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This question relates to UK employment. In addition, it does not concern me, I am asking on behalf of someone else.

The person in question has had an up and down relationship with their manager for a while but overall things have been working well enough. However a recent decision by the manager seemed rather unreasonable and was but with no real explanation or justification given. The decision was questioned because the employee has extensive experience on the subject matter and the manager does not, and was undertaken in a sensitive fashion. However, the manager has been quite intransigent about it, even going so far as to threaten that they would "talk to HR" (although about what exactly wasn't clear). Attempts by the employee to do the task assigned in a manner consistent with the quality and care that they expect from themselves and which would not be unreasonably expected by an employer, have been rebuffed (basically, doing some work on their own time, voluntarily and with no expectation of reward).

The employee would really like to sort this out in an informal manner and has been exploring the possibility of mediation which was recommended by ACAS, but it isn't clear what rights, if any, the employee has to request it or if there is any onus on an employer to go down this route if requested. This is particularly pressing since the manager is now talking about a performance improvement plan, which seems rather unjustified since previous appraisals have all been graded at a level where there is only one better mark possible. This is rather a blunt instrument to wield so freely and it is starting to look more like a personal witch hunt (for reference, I found this article on the Guardian).

What rights, if any, do employees have to request mediation when the relationship and trust between themselves and their manager has broken down? And are employers in any way obliged to agree to mediation before resorting to heavy-handed actions like PIPs?

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    Just to nip this in the bud. Any question that could be answered by an HR manager in the applicable jurisdiction does not meet criteria for closure as a request for legal advice. workplace.meta.stackexchange.com/questions/1983/… – Myles Oct 18 '17 at 22:01
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    @Myles, "does not meet criteria for closure" is a double negative. Did you mean "does meet the criteria for staying open"? – Stephan Branczyk Oct 19 '17 at 4:48
  • @StephanBranczyk Yes. If it could be reasonably answered by an HR manager then question closure criteria is not met; if the question would be forwarded from HR to a lawyer then question closure criteria is met. I didn't state it in terms of criteria for staying open as we don't have "stay open" votes. – Myles Oct 19 '17 at 14:42
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This is defined by your contract. If the contract says "the employer must engage in mediation" (typically contracts will do this by referring to an employee handbook, but that's just a detail), then they must engage in mediation. If the contract doesn't say that, there is no requirement.

However, I'd recommend that the person involved here talk to their local Citizen's Advice Bureau and/or a lawyer, as the behaviour detailed here could well be a case for constructive dismissal - but that is definitely off-topic here.

  • I had suspected it was so but I couldn't find any clear explanation and ACAS themselves were a bit vague apparently (although I actually read the link referenced by Joe in the comment on my question but somehow missed the sentence which said mediation is voluntary). The employee is hoping they can use informal means to straighten things out with the manager for now but it still feels as though blunt instruments have been deployed to avoid losing face, and certain actions appear to be contravening the organisation's own bullying and harassment policies, but de-escalation is the priority here. – Steve Pettifer Oct 19 '17 at 9:42
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Unless there are specific obligations to do so in your contract then no they aren't required to participate in mediation.

Refusing to do so would count against them if the matter were ever to make it to an employment tribunal (for constructive or unfair dismissal for example) as while it's a purely voluntary process from a legal perspective tribunals in the UK tend to take the position that they should be a last resort and that all other reasonable steps should be taken to try and resolve the matter first.

Obviously this only applies if the employee can show evidence that they requested mediation and had that request denied, so even if your friend is certain that mediation wouldn't work or that the employer wouldn't engage in it if asked they still need to ask for it as a demonstration of good faith.

To address your last point normally mediation would be a stage after a PIP, since a PIP is an internal process. Mediation is for when you've exhausted all the internal processes and still haven't resolved the dispute.

  • That's a good point about the 'good faith' thing. In this case the employee hopes it wouldn't ever get remotely close to any kind of tribunal or even having to leave the job as they love the job itself, the organisation and the team of colleagues, it's just the manager who makes life difficult (as a side not, the manager appears to have some form in this regard with previous staff who opted to leave rather than go through the stress of various procedures). On the last point, it's precisely because this is a less than normal situation that I was unsure, but what you say makes sense. – Steve Pettifer Oct 19 '17 at 9:38

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