Contract of Employment• Implied term of trust and confidence – duty to investigate grievances “promptly”• Your procedures may be contractually binding; – “No action will be taken against an employee until the case has been fully investigated”.• Implied duty to provide safe working environment (relevant to bullying)• Failure = breach of contract, possibly entitling the employee to resign and claim “constructive unfair dismissal” ‐ Dutton & Clark ‐v‐ Daly (1985)
“Harassment” – Equality Act• “treatment which has the purpose or effect of either violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”• Protected characteristics : sex, sexual orientation, gender reassignment, race, nationality or ethnic origin, religion or belief, disability and, age • Unlimited compensation possibility• Cannot be justified
Personal Liability for Discrimination Gilbank v Miles  – Personal liability of managers – Award of £25,000 for injury to feelings (employer and manager joint and severally liable)http://www.personneltoday.com/articles/29/11/2005/3278 4/gilbank‐v‐miles.htm
Vicarious Liability• Employer is liable for the acts and omissions of its employees• A possible defence is to show the employer has taken all reasonable steps to prevent the harassment occurring
Other issues relevant to bullying complaints:‐• Health and Safety at Work Act 1974 – Legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees – Statutory duty of care – Individual responsibility too• Duty of care towards employees in the law of negligence – obligation to provide a safe place and system of work and to protect the employee from unnecessary risk of injury. Has the employer done everything reasonably practicable to prevent reasonably foreseeable damage from occurring? If not ‐ award of damages to the employee for the injuries suffered by them.
Other employee rights – Unfair Dismissal• If the employee believes there is a “serious and imminent” danger – right to take steps to protect himself or others• May include leaving work and refusing to return whilst the danger persists• Dismissal in these circumstances will be automatically unfair s100 Employment Rights Act 1996• Right not to suffer action short of dismissal (demotion, warnings, other sanctions, loss of pay)
Protection from Harassment Act 1997• Rare • Conduct occurring on at least 2 occasions targeted at the Claimant which is calculated in an objective sense to cause distress which is objectively judged to be oppressive and unreasonable and sufficient to establish criminal liability.
ACAS Code of Practice• Applies to grievances as well as disciplinary situations• 25% uplift for failure to follow guidance• Could result in 25% deduction from employee if they didn’t raise grievance?• Mediation – emerging trend
Harassment from third parties• Extends to all PC covered by harassment not just sex• Employer needs to know of 2 other occasions before becomes liable – 3 strikes• Can avoid by taking reasonable steps to prevent harassment on this occasion• Proposed repeal in 2013
What do you do?You found Carla in the toilet in tears this morning. When you asked her what was wrong she referred to her line manager constantly asking her out to the pub after work despite the fact she had told him she doesn’t drink for religious reasons. You encouraged her to take the matter up informally with him or formally with a manager. She said she didn’t want to and made you promise not to say anything to anyone.
Can the matter be dealt with informally?• When would this be appropriate?• When would it not be appropriate?• When must you deal with it formally?• Have the confidence to say “this isn’t a grievance”
Acknowledging the Complaint• “We take this seriously”• Inform them who will be dealing with investigation• Act promptly to initiate investigation – danger of making things worse
What steps do you take towards the alleged bully/perpetrator?• Risk assessment• Good procedures allocate them someone in HR as well as the complainant• Consider suspension
Considerations when appointing an investigator• Has the person got the time?• Has the person got the skills?• Do I need a team of people?• Would an outside person be better?
Is the complaint clear?• Invite to an investigation meeting – find out more about what has been going on• Clarify the allegations• Who else will need to be interviewed? (Witnesses)• What other documents/records do we need to check?• Confidentiality and co‐operation issues
Questionnaires• Brian is investigating complaints against the finance manager and is struggling to get the ten potential witnesses to co‐operate. He puts together a questionnaire document to be sent to the witnesses for them to fill in and return to him. What are the pros and cons of doing this?
Case study• Carol has complained that her manager has bullied and harassed her following long‐term sickness absence. She is objecting to Jean from HR being the investigating officer as she says when she first mentioned she was going to raise a grievance to Jean, Jean said things that mean she isn’t impartial. What do you do?
What do you do?• Tom has made a complaint that Peter a colleague is stalking him. Having spoken with Tom at length to understand the nature of his complaints, you call Peter to a meeting to inform him of the complaint against him. He makes accusations about Tom saying that it is actually Tom bullying him, that Tom has been sending him text messages which he shows you. These are of a sexual nature.
Writing an investigation report• Background• Complaints• Evidence for and against each allegation• Cross‐refer to witness statements• Would the investigator recommend a finding in favour or against the allegation?• The best reports are balanced: can you admit some faults?
Case study • Geoff is going to be conducting the grievance meeting• He has asked you to write him an agenda for the meeting with some notes on how to conduct it. • What will you say to him?
Meeting with the complainant• Opportunity to have their say and explain their case – general principles of ACAS Code• Ask them how they would like issue resolved.• Full hearing – do not rush! • Obligation to notify them of the outcome – is their grievance upheld or not.
Note‐Taking• What to include• What not to include!
The Outcome Letter• Detailing the considerations taken into account can help in a Tribunal• Try and make it ‘balanced’• Can you admit to some ‘fault’ without admitting liability?• Power of apology• Enclose a copy of the meeting minutes• Right of appeal to someone more senior
The appeal• View it as an opportunity• Consider procedural weaknesses eg:‐ do any witnesses need to be re‐interviewed? • Would the criticism make any difference to the outcome?
Taking steps against the perpetrator• They need to be aware of the allegations they face in detail: fair to see a copy of the investigation report • Fully opportunity to comment in a disciplinary hearing before any penalties are applied• Right of accompaniment• Right of appeal to someone more senior• Warnings vs dismissal vs other measures
Should you dismiss the bully?• …..it depends…• Usually reasonable (if serious) where prior warning issued• Reasonable without prior warning if very serious• Test for employer – do you genuinely believe in guilt? – is that belief reasonably held? – have you conducted reasonable investigations? • BHS ‐v‐ Burchell (1980)
Moving forward• Risk of victimisation claim if you move them into a different role unless they request that?• Want to know if you have taken disciplinary action?• Disciplinary action if they have made complaints vexatiously?• Training and support• Mediation
What’s wrong with this?Tom has made a complaint about his entire team. It was investigated and after a hearing all the grounds were denied by the company. Tom appealed. His appeal failed. He agreed to mediation despite having concerns about whether it could work. In the mediation the team used the opportunity to have a real go at Tom and vent their resentment at having been complained about. They made personal insulting comments about his wife. At one point the entire team were in the room, telling Tom they no longer want to work with him.
Crunch time• Complainant has to decide – are they resigning and claiming constructive dismissal?• If you have acted appropriately at every step it might be difficult for them to pin a “last straw” event on you• May have to dismiss for SOSR if they can’t work together
What do you do?• Brian has raised a complaint about his line manager sending round minutes of meetings which he a says he feels undermines him and belittles him. You feel that, on balance the memos seem justified and that actually he has a grudge about his manager who is new, because he wasn’t promoted to the management position.
Reducing the risks • Use procedures• Nominated anti bullying and anti‐harassment champions?• Monitoring
Reducing the risks ‐ policy• Zero‐tolerance approach• Dignity at Work Policy – make clear bullying is not part of management ethos – outlaw harassment – clear examples of what is and isn’t acceptable – disciplinary offence• Other policies eg:‐ computer use• Reminder eg:‐ memos, payslips• Management training• Make sure take action promptly if there is a problem• Identify if sickness absence statistics show an area might have a problem?
Any questions? email@example.com 02920 537742 @mdj_lawSign up to our next Event in April http://hrinsights.yolkrecruitment.com