A report in the British press this week tells the story of a law student, Riam Dean, who won an Employment Tribunal claim against her employer, US firm Abercrobie and Fitch for unfair dismissal and harassment on the grounds of her disability. The case raises some interesting questions about the conflict between the employer’s right to choose how they present themselves (branding) and the rights of employees as enshrined in employment law. Disability discrimination is a key area for disputes at the moment.

The account describes how a young woman, born without her left forearm, was banished to the stockroom because she wore a cardigan to cover the join on her arm and in doing so her “look” breached a rigid policy on presentation, a policy which by accounts ran to 45 pages.

Screen Grab from the Abercrombie & Fitch Web Site

On the Abercrombie & Fitch website you will find a very clear statement on diversity. Any young person reading this might reasonably think that there is a policy of inclusion. On the other hand a critical mind might see the discrepancy between that and the overwhelmingly clear message communicated on every other page of the web site that only perfect bodies “need apply”. Employees are even encouraged to enter a modeling competition to feature in the company’s 2010 calendar. (see above)

The diversity statement boasts training activities and clear policy guidelines which ensure that all staff are aware of the need to include people who have disabilities or who are challenged in some way. They tick the boxes and with well crafted words.

This conflict was experienced first hand by the supervisor that banished this young woman to the storeroom. Instinctively, she made the choice between the professed policy of inclusion and the more compelling policy of looks. In my view her actions were the more “truthful” and authentic if wrongheaded.

So I wonder why a law student would apply for a job here? Was it optimism or something else?

And I wonder why the interviewer gave her the job knowing the existence of the policy on looks, unless it was out of fear that not to do so would expose the company to a claim of disability discrimination?

There was a claim for disability discrimination which in the end failed as the tribunal found that she was not treated any differently from any other employee. She did get home on the harassment claim and unfair dismissal which cost the company a few thousand pounds but who knows how much in lost reputation.

Personally, I am a strong supporter of diversity and I believe that organisations should make adjustments to allow disabled people to participate fully. We are a diverse society and the richness of that society and how we treat people is a demonstration of our civility.

On the other hand, as an employer and business owner, I understand that employers should have the freedom to say how the company should be presented and how staff should represent the brand. I do not subscribe to the perfect body/perfect look idea and that most probably has something to do with me not being a size 00! I am, however, struggling to argue against the right to employ people who are a good fit with the brand and the target market or to argue for enforcing a diversity policy which is clearly incompatible with the company ethos when it is so extreme.

The cynic in me says: a law student with a disability has done herself no harm in the job market by pursuing a claim for disability discrimination and winning (although not well as it happens).

The business owner in me says: a company has a right to decide how their brand is portrayed.

The human being in me says:  the pursuit of perfect looks to the exclusion of everyone else is deeply unpleasant and even dangerous.

The marketing director in me says: A&F: this is a PR disaster and the cost to you will be much more than £9000 plus legal expenses – you should have mediated the dispute! And given similar problems in the US, you really do need to do some work on your recruitment procedures and sort out how you include people who are disabled.

The mediator in me says: Amanda you don’t know all the facts and you certainly don’t know all the circumstances! And the burning question is: why did the supervisor want her off the shop floor and in the storeroom? Was it because she was wearing a cardigan and breaching the dress code or something else?

In the wake of the new arrangements for grievance and disciplinary matters there is a wealth of advice and new books on what employers should be doing to meet the standards expected of them. There is also a guide to transitional arrangements for disputes which straddle 6 April 2009, the date when the new regime became effective.
The Gibbons Review which was the driver for the new arrangements speaks frequently of mediation as a preferred route to early settlement. The ACAS Code of Practice 1 on disciplinary and grievance proceedures also promotes mediation. However, the new code is not as clear about mediation as a tool for early dispute resolution as the original review, which is a great shame.

Here are 10 tips to help you reduce the number of employment and organisational disputes in your business.

1. Resist the temptation to train a team of in-house mediators
2. Make the resolution of disputes a commercial issue and not just an HR issue
3. Put dispute resolution on the board room table, in front of the CEO, CFO, CIO and Head of Legal Services
4. When employees experience good dispute resolution they express that in their relationships with customers and suppliers. Good relationships have always mattered but they are even more critical in a recession
5. Good dispute resolution skills are not separate from good leadership skills – train your leaders.
6. Differentiate between conflicts and disputes: conflict can be very constructive, disputes are not.
7. Using external expertise is not a weakness. Most employees consider external help a demonstration of commitment.
8. Interview potential mediators. What else could they bring to meet the needs of the organisation? What experience do they have? Will they understand the context of the organisation? Could they engage senior people in developing solutions to the underlying problems?
9. Be prepared to move people into roles where they are using their strengths every day. If they are successful and appreciated then it is unlikely they will have time or energy for anything else.
10. If you can’t move people to where they are using their strengths every day then be prepared to move people on to where they can use them.

Early dispute resolution adds value to your internal and external reputation, contributes to attracting talented individuals, helps keep employees focused on the important issues, builds confidence and trust, encourages innovation and problem solving. It builds shared responsibility.

If you would like to know more about the benefits to your bottom line of this approach, please contact me using the form below.

The new arrangements for disciplinary and grievance procedures have raised alarm bells for me not least as a result of the resurgence in the promotion of training teams of in-house mediators. Please don’t do it!
Why on earth not? I hear you cry. Here’s why…

1. You will need a variety of people to make up a team that might meet the needs of any and all disputes arising and that is a real challenge to build. It is a bigger challenge to maintain. When people leave the team, either because they leave the company or through promotion, it is unlikely they will be replaced immediately with another trained in-house mediator. Re-training has all kinds of hurdles not least getting enough people to make it worthwhile and allocating the funding. Soon, the resource becomes fragmented and the employees and managers lose confidence in the ability of the in-house team to deal promptly with issues arising. = disappointment
2. There are specific skills which require practice and attributes which require careful identification. A good deal of what is required to be an effective mediator can be trained but certainly not all. The classic choice for an in-house mediator is someone who already displays a “harmony seeking” style or disposition. They may be expected to deal with matters so that they do not become fully fledged disputes and that makes for pressure to stifle and curtail discussion about underlying causes. What you really need is someone who is very skilled in orchestrating frank and open dialogue and is confident enough to deal with the conflict that might engender. Someone who has the skills to make sure that can happen in a positive environment and who can guide the parties through it and out the other side. Without these skills and attributes, mediation can be seen as yet another “sticking plaster process”. = distrust of the process
3. It is rare for in-house mediators to have enough and regular practice or experienced support to maintain a level of skill to make them effective. If they fail, then that can reflect upon their overall role in the organisation. = resentment
4. It is rare for organisations to make the role of mediator the primary role for the individual. It is may be seen as a reward for past performance, an alternative to current (unsuccessful) performance or an opportunity for personal development. Therefore, there is an in-built conflict as mediation will always be secondary to their main job. That is neither helpful for them or for the people for whom they are acting as mediator. The possible measures for successful performance are incredibly difficult to establish. Reconciling those with the performance measures for the “day job” is even more complex. = risk
5. In-house mediators can be viewed as partial, with a conflict of interests and a vested interest in the outcome. This breaks the three core principals of why mediation works. The issue of confidentiality is also in question – at least in the minds of the parties. They know the culture of the orgnaisation and if they don’t believe in the autonomy of the in-house mediator then they will neither trust the process nor trust the mediator. All these are fundamental to the success of mediation. = long term distrust of a valuable business tool.

So what is the alternative?

• push the responsibility for dispute resolution to the top of the organisation. It works best when it is on the board room table;
• invest in training for senior managers on recognising the early signs of discontent and reward them for “grasping the nettle”;
• develop performance measures around conversation, consultation and change. For example, how many opportunities for “surgeries” has a manager created? How many meetings have been held where the agenda was designed by the workforce and not the manager?



“There is a real danger that people [employers] keep their heads down. There is a danger we can lock ourselves away in darkened rooms – when employees need us more than ever walking the floors.” Liane Hornsey, people organisations director at Google

• How many changes have been made to procedures and processes to remedy deficiencies and embed success?
• For every KPI on productivity, performance and output, can you agree a matching KPI for the manager or team leader on how many issues they have resolved which were presented by their team as being barriers to success? How about reporting on the pairs of KPI’s? This demonstrates shared responsibility.

On the occasion that a problem arises which is too sensitive or too complex to deal with internally then seek out an independent mediator who can bring fresh eyes, new perspective, impartiality and experience to the issues and who will also gain the respect and trust of those involved. If the matter is serious and complex enough to be still an issue then you will need experience and that will be a combination of

• mediation experience
• commercial experience
• sector experience

Why do it this way?

Because it is one of the most cost effective ways of resolving disputes and looking after your internal reputation at the same time. At the moment, internal reputation should be high up on the agenda of every company and organisation especially if redundancy is in the air.

Personnel Today – Rise in workplace conflict set to cost businesses billions

A recent report Fight, flight or face it published jointly by OPP and the Chartered Institute of Personnel Development surveyed thousands of employees in nine countries across three continents, in businesses of all sizes and in all sectors. A second survey revealed the opinions of 660 HR professionals in the UK, allowing for a balanced employee/employer view on conflict.

The research  found:

54% of employees want managers to address underlying tensions before they escalate into conflict.
58% of employees who have had relevant training now look for win-win outcomes from a workplace conflict.
In countries where such training is more prevalent, positive outcomes from conflict are far more common.
27% of employees have seen disagreements involving personal attacks or insults.
16% have actually seen conflicts lead to people being fired.

Recent article in Personnel Today about the anticipated rise in workplace disputes as a result of the downturn in the global economy. Video comment by me on why it is good to engage a mediator early in the process.