• Mark Shaw

Prescriptive or Discretionary Approach to Workplace Issues?

I was at a recent networking event listening to the Senior Partner of a major Law firm and he made two comments that resonated with me.

“The best contract between two parties is the one that is never referred to”

“The law is a default for the outliers”

How this applies to workplace issues was discussed and the Senior Partner suggested some organisations follow a prescriptive approach while other follow a discretionary approach.  I liked how he referred to the prescriptive approach as a “red light approach” i.e. always telling people where they had to stop.  In contrast he referred to the discretionary approach as a “green light approach” where the arrangement allows people to travel through.

Then the dots connected for me.  “The best contract between two parties is the one that is never referred to” suggests a discretionary approach and “the law is a default for the outliers” suggests a prescriptive approach.  So …..

  • Why follow a prescriptive approach for everyone when it is only required for the outliers?

  • Why not initially assume a discretionary approach will work for everyone but the outliers then build your policies and processes around this approach?

  • Then why not build more prescriptive policies for use only when the outliers are identified? 

The answer struck me. 

Use a model that makes best use of both the discretionary AND prescriptive approaches. 

Perhaps without realising it, the Senior Partner had effectively supported the principles of the 2% Effect (

In my experience the best outcome is to apply the discretionary approach for the vast majority of your employees and the prescriptive approach only for the outliers (2%-ers).  

In a previous blog ( I argued for using the discretionary approach for the majority of the time and the only applying the prescriptive approach as needed.  Attending this networking session confirmed my views and experience.

In another blog I argued we overly pamper to the wishes of the minority (  In that blog I made the claim “by over-focusing on the views and needs of the minority, we are making it unnecessarily harder for the majority. Reflecting on the Senior Partner’s language, we over-use a prescriptive approach when a discretionary approach would be more suitable.  And our prescriptive approaches are often poorly designed so that when we do use them it leads to less than favourable outcomes.

You can find more details on our approach at (, obtain a free template for managing the outliers (2%-ers) at ( or read the book “The 2% Effect” available at

My challenge to you is simple.  What changes can you make tomorrow to help shift your organisation’s policy settings and procedures towards a more discretionary approach for the majority while maintaining sufficient rigor to manage the outliers (2%-ers)?

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