand the minimum risk of being hoist by your own good intentions if the question is posed neutrally and ideally in writing. How about something like: “You are welcome to pursue this formally if you wish, but would you be interested in seeing if we can resolve it informally first?”. The worst you can get back is a no, and then you have to drop it and carry on with the formal process, whatever your finer feelings on the merits of doing so.