Cultural issues related to allegations of bullying and harassment in NHS Highland: independent review report

32. Dealing with Disagreement and Difficult Situations

Introduction

32.1. In NHSH, as in many organisations, more attention should be paid to early intervention, when a difficulty or conflict is first identified. This is what is often known as preventative spend in reality. This could dramatically reduce the number of situations which escalate into full-blown bullying or harassment issues. Often, the presenting of such matters in a disciplinary or grievance context is merely symptomatic of deeper underlying concerns which are better dealt with in a non-binary or non-adversarial way.

32.2. I am told that many people accused of bullying behaviour are taken completely by surprise by the allegations, because nobody has raised concerns with them before. So often, relatively small incidents at the outset can escalate out of all proportion. Nipping matters in the bud is critical – and finding ways to do so is essential.

32.3. This can be addressed by education and training, by empowering those affected and bystanders to raise concerns early, and by introducing other different approaches which move away from adversarial or binary processes.

Dealing with Disagreement Generally

32.4. A wise observer of the NHS scene told me:

"On complaints outcomes, I am increasingly drawn to moving away from the binary upheld/not upheld outcome of a complaint. However you dress this up, the experience of one party to a complaint on hearing the outcome is that they have 'lost' and the other is that they have 'won'. My experience is that this can have a negative effect on future relationships from the point of view of both the complainant and the organisation (including the person complained about).

And in relation to the impact of culture, it seems obvious to me that the way in which an organisation approaches and deals with its own internal disputes and disagreements must have a direct effect on how it deals with external concerns such as complaints. So I would argue that in order to improve complaints handling about your services, you need first to improve the way in which you deal with internal disputes – by which I mean conflicts and grievances.

I believe strongly that conflict can be positive – as long as it is open, honest and respectful. So part of the work … in future is to encourage organisations to change their internal culture by promoting the resolution of internal disputes through constructive discussions (which may be facilitated). This may mean moving away, wherever circumstances allow, from HR processes such as disciplinary and grievance investigations which can be experienced as destructive. We are not going to reduce the negative impact that being complained about can have unless we change our internal dispute resolution culture."

Mediation

32.5. One way to enhance early management of difficult situations is to make more use of mediation and other facilitated conversations. As one union representative put it to me, mediation can be very useful; when a conflict is first identified, a mediated discussion can be extremely successful in preventing escalation and avoiding future conflict. It enables people to see one another's points of view; to share their own perspectives and to have a good chance to explore all the issues in a balanced way which is not blame orientated. Because mediated outcomes are designed and agreed between the parties involved, there is increased ownership of the outcomes, and therefore higher likelihood of them being adhered to.

32.6. Many of the issues currently being addressed through conventional grievance and other procedures may be amenable to, and more effectively resolved by, early intervention through mediation. The key is to encourage acknowledgement and recognition of adverse experiences, a more positive response, and ensure that staff feel their concerns are being appropriately handled, whatever the eventual outcome may be.

32.7. One respondent offered this view:

"Mediation in a well documented option for employees of NHS Highland as an alternative to moving straight to a first level grievance. However, it is not always selected as the way forward. This is especially the case when claims of bullying are against managers. It would be helpful to better understand the benefits of mediation as opposed to placing two or more people in adversarial proceedings where they blame and accuse each other of unreasonable behaviour and defend themselves against the same. These allegations often require lengthy and extensive investigation which often entrench positions and normally exacerbate problems in working relationships. We hope that one angle of your inquiry may be to recommend each employee of NHS Highland to take time to consider better ways of exploring and resolving conflict rather than seek to blame and punish colleagues through raising formal grievances."

32.8. A staff representative said:

"We fully appreciate how difficult bullying and harassment cases can be for HR departments to deal with, but a change is due in the way concerns are investigated and how conflict issues are addressed. [Staff] advisers, who directly support members facing such difficulties, know that bullying and harassment complaints can take a long time to investigate and resolve. Often 6 months to a year in their experience, but even longer in some more complex cases. It is fairly common for 'counter' accusations to be raised against anyone who has raised their own concerns. This can all add up to a fairly torturous experience for all involved; prolonged investigations can drain people's confidence, resolve, self-esteem and impact significantly on mental health and general wellbeing. There are often knock-on effects for other (uninvolved) colleagues in a department, who have to continue working in what can be a highly tense environment as a process is worked through.

We believe that there may often be better means for resolving issues, for example by processes like mediation. We strongly believe that mediation is not used or explored as an option often, or early, enough. Mediation has traditionally been seen by the NHS as an expensive luxury, but the potential savings to the NHS by dealing with conflict at an early stage can be considerable. Conflict can cost the NHS by way of lost working hours, staff demotivation and unease, resignations, as well as financial and time resources spent on running formal processes."

Scottish Government Initiative

32.9. I understand that, in 2016, the Scottish Government formed a Mediation Working Group. The aim was to develop an effective, alternative dispute resolution service as a shared resource for NHS Scotland employees, through engaging or establishing an "NHS Scotland Mediation Network". The network aimed to coordinate NHS resources, and to support and develop NHS Scotland mediators. I understand that work on this project ended before real headway was made.

32.10. Many feel that this was a missed opportunity to place mediation at the centre of NHS dispute resolution, and that this may reflect a common reluctance to invest in a process that is known to be of considerable benefit. The opportunity should be taken to look again at an NHS Scotland-wide mediation network. Once again, the idea of preventative spend is surely a key factor in looking at a new approach.

32.11. One trained NHS mediator put it eloquently:

"We should reflect on the failure to translate the training as workplace mediators some of us had for the NHS as a whole in Scotland into activity that justified the investment. This was the most thorough and useful training I had in my last ten years as an employee and it was not a little frustrating that, once trained, the work place mediators were rarely used. I still do not know if this was a failure to match supply and demand or advertise the availability of (simple) mediation or if it all became bound up in HR processes and anyone who was a general manager was excluded from acting as a mediator – something that could have been sorted at the outset."

Mediation in NHSH

32.12. Therefore, it appears that the time has come to place mediation firmly at the centre of a preventative strategy in the NHS in Scotland. That could start in NHSH. The process could be introduced in a layered fashion: a system of internal informal mediation would be available to nip matters in the bud, with more formal internal and, where necessary, external provision available for matters which had escalated or were in danger of so doing.

32.13. The preservation of independence and perceived impartiality is crucial in any mediation provision. The use of HR professionals who have already been engaged in the investigation process should be avoided. To this end, a properly resourced mediation service, independent of HR, should be inaugurated using trained mediators throughout NHSH.

32.14. This could also be shared across the public sector in Highland and the idea of a Highland Collaboration Hub has been mentioned, providing a resource for public sector bodies generally in the Highlands. This may be particularly useful given the geographic extent of NHSH.

32.15. It is recognised that mediation does not always work and that maintaining appropriate training and standards is important. It was suggested that transparency would be more likely if the mediation and dispute processes were subject to random but frequent audit by an independent reviewer from outside the health board.

Facilitation

32.16. To this, I would add, skilled facilitation. The Scottish Government's Collective Leadership initiative makes the point that more generally there is "a clear need for skilled facilitation and creation of the spaces to explore and have frank and honest conversations… long-term facilitation helps support and hold the space for change to emerge and become embedded."^[64]

32.17. I heartily endorse this approach and commend it for some of the work which is necessary in NHSH.

32.18. Indeed, the importance of this becomes more apparent when one considers the collective impact of some of what has occurred. In the next sections, I recommend meetings and other ways to address these matters. However, this is not easy: in an article describing the work of Thomas Hübl on group coherence and collective trauma it is noted that "When strangers come together in a meeting place, some may arrive wearing social masks, protecting themselves from expectations and judgments, or presenting an image of themselves as how they want to be perceived."^[65]

32.19. Helping people to set aside the masks and face up to and move on from painful experiences will often require skilled intervention by skilled facilitators.

32.20. In a sense, the ideas in this chapter are steps to enable the organisation itself to become a community which is geared towards prevention rather than resolution, in which the staff as a whole are aware of, and wherever possible trained to look out for, each other and encouraged to evolve into a more compassionate, supportive culture.