DANIEL GORRY: Legal director at Scotland WorkNest on the importance of mediation within the workplace to mitigate personality clashes between employees
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With Nicola Sturgeon fighting for the Scottish independence referendum, Scottish politics seems to be facing uncertainty.
Undoubtedly, not everyone in the Scottish Government will agree this is the right time for a referendum. Personality clashes are bound to happen but personality clashes between senior figures in an organisation can significantly affect business operations, employee morale, the company’s reputation and standing with its clients.
What can employers do to resolve clashes?
Firstly, identify the source of the conflict through dialogue with each individual. Often this can be down to a misunderstanding or different management styles which people managers and HR can resolve through discussion. Mediation with a third party can aid this process and develop workable strategies to enable the employees to work together harmoniously going forwards. Mediation also allows both sides to have their say and to reflect on their behaviour. Taking ownership of the solution can make it more likely to succeed.
Naturally, employees need to be willing to engage in it. However, where an agreement to participate in the process is not forthcoming, mediation is not appropriate because of the circumstances of the case, or it ultimately fails, employers will need to consider how to manage the working relationship and conflict.
For example, you could minimise employees’ contact level by redeployment or reallocating responsibilities. However, both parties may carry the risk of employment tribunal claims if not handled properly. In larger organisations, separating the employees effectively with minimal impact upon the business may be possible. However, for many organisations, this will not be feasible.
Where that’s the case, if all other efforts to resolve the clash and mitigate its effects have failed, the employer may reach an impasse and be unable to continue employing both employees. This leaves the employer in the tricky position of deciding who goes and who stays?
Some Other Substantial Reason (SOSR) is a potentially fair reason for dismissal under s.98 of the Employment Rights Act 1996 and is commonly relied upon where there is a breakdown in a working relationship. Once an employer has established a potentially fair reason for dismissal, if an employee raised a claim, an employment tribunal would consider if it was reasonable.
In some cases, an employee’s behaviour may amount to misconduct. However, there can be a fine line between conduct and SOSR; sometimes it’s blurred.
Where an employee has less than two years’ service, they won’t be able to bring a standard unfair dismissal claim arising from any decision to dismiss. Still, they can bring a claim if the dismissal is, for example, due to a particular protected characteristic under the Equality Act 2010 or, where they can show the reason for their treatment was a result of them whistle-blowing. Investigating the personality clash’s cause is vital to understanding and mitigating these potential challenges.
