Evolving Dynamics in Employee Relations

A Report to Helen.Paxton Sainsbury's - Retail Division Human Resource (HR) Director Regarding the Need to Recruit, Develop Or Invest In An In-House Employee Relations Professional

Introduction

Changes and developments in the realm of industrial relations as well as human resource management have resulted in employee bargaining and management moving down to the organisational level, including within the area of HRM dissertation help. This has, in tum, generated increased level in how employee relations are undertaken. The term employee relation, in the UK, is used more broadly such that it not only covers the workplace, but also the most extreme presentation of the various forms of interactions that exist between organised labour, employer organisations/associations and the country (Abbott, 2006). Therefore, employment/employee relations can be conceived as both the traditional human resource management and industrial relations forms that typically involve micro-level interactions between employees and individual managers, as is common in the United States, and the macro­ level relations that occur between external organisations that oversee these relations (Gennard and Judge, 20I 0).

Given that each individual in an organisation shares a certain relationship with their employers and other workers in the workplace, it is essential that the emerging employment relations are effectively managed so as to develop mutual trust, which once built contributes to maintaining the relations, helping all parties to co-exist and better work together (Leat, 2012). The consequence of this is the promotion of both personal and organisational development.

It is thus essential for organisations, including Sainsbury's, to recruit, develop or invest in an in­ house employee relations professional. This is because employee relations impact on employees' (and employers') behaviour at the workplace in various ways, thereby influencing either negatively or positively key organisational aspects such as employee engagement, loyalty, retention, satisfaction, productivity and organisational performance (Ali, Lei and Wei, 2018; Berraies, Chaher and Yahia, 2014). Employee relations also manage all employee problems and grievances, and inform them of their rights as well as the various courses of action at their disposal in face of certain issues (Chaubey, Mishra and Dimri, 2017). Additionally, employee relations outline the roles that employee bodies play in industrial relations, as well as the provisions of collective employment law and the aim of collective bargaining (Chaubey, Mishra and Dimri, 2017).

Due to the critical impact that the above functions of employee relations have on the overall organisation performance and sustainability, they fom1 three of the most impo11ant reasons why I believe that Sainsbury's needs to incorporate the role of an employee relations professional within the organisation. The sections that follow will provide justifications of why the employee relations professional role is critical to the organisations.

The Different Forms of Conflict Behaviour and Dispute Resolution Organisational conflict, which is both destructive and constructive, takes multiple forms and involves different types of conflict behaviours aimed at their resolution. Besides organisational culture and structure, employee relations also contribute to shaping the form taken by conflict and conflict management or resolution. Rahim (2017, p.207) defines conflict as:

"an interactive process manifested in incompatibility, disagreement or dissonance within or between social entities (individuals, groups, organisations, and so on)"

According to Taylor and Woodhams (2016), while organisational conflict was traditionally linked to collective industrial action, including strikes, protests or go-slow, the dynamic and complex nature of modem organisations that results in them being made up of people with diverse backgrounds, expectations, values and opinions- has caused it to be more linked to individual as opposed to collective forms of action. Among the most common individual forms of action in which conflict is expressed in organisations today include; absence, grievance, complaints and/or reports to employment tribunals or resignation (Taylor and Woodhams, 2016). Whether collective or individual, organizational conflict can be either organised or disorganised.

Employee-organised conflict is that which usually takes place on a collective basis, with the most predominant manifestation being strikes. Organised conflict can also be official or unofficial­ official organised conflict is that which has been organized/sanctioned by an employee or trade union, while unofficial organised conflict is one which occurs without the formal approval of the relevant trade union. Unofficial organised conflict, though perennially shott-term, is usually illegal and involves, for example, go-slow aimed at the demonstration of discontent by employees before resuming normal work activities (Williams and Adam-Smith, 2010). Besides strikes and go-slows, the other manifestations of organised conflict include demonstrations, protests, work-to-rule, ove1time bans, and deliberate disruptive behaviour. Un organised conflict (also organisational misbehaviour) involves demonstration of extreme, negative and/or destructive behaviours, such as destruction of property, fraud, theft or fiddles, sabotage, walking out, or absenteeism by a dissatisfied employee or group of employees to express their discontent (Williams

and Adam-Smith, 2010). Although organised conflict typically occurs collectively, unorganised conflict occurs either individually or collectively. (AC 2.1) Workplace conflicts or disputes, if not resolved, can result in industrial action, which can be classified as either official or unofficial. Official industrial action is that which has been endorsed/authorised by the relevant trade union, and therefore provides the employees taking part in it some (minimum) degree of protection (Official or unofficial?, 2022). It can provide employees engaged in it additional level of protection if it is protected- the members have been adequately balloted by their trade union. Therefore, while it makes an employee to be in breach of their employment contract and could likely result in the employer partially or wholly withholding their pay during the industrial action period, the employee is protected against dismissal following their engagement in the industrial action (Industrial action, 2022). Unofficial industrial action is that which has neither been endorsed nor authorised by the trade union, and employees who engage in it have no protection at all, thereby risk losing their pay, and also being dismissed (Official or unofficial?, 2022). (AC 2.2)

decline in the number of formal strikes, which have been replaced by other methods/trends of industrial action such as preferring shorter strategically planned strikes to longer ones that are conceived as having greater impact on the employers. Besides a decline in industrial action, there has also been a reduction in the number of employees involved, and a steep decline in the number of recorded working days lost as a result of strikes relative to the number recorded decades ago, although the reverse is true in the private sector where the number of lost working days has noticeably increased (New styles of strikes and protests are emerging in the UK, 2018). The decline

in industrial action and number of employees engaging in industrial action can be attributed to structural changes in the European economy, the shrinking size of the unionised manufacturing sector and expanding service sector that is lowly unionised, and workers' reducing readiness and increasing reluctance to strike due to economic uncertainty (Szabo, 2018; Vandaele, 2011).

Additionally, organisations have increasingly turned to courts where they obtain temporary strike injunctions to prevent employees from undertaking industrial action in order to pursue other means of dispute resolution while the injunction is in effect. (AC 2.3)

Dispute/conflict resolution is a key aspect of any effective employee relations system. Whereas there exists a broad variety of dispute resolution choices, some organisations usually prefer extra-judicial or third party mechanisms that do not involve appearing before employment tribunals or going to court (Pender et al., 2019). These include conciliation, mediation and arbitration, for both individual and collective disputes.

Conciliation involves a third party (conciliator) from employer organisations and/or trade union, despite likely being part of the negotiation process, intervene in case of a conflict. A conciliator does not offer suggestions of possible solutions to the parties; their main goal is to bring the conflicting parties together and helping them arrive at a mutual agreement. Whereas this is the most informal third party dispute resolution mechanism, conciliation is also an effective means of addressing likely collective disagreements before they transform into full disputes.

Mediation is the most common extra-judicial dispute resolution mechanism, whereby a neutral intermediary (mediator) assists the conflicting parties to reach a mutual satisfactory agreement.

Whereas mediators guide the negotiation process and can offer possible solutions, they are not decision-makers like a judge or an arbiter and therefore cannot render a resolution to the conflict: this is a preserve of the conflicting parties (Sternlight, 2020). Mediation outcomes are not binding- a party cannot be forced to accept outcomes they do not like.

Whereas arbitration exists in most countries, it is not widely practised, making mediation and conciliation the most common dispute resolution mechanisms. Arbitration is whereby an impartial third party (an arbiter) guides the negotiation process and has the power to render a binding resolution to a dispute in instances whereby conflicting parties fail to reach a mutual agreement (Menkel-Meadow, 2020). (AC 2.4)

Managing Performance, Disciplinary and Grievance Matters Lawfully

The Employment Rights Act 1996 (2022) outlines the provisions that govern employees' rights not to be unfairly dismissed by their employer. Unfair dismissal is a statutory right available particularly to employees who have worked for a qualifying period of two years who believe that their dismissal is unreasonable or unfair (Summary of the law on unfair dismissal and redundancy, 2017). However, the two year qualifying period requirement would not be applied in cases of automatically unfair dismissal or dismissal primarily on the basis of political affiliation or opinions. Automatically unfair dismissal involves cases where an employee can show that their dismissal was as a result of one of the reasons such as: membership (or otherwise) of a trade union or due to their engagement in trade union activities, bringing claims against the employers for breaching certain statutory employment rights, health and safety, their refusal to forfeit a right outlined in the Working Times Regulation, and so on (Summary of the law on unfair dismissal

and redundancy, 2017). Employers should therefore ensure they have a fair and just reason to dismiss employees to avoid having unfair dismissal claims brought against them.

The Employment Rights Act 1996 (2022) provides grounds on which an employer's dismissal would be deemed fair, including: lack of capacity or qualifications to perform the job, misconduct, redundancy, breach of statutory duty, requirement or restriction, or any other substantial reason (Employment Rights Act 1996, 2022). However, employers should take care when dismissing employees on the account of ill health as, if not careful, this may be deemed discriminatory on the basis of disability as outlined by the Equality Act 2010, resulting in discrimination claims being brought against it, and which all employees classified as 'legally disabled' are entitled to irrespective of their period of work (Unfair dismissal- what is unfair dismissal in the UK?, 2020).

Employers can also dismiss employees by relying on one or a series of acts of misconduct as a fair reason for dismissal. An employee can be dismissed based on a single act of gross misconduct or following a series of acts of (ordinary) misconduct after a series of warnings (Unfair dismissal- what is unfair dismissal in the UK?, 2020). Among the actions that constitute ordinary misconduct include disobedience of reasonable orders, violence at the workplace, unauthorised absenteeism, frequent lateness, and theft. Theft and violence could also be regarded as gross misconduct. Others include malicious damage to property, fraud, gross negligence, serious

insubordination, establishment of rival business, and serious misuse of company property or name (Unfair dismissal- what is unfair dismissal in the UK?, 2020). (AC 3. I)

Grievances are not an uncommon occurrence in organisations and in the employment relationship. Organisations must develop procedures aimed at fairly and consistently managing arising grievances, both from the employers' and employees' perspectives (Walker and Hamilton, 201 I). Grievances refer to issues/concerns/complaints/problems that employees might have and raise with the employer (Grievance procedures, 2022). Employee grievances can be individual or collective, and relate to nearly anything; working conditions, remuneration, lack of flexibility, workload, failure of procedure or process, employee rights, or any other aspect of the employers' treatment of the employees, such as bullying, harassment and discrimination (Discipline & Grievance at Work I Factsheets I CIPD, 2021). It is an employees' right to raise grievances at any time, even as a response to a disciplinary action or performance process against them by the employer which they consider unwarranted/unfair. (AC 3.2)

Disciplinary and grievance procedures ensure the equal treatment of all employees in similar situations

as well as the fair and reasonable management of issues (Acas Code of Practice on disciplinary and grievance procedures, 2015). They provide employees with a course of action should they have a grievance they cannot resolve informally, issue points of contact and timescales to address concerns, and facilitate the internal resolution of issues without resorting to external resources, such as employment tribunals (Discipline & Grievance at Work I Factsheets I CIPD, 2021). The grievance procedures should be clear, compliant with the Acas Code of Practice on disciplinary and grievance provisions, and communicated to all employees.

Employers and managers involved in grievance procedures should possess certain skills to promote and ensure the procedure's effectiveness.

Actively listening enables the individual charged with addressing the grievance to listen to the complainant in order to understand the issue he raised and why, and provides assurance to the complainant that their grievance is being taken seriously and that the necessary measures will be taken to address it (Handling grievances I CIPD People Skills Hub, 2022). Investigation enables the establishment of facts without unreasonable delay. In the case of a serious allegation, one or the other party in the grievance may be suspended or sent on paid leave pending a full investigation (Handling grievances I CIPD People Skills Hub, 2022).

As part of their investigative skills, those involved require interviewing skills which will enable them to interrogate and talk to other employees (witnesses) to ascertain if, for example, they have witnessed or bear any knowledge of the grievance under investigation (Handling grievances I CIPD People Skills Hub, 2022). They should thus, also possess questioning skills as these are critical in enabling them to ask the employees who raise grievances, those against whom grievances are raised or other employees (witnesses) the right questions, which are relevant and which will

contribute to a speedy and fair conclusion of the grievance procedure. Investigation, questioning and interviewing skills, in combination, are vital as they serve to reassure those interviewed, especially witnesses who often times feel uncomfortable and worried that the employer will victimize or treat them unfairly due to their assistance during the procedure (Handling grievances I CIPD People Skills Hub, 2022).

A very important aspect of the grievance procedure is objectivity and fairness, which ensures that no party is treated less favourably (Formal grievance procedure: step by step, 2015). Those involved in handling grievance should therefore acknowledge the possibility of bias and find ways of minimising or totally eliminating it. (AC 3.3)

Handling the grievance procedure effectively is important. First, handling grievances effectively, in compliance with the Acas Code of Practice, by resolving the claim internally, thus strengthening the trust and confidence between employees and employers, is useful in preventing a constructive dismissal claim by the employee. Organizations that handle grievance effectively also save time and resources in the long-term as they avert the escalation of disputes, while also tackling issues such as demoralization, absenteeism, resistance to change, withdrawal of their goodwill, and even resignation of employees that would arise from ineffective grievance handling procedures. Effective handling of grievances, besides promoting the organization’s image as caring and cognizant of their employees’ issues, also contributes to the organization’s effectiveness by maintaining the employees’ collaboration and team working through the minimization unpleasant feelings among colleagues, perceptions of prejudice or Discrimination, and other psychological impacts due to their involvement in the procedure. (AC 3.4)

The Role of Employee Bodies in Employment Relations

The collective employment law is a branch of the employment and labour law that regulates trade unions, employer associations and work councils with regard to their behaviour and activities, and how they interact with each other (collective employment law, 2022). The UK collective employment law outlines workers' rights to collective dete1mination, recognises trade unions and their freedom to organise and industrial actions, such as strikes, collective bargaining, among other forms. The Trade Union and Labour Relations (Consolidation) Act 1992 (2022) identifies a trade union as a group of employees who join together with the aim of maintaining and improving their employment conditions. Employee bodies benefit members in the form of representation in redundancies and employment tribunals, as well as advising them on their employment rights (Grumbell­ McCormick and Hyman, 2013). Employee bodies can be recognised or non-recognised; recognised ones are those which are independent and acknowledged/recognised by one or two employer associations for the purpose of collective bargaining- negotiating on behalf of employees for things such as pay and work conditions (Trade Union Recognition I CIPD, 2021). If negotiations fail, trade unions can resort to industrial action, as discussed earlier on. (AC 4.1)

Employee representation can be offered to employees as an individual or as a group through

employee bodies- union or non-union organisations that employ formal or informal communication channels with the employer associations (Forth, Bryson and George, 2017). Union organisation refers to a situation where a group of workers collectively raise their demands and

bargain with the aim of achieving a binding contract between the union and the employer association, and trade unions are the most popular form of union organisation (Hoque et al., 2017). Non-union organisation is whereby employs have some form of representation other than union representation, and which is deemed as largely limited in scope and ineffective (Kaufman and Tara, 2016). Non-union representation, which occurs through bodies such as employee work councils, refers to organisation-specific forums through which non-union employees have an opportunity to voice their concerns (Donaghey et al., 2012). Given their prominence and large memberships, union representation is the stronger alternative and which holds a lot of power in terms of employee representation. (AC 4.2) Doellgast and Benassi (2020) define collective bargaining is a process through which employee representatives and employers' representatives or employer associations attempt to negotiate an agreement (contract) that outlines the nature of the employee-employer interaction/relationship. Collective bargaining typically focuses on issues such as wages and benefits, hours of work and other working conditions. The purpose of collective bargaining is therefore the achievement of a mutual agreement between employers and employees (Hayter, 2011). A collective bargaining agreement is reached through joint determination by both employer associations and employee bodies through negotiations, constructive compromise and purposeful persuasion (Rubin and Brown, 2013). However, where the above approaches fail, employee bodies could tum to industrial action, including strike and/or picketing, as the last resort to achieving the Collectivetive bargaining aims. (AC 4.3)

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