NEWS & VIEWS

Blog

Bullying complaints

Bullying complaints: one reason to welcome them.

In the news

Bullying complaints cause many conflicts in the workplace. The Home Secretary is currently being sued by her former permanent secretary for constructive dismissal. According to the press reports Sir Philip Rutnam claims he was forced out of his job after intervening in allegations of bullying his staff made against the Home Secretary. This is currently the highest profile case in the UK involving workplace bullying. Many will think there could be no better example of someone having inadequate skills than a top civil servant who has to sue his Secretary of State rather than negotiating a resolution. There is, however, the background of a Cabinet Office enquiry into Pritti Patel’s behaviour, so this is not an isolated allegation.

Bullying complaints in the law

Whilst this is perhaps the most prominent allegation of bullying in the workplace it occurs amid a tidal wave of such claims currently being made in Britain and elsewhere. Just taking my own profession of the law there has just been a Bar Standards Board report on the prevalence of workplace bullying within barristers chambers reporting that bullying was common and manifested in various ways. This confirms what has been commonly understood for some time that allegations of bullying within Chambers are rife and increasing. The International Bar Association (IBA) published a report in May 2019 revealing that younger members of the legal profession are disproportionately affected by bullying at work. Solicitors do little better. One in seven female solicitors have experienced bullying, discrimination and harassment in the workplace over the past year, according to Law Society research.

Not just the law

Medicine seems just as bad: a 2019 NHS staff survey showed that 19 percent of staff had experienced bullying or harassment in the previous year from colleagues and 13 percent of staff experienced bullying or harassment in the previous year from managers. Getting a grip on the incidence of bullying in the workplace is not easy. One survey of 2000 employees last year reported that 23% of the British workforce has been bullied at work. Academic research reported this year that internationally the prevalence of workplace bullying varied between 3% for the most serious bullying, 10% for less serious and 20% for ‘negative social acts’. Taken together these reports and surveys appear to reveal a serious level of conflicts in workplaces both in the UK and elsewhere. All of this research also reveals a steadily increasing volume of such complaints.

The reasons why

Have work practices changed so much for the worse? Does this illustrate an increasingly abusive working environment or are there other explanations? Those who believe that human behaviour is unlikely to have changed much may find an explanation in the concept of generational differences. This suggests that generations experiencing notable events impacting on them as they grow up create a group or cohort of people who tend to react similarly to their shared experiences occurring within a specified period of time. This results in a generalised view that members of each cohort will share similar attitudes and behaviours.

Millennials have their say

At present the workforce is increasingly composed of millennials born between 1980-2000 who have been identified with many characteristics separating them from earlier generations and in particular a desire to be assertive with a wish to have an impact on the work that they do. It is quite possible that this generation are far more likely to complain and protest when ill-treated than their parents were at the same age. This is probably not the only explanation. Social attitudes change over time and movements like #MeToo have added their influence and increased intolerance of abusive behaviour.

Should we be cheerful?

A positive take on this is to welcome the increased volume of complaints as an indication of a decline in tolerance of bullying rather than a decline in standards of behaviour. If true, this is to be celebrated.

And so?

Whether this is too utopian a view will divide opinion. What can be agreed is that such conflicts need to be resolved as soon as possible after they become apparent. Delay and failing to intervene will always make matters worse. In most workplaces mediation would trump grievance procedures as I have explained elsewhere. This is one reason I have chosen to support the National Bullying Helpline which provides a helpful resource and guidance to many experiencing difficulties.

Mediation: why saying yes is insurance

Everyone knows mediation is less expensive than litigation.  What is less discussed are the reasons why one should offer to mediate even if your opponent resolutely refuses to agree and that it is a good idea to repeat the offer.

The principal reason is that an unreasonable refusal to mediate is highly likely to affect the costs recoverable by the winning party. The usual rule in litigation in the UK is that the winning party recovers their costs, or at least the costs the court considers were reasonably incurred. That however is a discretionary rule and the winning party who unreasonably refuses to mediate can have their costs reduced significantly.

A recent example a few months ago is the case of Wales v CBRE Managed Services & Aviva Administration [2020] EWHC 1050 (Comm)

Here the two defendants won their case but their different attitudes to offers to mediate were illustrative. CBRE refused three times for different reasons. Aviva expressed willingness to mediate but said that whether mediation took place was dependent on participation by CBRE as reaching a satisfactory settlement depended on their presence. The judge considered Aviva to have been reasonable in taking that view and did not reduce their costs for that reason. He severely reduced, however, a proportion of CBRE’s costs by 50% and by 20% for another portion. What made the difference was a shift in the argued defence, but the principle is unaffected, unreasonable refusal to mediate can be awfully expensive.

History

This is not new. In 2004 in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ. 576 the Court of Appeal set out the governing principles at length. A key issue is that the courts recognise it is not appropriate to compel a reluctant party to mediate as that is contrary to the idea that mediation is voluntarily undertaken. They do, nevertheless, consider it is their role to encourage it, and the method of encouragement may well be fairly tough, as demonstrated in Wales.

Factors

In Halsey, the Court of Appeal accepted a list of non-exclusive factors to be considered when deciding whether a refusal to mediate is unreasonable. They include (a) the nature of the dispute; (b) the merits; (c) what other efforts have been made to settle; (d) the costs of mediating; (e) whether prejudicial delay would be caused; and (f) prospects of success. None of these is determinative and the decision will be one taken on balance. For example, in Wales the judge specifically mentioned that not all of these factors pointed in one direction.

What appears to have influenced the decision were the repeated refusals and the unconvincing nature of the excuses given for doing so. The court thought that even if a mediation had failed it would have resulted in a clarification of the issues and shortened the whole process.

Lessons 

It seems obvious that requesting mediation is a win-win. If you settle all to the good. If you meet a rejection and win your case your costs are secure. If you meet a rejection and lose your case, you can argue that your opponent’s costs should be reduced. The offer acts as an insurance policy.

If you are an advisor in these situations you need to be incredibly careful if advising against mediating. Some lawyers lack enthusiasm for mediation. They often prefer to do their own negotiating with their opponent and consider they do not need the services of an outsider. However, that process lacks the injection of independence that a skilled mediator possesses. More importantly for the advisor who gets it wrong, any cost incurred by the client may require a visit to the negligence policy.

There are some cases the court accepts where mediation may not work. For example, if it is important to resolve a principle of law or possibly where allegations of fraud are made. Confidence that your case is bound to succeed, however, alone is not an adequate reason to refuse. That confidence has itself to be reasonable. Another factor that will be considered is the extent to which a court or tribunal has encouraged the parties to mediate.

All cases require a balancing exercise and will turn on their own facts but what is essential is a dispassionate review before deciding. The best starting point is that mediation should be offered or accepted unless there are particularly good reasons to reject.

 

Discover why business must embrace mediation now

Lockdown is teaching us many new ways of working. When resolving disputes mediation is both extraordinarily successful and considerably underused. Different analyses have shown that rates of resolution are eighty per cent or over yet usage in litigated disputes is under twenty per cent and many still need to be persuaded to adopt mediation. This has been an enigma for years, but the current situation makes it essential to rethink.

The pipeline

Employment

In many businesses potential disputes are accumulating held back only by the lockdown. Large numbers of employers are contemplating restructuring because of their experience of home-working and facing the need to reduce numbers of employees. When these changes are implemented it is highly likely that they will generate disputes and litigation. HR teams in the larger companies are already preparing which is why the papers are full of grim announcements predicting large scale job losses with 25,000 jobs predicted to go at Heathrow, 17,500 at John Menzies and 15,000 at Airbus. These are the front runners amongst household names, but they signal that similar problems exist throughout the economy and many of the businesses will not have sophisticated mechanisms in place to deal with the problem. The chancellor has put into place a number of schemes to assist and there will be more in his next budget but the fact that he is now looking to double the number of job-centre staff is all the warning one needs of the scale of the anticipated reduction in employment. Whilst using the word inevitable is usually ill-advised the scale of the problem seems self-evident.

Discrimination

In addition to levels of employment falling other workplace issues are also pending. When furlough ends, they too will lead to discontents and disputes generated by the lockdown. In particular, according to the Guardian, evidence exists that women throughout Europe are being hit particularly hard by the economic impacts of the coronavirus and that many women are suffering from “interrupted” careers, with the lockdown putting their work progression on hold. This factor is also likely to foreshadow an increase in discrimination cases as, whilst the virus is the cause and not discriminating on the ground of gender, the way in which employers react is an entirely different factor.

Other sectors

Many other sectors are also likely to be affected in the same way. In property landlords are being denied rent and some of this is because tenants are taking advantage. Not all landlords are the size of Land Securities. Even if deceit is involved in only a minority of cases the piling up of debt is going to generate disputes. Insurance companies and suppliers of goods are relying on force majeure clauses to deny claims and every such policy is likely to come under scrutiny. Other suppliers of services are refusing to return payments made in advance. In commercial contracts failure to meet performance covenants is another area likely to produce claims.

Preparing to resolve using mediation

There is no doubt that claims are often resolved more successfully, more quickly and for less expense by mediation rather than litigation. In the workplace mediation can often preserve employment in a way that grievance procedures rarely do. In addition, in workplace cases,  see here how grievances can often be used to make mischief for employers and gain leverage

Action

Many businesses have no established processes to direct dispute resolution towards mediation, but they would be well advised to put this option in place. There is still time to do this before the furlough scheme comes to an end. Employers would be well advised to create, as a preferred alternative to a grievance process, a mediation alternative. For guidance see here how to set this up in-house.
For others where the size of the business does not warrant that exercise establishing links to experienced external mediators is the route to take.

Stranger danger

Some employers do not want to allow ‘strangers’ to view their unpleasant or private problems but they should be reassured by the fact that confidentiality is at the core of the practice of all ethical mediators. Whatever the nature of the dispute nothing said in a mediation is for public consumption or press notice.

Lack of adequate preparation is one of the key criticisms that faces government. Let it not be so in your business. Now is the time to avoid that mistake.

Is a fractured EU in need of mediation?

Brexit issues are notoriously divisive, and this is not intended as an attempt to fan flames: the debate has been resolved in the UK. What is under examination is the extent to which Covid 19 and other legal and financial events are highlighting some serious divisions in Europe that require resolution, even perhaps mediation. Also has the UK lost out in the health crisis from its non-membership of the club?

EU Law

Back in 1974 when European law was a relative newcomer its effect on our legal system was famously described by Lord Denning in a case concerning the rights of English cider makers to describe their product, Babycham, as ‘champagne perry’.  He said this: “the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.” Again, in the long-running Factortame litigation the House of Lords held that national courts in the UK must treat EU based rights as governing Acts of Parliament. What then are we to make of the decision of the German Constitutional Court on 5 May this year? They found that the European Central Bank (ECB) had acted beyond its powers when buying government bonds to the tune of €2 trillion.  In doing so   Germany’s highest court dismissed an earlier ruling of the Court of Justice of the European Union (CJEU) in ECB’s favour as “incomprehensible” and “meaningless”. In response, as reported in the FT, Christine Lagarde, ECB president, was defiant saying the ECB is answerable only to the CJEU and the European Parliament and the President of the Commission has threatened Germany with legal action. In addition, since the ruling in Germany both Poland and Hungary have echoed the opinion that the final arbiter on legal issues are their own Supreme Courts.

Current conduct

Then there is the threat to the bail-out proposals of the Commission intending to borrow €750 billion to rescue hard pressed member states in return for a swathe of new taxes on carbon-intensive products, a levy on large businesses and on plastic waste. The nature of the bail-out has already caused division between several member states and many more will not accept the taxation proposals. All of this in addition to a €500 billion recovery fund proposed by Germany & France. The ‘frugal four’ want to limit the grants whilst Italy & Spain want the system to provide the southern states with weighted advantages. In addition, the EU rules on banning subsidies of home industries within member states is now under extreme strain and has been largely ignored in Germany. Not much solidarity here, perhaps they need some mediation.

Add Covid

Add to all of this the impact of Covid 19, where European institutions have failed to act either in a timely or effective fashion. Generally, all member states have acted selfishly and in an uncoordinated and chaotic fashion. Perhaps this was best illustrated by the initial decision in Germany to ban the export of masks to any other EU member states. Freedom of movement, a principal identifying characteristic of the Union, has for many been rendered meaningless by border restrictions. In effect each member state has acted unilaterally because they recognised that the EU was unable to provide any assistance to them and at the same time it suited the Commission to take the view that matters of health policy were the business of member states.

Finally

None of this is intended to argue that the UK has somehow acted more robustly or with greater effect because it has left the EU, in many ways we have lagged behind some other member states.  It does seem however that not only is the EU currently in a parlous condition but at the moment in relation to the health crisis non-membership is simply an irrelevance.