Gagging ordersBack in the 1980’s, before a slew of new UK employment legislation really took hold, life in HR was much simpler. Industrial tribunals, set up for very good reasons to provide workers with protection against unfair dismissal, were never meant to become too legalistic. Oh how naïve we all were.

In my former life in industrial relations I successfully defended both employers and employees at tribunals without any formal, legal training.  Today employment contracts are a great deal more complex and very few corporations would be prepared to leave them to their HR team.  As a consequence it has become a legalistic nightmare and a fee-generating paradise; but has any of it improved the fundamental relationship between employer and employee?  We all know that once the legal eagles take over the name of the game changes: humanity does not seem to feature much, if at all.  Common sense goes out of the window and legal technicalities, defined by lawyers, become the dispiriting order of the day.

Probably one of the worst outcomes of this development has been the advent, and exponential growth in, ‘compromise agreements’.  It is easier to reach a compromise, that no one is happy with, than to actually resolve the underlying management issues.  A more sinister side to compromise agreements are ‘gagging orders’* – ‘we will pay you money to keep your mouth shut.’  It would be interesting to trace the history of such highly restrictive practices but one wonders what must have been going through the minds of the HR directors who originally signed these off?  How did they let the employment relationship deteriorate to this degree; why did they not deal with it earlier?  The number of compromise agreements today is an indicator of a general decline in management standards and, as an HR metric, a sad indictment of the evolution of HR practice over the last 30 years.

HR has been trying to provide ‘metrics’ of its effectiveness for many years and still struggles with the concept of measuring what it does. The willingness of HR functions to include compromise agreements and gagging orders in their repertoire is a very worrying trend and the time it takes HR to jump to a compromise solution (TTC) is very telling.  How quickly is HR asked to the defend the corporation from the indefensible?  How soon does their first priority of protecting their own skins, and those of their political masters, relegate the best interests of customers, patients and society at large?  At what point, and why, does a committed and honourable employee, who has a laudable intention to blow the whistle on obvious malpractice, suddenly become an ‘enemy’ of the corporation?  The number of whistleblowers reveals much about immature management and the blame cultures they engender by their fear of litigation.

As with all meaningful metrics though TTC is not a binary system: it is not a case of yes/no; on/off; black/white.  The TTC dial ranges from ‘0’ seconds to never.  If the selection process for appointing board directors, especially  HR directors, includes a mandatory requirement to have their integrity permanently switched off then their TTC score is always zero.  Of course, for such a system to work everyone else, lawyers included, has to switch their integrity dial off as well.

Anyone who reaches any level of management seniority is likely to face these defining moments that form an integral part of their character building and career development.  Measuring the speed of their eagerness to pick up the compromise pen is a chilling predictor.

*Postcript – a little light appears on the horizon today – UK Government decides to ban gagging orders in the NHS – why not ban them across the whole of government?  Why not ban them full stop?

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