Take a common scenario – familiar to employment litigators. The employee raises a grievance, arguing all possible (sometimes impossible) legal points. The employer denies everything and is offended by an accusation of discrimination. The employer may say they will not pay a penny as they have done nothing wrong – or perhaps pay out on ‘a commercial basis’. This, in turn, makes the employee (and their lawyer) annoyed.
All this is understandable. The employee feels very aggrieved – sometimes rightly, sometimes not. The employer is defensive – and aggrieved to be confronted with what they consider unfounded and hurtful allegations. Even if they have done something wrong they will not admit it in an open process because it is may lead to legal liability and a tribunal claim. Most grievances are dismissed and achieved nothing – except to start a legal battle.
Of course, employees should raise their concerns and employers should try and resolve them at an early stage – but not, in my view, through the adversarial grievance procedure – at least not until all other resolution attempts have been explored. And (arguably) lawyers should stay firmly in the background –unless all else fails.
We need an alternative way of airing the issues to reach resolution: AIR instead of ADR. Join the debate to find the solution – for employees and employers and us lawyers.