Human Law Mediation Blog: Recent Posts

An interesting article in the Times on the problems of overtime in the workplace.

"We’ve had extreme fishing, extreme skiing and even extreme ironing. Now, however, the TUC has found that almost a million workers are spending hours every week on an activity that may give them no pleasure and certainly no reward — extreme overtime.

More than five million professionals and managers in both the public and private sectors are working an average of seven hours a week without extra pay — and a million of them are working 48 hours a week or more, which the TUC classes as extreme.

According to the TUC’s analysis of official statistics, almost half of all lawyers report working unpaid overtime, with 18 per cent of them working more than ten hours a week of unpaid overtime. The average number of unpaid hours a week worked by legal professionals is 16. "

This illustrates some of the problems which clients of mine have experienced namely the pressure to do work. 

We cannot hark back to the 1970 and 1980s and request going on strike. The reality is that the World is Flat ,and we are all in competition in the world. As a consequence the pressure is on the private and the public sectors.

Where do human resource and employment issues flow from here?

1 They need to deal with the legal duties such as complying with Health and Safety legislation and doing risk assessments.

2 They need to ensure that management sets a good example. On the one hand, the business needs to make money; on the other hand are management focusing so much on the bottom line to enable people to become stressed.

3 Monitoring of staff is key. Human resource professionals need to take a step back and look at staff, to see that they are not unduly stressed. Easy to say, more difficult to do.     

The recent publication of Observer journalist, Andrew Rawnsley’s book The End of the Party has brought much interest in the conduct of Gordon Brown and others, including the National Bullying Helpline and its Chief Executive, Christine Pratt, and the journalist, Andrew Rawnsley.

 
It is time to step back.

We are close to a general election, so the truth is not necessarily a priority for any of the parties.

First of all the allegations. What are they?

Gordon’s Brown abusive behaviour and volcanic eruptions of foul temper left Downing Street staff so frightened that he received an unprecedented reprimand from the head of the Civil Service, Sir Gus O’Donnell. Fundamentally the book paints a picture of an often lonely and desperate figure who took out his frustrations on those around him. His own Chancellor, Alasdair Darling has said that Gordon Brown’s aides unleashed the “forces of hell” on him after he predicted the severity of the UK recession.

Are these allegations contradicted?

Well, none of the central allegations are denied. O’Donnell appearing in front of the justice committee yesterday acknowledged that he had offered the prime minster advice on how “to get the best out of his staff.”

Rawnsley is not some right wing journalist but an Observer man of the Centre-left. He has written a not dissimilar gossipy book, Servants of the People, which was largely accurate in its portrayal of the top New Labour.

The problem for Gordon Brown is that he has never had a proper job and/or learnt a civilised way of doing business. It is significant that Tony Blair and John Major had no allegations about their conduct and civil servants spoke about the cordial way business was done. Gordon Brown appears to have learnt tactics on how to get things done to move up the political ladder; Frankly the fact that he has been able to become Prime Minister is a rather depressing indictment of the character attributes.

 
Is this bullying? Bullying is often about the intention of the managers. I am sorry to say that the allegations about Gordon Brown just ring too true.

Nevertheless to put this into perspective his tactics are too unsubtle. In other words if he had a problem, he would complain to your face. The really dangerous bullies are those that use subtle methods such as manipulation of holiday schedules, expenses and reduction in job responsibilities. They use a variety of tactics which are used often skilfully to undermine their victim over time. The key is that this often done subtly, and I cannot give Gordon Brown this credit.

 
Gordon Bownn, too me is portrayed as someone who seems more struggling with the respondibilties(and probably failing) than a motivated bully.  

Lawyers acting on behalf of employee clients do not like alleging Constructive Dismissal but sometimes you have to do it.

The reason why we do not like doing it is because the onus is on the employee to prove the dismissal.

The law is if the employer is in fundmental breach of his obligations under the contract then the employee has the right to accept the breach by resigning and then claiming constructive dismissal.

The biggest difficulty for the employee is to establish that the breach was fundamental.

The breach must be ".....a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract."

As is always the case whether the employer's conduct is a fundamental breach is a matter of fact.

It is such a brave step to allege constructive dismissal but the key is to do at the right time. If you do not, it may be too late. 

Justin Patten, Employment Solicitor

An interesting article on the Personnel Today website about homophobia.

Discrimination on the grounds of sexual orientation may be against the law, but many 'out' employees continue to experience homophobia in the workplace. Sophie Hudson investigates.

Former teacher Sue Sanders spent much of 1989 vigorously campaigning on television against Section 28, the law banning councils and schools from intentionally promoting homosexuality. Little did she know it would result in her boss siding with a parent who complained that her daughter was being taught by "a lesbian". The headmistress told the parent that Sanders would no longer teach the girl, and Sanders soon moved to another school.

Move forward two decades. In 2009 Jim Craven (not his real name), a gay English teacher at a mixed school, who is "camp as Christmas" according to a friend, was asked some very personal questions by some students during a class. They wanted to know why he didn't have a girlfriend or wife, making Craven feel increasingly uncomfortable. He went to his boss, the headmaster, to ask for his advice and support. In response he was told to buy a cheap wedding ring and frame a picture of his sister so he could put it on his desk and pretend she was his wife.

It is worth a read in highlighting the failure of law to impact the real lives of people.

Recently Emma Harte of Resolution wrote to the Law Society Gazette commenrting on the success of family cout based mediation.

She observed.

"The story ‘Family mediation pilot achieves mixed results’ (news, 7 January) suggested that court-based mediation in the pilot scheme had disappointing results.

Given the context in which these mediations occurred, the opposite is true, and the pilot actually looks like a remarkable success story.

The pilot involved cases that were so difficult they had already reached court and an overall mediation success rate of 79% (28% settled, 24% narrowed dispute, 27% further mediation) is extremely good.

While court may not be the best environment for mediation, these results demonstrate that court-based referrals can and do work.

It is good to see that mediation saved the legal aid fund £10m last year. Mediation also delivers less delay, less damage to family relationships, more empowered outcomes, and therefore even greater savings for the human cost of family separation."

It is good to see a lawyer standing up for her belief in mediation and clearly she has made some good points.. 

Nevertheless is it not difficult to quantify the success rate of mediation?

I see many mediation providers asserting how successful their firm is in resolving disputes.

But is resolution a panacea?

Consider this "successful" negotiation of many years past.

At about 1:30am on 30 September 1938 Adolf Hitler, Neville Chamberlain, Benito Mussolini and Édouard Daladier signed the Munich Agreement.

The agreement was officially introduced by Mussolini although in fact the so-called Italian plan had been prepared in the German Foreign Office.

It was nearly identical to the Godesberg proposal: the German army was to complete the occupation of the Sudetenland by 10 October, and an international commission would decide the future of other disputed areas.

Well, we all know what happened next.

Now if any mediator or mediation provider had successfully negotiated the above matter, you can bet your bottom dollar they would be singing their successes from a rooftop.

But it would not have been right, would it?

Why?

Justin Patten, Mediator

Increasingly Human Law Mediation is dealing with issues relating to elderly workers both in an employment law and a mediation capacity.

My experience of conflict or a dispute is there are some fundamental dymanics which are the same.

You have 2 or more different parties and there is some kind of problem e.g either the Employee has done something wrong or the Employer is just trying to ensure the business makes money and it wants to sack or discipline a member of staff.

You go down some kind of legal route and then you either reach Compromise or a you reach a bitter Court case.   

This kind of scenrio happens in cases involving age, but within age cases there are added edges which both parties need to recognise.

1 Old people to some extent do not receive respect in the society and by extension in the workplace. I have attended events involving lawyers where younger lawyers do not treat older lawyers with much interest or respcet. Hence if I make an effort to speak to a lawyer above 50, it is generally appreciated.

2 Often older executives are fundamentally scared. When I deal with elderly executives they are scarred of losing their jobs because they think this could be their last one of earning at such a high amount. As a consequence it means from their point of view there is more at scope.

3 Legislation is beginning to favour them. The default retirement age which was threatened by the Heyday case is on its last days. With the so called grey vote rising in numbers, no political party is going to alienate elderly workers. As a consequence, dismissing or discriminating an elderly worker is going to become more complex.

There are legal and emotional barriers which need to be dealt with in handling conflict at this level.

Justin Patten, Mediator         

There is an interesting employment law case which has obtained a great deal of interest in the human resources and legal press.

Public sector employees may have the right to bring a lawyer to all disciplinary hearings should their dismissal prevent them from working in their profession in future.

A Court of Appeal decision published last week has opened up the issue as to whether employees have the right to legal representation at internal disciplinary hearings.

The case involved a music assistant at a primary school, who was dismissed by a disciplinary committee following a complaint that he had kissed and had sexual contact with a 15-year-old boy, who was a work experience student at the school.

Prior to his dismissal, the claimant sought several times to be allowed legal representation at his internal disciplinary hearing. However, the local authority's policy did not allow this and the school declined to permit him to bring a lawyer.

But the court found that, because the disciplinary proceedings were "a determinant of the claimant's right to practise his profession", Article 6 of the European Convention on Human Rights applied. 

Now let us be clear about this.

1 Normally the disciplinary and grievance arena has been one where the lawyers stay clear of. My experience that I have tended to get involved at smaller organisations which have what we can call loose procedures.

2 What can be frustrating in dealing with the public sector is their love of procedures and their refusal to engage. Would a lawyer help that in a demanding disciplinary hearing?

3 If you start having lawyers attending the disciplinary procedure, would say an employer respond by getting a lawyer to Chair a Disciplinary hearing?

4 If that were to happen, stand by for more frontloading of legal costs with effectively the Disciplinary Hearing becoming akin to an Employment Tribunal hearing.

5 This gives more incentive to mediate BUT disciplinary hearings are extemely demanding. I query whether this case would be suitable for mediation.

6 This case does not mean that lawyers will be able to attend disciplinary hearings. Iwhere the consequences of dismissal go beyond simply losing a job - ie, they could prevent an individual working in their profession in the future - employers should proceed with caution where legal representation is requested. No doubt lawyers will be arguing this one. 

7 Tactically, I would be careful about being aggressive in asserting this right to attend the disciplinary hearing. Sometimes it is better to let the organisation hash it up to increase the perception that your client is the unwitting victim. Alternatively you can make the request knowing it will be refused. Further ammunition for the pot.

Justin Patten, Employment Lawyer         

According to press reports the TUC will continue to help negotiations between British Airways and Unite. It appears the first walk out from staff will take place from 1st March 2010. 

I have previously written about the dispute.

Quite frankly there are a number of fundamental flaws in the approach to negotiation which make it more difficult for the parties to settle.

These include:

1 Less is more. The parties are involved in continious and never-ending negotiations. This is taking out impetus and respect for the negotiation process. It would be better if all the parties took a break and had 1 long session rather than a series of mini-sessions.

2 The parties are breifing the press. Yesterday I read that both BA and Unite had given their presentation papers to a national newspaper. The downside is that both parties are boxed in by what they say. How can they satisfy loss of face now? Part of their positions are displayed in the public.

3 Inter- Union Splits. Tensions are emerging between the unions as Unite and Balpa, the pilots unions after a number of pilots applied to retrain as cabin crew. On the surface this makes the position of the union weaker but it is an added complication for any mediator. 

Justin Patten, Workplace Mediator           

As a lawyer and mediator there are always on the web some great online resouces to consider.

Some of the best mediation blogs include Settle It Now and Mediation Channel.

Also on the blogs is respected mediator, Amanda Bucklow who also identifies on her blog that she recommends reading The New Lawyer: How Settlement is Transforming the Practice of Law by Julie Macfarlane.

As the preamble to this book observes, the image of the adversarial "client warrior" dominates historical notions of the lawyer. Indeed, a zealous commitment to client advocacy remains one of the core norms of the legal model.

There is something quite macho about being an aggressive lawyer. The question is - Is this effective?

However, structural changes, both in the justice system and the legal profession itself - in particular the shift towards conflict resolution rather than protracted litigation - have rendered the "warrior" notion obsolete.

The new lawyer's skills go beyond court battles to encompass negotiation, mediation, and restorative justice initiatives.

It may be desirable that the end of this warrior type of lawyer exists but sadly many lawyers I deal with continue to take an adverserial approach.

So if I can give my take on the trends in employment law and elsewhere which underpin the hopeful ending of this warrior type lawyer.

1 The overwhelming failure of litigation.Recently I was doing some mediation training for lawyers and one leading lawyer told me that nearly every Claimant that had gone through the litigation process did not have a good psychologoical outcome. In other words the money did not adequately compensate for the stress and trauma of going through litigation. As a lawyer I owe a duty to my client to get the possible outcome including to the client's psychological welfare.

2 The costs of litigation. Litigation is expensive. In my capacity as lawyer I advise my clients to where possible settle cases quickly and on as favorable terms as possible to avoid this expense.

3 Social media and competition is influencing parties and making them more accountable. In a more competitive world parties cannot indulge in a dispute. Litigation can hurt reputation that can easily appear online. Clients really do have better things to do than spend money on lawyers and mediators.

As a lawyer, how can I help manifest change in both my client's and opponent's behaviour quicker?

1 You identify precisely what the client is looking for. As a consequence when the client is saying something to me I am looking for what precisely he or she is looking for. When the client says she wants to sue the organisation, why is she looking to sue? What exactly is she looking to get out the process? Is there something else that she fundamentally needs which is not present within the litigation process?

2 You encourage the clients to tell you their story, In my experience in every dispute there is a story, a pattern, a theme waiting to come out. I want to hear it. From this a possible solution will emerge.  

3  You use different methods of settlement. Within an employment dispute you can offer face to meetings, pre-claim concilation or mediation. You can avoid hostile use of language in correspondence and distinguish between individual's actions and individuals themselves.This gives more opportunities to reach settlement.

4 You can be more open about weaknesses and vulnerabities in your case. A dual purpose is done by taking this approch. It sends a message to the other side that you are serious, you acknowledge that in any case that there are strengths and weaknesses and you are ready to deal with them. It also communicates to the client to be aware of the risks of litigation and reminds everyone what is at stake. You are not caving in or being weak. Frankly you are advocating in a more effective and influential way.  

Justin Patten, Lawyer