We love discovering new books on workplace culture and organisational psychology, then thinking about what this means within an employment law framework.

We’ve recently discovered the work of Michelle Brody , a clinical psychologist and executive coach.

Michelle has recently published a powerful book called ‘Own your Armor ’ (US spelling), which explores challenging dynamics in teams (in a user friendly graphic novel format). The concept behind the book is that conflict, challenging interpersonal dynamics and problematic behaviours are often a result of people ‘armouring up’. In other words, it’s human nature to put up defences when we perceive threats in a situation or when we are particularly sensitive to certain triggers. This then leads to damaging cycles of behaviour, as the ‘armour’ worn by one person (translating into their behaviour) leads to other people armouring up, and so it goes on.

Michelle’s approach is that those challenging dynamics can only be transformed when the people involved start to understand their own armour. This can only happen when there is self-awareness of why the behaviour might be happening in the first place, i.e. what are the perceived threats and triggers that the person is reacting to and why. This approach assumes that everyone involved in the interpersonal dynamic contributes to the problem, so therefore they all need to be the change agents.

“The levers that unlock team dynamics aren’t strategic, but psychological”.

In a recent podcast  about the book, Michelle discussed how, in situations concerning problematic behaviour, HR may be deciding whether to initiate a formal internal procedure (i.e. disciplinary or formal capability). Michelle’s view in the podcast was this is likely to be perceived as a huge threat by the individual concerned and so their guard (‘armour’) will simply go up again, essentially making the problem worse. Michelle’s conclusion was that ‘it’s a sanctioning process or a change process, you can’t do both’.

How does this fit with a fair employment process?

This has got us thinking. Sometimes an employer reaches a point where they know that, even with a reasonable investment of time and energy in resolving an issue, it’s just not going to work. If the employer wants to end the relationship with an employee, then under UK law (generally where the employee has been employed for two years or more), they need to dismiss for a fair reason and by following a fair process. Of course, many employers want to ensure any dismissals are carried out ‘fairly’ regardless of length of service, as they believe it’s the ‘right thing to do’ (for a multitude of reasons, including employer reputation, organisational values and culture).

Where an employer is considering ending an employee’s contract for reasons relating to the employee’s own performance or behaviour, it’s a cornerstone of UK employment law that the employee is warned of this in advance and has a chance to turn things around (apart from extreme circumstances, e.g. gross misconduct). This principle was summed up vividly by a Judge in a 1973 employment case:

“A man may not know he is capable of jumping the five bar gate until he hears the bull behind him”.

We’ve used this quote with clients to illustrate why a ‘formal’ (i.e. a structured) process is an important part of a ‘fair’ dismissal (for employment law purposes) in conduct or capability situations. In other words, this legal principle assumes that until an employee really understands that their employment is at risk if they don’t turn things around, they may not find the motivation to do so. Obviously there is a lot out there nowadays debating what actually motivates people (e.g. ‘Drive ’ by Daniel Pink) but the ‘five bar gate’ rule is still the legal principle. Employers therefore need to satisfy this if any subsequent dismissal is to be ‘fair’ in employment law terms.

Light at the end of the tunnel? Blending organisational psychology with a ‘fair’ employment process

Let’s go right back to the original meaning of ‘discipline’. Its origin is the Latin verb ‘disciplina’ meaning ‘instruct, educate, train’. The Latin noun means ‘instruction given, teaching, learning, knowledge’.

Over time the meaning has morphed into the current definition, as per the Oxford English Dictionary: ‘the practice of training people to obey rules and orders and punishing them if they do not‘.

How did we get from the original Latin meaning to the current modern day definition and related understanding of ‘discipline’? If you apply the current day meaning of ‘discipline’, you can quickly see why Michelle Brody concluded, that ‘It’s a sanctioning process or a change process, you can’t do both’.

The more traditional (and employment law/HR text book) approaches to capability and conduct processes can feel draconian and inhuman for all involved. In our experience, they rarely result in good outcomes for either the organisation or the employees involved (those leading it or on the ‘receiving end’). This is sometimes already the perception of managers/leaders within the organisation so they avoid these processes altogether, then inevitably run out of patience with the employee concerned. That’s when the HR team is brought in to facilitate a swift exit on agreed terms. That comes with a price though, both financially and for the internal culture.

‘What if…?’

But what if you see ‘discipline’ in your organisation through the lens of its original meaning, i.e. ‘instruct, educate, train’? And what if a ‘disciplinary process’ involves meaningful reflection on why the behaviour might be happening, enabling those involved to remove their armour? We believe you can effectively combine that much more human approach with one which satisfies the bull and the five bar gate test.

In other words, we believe that there is a more progressive and more human way of approaching ‘formal’ HR processes in organisations – one which doesn’t take behaviours at face value. Instead, the focus would be on unpicking the knot at the root of the issue and resolving the issue (for the benefit of both the organisation and the people involved) and at the same time giving clarity on what the possible outcome might be if things don’t work out.

We recently reached out to Michelle Brody to explore these issues, leading to a thought provoking and inspiring conversation over Zoom (between the UK and the US). We explored with Michelle how her approach could be applied within an employment law framework (UK) and, we were relieved to discover, that Michelle agreed with us – if a formal HR process could be framed and approached in the more human way we’ve described, then it may after all be possible to combine these two approaches. Michelle suggested that approaching such processes through a learning lens (embracing the original Latin meaning of discipline) could be consistent with her ‘owning your armour’ approach, as long as the opportunities to learn were on both sides (i.e. it’s not just all about the employee needing to learn).

So, there might be light at the end of the ‘fair process’ tunnel after all!