Blog: The real costs of conflicts in the workplace and cost-effective solutionsMy third blog in the series about mediation was always going to be about conflict in the workplace – and where mediation fits in as a solution to such conflicts. And then, as if by magic, ACAS releases a fascinating report called ‘Estimating the costs of workplace conflict’  and it practically wrote my blog for me. The ACAS report really is a good read.  Fortunately, I have read so that you don’t have to!  The figures involved are startling, but not, I would say, wholly surprising. The cost of conflict The main headline is that the estimated total cost to UK organisations of conflict at work is £28.5 billion annually (which equates to more than £1000 per employee).  Nearly 10 million employees report that they have experienced conflict at work with close to 5 million reporting that conflict caused them stress, anxiety and/or depression. 900,000 took time off, 500,000 resigned and 300,000 were dismissed.  Those are some pretty big numbers. The costs themselves can be broken down into four main categories: Costs of resignation, sickness absence and presenteeism (ACAS defined this as ‘working whilst ill’) Costs of informal resolution (including either internal or external mediation) Costs of formal procedures – grievances, disciplinaries, appeals etc. Costs of litigation (including management time, legal fees and compensation/settlement agreements) There are also the ‘hidden’ costs which, to be fair, are much harder to put a figure on. These tend to be impacts to well-being, workplace culture, and the costs to wider society. It is very clear from the report that whilst there are costs to using informal resolution, the costs to an organisation of conflict take a major hike upwards when an employee resigns or is dismissed. The ACAS report echoes my comments in my first blog on mediation; that workplace relationships are much harder to save when formal procedures have been instigated (by which I mean grievances, disciplinary, sickness and poor performance processes). Conflict in the workplace Conflict theory is a fascinating topic.  For what it is worth, in my experience, where you get humans, you get conflict. It is just a fact of life (and the workplace) and not something that should be necessarily viewed negatively or an indication that there is something wrong with your organisation. Much good can come out of conflict, particularly where it is resolved quickly in the form of stronger workplace relationships, creative approaches to building solutions etc. Conflict isn’t confined to the typical manager/employee relationship, it arises  between peers and at both senior management and director levels. Mediation is rarely used but highly successful when it is It surprised me that only 5% of employers indicated that they had undertaken workplace mediation in order to resolve their conflict. This tends to suggest that most organisations move from informal resolution (i.e. talking to your manager or maybe HR) straight to grievances/disciplinaries without considering mediation. This is a missed opportunity as in  74% of cases using a mediated approach, this had in fact resolved their workplace dispute. That is a pretty good success rate by anyone’s reckoning. Obviously, there is a cost to the workplace for mediation (whether internal or external), but if it saves a workplace relationship, that has wider implications for a better workplace AND it saves money in the long-term.  That’s a no-brainer to me. It’s arguable that mediation costs would be a ‘good investment’ for businesses as they may reduce the longer-term negative impacts of workplace conflict. Tips for reducing the costs of conflict in the workplace Whilst you are not always going to have a conflict-free workplace, these are my top tips for reducing the costs to your organisation: Invest in management training that trains your managers to be people managers.  Too often people are promoted because they are good at their jobs – not because they are good with people. When I was a Saturday girl at Boots back in the 1980’s, their policy was that only pharmacists could be store managers. I have to tell you, they were great pharmacists, but they were not good managers.  ACAS talks about managers needing ‘core people sills’ in order to have quality interactions with their staff. Ensure that issues are dealt with as quickly as possible – either with informal resolution or through using poor performance procedures where there are performance issues. All too often managers fail to address performance issues and then ending up ‘managing someone out’ or they start a process far too late and get accused of bullying, harassment or discrimination. Ensure your organisation is ‘conflict competent’. By this I mean that managers are properly trained in conflict resolution and how to handle difficult conversations. Also consider using mediation as it both works and it avoids that jump straight to grievances and disciplinaries. (see my previous blog for details of the benefits of mediation) Ensure employees have a voice and representation. Lack of communication or lack of avenues to raise issues is a major source of conflict in any organisation. Finally, it is the case that conflict has been suppressed during the pandemic as people had other things to worry about.   As people return to work after a lengthy furlough period or things just return to a more normal situation, conflicts are likely to re-emerge. Issues such as restructuring, economic pressure and uncertainly, the fact that some organisations have furloughed staff on 100% pay whilst other employees have worked their socks off will leave many people feeling unsettled and sometimes aggrieved.  I anticipate a high volume of conflicts in the coming 6-12 months. Do you feel a workplace conflict bubbling that may benefit from mediation? I’d be happy to have an exploratory conversation.  Please email me: or call our office on 0117 325 0526. Next time I am going to write about the types of workplace issues that work best with mediation – and those that don’t.... 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Blog: Why mediate? A view on the many benefits of mediating workplace disputesFollowing on from my earlier mediation blog, this time I looks at different types of mediation, their many benefits and possible outcomes. Mediation sits between negotiation at one end and litigation at the other end of the ‘dispute resolution spectrum’. My previous blog explained that mediation came to my attention initially as a means of assisting people to reach voluntary resolutions to their disputes. I was attracted to a process that might involve a ‘win-win’ scenario, particularly where the parties might have unequal bargaining positions. Negotiation is great but only really works well where there is parity of power. By a ‘win-win’ outcome, I mean one where both parties feel the outcome is a positive one for them.  The Benefits of workplace mediation  Mediation offers a unique resolution to conflict, one meant to achieve the elusive ‘win-win’ outcome. It does however offer much more than this: It’s quick. When a conflict emerges (often it has rumbled on for a while), HR can offer a grievance procedure which can take weeks to investigate and arrange. And then there is the appeal. And then there is the resignation. It goes on. Mediation can be arranged relatively quickly as an alternative to the grievance procedure. Importantly successful, sustainable outcomes can often be achieved following merely one day of mediation. It’s low cost. Compared to the cost of management time in handling disputes and the costs of being involved litigation, mediation is very much the low-cost alternative. It works. A well-trained mediator brings high success rates for mediation. Its power comes from the process. Grievance procedures often produce entrenched positions. Mediation is very different, giving parties the time and space to express their needs and allowing them to appreciate the other person’s needs. It means parties can work together to solve problems jointly rather than individually and don’t have a solution ‘imposed’ on them. It is solution-driven.  At its core, mediation is fully geared to parties finding workable solutions to their problems. The solutions will rarely be about money (as opposed to litigation), but practical steps that lead to a sustainable working relationship. It offers a range of outcomes.  Not every mediation will end with the perfect result but there are so many benefits gained by just going through the mediation process.  These include;  being heard, listening to others, understanding someone else’s position and having an appreciation of differences.  These alone can create stronger relationships following a mediation – even if there are no ‘agreed actions’. Mediation Models As with any discipline, there are a few different models of mediation.  These are: FACILITATIVE MEDIATION – this works to help parties in a conflict make their own decisions, on the basis that such decisions will have the best fit and therefore be highly likely to succeed. The mediator offers a structured process which works really well with conflicts in the workplace, where a win-win solution is needed in order to support and strengthen relationships.  EVALUATIVE MEDIATION – Here the mediator provides the parties with an evaluation of the strengths and weaknesses of their case with respect to their legal positions. If asked, they may also advise as to a likely outcome at court. They may also offer direction towards settlement options. This approach is suited to business and contract disputes where there is no ongoing relationship and a compromise is sought as an alternative to expensive litigation. TRANSFORMATIVE MEDIATION – A transformative mediator aims to empower the parties involved to make their own decisions and take their own actions.  The parties are very much in charge of both the content and the process, the mediator working to support both as their conflict unfolds and their relationship changes and strengthens. I take a facilitative /transformative approach to mediation for workplace disputes as I believe these offer a much more holistic approach to relationship re-building and conflict resolution. For cases where the relationship has already broken down, I suggest a more evaluative style of mediation.  Here I can use the full benefits of my 25 years as an employment lawyer to help parties understand their positions. My next blog looks at the true costs of workplace conflict (spoiler – they are shockingly high), the role mediation can take in reducing these costs and my tips for curtailing workplace conflict.  If you’d like to discuss mediation as a solution to a conflict in your workplace, please do contact me.  Please email me: or call our office on 0117 325 0526. Anne-Marie Boyle Partner... Read more...

Blog: Is mediation at odds with being an employment lawyer?Rather like Luke, I have been on something of a journey over the past year. Whereas Luke’s route has been into executive coaching, mine has been into the fascinating world of workplace mediation. I have long-harboured an interest in mediation.  Does that sound rather contradictory coming from a lawyer who specialises in litigation?  I have always been a firm believer in looking out for alternatives to ‘fighting it out’ in an Employment Tribunal for my clients. This usually includes either some sort of settlement or persuading the other party to withdraw.  It can feel like a ‘win/lose’ or worse, a ‘lose/lose’ situation. As a lawyer, my involvement often comes about when someone has already brought an Employment Tribunal claim and the employment relationship has well and truly broken down. Let’s face it, when it gets to the stage where the employee is presenting 20 page grievances or has been absent on sick leave for 6 months citing workplace stress as the primary factor, the relationship is often already beyond repair. Reducing costs and damage Does it have to be this way?  I quite like the old cobbler’s saying ‘a shoe worth wearing, is worth repairing’. I would use the same sentiment with employment relationships. I firmly believe many relationships can be salvaged if caught at the right time.  Mediation has a real role to play in reducing cost and damage of workplace relationship breakdowns and reducing the risks of escalation. This is at the heart of why I’ve spent the last year training to be a work-place and employment dispute mediator. There are many past cases I’ve advised on where I believe, had mediation been introduced at the right time, then grievances, disciplinaries and even Employment Tribunal claims could have been avoided altogether. I will look at examples of these in future blogs. I love my role as an employment lawyer but I firmly believe mediation is a compliment to my main role.   Yes, successful mediation means employers will get fewer employment tribunals claims, but the main reason I am doing it is because some of those broken workplace relationships are definitely worth fixing.  With increased levels of conflict at work plus rising commercial pressures on employers, finding positive and cost-effective ways to resolve disputes has never been more vital. What sort of workplace issues is mediation suitable for? Some areas where mediation can be very effective include: allegations of bullying resistance to change, particularly for role changes perceptions of/allegations of harassment or discrimination personality clashes or family business disagreements If you want to know more in the meantime, do read this great CIPD report. Although written some time ago, it remains relevant and well-researched. Please do feel free to get in touch with me ( 0117 325 0526)  if you think you might have a workplace issue which could benefit from a mediated approach. I would be very happy to chat it through with you. Over the next few months lookout for more blogs from me about mediation: –       Why mediate? An exploration of the types of mediation, benefits, and outcomes mediation can offer and why it might work for you –       How different types of conflicts arise in the workplace and how they can be diffused –       Mediable and non-mediable matters – what are the best outcomes you can achieve and which cases tend to work best for mediation. –       The mediation process – what it looks like and how it works. Anne-Marie Boyle Partner  ... Read more...

Blog: What does the Uber case mean for employers?The recent Uber judgment in the Supreme Court  (full judgement available here) has provided yet more confirmation – if any were needed – that if you have someone working for your organisation as part of your workforce, delivering your products or services to your customers, then they are going to be your employees, or at least your ‘workers’. In other words, if it looks like a duck, quacks like a duck and walks like a duck, then it’s a duck. I’ve been surprised for just how long some employers have held out against this simple reality.  The law has been fairly clear about this for over a decade now, despite the continued valiant efforts by some employers and their legal teams to resist. An obvious decision The Uber decision will not have been a surprise to any employment lawyer, since it is based on a set of previous cases and a clear direction of travel that has been apparent in similar judgments in the last few years.  Uber itself would have always known that its model of treating their workers as self-employed was a challenging one under UK law and no doubt they and their lawyers have been preparing for this decision for many years.  In some ways, it is surprising that it took this long to be confirmed.  But then, it does take a long time for a case to reach the Supreme Court. Helpfully the latest Uber judgment puts a clear final nail in the coffin of the ‘traditional’ argument that the courts and tribunals should start by taking the contractual documents at face value,  only looking for ‘worker’ status if the activities of the parties to that contract differed substantially.  These contractual documents of course claimed that the worker was entirely self-employed for all purposes.  The Uber case makes clear that the contractual documents are no longer the starting point, and that the courts and tribunals should go straight to the reality of the relationship, day to day. The ‘Reality Test’ That ‘reality test’ shows these workers are not thousands of mini businesses in their own right, but people who worked for Uber, under a great deal of control. I have been working with many businesses recently, large and small, to help them review and improve their approach to – and tolerance of – those who ask to work as self-employed contractors.  As a very quick rule of thumb: If the contractor works for other clients at the same time as for you, does the work the way they want to do it, has their own limited company, uses some or all of their own kit, own website, does their own sales and marketing and charges you a fixed price for the project, they are very likely to be self-employed for both tax purposes and employment rights purposes. If they only work for you, use (some of) your kit, work the way you tell them to, don’t sell their services via their own website or sales activities, and get paid by you by the hour/day/week, then they are very likely to be either your worker or your employee. Now, there are many slightly different permutations of these two basic positions, but it usually takes me only 1-2 minutes of asking questions to work out whether someone is running their own small business and therefore genuinely self-employed or is working for an employer as their employee/worker. It’s presented as a complex area of law but I enjoy cutting to the chase and helping my clients keep it simple.  I’d love to advise you on your own situation if you’re uncertain or facing challenges: please contact me at . Luke Menzies Director March 2021... Read more...

Blog: Vaccine Refusal – can an employer insist?With a large number of people in the UK now vaccinated, employers are understandably keen that their staff should be part of that group.  With reports of individuals reluctant or refusing to have a vaccine and certain employers stating that they will make having a vaccine a condition of employment, we thought this was a hot topic worth looking at. Can an employer require a whole workforce to be vaccinated against COVID-19? Currently, vaccine priority is ‘grouped’ and as yet we’re not in a situation where everyone has had the ‘opportunity’ for a vaccination.  The priority groups are primarily set on the basis of age.  Introducing a mandatory vaccination policy now would likely be both unworkable and potentially indirect discrimination on the basis of age. Most younger people would not be able to comply with the policy simply because they do not yet have access to the vaccine. Further details of the priority groups can be found here. Even once all age groups are vaccinated, it is unlikely that a blanket requirement that the entire workforce should be vaccinated will be considered lawful.  Particularly given that the Government has confirmed that the COVID-19 vaccine will not be mandatory.  Also, ACAS guidance (available here) advises that employers should support staff in having the Coronavirus vaccine – but they cannot force staff to be vaccinated. A blanket requirement risks both unfair dismissal and discrimination claims so in the majority of cases, employers will benefit more from encouraging workers to take the vaccine and stressing its importance, rather than requiring them to take it. However, there are some circumstances where it may be considered lawful, and we consider these below. In what circumstances might employers make the vaccine mandatory? UK employers have obligations under health and safety law to reduce health risks to employees and others to a level which is as low as reasonably practicable. Therefore, the vaccine should be considered (as part of COVID-19 risk assessments), as a potential measure to control the risks associated with contracting the virus at work. Employers may decide, following such a risk assessment, that having vaccinated staff only in particular roles is necessary and reasonable in reducing the risk. For example, an instruction to a care worker to have a vaccine may be much more reasonable and justifiable than it would be for office staff who can work from home. In the care sector, for example, a policy of mandatory vaccination in certain sectors is more likely to be justified for purposes of indirect discrimination on objective grounds to protect the vulnerable. The reason for the requirement to have a vaccine needs to be considered carefully on a case-by-case basis. A flexible and nuanced approach will reduce the risk of employment claims. What are the potential legal risks if employers make vaccination mandatory? The main legal risks for employers if they require the workforce to be vaccinated are unfair dismissal and discrimination claims. Discrimination Individuals with protected characteristics could potentially be discriminated against. If an employee refuses to be vaccinated because of a protected characteristic, and this results in detrimental or disciplinary action from their employer, they may also be able to claim constructive or actual unfair dismissal. It is important to remember that discrimination claims have no financial cap, so a successful claim could potentially come with high costs for the employer. Disability: Some individuals may be advised not to have the vaccine due to an existing medical condition or allergy, or they may be unable to take it due to a disability. Such individuals may be considered disabled and they may be treated less favourably than their colleagues should an employer require vaccination.  They could bring a direct discrimination claim if they suffer detriment as a result. Employers also have a duty to make reasonable adjustments for disabled employees.  Pregnancy and maternity:  Expectant mothers have also been advised not to have the vaccine.  To avoid indirect discrimination, employers therefore need to ensure that any vaccination instructions or policies cover pregnant women.  It would also be prudent to take into consideration the fact that many women choose not to tell their employer of their pregnancy until three months’ gestation, and also the fact that women who are trying to get pregnant may also refuse a vaccine. Age:  Any differences in treatment between vaccinated and unvaccinated staff could be indirect age discriminatory – unless the treatment can be objectively justified. This is because the vaccine roll-out is being prioritised largely based on age, with older (and therefore higher risk) individuals being offered the vaccine first.  Therefore, older workers will be required to have the vaccination at an earlier date. Religion or belief:  An anti-vaccination stance could amount to a protected philosophical belief and therefore attract protection.  A successful claim using this protected characteristic would need to establish that the belief was genuinely held, cogent, serious and worthy of respect in a democratic society. Unfair Dismissal If an employee refuses to follow an instruction to be vaccinated, an employer could start disciplinary proceedings and ultimately dismiss the worker.  However, dismissal is only likely to be fair if the employee has unreasonably refused to comply with the employer’s request to have the vaccine.  Employers should be careful that requiring the employee to be vaccinated is a necessary and reasonable precaution to take in reducing the health risk.  As always, the employer should give careful thought to whether there are any reasonable alternatives to dismissal (e.g., reallocation to a role where non-vaccination would not be problematic or working from home arrangements). Employers should also consider that an employee faced with a “no jab, no job” scenario could resign in response to this requirement and claim constructive unfair dismissal.  Such claim may well succeed if the requirement was unreasonable. With the vaccine take-up rate improving all the time and few side effects being reported, we are hopeful that issues relating to vaccine refusal will be few and far between.  In the meantime, employers should recommend and encourage rather than force employees to be vaccinated. If you are unsure of your rights as an employer or employee and require further details on the above areas, please contact the Menzies team so we can discuss these areas further ( / 0117 325 0526). Anne-Marie Boyle Partner... Read more...

Menzies Law Newsletter 2021 Issue 1Welcome to our first Newsletter of 2021.  Sadly Lockdown 3.0 is not the start to the New Year we were all hoping for. Although we can’t offer any great solutions to the general gloom, we can at least help keep you up to date with HR/employment law news. The Government has extended furlough again, this time until the end of April and, happily, will continue to fund 80% of wages.  It has also given welcome clarification that employees with caring responsibilities can be furloughed; updated its guidance on working safely during the Coronavirus; and provided further guidance on employer’s Gender Pay Gap reporting responsibilities. We also update you on increases due to statutory rates in April. In our first case update of 2021 we look at the EAT’s decisions on how far the law goes towards equal treatment for agency workers.  We also consider the current absence of interim relief for employees bringing discrimination claims, which is probably unlawful. What we’ve been doing recently… The year has started with a flurry of furlough, gross misconduct, investigations, redundancy and exits advice.  We’ve already won 2 employment tribunals on behalf of our clients, a pleasing start to the year, and we’re helping several businesses navigate the new business immigration rules which came into effect on 1 January. At the time of writing, Anne-Marie is completing her accredited Workplace Mediation training.  Mediation can significantly reduce the damage, costs and risks of workplace conflicts escalating.  She would be keen to assist any organisation seeking to resolve a workplace issue.  If you would like to discuss how she can help you, please get in touch: The recent campaign ‘Brew Monday’ by the Samaritans caught our eye this month.  Blue Monday is the third Monday in January and supposed to be the most depressing day of the year.  This year, the number of adults suffering from depression has doubled thanks to the pandemic.  The Samaritans want to encourage us to reach out to friends, family, colleagues for a virtual cuppa.  We’ll drink to that! https://www.samaritans.org/branches/central-london/brew-monday-2020/ Lastly, do tab down to our last Newsletter item where we bring you 5 good news stories from 2020 which you may have missed. We remain hopeful that 2021 will bring more of the same.   Here are all of the Government reforms and case updates we cover this month: Coronavirus (Covid-19):   More furlough! Coronavirus (Covid-19): LOCKDOWN 3.0 – Government guidance Government reforms (1): Return of the Gender Pay Gap Government reforms (2):  Increase in statutory rates Case update (1): Agency workers – Terms & conditions Case update (2):  Discrimination – Interim relief And finally, our nothing to do with employment law section It’s often said that bad news sells.  Well, we’ve had enough of bad news and we’re surely not alone.  We’d like to share with you some of last year’s good news which may have got forgotten or simply passed you by.  Lots of cause for celebration from these 5 items, we think: Germany is turning 62 disused military bases from the Cold War-era into wildlife sanctuaries, increasing by 25% Germany’s total area of protected wildlife. Germany has a great pedigree here;  Duisburg-Nord Landscape Park was transformed from a former smelting works 30 years ago and now attracts c. 1 million visitors every year. Rome’s answer to overflowing waste bins was to create an initiative to allow metro travellers to swap empty plastic bottles for tickets. The City’s inhabitants get Euro 0.05 credit for each plastic bottle recycled. About 30 bottles gets you a free ride. Captain Sir Thomas Moore raised £33m for the NHS in 2020.  RIP Captain Sir Tom. Kamal Singh from Delhi became the first Indian dancer to win a place at the prestigious English National Ballet. His achievement is all the more remarkable because he didn’t take his first ballet class until he was 17 (about 10 years after most professionals started lessons) and his family couldn’t afford to pay for lessons. However, Kamal’s exceptional talent was spotted and championed by his Argentinian dance teacher Fernando Aguilera. Crowdfunding did the rest. Marcus Rashford led a political campaign to combat child food poverty in the UK.  His campaign forced the Government to U Turn on it’s refusal to fund free school meals.  Rashford’s efforts and resilience saw over a million people sign a petition in favour of free school meals. As importantly, his work was the catalyst for dozens of communities and volunteers across the country to deliver food packages to families in need during school holidays.... Read more...