“I’d rather struggle and complain!”

View across Broadford Bay, Isle of Skye, Scotland
Have you ever found yourself dealing with someone who refuses to see a solution you find blindingly obvious, but refuses to take it? You’re not alone!

I remember several years ago having Sunday dinner with my family. My father was struggling to cut his roast beef, cursing loudly about how the stupid knife wouldn’t cut the damn food – I’ve left out a few expletives, but you get the idea!

My brother, having noticed our dad increasingly having this problem as he got older, had bought him an ultra-sharp steak knife, one that would slice through the toughest beef as if it wasn’t there. So, he pitched in amongst the cursing with “Why don’t you use the steak knife I bought you?”

The terse, heartfelt answer issued instantaneously and impatiently from my dad: “Because I’d rather struggle and complain!”

He had the presence to catch what he’d said and laughed heartily at how daft it sounded. But was it daft?

I’ve reflected on that story many times over the years, and it comes to mind frequently, whether I’m mediating or involved in a negotiation. The number of people who, when presented with a simple solution to their problem, would rather struggle and complain is enormous!

There’s a wonderful Scots word for this – thrawn.

We’re all thrawn at heart!

Thrawn takes stubbornness to the point of cutting off your nose to spite your face. I’ve seen people staunchly refusing to do something simply because it’s been suggested by someone else. Indeed, I suspect most of us will have witnessed that. I suspect large proportion of us will have DONE that!

This has a big impact in relation to dispute resolution. How often is the dispute based on one or both parties being thrawn? In my experience, even when it’s not the root cause of the dispute, it can be a significant factor in them having reached, and remained in, deadlock.

So, how do you get past someone being thrawn?

It’s worth reflecting that “I’d rather struggle and complain” is usually the ‘do nothing’ option. There’s no need for creativity or compromise, so it often appears the simplest approach.

Listening with kindness is a good start. It’s a difficult skill to develop, but it’s fascinating how much can be drawn from trying to understand the other person’s viewpoint. Rather than pressing suggestions on them, ask them to confirm the problem then suggest their own solutions. Indeed, in the example given, everyone knew the solution to the problem they could see. So the more interesting questions move towards understanding the problem you can’t see: what is making this person choose not to take the obvious step? But, remembering that we’re all thrawn at heart, the last thing you want to do is ask them directly! Of course, the result is a long conversation, with many questions, seeking clarification and further thought, but that’s more likely to stimulate constructive problem solving. The key to getting past this sort of deadlock is often to work out what triggered the behaviour.

What’s in a word?

It’s also worth remembering the importance of the non-verbal and non-vocal elements of communication. Said with curiosity, “Why don’t you use the steak knife ?” is just a question. Said tersely, it could be taken as patronising, or insulting. With sarcasm? Well, it could be a trigger. And that’s before you add in any eye-rolling or tutting!

Human interactions like this are all too common in the workplace. If they start to cause a problem, a good place to start is to remind yourself that we are all thrawn, think beyond the behaviour and start to listen with kindness.

Finally, what’s the relevance of the picture attached to this post? Almost none, but I took it last week within 100m of where the said incident took place, and it’s another reminder that spring is on its way…!

Winning arguments with yourself?

I recently spoke with Roxanne Kerr of Helix Trauma Therapies for her regular podcast. We set out to discuss why conflict occurs. I enjoyed the conversation and I thought I’d share the result.

Initially, we compared our internal and external dialogue, and explored some similarities between internal conflict and an external conflict. We even found the value in walking the opposite way round a field than you normally do!

A hint of winter!

Initially, we compared our internal and external dialogue, and explored some similarities between internal conflict and an external conflict. We even found the value in walking the opposite way round a field than you normally do!

A record year for strikes

The Office of National Statistics has recently published its latest figures around industrial disputes, one of the highlights being the record low number of days lost to strikes, with a similar low for other forms of industrial action.  So, does this trumpet the success of the Trade Union Act 2016?  In short, no.

To those of us involved in industrial relations the latest figures are unlikely to come as much of a surprise. The statistics around strikes have been running at record lows for a number of years now. What IS strange is that, unless they have a record of doing so, many employers remain reluctant to engage constructively with unions.  This often seems to their being wedded to views of the role and operation of unions that weren’t even that accurate in the 1970s, from whence they originate.  Indeed, if you genuinely want to communicate with your staff, the structure and training they can gain through a union presence can make the process significantly easier and more efficient.

So why have I attached a picture Charles de Gaulle airport? Well, mainly because French Air Traffic Control is virtually synonymous with “on strike”, and I was drawn to a recent article examining industrial relations in France and how it relates to the UK. An interesting factor in France is that union membership is only around 8%, meaning that it’s really only union representatives who join.  This phenomenon was examined in Economist magazine back in 2014:

…the real source of French union strength today is the statutory powers they enjoy as joint managers, along with business representatives, of the country’s health and social-security system, and as employee representatives in the workplace. Under French law, elected union delegates represent all employees, union members or not, in firms with over 50 staff on both works councils and separate health-and-safety councils. These must be consulted regularly by bosses on a vast range of detailed managerial decisions. This gives trade unions a daily say in the running of companies across the private sector, which accounts for the real strength of their voice.

So, in effect, people in France don’t join trade unions because they don’t need to, so long as there are enough people willing to act on their behalf.

Returning to the UK, there has been a long-term downward trend in unions taking strikes, one that was well established well before the Trade Union Act 2016 kicked in to make taking industrial action more difficult.  For the last several decades, unions have been adapting to increasingly exacting legal requirements to take industrial action, meaning it is still perplexing why the TUA 2016 was put in place at all (and it remains unclear if it is consistent with human rights legislation which enshrines the right to withdraw labour).  Unions’ main approach has been to become more effective at influencing, better prepared to be persuasive negotiators and of more constructive value to employers that are prepared to engage constructively with them.

I’m currently working with several clients, some of whom face difficulties engaging collectively with their workforce because they lack representative structures, and others that simply want to improve how they interact with their unions to the benefit of everyone in the company.  The common theme is that, if you want to avoid disagreements with your staff, discuss things with them substantively and discuss them early and, ideally, draw out any ideas they can add.  The better people understand the problem, the better they will understand the solution.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Good Riddance to Employment Tribunal Fees

Well, it’s been a long time coming, but the Cameron Government’s decision to charge fees for people to raise claims in the Employment Tribunal has finally been shown to be illegal.

Created with Nokia Refocus

In a landmark ruling, the Supreme Court has ruled that charging people up to £1200 so they can challenge the legality of their employer’s actions is illegal.

Fees were never introduced in Northern Ireland, and it is notable that there was no drop off in the number of applications to go to their Industrial Tribunal.  Meanwhile, across Great Britain, ET applications plummeted by 70%.  In Scotland, the SNP Government stood for election in 2015 with a pledge that, as soon as they had the power to do so, they would legislate to remove Employment Tribunal fees, justifying this on the premise that someone who has just unfairly lost their employment is unlikely to be able to find the money and will, therefore, be denied access to justice.

Introduced in 2013, fees were initially justified as being to reduce the number of “weak claims”, though a financial incentive later became apparent with the Justice Minister at the time stating

We want people, where they can, to pay a fair contribution for the system they are using, which will encourage them to look for alternatives.

That case was never particularly convincing and the result, inevitably, was that many people with a valid claim were unable to bring it because they couldn’t pay the fee.

Alongside the fees, the Cameron Government also introduced mandatory Early Conciliation.  This is a process whereby the parties, with facilitation by ACAS, can try to reach an out of court settlement and is something applicants have to do before they can complete their ET application.  Although there’s nothing wrong with this in principle, my experience of it wasn’t good.  I have found few employers prepared to negotiate towards a settlement, preferring to gamble on whether or not the applicant could find enough cash for the fee.  Perhaps, with fees now found to be illegal, there will be a greater incentive for all sides to take a more pragmatic, conciliatory approach.

Dave Prentis, the UNISON General Secretary, welcomed the Supreme Court ruling saying:

The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.

In this context, the positive role of trade unions shouldn’t be underestimated, and not just because it is through UNISON’s expertise and persistence that this ruling has been achieved, but more locally and practically as well.  A well-trained union rep can defuse and head off the vast majority of cases referred to them, most often through facilitating a pragmatic solution, sometimes through persuading an individual that their case doesn’t stack up.  As an example, this leads to a significant reduction in the number of cases going to grievance, and those that do proceed tend to be much better presented.  This is something that many employers could easily miss.

That principle also filters through to ET applications.  Unions take great care in presenting cases, cases they support are exceptionally unlikely to be regarded by the Tribunal as “malicious, vexatious or frivolous” or “in bad faith”, and a significant proportion are successful.

Of course, most trade unions opted to pay these fees for their members, but many, many people who weren’t in a union must have been denied access to justice by this ill-conceived policy.  While it is likely that those who applied to the ET will have their fees repaid, at this stage it seems likely that those who couldn’t afford the fee at the time will have missed their opportunity, but it remains to be seen if any pragmatism will be shown in that respect.

 

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Trade Unions face big new fines

Trade Unions face big new fines

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Sneaking past the radar, under cover of Brexit, the Government is running a number of consultations, including ones around the Trade Union Act 2016 and Corporate Governance. The Corporate Governance review deadline has passed, so the gathered information is now being collated and interpreted, but other elements are still in play. The consultation that caught my eye was consultation on the Certification Officer’s enforcement powers. This will introduce significantly tighter rules on the election for senior positions, vetting of candidates and the management of political funds, with unions facing fines of up to £20,000 if they breach those rules.

As is often the case, there’s a stick for when things go wrong, but no carrot to encourage a more positive approach to be deployed. The consultation in process doesn’t seem to be leveling the playing field so much as presenting another set of hurdles for unions to jump in order to be effective in representing the voices of their members.

Only last November Theresa May stated “…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” at the CBI Conference. She backtracked pretty quickly, and the concept that staff have a valid (essential?) voice in the successful governance of businesses and charities was diluted in the document that was published, but it was still there. There is, therefore, an opportunity for employers to provide a channel for that voice.

And all of this comes at a time when strikes are at close to their recorded low – to quote from the Office of National Statistics report UK Labour Market: Mar 2017:

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Yet, while CEOs across the land still proclaim their staff to be their biggest asset, most still decline to draw on staff knowledge of the business, the problems it faces and many possible solutions.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Trade Union Act looms large…

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Disciplinary Penalties: You’ll Have Done Your Time?

This is an interesting one.  An  Employment Appeal Tribunal has recently ruled that an employer acted fairly in dismissing someone while taking into account a number of disciplinary issues that were, according to their procedures, ‘spent’.

The case is an extreme one, with the employer having taken 18 formal actions against the individual over a 12 year period.  The employee then did something that carried a mandatory final written warning.  However, the employer decided that the previous disciplinary record, in spite of all penalties having expired, should be taken alongside the latest misdemeanour, leading to their deciding to dismiss the individual.  Most Disciplinary Procedures are quite clear on how long a warning will remain on an individual’s personal file, and most employees will assume that, once that time has passed, they no longer need to worry about the record. There are, however, policies that say a record can be kept longer (even indefinitely) for a range of purposes – possibly the most common being to use as a deciding factor in a redundancy situation, but there are others.

For years, I’ve advised people to make a Data Subject Access Request for their personal information once they’re clear of the penalty, so anything that should no longer be on their employment record will be removed, just in case they get taken into account in any future situation (e.g. redundancy).

One of the problems is that very few companies have the resources to be meticulous about keeping their staff records (or their other filing) absolutely up to date.  The result is that, even if the policies say nothing, records of things that have happened years ago can remain on the file to be seen by whoever next needs to access it.  If that happens to be for a future disciplinary, is it reasonable to expect an investigating officer to ignore that information once they’ve read it?  They may try hard not to consider it but, subconsciously perhaps, they now know this individual has a history.

Even if that history has no relevance to current circumstances.

 

I’d be interested to know your thoughts on this subject, so please leave a comment. Alternatively, if you’ve been affected by a similar issue and would like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Anti-Bullying Week highlights a growing problem in UK workplaces

Bullying & harassment is a growing problem in UK workplaces, but we shouldn’t accept that as just a fact of life.  

Today is the start of Anti-Bullying week.  Designated by the Anti-Bullying Alliance (ABA), the focus is largely on bullying amongst children, but it also encapsulates issues that arise in the workplace.

What is workplace bullying?

Bully Online define workplace bullying as follows:

Bullying is conduct that cannot be objectively justified by a reasonable code of conduct, and whose likely or actual cumulative effect is to threaten, undermine, constrain, humiliate or harm another person or their property, reputation, self-esteem, self-confidence or ability to perform.

There are loads of other definitions, but they all boil down to very similar messages.

So why bully?

A few of the more commonly reported reasons are:

  • The bully is insecure, possibly because they are being bullied themselves;
  • They feel threatened that someone in their team may be more capable than they are;
  • They’ve been promoted into a management role but have never been properly trained to do it;
  • They are fitting in with the organisational management culture

Experience suggests that many perpetrators are unaware of the longer term emotional impacts of their behaviours.  To someone suffering at the hands of a bully it may seem trite to say so, but challenging the behaviour, and highlighting how it makes you feel as an individual, is often the most effective way to make it stop.  Sadly, the creeping vulnerability that develops when bullying continues unchecked, along with the perceived impossibility of building a case[1], often makes people decide it is easier to either suffer or leave their job.

All too often such behaviour flows from the top, especially from managers who pride themselves on “running a tight ship” or being “robust” in their management – just two of the many terms used to justify behaviour that is actually unacceptable, ones that can flag up the possibility that someone they manage may see their approach as bullying.

Economic Impact

Aside from the human effects, the economic impact is huge.  The performance of those being bullied drops, often they are off sick more frequently, and awareness of what is happening can have a serious impact on wider morale and productivity.  A year ago ACAS published a guide on tackling workplace bullying that referred to 2008 research indicating that workplace bullying costs the UK economy almost £18 billion.  Sadly, their recent evidence is also that bullying is on the rise, something no doubt exacerbated by the continuing economic difficulties facing many companies and organisations.

Let’s hope, for everyone’s sakes, that knowing more about workplace bullying will help to identify it and stop it.

 

 

[1] Of course, there ARE ways of building a case, get in touch if you’d like some advice.

To Mediate or Not to Mediate, That is the Question…

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.  Despite that, I have found many employers quite slow to adopt mediation as an approach, and often reluctant to put it in place early enough to prevent some situations becoming intractable. In some cases, it seems to be an option of last resort rather than a means to head problems off at the pass.

Part of this seems to come from a lack of understanding of what mediation is and does, part of it from seeing it as an additional expense.  In many cases, those that have tried have done so using internal mediators – while that may work in some situations, staff tend to perceive a mediator employed by their company as having a conflict of interests that means they can’t be impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results have perhaps not been what might have been hoped.  But the relative costs of employing an external mediator will often pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

Interestingly, ACAS research published in 2012 showed that mediation is significantly more successful in workplaces where the employer is genuinely committed to the process, less so where they are reluctant to use it – so the results are, to a large extent, self-fulfilling prophecies.  The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

One conclusion from the ACAS research was that one poor result can colour an employer’s view of the value of mediation as a whole.  To a large extent, one of the benefits of mediation is that there is little to be lost in trying it, but please do so with a genuine commitment to find mutually acceptable solutions or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

What Can Strathesk Resolutions Do For You?

Approaching Bass Rock from the south

Strathesk Resolutions specialises in helping businesses to identify, resolve and, ideally, avoid individual or collective problems with their staff through targeted analysis, mediation, training, coaching and mentoring.

We draw on years of experience working collaboratively and constructively to achieve the right outcome to complex industrial relations situations.  We deliver straightforward advice, training and solutions that encourage and develop relationships based on understanding, cooperation and trust.

Our open and honest approach ensures fairness to all sides whilst guaranteeing the needs of both the individual and the organisation are properly considered. Having worked with Trade Unions for years we understand the need for clear and concise communication, whilst influencing and negotiating in an expert manner.

You can expect us to thoroughly explore your problems, ensuring that we properly understand the problem before we start working towards a solution.  We will also keep an open line of communication to ensure that you are fully aware and involved in developing approaches.