April 29, 2007
…The person being bullied may not realise they are being bullied for weeks or months - until there's a moment of enlightenment.
…What the serial bully lacks in decency or intellegence is often made up for in cunning and cruelty. Most have honed their bullying skills throughout their miserable lives. So beware!
A favorite tactic of bullies is to falsely accuse his/her victim of something so outrageous that the victim is stunned with humiliation. The decent or religious worker is accused of viewing pornography at work, the dignified moral worker is accused of sexual misdoings, the liberatian is charged with being a racist, the most honest worker is branded a thief. It doesn't really matter that the bully often can't make the charges stick, the harm is already done. There's that element of guilt by association placed in the minds of others. Bullies do this to assure the victim's Subjugation, Elimination, or even better to the bully, Ruination! Bullies are masters of projection so they never run out of terrible things, from their own lives, to accuse others of. Real Sick Isn't It?
April 28, 2007
For each of the ten choices listed below, I first explain what it means and then offer a provocative (and certainly debateable) defense of the choice I have made in my own work.
1. Which label to use. No matter how often the words mobbing and bullying are said to be synonyms, they are not. They are alike in denoting aggression. Mobbing posits a collective, nonviolent source in a distinct episode. Bullying points to a single, physically threatening aggressor, sometimes aided by toadies, over an extended period of time. Mobbing implies a mob, a crowd of normal people who have temporarily lost their good sense. Bullying implies a bully, an abnormal person who is habitually cruel or overbearing toward weaker people. Mobbing highlights situation, the ganging up in a specific circumstance of ordinary people against someone. Bullying highlights character, the humiliation of someone by one or more psychologically disordered individuals.
These two words direct attention to related but different phenomena. In my own research, mainly on academic workplaces, I have found that professors use many techniques to gain advantage, apart from the quality of their teaching and scholarship. Bellowing and throwing tantrums — hallmarks of bullying — are uncommon techniques, because they tend not to work in a culture like academe, where norms are strict against physical aggression. Sycophancy, fawning, flirting, gossip, sneakiness, underhandedness, ridicule, chicanery, and the subtle scratching and stabbing of backs are more common because they work better. But to apply the word bullying to these latter behaviours is a stretch.
The workplace harm that fascinates me is the same as what fascinated Leymann: the coalescence of many people in a workplace, using many devious techniques, for putting a workmate down. I have found little evidence to support a characterization of the perpetrators of such aggression as bullies. They have looked to me like normally self-centred academics for whom mobbing a colleague is a handy escape from ambiguity and fear...
2. What is this harm like? One clue to how a researcher conceives of the harm called bullying or mobbing is which other harms he or she considers it similar or related to. Gary Namie has called it "escalated incivility" and cited David Yamada's description of it as like sexual or racial harassment, but "status-blind." Common Spanish (acoso laboral) and French (harcèlement moral) echo the same conception. Lawyer Gabrielle Friedman has lamented that "mobbing seems to have drowned out the law of sexual harassment in Europe...." True to what Einarsen has called the American tradition, Davenport et al. subtitled the first US book on mobbing, "Emotional Abuse in the American Workplace." Related terms include "emotional violence," Wyatt and Hare's "work abuse," and Leymann's memorable phrase, "psychoterror in the workplace."
All these allusions hold insight, but there are others. The body of work with which I am associated sees workplace mobbing as generically similar to scapegoating, especially as René Girard has analyzed it. Similar also to witch hunts, as depicted, say, in Arthur Miller's The Crucible. Similar also to those cases of wrongful conviction wherein police, prosecutors, judge and jury fall prey to a collective delusion of the guilt of the accused, when the evidence shows no such thing (see injusticebusters). In insightful work as yet unpublished, Stanley R. Barrett has compared workplace mobbing to blood feuds in traditional societies. An exciting moment for me last spring was the discovery of the literature on sham peer review in American hospitals, since this appears to be one kind of workplace mobbing. The foundational analogue to workplace mobbing is, for me, the mobbing that occurs among birds and animals, as Konrad Lorenz and other ethologists have studied it. You will agree, I think, that these comparisons give a slant on the subject distinct from the slant implied by words like harassment and incivility.
3. Anonymity versus naming names. Among the most basic choices each of us makes in our scholarship is whether to analyze bullying or mobbing, its origins, correlates and consequences, in broad and general terms, without reference to specific cases, or to analyze it in a specific case, identifying this person as the target of aggression, these other ones as perpetrators.
Like most researchers, I often choose the first option (as in my article in OHS Canada). A field of social science consists by definition of abstractions: concepts joined in general hypotheses and theories. Yet any such field proves its worth only in its risky, contentious application to specific cases. In research on bullying and mobbing, the fat hits the fire when the researcher says out loud that by these and those standard measures, this specific person (reputed to be a loser, abuser, nutbar, public danger, or pariah of some other sort) is the target of undeserved humiliation by these other specific people.
When, in his book, The Suicide Factory, Leymann identified certain nurses who had taken their own lives as victims of mobbing, his research became intolerable to powerful figures who had tolerated his general analyses. When Tim Field publicly defended a former employee of the National Teachers Union, he was slapped with a defamation suit that consumed his life and probably hastened his death. When I published an article (in The Record, 2004) arguing that the ouster of my city's symphony conductor, Martin Fischer-Dieskau, was a case of workplace mobbing, I angered those who had ousted him. These are hazards of our field of research, unavoidable except in an academic harbour of irrelevance.
4. Target's perceptions vs. verifiable facts. Almost by definition, bullying or mobbing entails conflicting accounts of what is going on. A real or purported target claims to have been wrongly attacked. Real or purported attackers deny, hide, or excuse what they are accused of doing. What is a researcher to do?
An informative new book by a lawyer, Bullying Bosses: a Survivor's Guide (2005), describes itself as "unapologetically pro-Target" and "from a Target's perspective...." Such a stance may be attractive in a lawyer, but not in a researcher. If we cannot get at the facts of the matter, beyond the alleged target's and alleged perpetrators' perceptions, we have no business calling ourselves social scientists.
That is why I have a problem with measures of bullying or mobbing based on targets' self-reports, as in Leymann's 45-item "LIPT," the "Leymann Inventory of Psychological Terrorization," the various adaptations of it (like the 60-item scale of Gonzàlez de Rivera and Rodríguez-Abuin), related instruments like the Bergen researchers' Negative Acts Questionnaire, or even the "social anamnesis" Leymann obtained orally from his patients.
There is an important lesson in the 2004 report by Jarreta et al. on a case of false accusation of mobbing by a woman in Spain, where the outcome was destruction of the life of the woman wrongly accused of mobbing. The simple fact is that we humans tend to justify our aggression against those we have made our enemies by claiming to have been the target of prior aggression by those enemies.
Never, in my view, should we take anybody's word that mobbing or bullying has occurred — least of all the word of somebody who wants somebody else punished. If we cannot collect data from multiple points of view (some kind of triangulation), we should quit and go home. If our scholarship is to be worthy of the name, it has to be true: not what is believed or claimed to be true by somebody or other, but what can stand up to disinterested review of all relevant evidence. That is why, in my own research, I rely as much as possible on official documents.
5. The informal phase vs. post-incident formal sanctions. The cost, of course, of my priority on formal documents is that I tend to miss the subtle, unwritten techniques of torment that usually precede a critical incident that triggers official action against the target. I miss the informal aggression (as exposed, for instance, in Duncan Lewis's research), since the target is ordinarily the only one willing to talk about it. The bullies or mobbers typically say the target is oversensitive, paranoid, imagining things.
This is a hard choice. In violation of my general principle, I have sometimes taken seriously, without independent corroboration, targets' diaries of informal humiliations at work or suicide notes they have written, and I gladly acknowledge how sly and sneaky are the weapons managers and colleagues often deploy, in universities not least, to do the target unwarranted harm. On the other hand, no good purpose is served in any workplace by encouraging oversensitivity, whining, a culture of complaint, the making of mole-hills into mountains, or the diversion of attention from achieving organizational objectives to mollycoddling. None of us wants to be or to encourage what G. B. Shaw called a "feverish, selfish little clod of ailments and grievances, complaining that the world will not devote itself to making me happy...." Faced with much of life, a healthy human sucks it up and moves on. That is why my research emphasis is on mobbing cases that have advanced to the point of serious, documented incursions on the target's position and name.
6. Should the definition of the phenomenon include consequences? In his foundational research, Leymann defined mobbing to include "the psychosocial stressors that cause extreme impact on the health of the victim...." It is, he said, a pattern of interaction that forces the target into a helpless position. Conceptualization of the problem in a way that encompasses both the aggression and its debilitating effects suited Leymann's vocation of clinical psychologist. Easing victims' pain was the raison d'être of his research program. Most psychologists have similarly built consequences of mobbing or bullying into the definition, and so have I.
If our field is to advance scientifically, I suspect we should define mobbing or bullying more narrowly in terms of the aggression, so that the question of effects can be left entirely open. Aggression sometimes has no ill effects on the target and fails to force the target into a helpless position. The skin of targets varies from thick to thin. As Brian Martin points out in his cogent writings on the backfire effect, aggression sometimes recoils on the aggressors. As Matthiesen points out in a fascinating case study of a whistleblower, a target can have a nervous breakdown under the weight of official ostracization and stigma, but later regain mental strength, even after losing in court. Some of the mobbed professors I have studied have been inner-directed enough to withstand intense public humiliation without crumbling physically or emotionally, indeed in some cases scarcely noticing what has been done to them.
Conceptual and operational separation of aggression from its effects lets us ask and answer questions about the conditions under which mobbing or bullying does and does not harm the target, and precisely how. Our understanding of the phenomenon is thereby enriched.
7. Motives vs. behaviours. In great part, intent defines this harm: what often debilitates the target most is feeling, indeed tasting, the perpetrators’ ill-will. Yet the intent of another can never be known for sure, and is mainly inferred from behaviours. To what extent does the researcher rely on what alleged targets and perpetrators say their and their opponents' motives are, and to what extent on what targets and perpetrators actually do?
In his wonderful posthumous book, Tales of Good and Evil, Help and Harm, Philip Hallie contrasts the carpenter and the walrus in Lewis Carroll's story. The carpenter is the more cold-hearted. He eats oysters without a second thought, the way some bosses crush targeted employees. The walrus, on the other hand, feels sorry for the oysters and cries into his handkerchief over their sorry fate. Alice prefers the walrus until Tweedledee points out to her that behind his handkerchief, the walrus actually wolfed down more oysters than the carpenter did. Hallie agrees with Alice in the end, saying both the walrus and the carpenter are unpleasant characters. But he tilts to the view that the dining on oysters counts for more than any diner's mental state. What happens to a mobbing target matters more than what is going on in mobbers' minds.
The question of malice, intent to harm, often arises in attempts at resolution of mobbing cases through the courts. I shrink from the question, preferring to focus above all on behaviours and actions, the sequence of events leading to the target's elimination, and on how to correct and prevent needless harm.
8. Learned behaviour vs. innate impulses. Back in 1994, when I first learned of Leymann's work, I embraced it because it made sense of the ouster of four tenured colleagues from my home university, and of a milder incursion on my own position. I did not initially trace the word mobbing back to Konrad Lorenz or read the ethological research on bird and animal mobbing. Later I read the analysis of aggressive instincts that was the context of Lorenz's use of the word mobbing, and I learned about the fierce opposition to Lorenz's work by anthropologist Ashley Montagu and many other social scientists. I came to understand that the Lorenz-Montagu debate reflected the broader debate still raging that Steven Pinker illuminates in his 2002 book, The Blank Slate.
I suspect that significant variation in how researchers study bullying or mobbing is explained by whether one conceives of the aggression to be learned behaviour, a product of culture, or a culturally conditioned expression of instinctive behavior. If it is learned, then it can be unlearned — by some kind of behaviour modification, a rewriting of the blank slate, punishment for aggressive acts and rewards for kindly acts. But if bullying or mobbing instead represents the coming to the surface of elemental impulses, then the problem is more complex and cannot be understood, much less remedied, except by grappling with both the natural and the cultural aspects of its origin.
In my own work, I value the natural, instinctual connotations of the word mobbing. What I have observed in case after case is gut revulsion for the target. He or she is one who makes others sick (the way Lawrence Summers at Harvard made Nancy Hopkins want to throw up), a destructive force from whom others need protection, one who accordingly evokes a deep-seated urge to join with others and attack.
9. Toward which remedies does the researcher tilt? All of us in the anti-mobbing, anti-bullying movement are open to diverse ways of correcting harm wrongly done: imaginative administrative solutions, publicity of the wrong, redress in the courts, removal to a new workplace, psychological or psychiatric therapy. Yet different experts tilt toward different remedies. Leymann founded the Violen Rehabilitation Centre in Karlskrona. Field used his computer skills to let apparent targets of bullying share their stories publicly. A growing number of labour lawyers advertise their services to targets of mobbing or bullying.
The important point is that one size does not fit all. The objective is that the target recover his or her working life, get it back on track. How this objective can best be achieved depends on at least five clusters of factors: (1) The nature of the aggression against the target; (2) Damages suffered — financial, reputational, physical, emotional, familial; (3) The target's resources, including bank account, personal strength, social support, and employability elsewhere; (4) The resources of the target's adversaries, and how ready to use them they appear to be; and (5) The legal and policy environment, including relevant clauses of collective agreements.
Education about mobbing and bullying is itself a remedy, for many targets a vital therapy. Hundreds of readers of my work have thanked me, and through me thanked Leymann and others, for giving them a word, mobbing, to place on otherwise incomprehensible events. While recognizing the value of psychotherapy, antidepressants, and other clinical treatments in certain cases, I am wary of pathologizing a target's distress more than is necessary, for fear of reinforcing exclusion from normal human communities. Many targets share my concern. I recently received from a beleaguered professor a request to serve as expert witness. She said she "would rather avoid an expert with a heavy slant on psychological counselling." She preferred a focus on power imbalances, professional jealousies, managerial incompetence, and false accusations. I admired how well she had educated herself.
10. Which preventive strategies are favoured? The final choice, but one related to all those preceding, is which proposed ways of preventing mobbing or bullying to spend time promoting. The strategy most popular among researchers and activists is to enact organizational policies and public laws against it. Other strategies include administrative reform and the same kind of public education referred to above for remedy of cases that have already occurred.
I am eager to hear Helge Hoel's assessment at this conference of the Swedish experience with anti-bullying legislation. I was struck by the issue of Le Nouvel Observateur (4 juin 2004), reporting that the law in France may actually have made things worse. To a researcher like me, inclined to see mobbing as an expression of elemental impulses, the practice can no more be legislated away than can hate speech or betrayal of love. For prevention of mobbing and bullying, I have more confidence in administrative reform toward more enlightened, pluralistic and democratic structures of governance. In the concluding chapter of my book, The Remedy and Prevention of Mobbing in Universities, I offer ten specific measures of this kind. First is the mantra of the Human Resources Department at my home university, "Focus on the situation, issue, or behaviour, not the person."
In memory of Heinz Leymann (1932-1999) and Tim Field (1952-2006)
By Kenneth Westhues, Professor of Sociology, University of Waterloo, Waterloo, Ontario N2L 3G1, Canada
Paper presented at the Fifth International Conference on Workplace Bullying Trinity College, Dublin, 15-17 June 2006
April 27, 2007
According to the Dublin-based EU agency Eurofound, one in 20 workers, or five per cent of the workforce, say they have been exposed to bullying or harassment in the previous 12 month period. The most affected sectors are health and social work, education, public administration and transport.
A news conference on was told that workplace harassment in the British health service is estimated to cost over €100m a year in terms of absenteeism and lost productivity.
An agreement signed on Thursday by employment commissioner Vladimír Špidla and the heads of the main European trade union and employers’ federations is designed to tackle the issue.
The agreement, which follows ten months of negotiations, aims to prevent and manage problems of workplace bullying. It obliges participating businesses to make it clear that harassment and violence will not be tolerated and specifying the procedure to be followed in the event of complaints. The pact leaves the necessary flexibility to decide on the details of the procedure at company level.
Members of the signatory parties have until April 2010 to implement it. John Monks, secretary general of the European Trade Union Confederation (ETUC), described it as a “major agreement”.
“The agreement has strong added value,” he said. “It is a practical tool for companies and workers to come to grips with situations of harassment and violence between colleagues at the workplace. Harassment and violence is not only unacceptable but also disruptive and can be very costly to both employer and employee.”
Philippe de Buck, secretary general of Businesseurope, said the agreement, which his organisation has also signed, aims to raise awareness of the problem among both employers and employees.
From: http://www.eupolitix.com - 26 Apr 2007
Agreement on harassment and violence at work
The European social partners (ETUC, BUSINESSEUROPE, CEEP and UEAPME) signed a framework agreement on harassment and violence at work. The agreement aims to prevent and, where necessary, manage problems of bullying, sexual harassment and physical violence at the workplace. Companies in Europe will have to adopt a policy of zero-tolerance towards such behaviour and draw up procedures to deal with cases of harassment and violence where they occur. Data suggests that one in 20 workers (5%) reports being exposed to bullying and/or harassment each year.
The European agreement condemns all forms of harassment and violence and refers to the employer's duty to protect workers against these situations. Companies will need to set out procedures to follow when cases of harassment or violence arise. These can include an informal stage involving a person trusted by management and the workforce.
Complaints should be investigated and dealt with quickly. The principles of dignity, confidentiality, impartiality and fair treatment need to be respected. The agreement underlines that appropriate measures will be taken against the perpetrator, including disciplinary action up to dismissal, while the victim will receive support with reintegration, if needed.
From: http://www.businessupdated.com - 27 Apr 2007
Extracts from the 'Text of framework agreement on harassment and violence at work':
Pre-existing procedures may be suitable for dealing with harassment and violence. A suitable procedure will be underpinned by but not confined to the following:
- It is in the interest of all parties to proceed with the necessary discretion to protect the dignity and privacy of all.
- No information should be disclosed to parties not involved in the case.
- Complaints should be investigated and dealt with without undue delay.
- All parties involved should get an impartial hearing and fair treatment.
- Complaints should be backed up by detailed information.
- False accusations should not be tolerated and may result in disciplinary action.
- External assistance may help.
April 26, 2007
By Debbie Andalo, Tuesday April 24, 2007. EducationGuardian.co.uk
The privatisation of university services and the problem of bullying in higher education will come under the spotlight at the inaugural congress of the University and College Union (UCU) next month.
Issues around academic freedom and cuts in adult education have also been included in motions to be discussed by the 400 delegates expected to attend the three-day event in Bournemouth which starts on May 30.
...The union's joint general secretary, Sally Hunt, said: "The first congress will set the tone for the largest post-16 education union in the world, and really allow us to start working to represent our vast membership."
The UCU was formed in June last year following the merger of the Association of University Teachers (AUT) and the National Association of Teachers in Further and Higher Education (Natfhe).
From: Univesity and College Union (UCU)
Topic: Inaugural UCU Congress, 30 May - 1 June 2007: First report of the Provisional Congress Business Committee including motions submitted
Summary: Motions submitted for debate at the inaugural meeting of UCU Congress and Sector Conferences to be held 30 May – 1 June 2007 in Bournemouth
Contact: Catherine Wilkinson, senior administrative officer email@example.com;
'...Congress recognises that bullying and harassment are particularly likely to affect women, LGBT, BME and disabled members, hourly paid members and other members who are perceived as vulnerable. While it is recognised that UCU may have to advise, support and represent both sides in this type of case, it is particularly important that the person alleging bullying and harassment, particularly when a woman, LGBT, BME or disabled person is given the best possible advice, support and representation and feels that they are taken seriously.
Congress instructs the NEC to issue advice on handling of bullying, harassment and violence against women and minority group members and recommendations for policy measures to prevent it...'
OK, so the 'Congress' asks the 'NEC' (National Executive Committee) to 'issue advice'... Further down we read:
'Bullying in post 16 education (Bradford College). Congress notes:
1. surveys indicating growing management bullying in education, often related to workloads, restructuring, marketisation, and management aims to boost productivity;
2. huge costs in terms of staff turnover, sickness and burn-out where managers ignore the work/life balance and fail in their duty of care to staff;
3. bullying is not an individual’s problem but the responsibility of the institution to stop and the union to resist.
1. to launch a major training campaign for UCU members and reps to fight bullying and harassment;
2. to organise a national conference on bullying and harassment;
3. to encourage UCU branches to collectivise anti-bullying action in post-16 institutions by:
a. organising bullying and harassment surveys;
b. negotiating anti-bullying policies and making them work through regular monitoring and training;
c. where this fails, organising collective responses including the declaration of collective disputes and ballots for strike action.'
Further down we also read:
'Equality in universities (Northumbria University)
Congress notes with concern the lack of priority given by
We are particularly concerned that
- many universities have not fully implemented the legal requirement for a Race Equality scheme, i.e. have not carried out Race Equality impact assessments
- the Stonewall Diversity champions table suggests a lack of attention to LGBT issues in many Universities.
Congress is asked to support:
- the election of an Equality Officer in every UCU Branch
- a national network of UCU Equality Officers with an annual conference and regular training sessions
- an audit of bullying and harassment in Universities
- equality being raised with the national employers with the demand for an urgent review of the issue in universities.'
And we continue reading - further down:
'Bullying (Nottingham Trent University, Clifton)
Sector Conference notes that Bullying is a seriously damaging problem within HEI’s. It can occur in a wide variety of different ways between managers, employees and/or students. When bullying occurs it often results in poor performance, stress, sickness absence and leaves very unpleasant feelings for the people directly involved. Bullying is certainly not needed in any educational institution and should not be tolerated in any form whatsoever.
Therefore Conference resolves that awareness training should be provided by both the institutions themselves and within UCU. Also,that harassment procedures exist within all HEI’s to deal effectively with this serious issue. Furthermore UCU should ensure that policies and procedures on this topic are disseminated widely and effectively across the sector within a high profile campaign to increase awareness of the damaging effects caused.'
With some disbelief, we continue reading...
' Workplace bullying (University of Birmingham)
Conference notes the growing incidence of alleged workplace bullying in HE institutions, often associated with RAE outputs, unreasonable research, teaching and administration targets, erosion of accountability and transparency in university governance, and unaccountable and reprehensible practices in management, recruitment and promotions.
Conference welcomes the 2006 House of Lords ruling on the case of Majrowski v Guy's and St Thomas' NHS Trust, which will make it easier for an employee to bring a bullying-related claim against his/her employer under the Protection from Harassment Act 1997 and obtain damages for anxiety caused by the harassment, and any financial loss resulting from it.
Conference instructs Executive to issue guidance on the implications of this important case to all regional officials, LA/branch committees and personal casework officers.
Conference further instructs Executive to work with UCU's Legal Office to bring cases before the courts for work-related bullying in HE institutions.'
We are speechless... but we keep reading:
'Stop Bullying in Higher Education (Kingston University) - HE Sector Conference.
Kingston University calls upon the UCU to organise a national campaign against Bullying in Higher Education.
This should include:
- code of conduct to be sent to all UCU members which should inform our conduct towards fellow members;
- agreement of a new national UCU Anti-Bullying Policy which branches can use in negotiations with local employers;
- management should ensure that staff are provided with a clear alternative channel of complaint if they prefer not to raise the matter with their Head of Department;
- a demand that employers record, monitor and review bullying complaints and the outcome of bullying cases on an annul basis. That this information should be shared with the local UCU branch;
- that employers review their anti-bullying training for senior staff and require all senior staff to regularly attend such courses.
Some brief comments on the above:
Lots of encouraging rhetoric - 'Why did it take so long?' one can ask. But then again, we are up and running now... One small step towards the right direction, perhaps the start of many more significant steps...We support what is proposed. It is in many ways a vindication that bullying is firmly on the agenda of the inaugural congress of the UCU. We are looking forward to the outcomes.
April 25, 2007
The use of an injunction to prevent an employer from suspending an employee was upheld recently in the Court of Appeal.
A consultant psychiatrist was subject to an internal disciplinary process. She voluntarily agreed not to undertake any clinical duties whilst the process was ongoing. Despite this, her employer suspended her. She argued that her professional reputation was being damaged unnecessarily and successfully obtained an injunction stopping the suspension.
It was found that in this case suspension was not a neutral act as it cast an inevitable public doubt over the employee's competency. Any eventual damages would not be sufficient to compensate for any loss of reputation.
In appropriate circumstances suspension will be the right course of action. But employers must carefully consider the use of suspension in each case.
From: Employment Bulletin, http://www.vwl.co.uk
April 24, 2007
By Clare Dyer, legal editor. Monday April 23, 2007. The Guardian
Warwick University has agreed to pay £35,000 in compensation, subject to appeal, to an Irish academic after a unanimous employment tribunal ruling that it discriminated against her on the grounds of her race. The Birmingham tribunal ruled last month that the university failed to select Patricia Walls for a research job because she was Irish and gave the post to a less-qualified candidate instead.
A spokesman for the university said that although it had agreed the amount of compensation, it did not accept the tribunal's finding that it was guilty of race discrimination and would be appealing. Payment of the compensation, for loss of earnings and injury to feelings, is on hold, pending the outcome of the appeal.
Dr Walls, 44, who originally comes from Northern Ireland but now lives in Chipping Camden, Gloucestershire, applied for a post in 2005 as a research fellow with the centre for research in ethnicity and mental health, part of the university's medical school.
The job was to carry out research aimed at improving mental health services for black and ethnic minority communities. Dr Walls, who has a PhD in ethnicity and health, has published and carried out extensive fieldwork on the subject. She works as an independent research consultant and holds an honorary research fellowship at Strathclyde University.
Of the four-person interview panel, which included three psychiatrists, two had worked with Dr Walls before. Sivasankaran Sashidharan, an honorary professor, had encouraged her to apply for the post after working with her at Glasgow on a project on the mental health of four minority communities: Afro-Caribbean, south Asian, Chinese and Irish. Hannah Bradby, a sociology lecturer, was on the same team as Dr Walls at Glasgow, but the tribunal found that the two had had a "poor relationship".
Of the three members of the interview panel who gave evidence, one said she had "flicked through" the university's equality and recruitment policies, while the other two admitted they had never read them. The panel did not assess the candidates against the advertised criteria and made their decision on interview performance.
During the interview Dr Walls asked which minority communities the research would cover and was told it would cover Afro-Caribbeans and south Asians. She said it would be a better project if it included the Irish and Chinese communities as well.
The tribunal said the candidate who was appointed had much less research experience than Dr Walls. She had yet to complete her PhD, although when Dr Walls queried the outcome she was told - in what the university says was a genuine error - that she already had a doctorate.
While Dr Walls had submitted a detailed CV, the successful candidate had not put in a CV at all. Dr Walls was given various reasons for her failure, some of which were "very misleading", the tribunal said. It concluded the decision not to appoint her was affected by the assumption the panel made that she would not be interested in the project unless it included the Irish community - an assumption which would not have been made about a non-Irish person.
Dr Walls said she was "very pleased" by the outcome and hoped it would encourage others to challenge flawed recruitment procedures.
April 23, 2007
At first glance, it may appear that leaving is simply running away or giving up. However, the mass departure of workers in the face of bullying is marked by anger, disgust, and a desire to “send a message” to those in power. Amy, who worked in the sports fishing industry, said she wanted her resignation to “send a message to the bully.. . . He crossed my personal line in the sand . . . so I quit.” She went on to explain, “I left because two of my executives—the hardest working people in the company, the most honest, the most direct, the most trustworthy, ethical—and he bullied them. He'd debase them, and blame them, and debase them, and blame them, and he chipped away at them, and chipped away at them, until they both found other jobs. . . It was just morally wrong.”
Similarly, Steve left his 15-year position as a highly trained specialist in state government giving three days notice in order to “open their eyes.” As he explained, “I did everything I could . . . [and] nobody did anything. .. . I spent two days training my replacement . . . and was out of there. Let ‘em go down in flames! Maybe this will open their eyes.”
Amy and Steve’s accounts are not unique. Other stories are filled with tales of quitting, intentions and threats to quit, transfers and requests for transfers, and even helping each other get out—usually with the goal of sending a message or punishing the organization for allowing abuse to continue. Additionally, those left behind make use of the high staff turnover and hold it up to decision makers as proof that there is something very wrong in the organization. If bullying-affected workers have a theme song, it is David Allan Coe’s “Take This Job and Shove It.” The song title resonates with employees who have been bullied, since many quit specifically to communicate their frustration, disgust, and anger, or to punish the organization by permanently withdrawing their experience, knowledge, and skills.
Quitting is a visible way to resist, because speaking out is often such risky business. The risk is even more pronounced in workplaces where employees are systematically and persistently abused even before they speak out. Fighting back against bullies at work, often bullying managers or supervisors, can result in further harm to workers. Those who summon the courage to speak out want change but may receive punishment. They report abuse but might be labeled insubordinate for their efforts. If they go to upper-management, they can be accused of going outside the chain of command, although in most cases, doing so is crucial to ending bullying. Workers who agree something must be done and start documenting instances of abuse can provide support for workers’ claims, encourage others to speak out, and promote plans for collective resistance. However, these workers can then be called disloyal, troublemakers, crazy, disgruntled, or anti-team players, and may even be blamed for making things worse by others who silently hope abuse will go away.
Despite the risks, workers fight to change hostile work environments. They fight to end bullying both in groups with their coworkers and individually without support of others. When workers resist collectively, even in the absence of labor unions, organizational decision makers more often take action to stop abuse than in cases where workers fight back individually. Collective resistance usually includes both bullied and non-bullied workers. In fact, when those who are not being bullied speak out alongside those who are, change is more likely to occur. It also appears that collective resistance has fewer downsides for workers.
For example, of those who collectively resisted in the study, none were fired, but 20% of those individually resisting were fired. It seems that collective resistance provides a safer and more powerful way for workers to speak out against bullying at their jobs. This does not mean that individual resistance has no effect. In many cases, individuals resist without knowledge that others in their workgroup are also making complaints. In some cases, this buildup of individual reports gets the attention of upper-management.
Whether resisting collectively or individually, two tactics seem ineffective at stopping abuse. These are confronting the bully and withholding labor or information. Confronting the bully probably aggravates rather than improves the situation, and withholding work or information may go unnoticed. On the other hand, there are tactics that more often lead to upper-management taking corrective action.
Organizational change occurs most often when workers use three tactics in combination: (1) informal verbal or formal written complaints to organizational authorities, (2) written documentation of bullying (times, dates, concrete details), and (3) expert opinion (published research on workplace bullying). Although change often takes months to materialize, cases where workers fight back by going up the formal chain of command and working within the organization’s grievance system are most often associated with ending abuse.
Organizational authorities seem to favorably respond to written documentation. Documentation—of bullying incidents and the potential costs of bullying for the organization—is an invaluable tool for upper-management. Upper-management needs this information for investigation and to take actions deemed necessary to end abuse. Written documentation is even more convincing when combined with published research that verifies and names such occurrences as workplace bullying. Bullying research names the problem and verifies that it is a real, confirmable phenomenon and not simply an overreaction from thin-skinned employees.
When targets and witnesses collectively resist, work through the formal problem-solving systems available to them, and provide decision makers with documented evidence of abuse, this combination often moves decision makers to action. Using research and other published material also supports workers’ complaints and educates decision makers about the phenomenon of workplace bullying.
About the author: Pamela Lutgen-Sandvik is Assistant Professor of Communication at University of New Mexico. Readers can contact the author via email: firstname.lastname@example.org or log on to her homepage at http://www.unm.edu/~plutgen. Her research program focuses on negative communication at work, workplace bullying, and generalized harassment. This essay is based on the research article: Lutgen-Sandvik, P. (2006). Take this job and ... Quitting and other forms of resistance to workplace bullying. Communication Monographs, 73, 406-433.
This essay appeared in Communication Currents, February 2007. Online at www.natcom.org
April 22, 2007
Thus three types of leadership seem to be essential in order to ensure that the change to autonomy for universities is a winning one also for those within the institution:
Visionary leadership means the capacity to look at the existing myths on which many universities are based and consider their validity today. This would bring about a new self-understanding compatible with the needs of academics and the demands of society. This is essential, since poor career structures and mechanistic assessment procedures can threaten the process of identity building.
Thus, to be visionary means to be capable of not simply buying into the Zeitgeist but reinforcing the university’s capacity to think ahead. Informed leadership addresses the issue of reconciling strong leadership with broad consultation structures. While collegial decision-making bodies might have led to lengthy decision-making routines
without clear responsibility structures, at the same time they were inclusive.
Informed leadership addresses the issue of reconciling strong leadership with broad consultation structures. While collegial decision-making bodies might have led to lengthy decision-making routines without clear responsibility structures, at the same time they were inclusive. Informed leadership would have to recreate this idea of inclusion in new ways.
Finally, creative leadership needs to interact with elements/structures in their environment in order to shape and control the universities’ relations of dependencies. While strategic choices have to be made within the limits imposed by the universities’ environment, the potential radius of action can be widened when creative and flexible internal institutional environments are provided. Creative leadership thus means rebuilding niches within the institution which do not necessarily follow criteria imposed from the outside...
By: Ulrike Felt, Professor of Social Studies of Science, Department of Social Studies of Science, University of Vienna, Austria (2003)
From: Managing the university community good practice, EUA CASE STUDIES 2007
...In order for HR-management to make a lasting contribution toward quality improvement and institutional selfrefl ection of educational organisations, a shared understanding of all stakeholders that optimisation, through joint action, is possible and desirable, is necessary. This calls for an organisational culture which not only accepts responsibility for maintaining and improving the quality of work through putting in extra time, effort and personal commitment but which also provides the necessary institutional framework and mechanisms.
...Due to this highly individualised form of work, certain individuals have lots of elbow room in decisionmaking, even when it comes to the issue of who is going to be promoted and who is not – this type of autonomy produces highly individual results. In terms of individual career paths it is much less a particular organisation, or single university, that determines where someone is headed, but rather the so-called ‘invisible college’ of faculty peers acting across institutional borders. This look at organisational culture adequately explains the status quo of human resources management at universities.
The neglect of staff related issues is attributable also to the fact that the set of skills and competences every new member of the organisation brings along is considered as sufficient in itself. Individuals are held accountable for themselves; continuing education basically means acquiring new competences in one’s own area of expertise. The paradigm of individual performance is one of the reasons why experts are used to acting autonomously. They usually invest plenty of time, money and energy in developing their expertise and are used to focussing on a particular field of knowledge, leaving other areas to other experts.
Generally speaking, many educational organisations are characterised by a matrix organisation with a twofold ‘logic’: one being the logic of the organisation/institution, uniting different experts and disciplines under one roof, the other being the logic of the discipline, uniting experts of the same discipline across institutional borders.
Professional identity, as such, is closely linked to the discipline while the discipline is anchored more strongly in the monitoring of academic achievements. Accordingly, some of the classical tasks of HR development in the academic realm are performed via socialisation in a particular discipline, as e.g. the convention of historians. In contrast, the idea of ‘human resources development’ is more orientated towards the ‘organisation’, to which there is little attachment.
Likewise, the orientation, at universities, towards the international scientific community is characterised more strongly by attachment to a specific discipline beyond the confines of individual organisations. Stepping up the career ladder in one’s own institution is considered less of a success than mobility across borders, both in geographical and organisational terms.
If suitable concepts for human resources development at universities are to be deployed, the status of the university as an international organisation must not be overlooked. There are no common standards, as yet, for such key procedures as staff selection and performance review, and so the quality of these procedures varies with the ‘inborn talent’ of those in charge. Most procedures are ‘tailor-made’ and performance reviews tend to follow the logic of the discipline while other aspects of being a university teacher, such as management, teaching and continuing education, tend to shift out of focus...
By: Ada Pellert, Vice-Rector Academic Affairs, Head of the Department of Continuing Education Research and Educational Management, Danube-University, Krems, Austria (2007)
From: Managing the university community good practice, EUA CASE STUDIES 2007
April 21, 2007
• Don't post anti-harassment and discrimination policies
A prudent employer posts state and federal rules regarding harassment and discrimination in the places most likely to be seen by employees, namely break rooms, kitchens, employee restrooms and below or above the time clock. But don't stop there. The company anti-harassment policy should also be distributed on a regular basis along with paychecks. If you have a company Web site, post the policy prominently. Describe clearly the procedure that employees should follow if they believe themselves to have been targeted, and reiterate that your company does not tolerate retaliation against a person who complains about harassment or discrimination. Spell out what retaliation means.
• Don't create a paper trail of how you informed employees about your anti-harassment and discrimination policies
An employee who fails to use an employer's reasonable complaint procedure within a reasonable time may find his or her damages limited if he later sues. This is known in California as a McGinnis defense. An employer should consider requiring all employees to sign off on having received and read harassment and discrimination polices. Have employees sign twice a year for good measure. During litigation, the only response a plaintiff can have when faced with numerous copies of his or her signature on harassment policies is, "I didn't read it before I signed."
• Don't train supervisors to identify harassment or a harassment complaint
Once you put the policy in place, make sure front-line managers know what constitutes harassment and discrimination, and how to respond when they receive a complaint. California law now requires employers of 50 or more total employees to provide sexual harassment and discrimination prevention training to its supervisors. Every supervisor must receive a minimum of two hours every two years. Although employers with fewer than 50 employees are not obligated to train their supervisors, the smaller employer should do so, and consider more frequent trainings. Two hours may not be long enough to alter cultural resistance or indifference to legal norms of behavior in the workplace.
• Don't train supervisors to ask questions
The typical discrimination complaint when first made may not mention the words discrimination or harassment. Complainants may be crying, raging, mortified or understated. The first complaint may sound like "I don't like the way X talks to me." It is incumbent upon the employer to train supervisors to ask enough questions to elicit factual information about the substance of the complaint, or if they do not feel comfortable doing so, to immediately refer the complaining party to someone who is competent to handle the situation.
• Make the complaint process difficult
In a common scenario, an employer's complaint process requires an employee to report harassment to his or her immediate supervisor -- often the very person who has engaged in allegedly unlawful behavior. Thus a prudent complaint procedure offers at least two or preferably more routes through which to register a complaint. As an example, an employee may complain to his or her supervisor, his or her supervisor's supervisor, the human resources department, a toll-free complaint line or an e-mail address (but be sure that e-mails and voice mails are checked twice daily and that someone is assigned to follow up on the complaints).
Once an employer is on notice or should be on notice (the prudent employer does not park its head in the sand, hoping that bad vibes will somehow resolve on their own) for potential harassment or discrimination in the workplace, the employer has a legal obligation to conduct a prompt, reasonable investigation and to fix the problem.
• Make the complaint and investigation process humiliating
Investigation strategies differ from workplace to workplace, depending on the sophistication of the players, potential language and cultural barriers, willingness of employees to cooperate and the history of the conflict. It is clear, however, that before an investigation is complete, certain events should not occur: Neither the complainant nor the respondent should be threatened, intimidated, coerced or punished in any way unless the employer is confident that such action can be justified during litigation two years from now. An alleged perpetrator who is later cleared of having done anything wrong can turn around and sue. If the complainant is placed on paid administrative leave, the employer should consider placing the alleged perpetrator on paid administrative leave until the facts are clear.
When serious allegations are made and there is evidence to sustain them, it may be appropriate to issue a written warning to the perpetrator to stay away from the complaining employee and not to engage in any intimidation towards him or her. Unless the complaining employee is prone to violence, sending an identical letter to the complainant, however, is likely to aggravate an emotional situation in which the complaining employee believes him- or herself already to have been victimized.
• Set the complaining employee up for termination
Your employee's future attorney really hopes you do this. A retaliatory termination can look like this: An employer receives a complaint from an employee, decides the complaint has no legitimacy, or that the complaint was raised just to protect that employee from a bad performance review, and that now the employee has to go. As tempting as it may be to want to fire an employee who goes out on stress leave just as his annual performance review is about to start -- and it's a bad review -- retaliatory termination can make an otherwise garden variety harassment complaint extremely costly, both to litigate and settle.
Examples of retaliatory set-up occur when the employer starts documenting the complaining employee, but not anyone else; giving performance reviews only to the complaining employee; or targeting the complaining employee for infractions of company policy that nobody else is counseled about. If you have never put anyone else in the company on target for progressive discipline, now is not the time to start discipline for only the complaining employee.
• Move the complaining employee, not the perpetrator
You have conducted an investigation and concluded that the complaint had merit. You have moved the complaining employee to a location that is five miles farther from her home than where she used to work. The perpetrator, who is a supervisor, is still grinning lecherously at subordinates from the same office where he leered at the employee you just moved. Moving a complaining party will be treated by his attorney as retaliation if the move or change in circumstance causes a significant, negative change to his working conditions.
Do a close comparison before deciding that the two facilities are equal. You may think it's only five miles, but your former employee's attorney will find out during discovery that the "new" facility lacks air conditioning, or that it's known as the place where "bad" employees are sent, or that the building has a mold problem that you knew about. And if the perpetrator has not been moved, depending upon what else is going on in the workplace, that could look like retaliation.
• Don't check back with the complaining employee
A lot of employers make the mistake of telling an employee who has complained about harassment, "Check back with me if it happens again," or "If it happens again we want to hear about it." The chances are very good that when harassment has occurred once, and the perpetrator is still in the workplace, harassment will recur. It's human nature. The "perpetrator" is likely to be angry, or not completely finished, or both. Others may exhibit resentment towards the complaining employee by shunning him or her. And this time, if you have not been checking regularly with the complaining employee, the way you will learn about repeated harassment is when your HR department or reception desk receives an administrative charge from the EEOC or DFEH preliminary to a lawsuit.
A smart employer will provide an employee who has been harassed or discriminated against in the workplace with telephone numbers and e-mails to contact the people or person in the company who can make immediate changes if harassment recurs. The employer also will check back with the complaining employee once a week, and then once every two weeks, and then once a month, with a personal visit, at a time when both the visitor and the former complainant have time to engage in substantive conversation.
• Don't learn from experience
Juries will punish employers who don't heed warning signs in the workplace. If harassment is occurring in a remote location, it is time to travel to the office and investigate. It may become necessary to install an HR department or person at that location for a period of time, but one of the worst mistakes employers make repeatedly is assuming that a problem is taken care of because nobody is complaining -- at this moment.
Discrimination is a signal that the workplace is troubled. Policies may need to be reconsidered, written for the first time, abolished or translated into several different languages to accommodate an ever-changing workplace. Paying more than lip service to harassment may be what saves an employer from taking a significant hit from a jury.
Short of obtaining a release or waiver, there are no guarantees that an employee will not sue, and some employers will just have to wait out the statutory time limits to see how a story ends. The best protection against a lawsuit is the implementation of fair and impartial personnel policies that comply with, or exceed, the requirements of the California Fair Employment and Housing Act; and training of front-line managers in the identification of, and legally appropriate response to, even an appearance of harassment or discrimination.
By: Judith Wolff, The Recorder, June 22, 2006
April 20, 2007
- First you made the mistake to raise a legitimate formal complaint against your bully fascist academic line manager. You were naive enough to think that the procedures in your university will work.
- Then you find out that you are accused of something you have never done. In effect, you are mobbed out of your work. The bully fascist academic line manager pulls the strings - he/she suspend you on spurious grounds.
- First you have to fight depression - some never recover, then you decide to fight back. The bully fascist academic line manager tries to dicredit you - your excellent staff appraisals are ignored. Internal procedures resemble a Mickey Mouse - Stalinist court.
- You continue to fight back - the last thing they want is you going to court.
- At some stage they realise they can't get rid of you - they have tried to make you resign - why should you? So now they start offering you money - compensation - they want to buy you out. Remember this is taxpayers' money.
Small problem: The compensation comes in the form of 'confidentiality agreements' and/or 'compromise agreements'. 'We will give you this amount of money BUT first you need to accept and sign a number of clauses!'
Well, we managed to get hold of one of these lovely documents, and here are some extracts:
'...The university will, as compensation for loss of employment but without admission of liability and without prejudice to Clauses XX, XX and XX below, pay to the Employee within fourteen days of the date of this Agreement the sum of £XX.XXX (“the Payment”).
...The Employee shall refrain from instituting or continuing before an employment tribunal any proceedings in respect of any of the Proceedings, and all grievances and disciplinary proceedings will be ceased by both parties.
...The Employee acknowledges that the university is relying on clause XX of this Agreement in deciding to enter into this Agreement. If the Employee breaches any of the warranties set out in clause XX and a judgment or order is made against the university, the Employee acknowledges that the university will have a claim against the Employee for damages of not less than the amount of the judgment or order.
...In the event of the Employee at any time failing to observe the terms of this Agreement or any of his obligations hereunder the Payment shall cease to be payable and the Employee shall upon demand repay the Payment and the university shall be entitled to recover as a debt any monies already paid only to the extent of damages actually suffered.
...The Employee confirms that he will return on or before the Termination Date to the university all equipment, records, correspondence, documents, papers, software, backup tapes, keys (including originals, copies and extracts of any of the foregoing) belonging to the university and any other university property in his possession or subject to his control or responsibility and that the Employee has not retained any copies of the foregoing.
...The Employee undertakes not directly or indirectly to make, publish or communicate any disparaging or derogatory statements whether in writing or otherwise concerning the university or any of its governors, officers, or employees and to maintain, without limit in point of time, confidentiality as to the reasons for which and the terms upon which the Employment was terminated and as to the business affairs of the university and the business and personal affairs of its governors, officers and employees subject only to disclosure for the purpose of obtaining professional advice or if required or permitted by law or to such information being or coming into public domain other than by disclosure by the Employee in breach of the terms of this clause.
...The Employee accepts the payment referred to in the Compromise Agreement as “the Payment” in full and final settlement of all other or any claims costs expenses or rights of action of any kind whether contractual or tortious other than the Proceedings and howsoever arising which he is or might be entitled to make against the university or its governors...
...The Employee agrees to refrain from instituting any proceedings in any Court or tribunal of relevant jurisdiction for any remedy arising from any matter under his contract of employment with the university or any other contract connected with the Employment and made between the parties to this Agreement or the termination of such contracts or arising during or in connection with the Employment or otherwise save for the purpose of enforcing the terms of this Agreement.'
Bureaucratic brilliance - psychometric testing for corporate compatibility (no Albert Einsteins, Edward Tellers, eccentric thinkers or non-authoritarians need apply), but no testing for empathic and emotional maturity. Historians of science repeatedly refer to the context of progress, not the individuals.
Why aren't we working for respectful and dignifying environments in which everyone has the opportunity to excel, where disrespect and undermining the dignity of others is not acceptable?
A wise colleague once pointed out to me that people often actively promote the very skills in which they are themselves weakest, because they are correctly aware of the difficulties they face but incorrectly assume themselves to be experts. Thus the promoter of time management skills, or research skills or people managment is often hopeless at these same tasks, while the true expert does them apparently effortlessly and is not conscious of the need to continuously refer to them. The bullying institution will therefore be most proactive in manufacturing policy for the problems of which it is so painfully aware, but incapable of handling.
Academics seeking promotion could soon be vetted for personality traits as well as experience. Academics could be subjected to controversial "personality testing" before being approved for jobs or promotions as managers continue to examine corporate-style human resource management.
Anglia Ruskin University confirmed this week that it was conducting pilots for a "psychometric test" as part of a programme of staff career development.
Experts predicted that the tests, which seek to establish personality types and to predict how staff might behave in certain work scenarios, would be increasingly used for development and even recruitment as academic jobs become more complex.
John Rust, director of the Psychometrics Centre at Cambridge University, said that while the test might not always be appropriate in a sector that valued individuality and in which peer review and publications could be a reliable indicator of research ability, they could be useful.
Psychometric tests could be used to check for initiative, team-working and social skills - qualities stereotypically lacking in some otherwise brilliant, focused academics, he said.
Robert McHenry, a psychology lecturer at Oxford University who is head of business psychologists OPP, said he had used personality tests to help in appointing senior academics at Oxford. He predicted an increase in their use in selection for jobs at all levels.
"Academics are often chosen for their narrow specialism and find it difficult to co-operate or work in teams," he said. This means testing at the selection stage "can be terribly valuable", he said.
Union leaders this week warned that the tests could be "highly subjective".
"At too many institutions the people at the top seem to have little understanding of the basis against which staff should be judged," said Sally Hunt, general secretary of the University and College Union. "Academic achievement plus demonstrable ability to do the job continue to be what should count."
Anglia Ruskin declined to provide any details of its pilots but confirmed that the tests were being used in a gender equality initiative. They helped the university identify the "motives, preferences, needs and talents" of staff.
By Phil Baty. From: http://www.thes.co.uk
April 19, 2007
Such training is also a very useful way of reinforcing policies designed to ensure good practice, for example in the area of recruitment, by ensuring that selection decisions are taken against clear person specifications and selection criteria, and that the records of decisions necessary to defend any subsequent proceedings are kept.
While training should not be viewed merely as a defensive mechanism to minimise the risk of liability in employment tribunals, in a discrimination claim it is typical that the very first question asked in cross-examination of a university's witness will be whether they have received equal opportunity training.
Compulsory training within the sector is still largely the exception rather than the rule, although some institutions do require that, for example, chairs of recruitment panels have undergone such training. Where the witness has not received training (and it is a specific application of Sod's Law that the witnesses in your case will fall into this category), they run the risk of being put very much on the back foot right from the start of cross-examination.
If the university offers training but the member of staff states that they are not aware of this, the university's commitment to ensuring equality is called into question. More commonly, witnesses will accept that they were aware of voluntary courses but that they did not attend.
Witnesses who claim that they did not believe that they needed equality training risk being perceived as arrogant and are setting themselves up to be challenged on any departures from best practice or the university's policies. Those who claim that they were too busy to attend will be asked what they considered was more important than avoiding discrimination. We have even dealt with cases where witnesses have undergone a 'Damascene conversion' during cross-examination and admitted that with hindsight they would have found equality training very helpful!
While these issues are not necessarily fatal to the defence of any tribunal claim, the ideal scenario would be that the university provided comprehensive equality training to all of its staff. We know from discussions with several HR practitioners in the sector that they favour compulsory training. There is a growing argument that this approach is not just preferable, but may actually be a legal requirement for universities.
The nature of a university's obligations under discrimination law is fundamentally changing as they are increasingly caught by positive obligations to eliminate discrimination and promote equality of opportunity. These have existed in relation to race equality for a few years now, and apply in relation to disability from December 2006 and gender equality from April 2007.
It is clear in due course these obligations are likely to be extended to all areas of discrimination – for example age, religious belief and sexual orientation. These obligations require universities to take proactive steps to promote equality and to avoid discrimination in their treatment of staff and students.
If staff – especially managers – are not aware of the basic principles of discrimination and how to apply these in their every day dealings with staff and students, can the institution really say that it has done enough to comply with its positive obligations?
HEFCE-GMP Projects - Occupational stress in higher education
Details of this project are as follows:
Lead HEI / Representative body University of Plymouth
The project aims:
* to provide stress benchmarks for HE
* to enable comparisons with other professions and intra-sector comparisons with other HEIs
* to relate these to a survey of current good practice in stress management
* to support a consortium of HEIs to institute and evaluate institutional strategies to improve stress management.
* University of Birmingham
* Bolton Institute
* Brunel University
* University of Gloucestershire
* Imperial College of Science Technology and Medicine
* Keele University
* King's College London
* Leeds Metropolitan University
* Manchester Metropolitan University
* University of Newcastle-upon-Tyne
* University of Plymouth
* University of Surrey
* University of Wolverhampton
Project Leader: Professor Christine Webb
Position Professor of Health Studies
Department Institute of Health Studies
Institution: University of Plymouth
Address: Veysey Building, Earl Richards Road North, Exeter, EX2 6AS
Telephone: 01392 475173
In our opinion, some of the collaborative partners are well equipped and qualified for the task :(
April 18, 2007
2. Acceptance that bullying is an organisational issue
3. A statement that bullying is unacceptable and will not be tolerated
4. Clear definitions of unacceptable behaviour
5. Legal implications for organisations and individuals
6. A statement that bullying may be treated as a disciplinary offence, and it should listed as a misconduct and gross misconduct in the disciplinary procedure
7. Steps to assess and prevent bullying
8. Mechanism for third party complaints
9. Mechanism for initiation of the policy without a complainant
10. Duties of Heads of Department and Supervisors
11. Confidentiality for complainants when they report bullying
12. Procedures to protect complainants from victimisation
13. Clear complaints procedures, separate from the normal grievance procedure
14. A trained network of ‘confidential advisers’ and where to contact them
15. Informal complaints procedure
16. Formal complaints procedure
17. Procedure for investigating complaints
18. Information and training about bullying and the policy
19. Repair mechanisms/options outlined
20. Access to support and counselling
21. Review and monitoring
22. Is it jointly agreed by employer and trade unions?
23. Does it cover everyone?
24. Is it implemented?
From: Equality Challenge Unit
April 17, 2007
Employers need 'clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal … encouraging early dispute resolution". Sounds familiar? This was of course the objective of the statutory dismissal and grievance procedures, introduced in October 2004 to promote the resolution of employment disputes in the workplace rather than in the employment tribunal. But this recommendation comes from a DTI commissioned report which concludes that the statutory procedures have failed to meet this objective and recommends that they should be abolished, a mere two and a half years after they were first introduced.
The Gibbons Report, commissioned by the DTI to review employment dispute resolution in Great Britain makes 17 recommendations which, if implemented, will have far reaching consequences for the handling of workplace disputes. The most significant of these is the recommendation that the statutory dispute resolution procedures be abolished in their entirety – a damning indictment on those procedures but one which echoes the sentiments of many employers in the sector. Michael Gibbons, the author of the Report, said 'I was struck by the overwhelming consensus that the intentions of the 2004 Dispute Resolution Regulations were sound and there was a genuine attempt to keep them simple. However, they have had unintended consequences which far outweigh their benefits.'
There is a general consensus among employers – in the University sector and beyond – that the statutory procedures have created an unnecessarily high administrative burden for both the employer and employee. The Report highlights that many businesses consider that the statutory procedures have led to an increase in the number of disputes they experience. Further, rather than encouraging early resolution, the procedures have led to a more formal process being used to address problems which might easily have been resolved informally. As a result, conflicts escalate, taking up more management time and engaging employees in an unnecessarily formal and stressful process. There is evidence that both employers and employees are seeking legal advice on their disputes at an earlier stage than before, and that the costs and management time involved in dealing with disputes is steadily increasing.
The Report also notes that the application of the 'one size fits all' formal approach inherent in the statutory procedures creates significant problems – the procedures often appear excessive or difficult to apply to the situation in question. The strong links between the formalities of the statutory procedure and employment tribunal proceedings creates a focus on ensuring that the procedures are strictly adhered to rather than addressing the causes of the underlying problem. [OUR COMMENT: Yes, the causes of the underlying problem, i.e. institutionalised bullying and harassment by managers.] This is particularly so given that an employer risks a dismissal being found to be 'automatically unfair' if the statutory dismissal procedure is not followed. The procedures also make both parties more defensive, and entrench their respective positions, making it more likely that they will ultimately resolve their dispute in the employment tribunal. [OUR COMMENT: And is this the fault of the employee?] Alternative approaches are needed to provide more appropriate methods of achieving an earlier, amicable and cost-effective resolution to workplace disputes and grievances. [OUR COMMENT: At last some sense.]
Implications of the abolition of the statutory procedures
It is highly likely that the Gibbons Report will result in the statutory procedures being abolished or undergoing radical amendment. This will bring some immediate benefits for Universities, particularly in dismissal cases where there would no longer be the risk of automatic unfair dismissal for failing to follow the statutory dismissal procedure. [OUR COMMENT: Is this a good thing for employees?] This may be especially helpful in relation to fixed term contracts, where many institutions still struggle at times to manage the expiry of a fixed term contract in a manner consistent with the statutory '3 step' procedure, or where the volume of fixed term contract dismissals makes compliance impracticable.
Similarly the removal of the risk of increased compensation for failing to follow the statutory grievance procedure will be welcomed by Universities, especially given the wide interpretation of what counts as a statutory grievance. [OUR COMMENT: Yes, they get off the hook.] Further, the risk that managers may rush to use formal procedures to deal with any complaint – for fear of breaching the statutory grievance procedure – would also be removed. There may also be no need to hear post-termination grievances from former employees.
However, there would also be some disadvantages. Abolishing the statutory procedures may see a return to the pre-October 2004 situation where the employer first becomes aware of a dispute when it receives a tribunal complaint form. It is also likely that any new regime would be less prescriptive than the statutory procedures and therefore less certain in its application.
What will replace the statutory procedures?
The key issue is what, if anything, will replace the statutory procedures. The Gibbons Report offers few concrete clues. One recommendation is that the Government should look at ways of minimising disputes by simplifying employment law 'recognising that its complexity creates uncertainty and costs for employers and employees'. This is a welcome objective but the report gives no suggestions as to how this can be achieved, noting only that the impact of European Directives may create difficulties. The Report also recommends that the Government considers ways to enable tribunals to weed out unmeritorious claims, but again without any specific recommendations as to what new powers tribunals should receive.
The other main recommendations of the Report are:
- that the statutory procedures should be replaced with clear simple non-prescriptive guidelines on grievances, discipline and dismissal. This sounds very much like a slightly beefed-up version of the ACAS Codes of Practice;
- that tribunals should have new powers to take into account the reasonableness of the parties behaviour and procedure when making awards and cost orders. This could see similar powers to reduce or increase compensation as currently exist in relation to compliance with the statutory procedures, but perhaps with less predictability of what would constitute default;
- that the tribunal claim form should be revised to reduce its length and complexity. This would see a return to something like the pre-October 2004 version;
- that the fixed time limits for ACAS conciliation introduced in October 204 should be removed;
- that claimants should have to access a helpline service before bringing a tribunal complaint. The helpline would advise on alternatives to bringing tribunal claims and its use would be mandatory as claimants would only be able to access a claim form via this helpline. Similarly, employers would only be able to get a response form to complete once they had received advice on the potential consequences of defending a complaint. The aim is to ensure that both parties are advised on the reality of bringing tribunal claims and the benefits of seeking to resolve their dispute by other means; [OUR COMMENT: What means exactly?]
- that increased emphasis should be given to mediation and other forms of alternative dispute resolution, to reduce the number of claims proceeding to tribunal. This could see the introduction of a free early dispute resolution service before a claim is lodged, or the greater use of judicial mediation when a dispute reaches the tribunal system. Tribunals should be able to take into account the parties' attempts to settle disputes, or their willingness to explore resolution through mediation, when making awards of compensation or costs, giving the parties an incentive to explore settlement or mediation;
- that employers, trade unions and other employee organisations should be "challenged" to commit to implementing and promoting early dispute resolution, for example through greater use of in house mediation, early neutral evaluation of claims and provisions in contracts of employment which made mediation of disputes a contractual obligation for employer and employee, whether as part of, or in addition to, the employer's grievance procedure. [OUR COMMENT: Ah, well here is some work for our union (UCU).]
The clear message from the Gibbons Report is that the measures introduced in October 2004 – statutory procedures, new claims forms, fixed ACAS conciliation periods – have failed to reduce the number of disputes and their related costs for employers, employees and the tribunal system. However, it is unlikely that we will see a simple return to the pre-October 2004 position. Universities will need to keep up to speed with these developments, particularly once concrete proposals are issues by the Government for reform of the existing disputes resolution procedure. In the meantime, it may be useful to consider and explore sources of alternative dispute resolution and whether there is a greater role for mediation – or mediation-style procedures – to complement existing grievance processes.
Perhaps our union (UCU) may wish to engage in this process and not just follow what the DTI recommends. We welcome the emphasis on mediation-style procedures but these will require senior managers who are trained appropriately - some wishful thinking here.