I love this next question from our webinar last month. It goes right to the heart of what a grievance is about – obtaining redress where due – and raises some very interesting issues as to the extent of the employee’s own obligations to help in that process.
8. If someone refuses a mediation to resolve a grievance issue, would it be too harsh to take them down a disciplinary process for refusing a reasonable management request?
The starting point is whether requesting the average complainant to mediate is indeed a reasonable management request. In the great majority of cases, it clearly is. The process is fast, discreet, flexible in its range of outcomes, hugely cheaper in terms of time and cost and temper than contested grievance proceedings and statistically by far the most effective route to resolution. Moreover, it works by finding a solution acceptable to both protagonists, not by imposing one on them, and therefore that solution is correspondingly much more likely to “stick”. It should also pose few insurmountable difficulties to the parties, since all the employer is really asking them to do is sit down with another adult (though not even necessarily in the same room if that is an issue) and discuss like grown-ups whether there is a way to do something which is clearly in their own joint best interests (not to mention those of the business), i.e. find a viable way forward from their current position. In that process they are accompanied by a neutral third party and can step out of the mediation either for good or just for a break, at any time.
So it is hard in principle to see why suggesting mediation would not be a reasonable management request. That is true for the complainant and also the person on the receiving end of the grievance – they may think it an unnecessary burden on their time and/or that they have no reason to apologise or compromise in relation to whatever it is about. They may well be right. Nonetheless, they will still have some interest in resolving the matter, not least because if they don’t, they will get taken into the formal grievance process instead where things may be said and findings made which are not to their advantage. I see very little merit in the argument that because I do not consider I am at fault for my employee’s unhappiness, I am thereby released from any obligation to help fix it.
But it will not be a reasonable management request in every case, and even where it is, the employee’s refusal might still be reasonable and so side-step the misconduct/disciplinary route. Cases where either or both of those caveats might apply could include:-
- Where the other party has made it clear (but not where it is merely suspected) that he/she is attending only to be seen to go through the motions and actually has no wish or intention to reach agreement;
- Where the same parties have mediated the same issue before, either without success or where the agreement reached was soon materially defaulted upon by the other side anyway;
- Where there is a corporate need to set some form of precedent. If a manager is serially accused of bullying, for example, there may well be a case for a formal grievance inquiry into his conduct rather than just allowing him to mediate himself out of serious trouble over and over again. Alternatively, an employee who brings a bullying grievance as a result of being asked to do something he does not want to do may need a formal process to convey the warning that that is not his choice to make;
- Where there are genuine and reasonable grounds for one party to fear meeting the other. Particularly in lock-down days, however, there is no more reason why a mediation would require face to face contact than a formal grievance process. In addition, unless the desired outcome is a transfer or exit on terms, refusing to meet even in the safe and controlled environment of a mediation says nothing good about the prospects for a return to working successfully together;
- But not necessarily mental health issues, anxiety, etc., for the reasons set out here.
The twin requirements that the request to mediate should be reasonable and the refusal to do so isn’t can make taking these cases down the disciplinary avenue potentially risky. As an alternative to a misconduct argument, however, employers might consider approaching them on a “some other substantial reason” basis. If there the grievance highlights what appears to be a breakdown in an important workplace relationship, a person’s refusal to mediate without good reason can be a very clear sign that it is irretrievable, that they are not even willing to try to fix it. At that point, assuming no scope for separating them, something has to give and one may have to go. In deciding which, all else being equal, the employer could well be entitled to pick the one whose intransigence had been the final nail in the coffin of the relationship, i.e. the one who refused to mediate.
So much of the answer to this question is fact-specific. It certainly cannot be said that refusing to mediate is automatically a disciplinary matter. However, employers seeking to avoid the trench warfare artillery duel of a formal grievance procedure can still usually adopt a much more robust approach to pushing mediation in such cases than is generally believed. For more reading on this, do take a look here and here.