Brendan is a Fellow of the CIPD as well as an Advanced Practitioner and Accredited Trainer in the Mediators Institute of Ireland. Based in Dublin, Brendan works across Ireland and the UK and has noticed that many of the HR issues and problems are quite similar across the jurisdictions. In this article he mentions two cases – one from Ireland and one from the UK though the issues of how to deal with workplace bullying and protected disclosures are common issues across Ireland and the UK.

There is a school of thought among some human resource professionals that complaints of workplace bullying are often used as a way to prevent or slow down disciplinary action for performance issues or chronic sickness absence. The complainant knows that the complaint is not actually ‘bullying’ but, because definitions of workplace bullying are quite open ended and vary considerably from company to company, there is enough ‘smoke’ to suggest that there might be ‘fire’. The company then has to take the matter seriously and usually will need to be prudent and investigate the bullying complaint prior to taking any disciplinary action.

A similar school of thought says that taking a ‘bullying’ complaint will get more attention than simply a ‘grievance’. The word ‘bullying’ rings loud alarm bells and the company pays attention rather than leaving a ‘grievance’ on the long finger.

Whether this is true or not, it would appear from anecdotal evidence that not too many cases of ‘bullying’ are upheld. This is not to say that workplace bullying does not exist – of course it does and for those caught in such a trap it can have disastrous consequences. However, it does point to the use of mediation as a far better process to deal with the complaint in a more human and ultimately more beneficial way for everyone concerned, including the company.

​​Another type of complaint which has an ‘alarming’ dynamic is a protected disclosure, sometimes known as a whistle-blowing complaint.

Such a complaint is brought by a worker who discovers some wrong-doing in the course of employment, which is in the public interest. The discloser is protected from adverse impact once the complaint falls within the definitions. The dynamic here again is that the definitions are quite wide-ranging. A ‘worker’ can be more than an ‘employee’ and includes trainees and agency workers. Motivation does not matter, only that the worker has a reasonable belief that the wrong-doing has happened, is happening or is likely to happen in the future. The complaint cannot be simply a personal grievance, though again this can be interpreted quite widely.

A somewhat surprising example is the UK Employment Appeal Tribunal case of Morgan v Royal Mencap Society, as reported in Personnel Today in June 2016. The complaint contended that she had suffered detriment after raising a protected disclosure about her cramped working conditions which had adversely affected her injured knee and caused discomfort. While this may appear to be a personal grievance she had argued that her disclosures were in the public interest because Mencap is a publicly financed charity and the public would be interested to know how it treats its employees.

The EAT concluded that the employment tribunal was wrong to strike out Ms Morgan’s whistle-blowing complaint for not being in the public interest. Organisations are not well equipped to deal sensitively and impartially with protected disclosures. Such complaints can seem like a challenge and the natural reaction is to close ranks and demonise the discloser. Hence the need for protection.

A case in point happened recently in Ireland in the national police force, An Garda Síochána.

Sergeant Maurice McCabe made allegations about corruption in the force, and his subsequent treatment started a train of events leading to the resignation of the Garda Commissioner as well as the Minister for Justice and Equality. There was a ‘confidential recipient’ system in operation which the Sergeant used to put forward his complaint but the confidential recipient was removed from his role after a transcript of the meeting was made public. The subsequent independent enquiry, the Guerin Report, concluded:

“No complex organisation can succeed in its task if it cannot find the means of heeding the voice of a member whose immediate supervisors hold in the high regard in which Sgt McCabe was held. Ultimately An Garda Síochána does not seem to have been able to do that. Nor does the Minister for Justice and Equality, despite his having an independent supervisory and investigation function with specific statutory powers.”

With both bullying complaints and protected disclosures there is an additional complexity above and beyond ‘ordinary’ grievances and mediation provides a safe, careful, fast and direct way of dealing with the problem. In particular, using mediation to process the complaint will significantly reduce the risks involved of handling the complaint badly.

And, guess what? Mediation by a skilled and impartial facilitator will most likely result in a far better outcome for everyone in addition to reducing the risks.