Learning the best way to deal with disputes

Philip Shipman, HR manager at NHS Grampian, discusses how best to respond to the threat from sharp rises in tribunal cases

The introduction of fees for employment tribunals in 2013 led to a 70 per cent fall in cases. The new ruling by the Supreme Court to scrap fees means there are now fears that employers will be faced by a sudden rush of bottled-up grievances.

In the NHS, professional management of staff issues - across the spectrum from minor disagreements to allegations of long-term misconduct - is critical. The level of media and public interest is intense, and there is great potential for suggestions of impact on patient care for there not to be strong policies and process around conflict management.

So why do the great majority of NHS employers still try to deal with complex cases of grievances and disputes themselves, relying solely on internal resources in HR and among line managers to carry out formal investigations? The dangers of drawn out or mishandled investigations are many, but there are particular implications for the use of line manager time, potential claims of bias, and the creation of ugly situations that affect workplace atmosphere and relationships more generally.

Disputes at NHS Grampian
New policies have been in place at NHS Grampian to deal with disputes as early and in as informal a way as possible. A huge amount of time and stress can be saved through facilitation or mediation, or a combination of the tactics involved in both, the fresh progress that can be achieved simply through people being together in the same room.

Grampian encourages staff not to use this route - as do the unions - because of what an investigation can mean in terms of time and stress for those involved. Those staff bringing a claim tend to see themselves as blameless, that the investigation will solely focus on the other party, when the reality is that the whole circumstances will be explored, and there may well be blame apportioned on both sides.

With more complex, messy cases of accusation and counter-accusation, where relationships have broken down, this isn’t always possible - and so the organisation has to carry out an investigation to establish a clear and objective picture of what’s been happening.

HR and line managers are used as investigators, having received training from an expert partner, CMP Resolutions. But resources are limited, getting managers released from their day job is problematic, and internal staff, perhaps only involved with one or two cases a year, only have limited experience. So Grampian uses professional, external investigators from CMP to provide added capacity, and to deal with the more complex, emotionally fraught cases, to ensure there’s a fair and reasonable collation of evidence, particularly when there’s a high risk of a situation leading to an employment tribunal.

The potential for problems
Why isn’t this kind of sensible option being taken by more trusts? A basic lack of awareness of the option is one issue. Line managers often don’t think of it, they rely on HR advice. But the underlying problem is the way in which the use of internal staff time for dealing with grievances and investigations is considered to be ‘free’ or not have a cost associated with it, when it’s anything but. While the numbers of investigation cases are low each year - the potential for problems for the organisations in terms of long-term issues, mishandled cases, tribunals and repetitional damage is very high. The experience at Grampian confirms that senior managers will invest budgets into investigations when it provides a clear way forward, some security and confidence that a resolution will be found.

The CMP investigators provide an important level of impartiality, the kind of objectivity that NHS managers immersed in the working culture and its attendant sensitivities can find difficult. While an internal investigator will be cautious about being too blunt, not wanting to offend anyone, an external will say it how it is. An internal, for example, may be reluctant to state that a complaint has been made with ‘ill-intent’. An external has the perspective to assess what is unacceptable behaviour in a wider context of the working world, rather than within the confines of the NHS. And ultimately, the investigation report is watertight. No matter how complex the situations and sensitivities, independent expertise will ensure there’s a thread of logic and careful argument running through the reported evidence that leads to a fair conclusion.

In the context of ever-growing pressures on staff and the easier tribunal route, NHS employers need to be looking hard at their dispute policies and any holes, where the tough cases could prove too much, and that means thinking again about what the total costs really are and how they can best be mitigated through independent support.