One way of addressing a problem employee
07 Feb 2012 11:05
Caroline Sheridan is a highly-regarded Facilitator, Mediator and Executive Coach, Caroline works both independently and as a Consultant/Mediator for CEDR, the Centre for Effective Dispute Resolution. Caroline works with organisations on a variety of independent interventions, including facilitations, independent assessments, investigations, personal development, employee engagement and executive coaching.The Challenge
I was introduced to a small company which had got itself into difficulties with one of its staff. The employee had brought a series of grievances, some of them seemingly trivial but also including serious allegations of race discrimination. It was clear both that the employee did not want to be there any longer and that the employer did not want him there either. The relationship had become dysfunctional, with a total and mutual lack of trust evident in all the parties’ dealings with each other. However, each was pretending on legal advice that it wanted the relationship to continue. This was consuming so much of the employer’s time and energy that it was beginning to form a real drag on the business.
The Approach Taken
My introduction to this issue was as external mediator and it was in that capacity that a settlement was ultimately procured which entailed the employee leaving on terms. But before that could happen the employer had had to take the vital steps of agreeing to the mediation process and of persuading the employee to participate in it. Too many employers see inviting their antagonised employee to participate in mediation as a sign of guilt or weakness, but they then risk being forced into increasingly unrealistic stances by legal advice aimed at preserving their position should the employee take tribunal proceedings.
My costs as mediator were being borne entirely by the employer, instead of the usual 50:50 split. This may seem unfair but where the employee is unable or unwilling to pay, it is often worth the employer’s while paying both halves just to make sure that mediation goes ahead. The employer was also open enough with me to admit early on that it wanted the employee gone. There is no point in seeking to ‘play’ the mediator or continuing to reiterate an artificial stance designed to limit the employee’s leverage – it makes getting a deal done far harder. The duty of confidentiality owed by the mediator offers a party the comfort of knowing that openness of that sort will not be disclosed to the other without consent and so there is no risk of its openness inadvertently prejudicing its negotiating position.
The employer was angry that it had faced what it saw as malicious grievances and baseless allegations of discrimination. It did not want to pay the employee to leave, but it was still able to make the mental jumps necessary to make the best out of a mediation. Firstly it accepted that it had to look for a settlement it could just about live with and not insist on one which represented any form of vindication. Secondly it saw that this meant looking past issues of right and wrong, fairness and justice, and taking the whole affair very much as a commercial deal despite the high levels of emotion involved. Only on that basis was the company was able to bring itself to make a severance payment. This was on one view more than the employee deserved but at the same time less than the probable costs, both financial and non-financial, of continuing down the phoney war path advocated by both sets of advisers.
Key Learning Points
- For the employer, don’t let the emotion cloud commercial sense.
- Ask your adviser or an external provider for advice on mediation at an early stage.
- Don’t expect a perfect outcome: remember the mark of a good settlement is sometimes said to be one which makes both parties equally unhappy!
- Inviting your difficult employee to participate in a mediation is not a sign of weakness.
- You do not need lawyers at a mediation but it can be helpful to obtain their advice on the wording of any settlement agreement, where appropriate. If the outcome is that the employee leaves then the usual formalities attached to compromise agreements still apply, including the requirement of advice for the employee.
Mediator and Executive Coach, Sheridan Resolutions and CEDR
mediation, employee, employer, difficulties, staff, discrimination, tribunal, dismissal, settlement