At the end of my post on Maternity Action’s report on unfair redundancies https://www.employmentlawworldview.com/new-proposals-for-post-brexit-maternity-protection-use-german-law/, I mentioned a number of the reasons why many recent mothers do not raise complaints about their perceived treatment at the hands of their employer. These included a fear of creating bad feeling with their employer or colleagues, a lack of information, feeling guilty, not wanting to damage their prospects, the process being rather daunting, and not feeling that they have a good enough case. One reader of this blog has posed this follow-up question – “Could those issues be resolved by some approach less confrontational than a formal grievance or claim, specifically mediation?”
The answer is probably yes and no. The obvious problem is that you can’t have an informal discussion about your concerns as a returning or redundant new mother without raising those concerns in some form or other. If the anticipated flak from that is enough to put you off, then clearly those concerns are not going to be addressed by your employer. Similarly, not believing that you have a good case to complain is obviously among the very best reasons for not doing so. No employer is likely to engage in any process (however warm and non-confrontational) which is designed to allow or encourage employees to believe that they have better reason to sue than they thought.
However, it may well be the case that if the employee could see that any complaint or concern could potentially be addressed with a minimum of confrontation and formal process, she may be more likely to raise it in the first place. As to why on earth the employer might want to do that, the response is simply because if that led to an early correction of any unfounded fear or misunderstanding by either party, a more formal (and lengthy and costly and distracting) dispute or stand-off may be avoided. Remember that almost all the case studies in the Maternity Action report talked less about what the employer actually did than what the employee “felt” or “feared” or “perceived”. Any process which could quickly clarify or reassure the employee as to what was actually happening and why could potentially head off any sense of alienation and the resulting grievances, claims or staff losses, to the immediate benefit of both parties.
At a more granular level, the without prejudice “bubble” of a mediation may also allow the parties greater freedom to explore helpful variations in the employee’s working arrangements which she may not want to suggest in case it weakens her statutory rights or negotiating position and the employer may be nervous raising in an open context for fear of inadvertent discrimination. One might say that those are things which could be discussed openly in a suitably trusting and mature environment, but that is just not always possible. Offering an expressly “safe space” for that purpose may therefore be useful. [For the employer we must obviously enter the caveat here that that “bubble” does not offer protection for any “manifest impropriety”. If you say or propose anything in such a mediation which is blatantly discriminatory, it can still be used against you. Normally we would say that it would be difficult for a failed mediation to make matters worse, but unless handled carefully, these circumstances can be the exception to that rule.]
It would be hoped that a mediation (or less formally, perhaps just a facilitated discussion) between returning employee and line manager would produce a solution acceptable to both. Even if it does not, however, it equips both parties with a better understanding of the other’s position. In that way it reduces the scope for the reciprocal suspicion of motives and intentions which sometimes haunts a return to work. Even if offering a form of mediation for maternity-related disputes led initially to more enquiries or challenges being made, it might also help dispel more of those feelings or perceptions or fears referred to by Maternity Action. That in turn could lead to fewer of the far more costly and time-consuming formal complaints or legal claims.
So in answer to the opening question, yes, you could certainly use mediation to try to side-step the sort of issues mentioned by Maternity Action, but still only if the returning mother is willing or able to raise them in the first place.