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EMPLOYMENT LEGISLATION NEWS : 22 August 2009. Facebook bully jailed. The first person in Britain is jailed (3 months in a young offenders' institution) for bullying on a social network site. Daily Mail 22 Aug. Keeley Houghton, 18, said she would kill Emily Moore whom she had bullied for 4 years since they were at school together. The hearing took place at Worcester Magistrates. District Judge Bruce Morgan said; "Bullies are by their nature cowards, in school and society. On this day you did an act of gratuitous nastiness to satisfy your own twisted nature". Houghton was also given a restraining order banning her from contacting Emily in person (for five years). THE CODE OF PRACTICE is now law. Whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. In summary:- • Employers and employees
should raise and deal with issues promptly and should not
unreasonably delay meetings, decisions or confirmation
of those decisions. This Code of Practice is one of the most exciting updates in Employment Law that we have seen. However, employers are advised to have separate policies on Capability, Bullying and Harassment, Redundancy and should have 'a Collective Agreement Policy' for dealing with overlapping complaints. The key changes in the ACAS Code
are simply that : The employers in house policy should always be followed. The abolishment of The Employment Act started with The Michael Gibbons Report which recommended a complete repeal of the statutory dispute procedures. The Report proposed an alternative dispute resolution approach (at an early stage to nip contentious issues in the bud), to help bring Tribunal statistics down. Subsequently, it was agreed, we should to abolish The Employment Act 2002 and Dispute Resolution Reforms 2004 and encouraged greater use of helplines and mediators, such as ACAS and The National Bullying Helpline. During 2007 over 230,000 claims were made to the Employment Tribunal. The Government believes, after careful consideration of the issues, that tribunals should be permitted to adjust awards to reflect non-compliance with the statutory Code - this (it is believed) will "encourage the right behaviors and resolve disputes in the workplace" as recommended by Gibbons. Who pays for the mediation, Employee or Employer? ACAS have concerns and believe this needs to be explicitly clear in the legislation. Tribunals do not award costs - so if an employee pays will he/she recover the costs? If the employer pays, is the mediator 'impartial'. If there is an issue of trust this may become a barrier to mediation. At NBH we do not see this as a problem. For decades now independent mediators have managed to engage the parties at the outset. A good mediator will involve both parties at the point when the Terms of Reference are drawn up and it is 'at that point' that it should become clear whether mediation is viable or not. The parties need to be mutually agreeable to the approach if mediation stands a chance. If an employer 'begrudgingly' feels that the employee has behaved unreasonably so should pay - the employer should have managed the issues better! Conversely, if an employee feels that the mediators hands are tied if the employer pays; they can always offer to share the cost. It shows good-will. "It takes two hands to clap" afterall. If there is no trust - mediation is a non-starter. Last but by no means least - there are no downsides to an employer paying in our view as it is in the employers best interest to 'nip it in the bud'. If one of the parties is willing and the other is not, well documented it will form part of a good defence. DON'T BECOME A STATISTIC. IN A NUTSHELL: There is an implied term in employment contracts that "the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers" Arnold J. in Wigan Borough Council v Davies 1979 ICR 411, quoted with approval by the House of Lords in Waters v Commissioner of Metropolitan Police 2000 ICR 1064, HL In the Waters case the House of Lords also quoted Spring v Guardian Assurance plc 1994 ICR 596 and Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200 as authority for the proposition that the Courts recognise a common law duty on an employer to take care of his employees, including a duty to prevent ill treatment or bullying, quite apart from statutory requirements. As always, the position in any particular case will depend on the facts and the House of Lords was careful to point out that "it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it". CYBERBULLYING What is Cyberbullying? "Cyberbullying is any form of bullying behaviour that occurs through technology". Christine Pratt. June 2009. Bullying does not discriminate, we are all potential targets. No one person is immune to Cyberbullying either. Both individuals and organisations may be susceptible to Cyberbullying. Anonymous blogs which target an individual or an organisation is Cyberbullying. In most cases the perpetrator works alone, struggles to fit in with society and they have an axe to grind. They are bullies in the truest sense. At The National Bullying Helpline we are hearing more and more tales about this unacceptable and inexcusable behaviour. If an individual writes a blog about your organisation, or harasses someone under the guise of a blog in an attempt to try to convince others that they are a victim of circumstance, they are probably delusional. For example, we recently heard of a case where an individual (an ex-NHS employee) wrote a blog about her former employer because she was found to be a bully through a formal 'internal' investigation process. She was subsequently disciplined and later dismissed. In an act of retaliatory treatment and revenge she wrote a blog that was totally misleading and inaccurate. We know of a second, complex, case where an employee was released under a Compromise Agreement following an investigation. The investigator raised concerns about the employee's conduct, stress and mental health at that time and recommended that the employer consider the C.A. route (as just one of many options to address matters). A third party subsequently wrote a blog about that case unaware of the full facts. In both cases cited here, some of the facts are similar, and both cases resulted in an inappropriate blog being drawn up. These are just two examples. A third case reported to our helpline involved a teenager who had her website highjacked by a blogger - and inappropriate images were placed on her site without her consent. Any form of Cyberbullying is unacceptable conduct and should be reported to the Police immediately. Bloggers will, typically, convince themselves that they are a victim and that their blog is permissible under 'freedom of speech' and/or that they are some sort of champion of justice. These individuals, often, have no qualifications, a limited understanding of HR or employment law and they very quickly 'jump to conclusions' or make assumptions. They lack the knowledge and ability to deal with concerns in a professional manner. These people are, in no way, professional business men or women. A common occurrence with blogging is that authors of blogs will refuse to reveal their name and identity and/or write their blog under a pseudonym. They will also, typically, block the target of their blog from responding. Bloggers often portray only half a story or very distorted facts. In fact perpetrators of Cyberbullying bring shame to no one but themselves. Bullies are very frustrated, sad, lonely, mentally unstable individuals and often lone-workers - incapable of separating fact from fiction. They are bullies in the truest sense and, we all know, bullies are cowards. If you or your company is targeted by a cyber bully, do not reproach yourself. Ask yourself wither the perpetrator has an axe to grind. The answer is invariably yes. Call us if any of the above has happened to you. Cyberbullying, if believed by a reasonable person to be an act of victimisation or harassment, may be regarded as a criminal offense under The Harassment Act. FREE STEP BY STEP GUIDE Would you like a FREE Step by Step Guide to Dispute Resolution (Bullying and Harassment) in the Workplace? This simple fact sheet will help you to understand what options are open to you. For a copy of our £10 Complete Guide to Dispute Resolution, just click (above) to download. Simple! This is a guide to the Employment Act 2002, Dispute Resolution 2004 and is designed to help everyone understand their statutory rights. This comprehensive booklet is regularly updated and refers to the latest BERR Michael Gibbons recommendations and changing Employment Law - urging employers and employees to mediate - an altogether much less confrontational approach to dispute resolution. Put simply this Guide is a “Do It Yourself kit” to what both employees or employers are required to do under the law. It is extremely easy to follow, and contains sample Grievance and Appeals letters as well as procedures for Management. WHAT ABOUT THE BULLY? Have you been accused of being a bully? This can be extremely distressing and, often, the allegation is unwarranted. Remember, you have rights too - whatever your status in the organisation. ASK for a FREE copy of: What to do if accused of being a Bully. It really does contain some practical tips and advice. Email us for a copy. REDUNDANCY SELECTION (2009) In a recent case, Rolls-Royce v Unite (2008 EWHC 2420 QB), the High Court ruled that Lifo (last in first out) used as the sole criterion for redundancy selection was unlawful age discrimination. This was because it favoured older workers as they were more likely to have longer service. LIFO on its own is not a proportionate means for selection. Have objectively measurable redundancy selection criteria Cost cutting may be legitimate as one of several selection criteria for redundancy Enhanced redundancy pay must mirror the statutory scheme
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SOLICITORS RECOMMENDED Taynton's in Gloucester. Thomas Mansfield in Croydon. Freeman Johnson Solicitors in County Durham. Withy King in Swindon. Sylvester Mackett in Trowbridge. Please call us for Contact details. We work closely with specialist Solicitors (above) and recommend the above firms to you. There is no obligation on a Solicitor to take a case referred. Each case is assessed on its own merits. Any agreement you subsequently enter into with a Solicitor is confidential between yourself and that legal firm. We are obliged under regulations laid down by the Solicitors Regulation Authority to point out that there is a financial arrangement between the Solicitors listed above and our Charity. The agreement in place meets the requirements of the Solicitors Regulation Authority's Code of Conduct. Where a Solicitor on the list agrees to take a case referred by our Charity, a percentage of fees charged will be donated to our Charity. So, by placing your business with one of the those recommended you will be indirectly supporting our Charity. There is no obligation, whatsoever, for you to work with those Solicitors named. You may seek the support of any Solicitor of your choice. If you chose one of the above firms, tell the Solicitor you obtained their details from our website. Thank you. Many thanks for these documents and for all the support when I phoned the other morning. I did not know there was a service like this until I found your website. Helpline victim who was sent Free Step by Step Guide April 2006 I just want you to know that you have been my lifeline. Every time I have called, and I have called you three or four times, whatever time of day – you are always helpful and you listen. I spoke to your husband once and he was brilliant. You really know your stuff Christine. I spent 3 days crying and when I called you, and spoke to you, you understood and you talked me through my problems. I just think of you now as my lifeline. Amanda. Bedford NHS ex-employee. October 2008 FREE POLICY DOCUMENTATION : Contact us today if you would like a FREE copy of our Fairness Policy or Harassment Policy. Email: info@nationalbullyinghelpline.co.uk CASE LAW (See below) LEGISLATION (See below)
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CASE LAW For further details in respect of any Case, contact us. Acknowledgements go to EMPLAW for keeping us informed. Note: EAT is The Employment Appeal Tribunal. Dawson v Chief Constable of Northumbria Police. June 2009. Employers are vicariously liable under the Protection from Harassment Act 1997 for harassment caused by the acts of two or more employees, provided the conduct is linked. This case is of considerable significance across the Public Sector where, very often, husband's and wife's and couples are allowed to work together. Ensure your workplace 'Relationship Policy' is up to date. TEACHERS AND NHS EMPLOYEES? - YOU SHOULD READ THIS. March 2009: You may have a right to be accompanied at a disciplinary meeting by an Employment Law Solicitor ! Up to now, under the Employment Relations Act 1999s10., employee’s only have a right to be accompanied at a formal meeting by a trade union representative or a colleague. In a ground-breaking Case, a recent High Court ruled that an employer must now allow a worker to have legal representation at his/her disciplinary hearing, where the circumstances are so serious that a potential outcome might impact on the employee’s Human Rights. In a case involving “R v The Governors of ‘X’ School and ‘Y’ Council, a High Court ruled that, in the context of the Education Act 2002 s.142 this employment law rule was trumped by the Human Rights Act and that the employee had the right to legal representation at a disciplinary hearing. Specifically the High Court ruled that: "the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant's future working life ....... are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee". Kulkarni v Milton Keynes Hospital NHS Trust. August 2008. Note (in respect of the above ruling) the High Court came to the opposite conclusion on analogues, but not identical, facts. In the 2008 case a Doctor was accused of sexual impropriety with a patient - apparently the Doctor had placed a stethoscope under the patient's knickers without her permission. The High Court held that the Doctor was not allowed legal representation at a disciplinary hearing. The 2008 case was decided essentially on the grounds that the Doctor's rights under the Human Rights Act were adequately protected by his rights of appeal - grounds specifically rejected in the present case, albeit on different facts. Ali v Birmingham City Council. Jan 2009. Resignation must be withdrawn quickly. Ali handed in his resignation in the heat of the moment. He was given a 30 minute cooling off period after which he confirmed his with to resign. Four days later he tried to withdraw his resignation. It was refused. The issue was whether he had withdrawn his resignation before the employer could reasonably accept it! The EAT upheld the Tribunal's decision that it was a resignation and Ali's unfair dismissal claim failed. A delay of four days, even in special circumstances, is too long. Coleman v Attridge Law. Jan 2009. DDA case. The claimant in this case was not disabled but had a disabled son for whom she was the primary carer. She claimed that her employer had directly discriminated against her in breach of the Disability Discrimination Act 1995. In July 2008 the European Court of Justice confirmed that the equal treatment framework directive, which underpins the DDA, prohibits associated discrimination and harassment. Even though the DDA wording does not expressly cover this, the act can be interpreted in line with the directive. The case is due to go to full hearing. Dickins v O2 October 2008: 'Stressed' workers should go home. O2 was sued for mental injury caused by excessive work stress. To establish that this damage was foreseeable, it was sufficient that Dickins had complained about stress, was regularly late for work and had warned her manager of her concerns. Although she was not signed off work, O2 was in breach of its duty of care. It should have sent the employee home pending and occupational health investigation. The employers failure to address Dickins' problems had contributed to her illness. Daily Mail 23/09/08 The Army : Lesbian Soldier's £400,000 demand over sex claim 'dwarfs compensation given to wounded war heroes'. Lance Bombardier Kerry Fletcher is looking for £400,000 compensation at a remedies hearing at the Leeds employment tribunal. She won a tribunal case against the MoD in January 2008, after she was pestered for sex by an unnamed sergeant (see Daily Telegraph 17/01/08. She is claiming compensation for stress and injury to feelings as well as loss of earnings after a tribunal ruled she had been subjected to a campaign of sexual harassment by a male sergeant. Daily Mail 23/09/08 Smyth v Halifax 'Jealous' Woman Boss' : Financial adviser Karen Smyth was one of the Halifax's most talented high flyers, earning £95,000pa plus bonuses. A woman was appointed her senior and criticized her approach with customers, gathered complaints and went to senior management. Miss Smyth suffered stress and resigned. She won a case for unfair dismissal against the Halifax and was awarded £59,030 after the bank admitted liability. 09/09/08 : Ghaffur v Metropolitan Police. Sir Ian Blair has said "For avoidance of doubt, the decision (to Suspend Tarique Ghaffur) has nothing to do with his actions in filing an ET (employment tribunal claim) or the fact that he has made allegations which are the subject of the ET claim. Rather, my decision results from the way in which he has chosen to conduct himself, for example by the manner in which statements were made in his press conference, and in conducting a media campaign, both personally and through advisers and organisation's supporting him". 06/09/08 : £600,000 Record Cash Award after 'Bin Laden Joke. Halima Aziz v Crown Prosecution Service. The CPS has been found guilty of race discrimination. A tribunal has awarded a record £600,000 as well as ordering that Ms Aziz be given an apology and reinstated. The CPS's actions were "astonishing". August 2008: Steak and Omelette Bar V Jane Price. Plymouth. Sex Harassment Tribunal : £53,958. A manager personally fined £5,256 (along with the Employer; totaling £54,000) in Sex Harassment Case. A Plymouth waitress, Jane Price, (and mum of one) won an unfair dismissal and Sex Harassment case at an employment tribunal in March. The manager of the Steak and Omelette Bar in Plymouth, Peter Tunney, had tried to kiss her and grabbed her breasts in 2006. After she complained, she was dismissed by text by the owner of the Bar, Alex Psaras. Mr Psaras is furious that he has lost his case and claims that the text message may very well have cost him his business. He said; “I sent her the most expensive text ever. This could kill me. It could ruin my whole business”. The Bar has been ordered to pay out £23,741 for the harassment and £30,216 for the 'discriminatory dismissal'. The manager who committed the offence was personally ordered to pay Ms Price a further £5,256 because he was considered to be 20% liable. This is a simple case, that the general public will be able to relate to, that makes a number of very important and valid points in respect of employment law and employer duty of care. 1. Employees have a statutory right to complain if they believe they are being treated unlawfully. A Grievance policy is there to confront issues - the grievance process should not be seen as confrontational. At The National Bullying Helpline we hear, every day, of cases where an employee feels too frightened to submit a grievance letter for fear of repercussion. An employer should not dissuade an employee from filing a complaint under any circumstances and an employer should certainly not dismiss an employee for complaining. The Steak and Omelette Bar in this case had a ‘Duty of Care’ to hear Jane’s complaint. 2. An Employer should not dismiss an employee instantly, under any circumstances. Only Alan Sugar has the right to say “You’re fired”. In this case, the Omelette Bar owner not only dismissed Jane, instantly, but he did so via a text message. Both the action itself and the method of the dismissal was totally inappropriate and unlawful. 3. The bully in this case, Peter Tunney, was ordered to pay £5,256 out of his own salary for his behaviour. This is not the first time a Court has fined a manager for his role in matters. The message is clear here. Any manager, supervisor, team leader or head of department may be held personally accountable for inappropriate conduct, if found guilty by a Court. 2003: Horkulak –v- Cantor Fitzgerald International. Damages were awarded in this case of £1M in salary and bonuses. The employee was under-performing but, sadly, instead of addressing his performance his manager decided to use bullying and belittling tactics. The High Court took the view that the manager's behavior destroyed the relationship of trust and confidence and the employee was regarded as having been Constructively Dismissed. The Judge did give consideration to the use of foul language – that was commonplace in this particular workplace. Even though it was considered `the norm' the Judge found it most unacceptable. So, any employers using `old style' aggressive management in the belief that it is excusable – take heed! This case was a double whammy for CFI. 2003: Beadles Group Ltd –v- Angelica Graham. £178,000. The Guardian called it Sexual Bullying. The Daily Mail called it Sex Discrimination. Lawyers refer to the case as Sexual Harassment and say the payout is believed to be one of the highest awards ever, reflecting its seriousness. Whatever you call it, it was gross negligence and irresponsibility on the part of the Employer, who has a Duty of Care for all employees – and that includes temporary workers and contractors too! Trainee Sales Executive, Ms Angelica Graham, was awarded £178,000 due to the conduct of her line manager, car salesman Ralph Marriott, during her first week at work. Marriott was ordered to pay £7K of the award personally. Quite right too. The Employer, Beadles Group Ltd., had no written policy on sex discrimination, harassment or equal opportunities and neither did it provide training, guidance or advice to employees on the seriousness of bullying and harassment. The Employer was therefore completely liable, as they had failed to take appropriate steps to protect their employees and prevent harassment from occurring in the workplace. TRAIN Do you manage staff? Does your employer have a training budget 'per head' or per department? When did you last have managerial training? If you manage people and you believe you need managerial training, put your request in writing to your employer. If you are an employer and you have concerns regarding the way your heads of department manage staff, address it as matter of priority. Do not underestimate the value of people management training. In Mr Psaras’s case, his ignorance is likely to cost him his 30 year old business. LEGISLATION SEX DISCRIMINATION, EMPLOYMENT EQUALITY (Sex Discrimination) REGS 2005 SI 2005/2467 : One of the most important aspects, which will impact on every day working lives, is the Employment Equality (Sex Discrimination) Regulations 2005. Under this legislation any form of harassment is unlawful. A woman can bring a claim IF, on the grounds of her sex, a male colleague engages in unwanted conduct that has the purpose or effect of violating her dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment. Also, if a female employee is subjected to unwanted, verbal, non-verbal or physical conduct, of a sexual nature, that violates her dignity at work - she can bring a claim against her employer. This law works in reverse also; men can bring a claim for Sex Discrimination. Note: The Switalski v F&C Asset Management sex bias case, the record sex discrimination claim made by lawyer Gillian Switalski, is to be re-examined. The EAT want to examine fresh evidence. (Jan 2009). FLEXIBLE WORKING : In April 2003 parents and those responsible for looking after children aged under 6 (or under 18 if the child is disabled) have a legal right to ensure that requests for flexible working (part time or from home) are taken seriously by the employer. An important condition is that the employee must have been employed for 6 months to be eligible. In April 2007 this right was extended to those with responsibility for caring for i) spouses ii) adult relatives and iii) adults living at the same address as the employee. In April 2009 we will see an extension of the right to all parents with children under 16 years. A further change will be the removal of the obligation on the employer to give written notice to an employee of the agreement to flexible working arrangements. This obligation will not be removed where the employer refused the flexible working request. REDUNDANCY : The term Redundancy is often misunderstood, or worse used inappropriately to 'ease staff out' of the business. It is the position that is made Redundant, not the person. It is a criminal offence for an employer to fail to give written details of calculation of a redundancy to a redundant employee. An employee is entitled to know why he/she is being made redundant - otherwise the dismissal is unfair. An employee can claim the equivalent of statutory redundancy pay from the state if the employer fails to pay it. It is a breach of the part-time Workers Regulations 2000 to select employees for redundancy by virtue of their part-time status - unless justifiable on objective grounds. If a woman's job becomes redundant while she is on maternity leave she will be treated as 'automatically unfairly dismissed' if the employer had a suitable available vacancy but failed to offer it to her. (Some exceptions for SME's). Civil Servants are not eligible for statutory redundancy pay. Where a business is closing and more than 20 employees at one time are being made redundant the employer has a statutory obligation to consult about the reasons for closure. A tribunal will consider whether the selection was one that a reasonable employer acting reasonably would have made. REPLACING STAFF : Employers must be careful not to breach the duty of mutual trust and confident that exists in contracts of employment, by word or acts that they know will undermine the employment relationship. If an employee were to find out that an employer was in talks with another, to replace them, it would undermine the employee's position and they may claim that their position is untenable. Don't make the same mistake Liverpool Football Club made when they entered into talks with a potential replacement manager, behind Rafael Benitez's back ! A tribunal would look at the whole relationship, including the context in which comments were made. Personnel Today: Feb 2008. MATERNITY : Entitlement to maternity leave is 52 weeks and is available as of right to all employed mothers (more details to follow). Under new regulations, any woman whose baby is due on or after 5th October 2008 will be entitled to enhanced maternity rights. Remember to update your maternity policies to reflect these changes. NEW REGULATIONS EFFECTIVE 1ST OCTOBER 2008 Minimum Wage Regulations 1999 (Amendment) Regulations 2008, SI 2008/1894. Contact us for details. Employers' Liability (Compulsory Insurance). Contact us for details. GENERAL LAWS and ACT's (i) Criminal Justice and Public Order Act 1994;
and The following regulations were introduced to assist with defining indirect discrimination, harassment, less favourable treatment, unlawful harassment, gender discrimination and general principles of treatment of both men and women in the workplace today: Assession (Immigration and Worker Registration)
Regulations 2005
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