It is worth considering how you would react if BA were your business; would you have done things differently? Who would be your primary concern: the customers, the staff, the shareholders or the public at large?
If we look at the broad facts of the Unite vs BA saga in an HR context I believe there are some very helpful lessons to be learned, (putting the trade union angles to one side for a moment).
Almost all HR practitioners will have come across an individual, or group of individuals, who have felt aggrieved by proposed changes to their working conditions, and who may have threatened legal action. Those litigants in waiting may also have garnered support from their trade union or financial backing through a legal expenses insurer.
In the early stage most employers consider their legal defences to embryonic claims; they don't think about resolving the actual dispute. Employment lawyers are frequently instructed to give advice on hypothetical situations while being provided with the barest facts. Let us consider if there is a method of nipping disputes in the bud before the ET1 claim form has been emailed to the tribunal?
Businesses all across the country will be all too familiar with the substantial business and legal costs that are incurred as a result of having to defend claims from errant employees. I am sure we would all be distressed to learn the extent of management time that has been tied up (and legal fees incurred) in the myriad trips by Unite and BA to the High Court, and the negotiations thus far.
Some businesses continue to take a commercial view at an early stage and offer a sum to settle employment claims by doing a rough percentage calculation of how much the legal fees would be to defend the claim. Many others seek to nip possible claims in the bud before they become formalised.
New figures released by Acas last week reveal the number of businesses and employees trying to avoid employment tribunal claims by using their Pre-Claim Conciliation service has risen dramatically. I consider it highly likely that there will be a continued surge in the use of the Acas service, and also independent mediators, both this year and beyond.
I firmly believe the Unite vs BA plc soap opera can still be resolved by the parties if they use the conciliation service of Acas, or instruct an independent mediator (providing of course that they believe in the process and are not just paying lip service). Some have declared that it is too late for any resolution. I disagree entirely. The parties are deeply entrenched, the schism is widening and the world is watching and waiting. Now is the time for the parties to consider other methods of resolving dispute, beyond the traditionally favoured negotiation.
The wonderful thing about mediation is that it is a method of helping parties to reach an agreement, which can only come from those in dispute. Mediators are entirely independent; they are not there to judge the parties, or to advise them what they should do. He, or she, is in charge of the process but not the outcome. Sometimes in the employment context an apology in a without prejudice mediation will not only clear the air between the parties but also allow them to work together constructively in the future.
The mediation process can be applied to almost any situation in the workplace: from support staff complaining about how managers treat them to cabin crew complaining about how they will be affected by changes to their working conditions.
ACAS have published a very helpful guide to workplace mediation which is well worth a read (http://www.acas.org.uk/CHttpHandler.ashx?id=949&p=0)
Philip Henson is head of employment law and accredited mediator at law firm Bargate Murray
