In this blog, I look at the possible consequences of the removal of fees for making tribunal claims in the UK, and at some ideas about how workplace conflict escalates if left unchecked.
The ‘tribunal tax’
In July 2013, the UK government introduced fees for anyone making a claim against their employer in the Employment Tribunal. The intention was to try and eliminate vexatious, frivolous, or no-hope employment claims, which the government claimed had risen to an unacceptable level. The principle effect was that employment tribunal claims dropped by a staggering 70% over the last four years.
Then on 26th July this year, the UK’s Supreme Court ruled that the fee system was unlawful, not only on the grounds that it would prevent access to justice for those with a valid claim, but also that it was indirectly discriminatory, penalising those groups who tend to make higher numbers of discrimination claims.
So will the numbers of employment tribunal claims shoot back up again now that the fees have been removed? And why are there so many claims in the first place when workplace mediation is now so readily accessible and affordable to most employers: allowing resolution and so precluding the need for a claim at all?
A question of timing?
Firstly, we could reasonably suppose that yes, claims might well return to the previous level over the coming months. In 2012/13, the last full year prior to fees being introduced, 191,541 claims were made. In all likelihood we will slowly return to a similar level now that the ‘tribunal tax’ has been removed.
But with regard to the second part of the question: 191,541 claims? That is an extraordinarily high figure. There are around 31.8 million employed people in the UK, so around 0.6% of these will make a claim each year (or about 3 in every 500 employees). Why should this be so, when there is now the opportunity to use mediation as an affordable, pragmatic, easily accessible, and private way to resolve a whole range of employment disputes?
On this point, I often hear that mediation was indeed considered for a workplace dispute but that it failed because, ‘…it came too late’, or that one or both parties had become disillusioned and had ‘dug their heels in’, ‘become entrenched’, or ‘just wanted their pound of flesh’.
Fine. Timing is certainly an issue, but I also have experience of mediation succeeding when a dispute has rumbled along for two or three years or more, and conversely, I have seen mediation fail when a dispute was only a few weeks old. So maybe there is a bit more to it: what processes are at play and what does it actually mean to have left it too late and to have ‘missed the boat’ for mediation?
The escalation of conflict
Having worked as a mediator for eighteen years, I know very well the general demeanour, and especially the look on the faces of the participants, when they first walk into the room with the attitude of, ‘this ain’t gonna work’.
But where does that come from? What is it exactly that changes over time, to the point where people feel so pessimistic about the potential for mediation to bring about a resolution?
The answer is in the degree of entrenchment of the two parties: in other words, the level of escalation of their conflict. They have moved on from the initial point where constructive dialogue would possibly resolve their differences, to the point where, even in the presence of a mediator, that dialogue is much more difficult to bring about.
This phenomenon was looked at by Spillman and Spillman1 and described as a five stage process of escalation, shown in the table below. (Actually, Friedrich Glasl’s2 process describes something similar, but in nine stages).
|Stage||Escalation of conflict|
|1||Collaboration and co-operation. Both sides have empathy and try to find solutions that meet one another’s underlying needs. They avoid entrenchment and remain flexible and open to a range of solutions|
|2||Some competition begins as one or both sides take up positions. Both sides want to win and not show weakness. They each start to filter information in ways that support only their own arguments and positions|
|3||Interaction becomes more hostile. Discussion is abandoned in favour of action such as bringing in more powerful others or considering formal processes. Each sees the other’s actions as confirmation of their negative view of the other|
|4||Empathy fails. Parties have little or no consideration for one another. Each may act in ways that cause the other to ‘lose face’, which causes further escalation and entrenchment|
|5||Parties’ actions are chosen to create fear in the other, to gain control of the situation and to avoid being overpowered. Each one’s aggressive behaviours causes the other to behave more aggressively, causing a downward spiral|
Table 1. Spillman & Spillman’s Stages of Conflict Escalation
And this works for me. I see, and hear about, lots of workplace disputes in which the conflict progresses in just this way. When the trust and collaboration of Stage one begin to erode, parties take up opposing positions and begin to selectively interpret what the other person says to them (Stage two). Then the stand-off begins and one or both ‘sides’ decide to approach managers and/or HR: as the conflict stories begin to get told in private to the more powerful others, the parties become even more polarised (Stage three) and the parties abandon any consideration for one another’s needs. They begin to set one another up (Stage four) and ultimately start to simultaneously fear one another AND cause fear in the other (Stage five). And unfortunately in many cases, this is the first point where anyone the employer thinks about mediation: a bit late!
What can we do?
We already know that mediation should be offered early on in a workplace dispute, but we can also see from the above analysis that if we are going to offer workplace mediation, it would be far better to do so before the conflict escalates as far as Spillman & Spillman’s Stage four.
For a situation that is deteriorating very quickly, speed would be even more important. In my experience, we can often see when the conflict has hurtled towards the end of Stage three, and where, ‘… each sees the other’s actions as confirmation of their negative view of the other’. This is like Nickerson’s3 ‘Confirmation Bias’, in which everything that one party does, including how they say, ‘Good morning’, proves to the other party what a terrible person they are! We need to look at re-building dialogue before this happens.
And of course we are going to miss the boat with some disputes, for all sorts of reasons. At Stage five, when the parties want to be in control and to aggress on one another, then formal action is the most likely course. Between two disputing colleagues, there will be internal, formal processes such as grievances. Whereas if the dispute is (or becomes) a post-termination issue between an employee and their employer, then a tribunal claim is likely.
And finally, my guess would be that, if employees had been disinclined or discouraged from making a claim against their employers while the now defunct ‘Tribunal Tax’ was in place, then they would have made more of an effort to resolve matters internally and through dialogue. So now that the ‘tax’ has been lifted, does this mean we can expect less inclination towards resolving disputes internally and pre-formally? What do you think?
1 Spillman, K. and Spillman, K. (1994) On enemy images and conflict escalation. International Social Science Journal, 43 (1): 57-76
2 Glasl, Friedrich 1999. Confronting Conflict. A First-Aid Kit for Handling Conflict. Hawthorne Press (UK).
3 Nickerson, R. S. (1998) Confirmation bias: a ubiquitous phenomenon in many guises. Review of General Psychology 2 (2):175–220