In this short article, Jack Harrington and Radhika Das from our employment and pensions team consider the use of mediation as a conflict resolution tool. They look at why employers should be utilising mediation, the benefits of doing so, and how to implement mediation in your workplace.

A recent Acas study found that workplace conflict costs employers around £30bn per year. It reported that nearly half a million employees resign each year as a result of conflict, costing employers around £2.6bn annually. A further 874,000 are estimated to have taken sickness absence each year as a result of conflict, at a cost of around £2.2bn annually.

The study found that while 35% of respondents had experienced an incident of conflict or ongoing difficult relationships at work, just 5% had taken part in workplace mediation. Of those who did go through mediation, 74% said their conflict was fully or largely resolved.

Mediation is a flexible, voluntary and confidential form of dispute resolution increasingly being used for resolving disputes in the workplace as an alternative to more formal procedures. A CIPD survey suggested that ‘mediation is an effective approach to help resolve workplace disputes [which] should be required before using the formal grievance process.’

Larger organisations have set up their own internal mediation schemes in order to train employees to act as mediators. Often, employers prefer to engage an external mediator. External mediators offer a number of benefits, including:

• Saving resources: setting up an internal scheme can be costly and employees often don’t have the time to commit to facilitating a mediation process.
• Conflicts of interest: it can be difficult for an employee to remain impartial and unbiased.
• Seniority: if those involved in the mediation are senior individuals within the business, it can be difficult for an employee to feel comfortable facilitating the mediation.
• Confidentiality: disputes often concern sensitive or confidential information. An external mediator can help to control the spread of that information within the organisation.

A simple first step on the journey to introducing workplace mediation is to include mediation in internal policies and procedures as part of the organisation’s approach to people management. For example, as the CIPD survey referenced above suggests, encourage mediation to be considered before the formal grievance process is used.

It is increasingly being recognised that mediation can be a ‘win-win’ approach – employees are able to reach a resolution without going through a lengthy and adversarial process, and employers are able to improve staff retention and avoid expensive tribunal claims. It is unsurprising therefore that the reported number of mediations carried out in England and Wales jumped from 2,000 in 2003 to 12,000 by 2018 and 16,500 by 2020.

Our employment and pensions team have qualified mediators who would be happy to assist you with implementing mediation as an approach to resolve workplace disputes. For more information, please contact jack.harrington@pannonecorporate.com.

We will be talking more about the benefits of workplace mediation and practical tips on approaching it at our next HR Club on 14 September 2023 – contact jolanta.jones@pannonecorporate.com to register your place.

In this article we look at why an employer may decide to instruct an external investigator to conduct a workplace investigation and how this process works.

The challenges faced by employers in the last two years have been significant and far-reaching. The Coronavirus pandemic has stretched resources, exposed employers to unexpected risks, and posed unprecedented problems in the workplace. Some sectors have really suffered during the pandemic, inevitably leading to more workplace disputes and grievances. On the flip side, some sectors have been incredibly busy and at times found their resources stretched.

As a result, we have seen an increase in the number of instructions we have received to conduct workplace investigations. In this blog we take a closer look at why this is and how our investigations team can assist.

Why instruct independent external investigators?

A common reason for instructing an external investigator is because the issues involve senior employees or board members. Instructing an external investigator can ensure a more rigorous and impartial investigation, politically it can also be easier to have an external law firm conduct the investigation. Employers may also instruct external investigators because there is a need to ensure the investigation is seen to be impartial, and to reduce the risk of litigation. Alternatively, it could simply be the case that the employer lacks the internal resources to conduct the investigation.

An added benefit of instructing a law firm to conduct the investigation is that it may be possible to ensure the investigation has the benefit of professional legal privilege.

So, how can we help?

We are regularly instructed by boards, HR teams, and in-house counsel to conduct investigations or to support and advise on an investigation. In the rest of this blog we take a brief look at how we can support workplace investigations and our team’s experience in this area.

Independent investigations – our approach

When we are instructed to carry out an internal investigation, we first take time to understand any relevant background and the nature of the issue being investigated. Once we have done this, we agree the terms of reference for the investigation with the client and, as appropriate, other interested parties. Whilst instructing us will certainly reduce the workload for a client’s internal teams, we will usually need some practical assistance in gathering evidence and arranging meetings with witnesses. However, other than that we can liaise directly with witnesses to conduct investigation meetings. Once we have concluded our investigation, we will prepare an investigation report and deliver that report to the client and any other interested parties.

Each matter is led by a senior lawyer with experience of contentious legal matters, advising in relation to investigations, and of conducting internal investigations.

Law firms and other professional advisers

In certain circumstances it may not be appropriate for an employer to instruct its usual external professional advisers to conduct an investigation. For example, the adviser may not be able to independently investigate the issue, or in doing so, there may be potential for a conflict. Our internal investigations team can be instructed by other professional advisers on an independent basis to carry out an investigation as a discrete, one-off instruction.

Our experience

Our team has decades of experience advising and supporting clients on workplace disputes and investigations. Examples of work undertaken by the team includes:

• Carrying out an internal investigation and review of our RSL client’s employment practices and procedures and reporting arrangements, following the death of a resident.
• Supporting an investigation into allegations of serious sexual harassment made by a junior female employee against two senior male managers. We reviewed documentation and CCTV footage, interviewed the complainant, a number of witnesses and the two male managers concerned, and assisted in the preparation of a comprehensive investigation report.
• Providing investigation support to a multi-national company’s internal compliance team. This involved supporting the company’s own internal investigators in gathering, reviewing, reporting on evidence, and providing support during investigation meetings.
• Undertaking an investigation in relation to allegations of sexual harassment in a local town council.
• Investigating grievances raised by two senior directors against each other.

Well planned, thorough, and impartial investigations are such an important first step in dealing with many workplace issues. In this blog we have hopefully given you an insight into when it may be appropriate to instruct an external investigator and the potential benefits of taking this approach.  If you would like to know more about our investigations experience or how we could help your organisation (or your client’s) please contact Michael McNally.