Thornett v. Scope: Unfairly dismissed after bullying claim

Case report - Thornett v. Scope: [2006] EWCA Civ 1600

The claimant worked for the employers in a managerial capacity. Following a complaint by a colleague who alleged that the claimant had been bullying and harassing him, the employers made a finding of unsatisfactory conduct against the claimant and gave her a final written warning.

The claimant, who did not accept that the finding was correct, made it clear that she thought it would be very difficult for her to continue to work with the colleague who had made the complaint. The difficulties between the claimant and her colleague were not resolved and ultimately the claimant was dismissed.

The claimant's complaint of unfair dismissal was upheld by the Employment Tribunal which found that a reasonable employer would have taken further steps to encourage the parties to work together.

In assessing the amount of the compensatory award under section 123(1) of the Employment Rights Act 1996 the tribunal considered how long the employment relationship would have lasted if the employers had encouraged the parties to work together.

The tribunal acknowledged that without hearing evidence from the claimant's colleague it was a highly speculative matter but found that the best assessment it could make was that the claimant's employment would only have lasted a further six months. It accordingly held that the loss suffered by the claimant as a result of the employers' fault was limited to her earnings during that period.

The Employment Appeal Tribunal allowed the claimant's appeal against the amount of the award, finding that there had been insufficient evidence to entitle the tribunal to speculate as to the duration of the employment relationship and that it should not, therefore, have placed any limitation on her lost earnings.

The employers appealed.

The Court of Appeal held:

An Employment Tribunal's task, when deciding under section 123(1) of the 1996 Act what compensation was just and equitable for future loss of earnings, would almost inevitably involve a consideration of uncertainties and the presence of a need to speculate did not disqualify a tribunal from carrying out its duty under that section.

Although there might be cases in which evidence to the contrary was so sparse that a tribunal should approach the question on the basis that loss of earnings in the employment would have continued indefinitely, where there was evidence that it might not have been so, that evidence must be taken into account.

There had been evidence before the Employment Tribunal which created a risk that the employment would not have continued indefinitely and the tribunal had been right to take that evidence into account, but the reasons for the tribunal's finding that the employment would have continued for six months had not been sufficiently stated in its determination. Accordingly, the case would be remitted to the tribunal for the compensatory award to be reassessed.

The appeal was allowed.

Appearances: Dijen Basu (Eversheds LLP) for the employers; Andrew Blake (Gill Akaster, Plymouth) for the claimant.

What is required (?)…

What is required (?)…

The recent comments and posts in this blog could easily be interpreted as ‘union bashing’, but this is far from the truth.

We suggest that workplace bullying in academia should involve the collective and coordinated action of many parties, such as colleagues, managers, governors, union reps, funding and quality control bodies, politicians, and communities.

Many of the comments posted here about our union (NATFHE + AUT = UCU), have been made and are made by union members, i.e. individuals who made a conscious decision not to resign from the union and perhaps even pursue legal action against the union, but instead have chosen to stay in the rank and file; to fight the fight from the inside.

These individuals all carry a common experience, in brief a lack of effective support and resolution regarding their particular case of workplace bullying. Yet, they remain members of the union.

To single out the union means that in effect, one is looking for a single cause, and this is simply false, misleading, counter-productive, and dangerous.

In random order, some of the challenges include, and some random thoughts are:

• Failure of some employers/managers to fully implement ACAS guidelines, and in particular the right to call upon witnesses, to have representation, to have access to accurate records of all hearings. Yes, the Employment Tribunals can decide on this but does it have to always go that far? Are there no other options?

• Failure of some employers to have appropriate internal procedures, embedded with principles of natural justice. How many a record of resolving employment disputes through negotiations and a truck record to prove so?

• Colleagues who are afraid to speak up for fear that they may suffer various forms of penalties.

• HR and personnel departments caught in the dilemma between their professional training and professionalism, versus possible management ‘pressures’ to go along with the prevailing and obviously wrong groupthink.

• A noted lack of expert union reps in workplace bullying backed up by union active policy, strategy, negotiation, and legal action. There is a web page online from a network support group, and a legal/counseling help line that union members can phone, but the issue seems to be the lack of satisfactory results in some well document cases. Why are union members voicing concerns?

• Funding and quality control bodies should somehow engage in the process of contributing to the implementation and appropriate application of internal grievance and disciplinary procedures. They should/can consider what is happening with workplace bullying, for this has effects on how the general workplace functions or dysfunctions. – Yes, we know universities are independent bodies. True, but this is where the collective energies of multiple partners at all levels have to come into this, and the union is only one of them. In fact, the union could lead such a campaign and perhaps attempt to unite all the players in some kind of common cause.

Yes, we do have a new booklet that is well written, BUT the issue remains ‘policing’, and from what we know, universities are not always good at policing their own. An independent party is indeed needed, an external party, even an ombudsman, something, anything… for there are far too many instances when universities when left on their own have not always done the right thing… (ACAS, internal procedures, discrimination, victimisation etc)

TUC, Andrea Adams Trust, and other organisations are working/have worked on a number of projects – policing remains the issue, the gap, the weakness…

This is perhaps one of the central challenges. It requires multiple players. The politicians have told us what we already know, ‘universities are independent bodies’. Does ‘independence’ mean lack of accountability and transparency on issues of workplace bullying?

The reply from HEFCE is/was that universities are accountable to their own governing bodies. Well, one wonders how cozy these relationships may become after some time…

There is a voluntary code of practice for governors, but how many of us know about it or have read it? How many governors have been challenged successfully?

So, who has sole responsibility for this mess? So far, we have failed to pinpoint a single agent for change. That would be too easy. A collective and coordinated effort of multiple players is needed. We have a long way to go…

It would be good to hear/read from all on what is required. We accept that certain things are required by our union, but what about the other parties, and how does a strategy progress beyond help lines, online and phone counseling, and well written booklets?

Here is an opinion: There is no doubt that organisational challenges will pop up in any related commentary and discussion, but these issues could/can be resolved if there is a really independent external body to measure, quantify, check, assess how universities are dealing with workplace bullying. If the problem is ‘independence’, can politicians do something about this? The economic argument is easy to make. The membership of such a group can include union reps, employers, independent HR experts, consultants, politicians etc… a wide body with relevant knowledge.

Yes, ambitious… back to the original claim that it is impossible for the union and its members to alone tackle workplace bullying. The responsibility has to be collective.

Victims [in academia] do not come forward?

We received the following email:

Dear Mrs Blackwell,

Recently we have read your comments on bulldieacademics website. You are badly mistaken about the number of cases and members who apply for assistance every year. As to nature of advice NATHFE/AUT [UCU] policy is to instruct a firm of solicitors or counsel whom they can control to get a generic advice -"Your claim has no merit or has less that 50% chances of success".

When the Tribunals heard the evidence, many of these claims were successful. Yet, no regret by the Union leadership and in-house solicitors. In the case of Dr DSilva the Tribunal found in his favour in his absence although, the Union and its counsel and solicitor thought he had no case. What a shame?

Do you have any idea what do the unions do those who come forward what do the Unions do to them. Have you looked at the union new draconian rule 4.6? Since September 2006 three Indian and one Iranian have already became victim of the above union rule. If any one dare question the competency or racism within the union would [they] not see the light of the day.

For further information contact tribunals_racialbias@yahoo.co.uk

Yours sincerely,

C Kumar, Mrs Mahadevan & AJ Graham - Coordinators
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Read related previous comment in this blog: Institutionalised Racism in Higher Education - UK [December 07, 2006, bottom of page]
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How can victims be encouraged to come forward if this is how academic unions deal with them? And what happens to those that question the union leadership and how it deals with these issues? They are branded 'union bashers' and they 'vanish' in the gulags...

What makes a manager a high flyer?

High flyers - those who reach a senior management position in a relatively short space of time - are more broad thinking, challenging of norms, open to doing things in new ways and more capable of understanding themselves and their colleagues emotions, than their senior management peers.

That's the conclusion of research by Troy Jensen of Kaisen Consulting, who assessed 800 senior managers with known career paths using psychometric tests on a range of personality traits including openness, conscientiousness and extraversion.

Managers were considered to be 'high flyers' if they had reached a senior management position within eight years of starting their career.

The study, which was presented at the British Psychological Society's Annual Conference, found that high flyers do significantly differ from their senior manager peers on a number of personality and thinking dimensions.

Broadly, they were found to be higher on many levels of effective social functioning, as well as on breadth and creativity in thinking.

Mr Jensen said: "Our research suggests that effective social and emotional functioning may be an important component of what separates 'high flyers' that rise quickly from other senior managers, especially as we found that analytical ability is similar in both groups.

He continued, "Whilst research into 'high flyers' has tailed off over the past few years, it seems, based on our findings, that there may be a case for further investigation with a view towards differentiating between high-potential employees who succeed and those who are derailed...

From: http://management-issues.com
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Indeed, we would like to know what happened with the 'derailed' ones, and what went wrong with 'breadth and creativity in thinking'.

Bullying in the Workplace: A Proposed Model for Understanding the Psychological Harassment Process

Abstract

...Because different studies suggest that psychological harassment represents a great threat to most workers, it has received considerable and growing interest across the world and has emerged as a new field of study in Europe, Australia, South Africa and the U.S. In spite of these studies, bullying still appears as a complex phenomenon. This paper summarises the relevant literature... a very costly phenomenon, which harms the health of the victim and the competitiveness of the firm, the paper concludes that HR managers should combat psychological harassment in organisations...

Introduction

Recent studies in many European countries suggest that the issues of violence and harassment in the workplace affect a substantial part of the workforce (Paoli & Merllié 2001, Di Martino, Hoel & Cooper 2003, Einarsen & Nielsen 2004). These studies also indicate that psychological violence and harassment, rather than physical violence, represents the greatest threat to most workers (Di Martino, et al. 2003). According to Paoli and Merllié (2001), around nine per cent of European workers had exposure to some psychological violence. When risk of intimidation and bullying was compared between EU countries, the highest risk was found for Finland (15 per cent), Netherlands (14 per cent) and the United Kingdom (14 per cent), whilst the lowest figures emerged for the Mediterranean countries (Italy, four per cent; Portugal, four per cent)...

Victim Characteristics

...an apparent question arises: “Is there a clear and standard profile of victim?” Some (Coyne, Seigne & Randall 2000) argue that individual antecedents, such as the personality of victims (for instance, neuroticism), may be involved as causes of bullying. Nevertheless, most researchers... distance themselves from the simplistic view that bullying is the result of pathologies, or psychopathic personality traits. Indeed, evidence with regard to personality traits as antecedents of bullying is still sparse. When individual antecedents have been the subject of study (e.g., Zapf & Einarsen 2003), victims with low self esteem, high anxiety levels, introverted, conscientious, neurotic and submissive characteristics have been identified. However, as Di Martino, et al. note (2003: 16), “The extent, to which these personality characteristics should actually be considered causes of bullying, or whether they should be considered a result of being bullied, is still an open question.” Leymann (1996b) argues that these characteristics need to be interpreted as a “normal response to an abnormal situation”... In fact, it is the interaction of individuals, the victim and perpetrator, and the work context that creates the situation of bullying at any time...

Perpetrator Characteristics

Is there a clear and standard profile of a perpetrator? While some authors argue that the personality of the perpetrator is a cause of bullying such as the ‘psychopathic personality’ (Field 1996, Hirigoyen 1998), others (Poilpot-Rocaboy 2000) reject this idea and argue the perpetrator is not always a sick person. But, a contrary viewpoint is that not everyone can be a perpetrator in work life, because education and moral values act to stop someone being a perpetrator at work, even in a context where bullying behaviour is allowed.

Zapf and Einarsen (2003) note bullying research has revealed that bullies seem to be male more often than female, and supervisors and managers more often than colleagues. They suggest three main types of bullying related to certain characteristics of perpetrators. The first type is the bullying due to protection of self esteem. Zapf and Einarsen (2003) contend that many theorists assume that protecting and enhancing self esteem, which can be understood as having a favourable global evaluation of oneself, is a basic human motive which influences and controls human behaviour in many social situations. Thus, high levels of self esteem are likely to exhibit more aggressive behaviour than low levels of self esteem. Moreover, Baumeister, Smart and Boden (1996) suggested that various negative emotions such as frustration, anger, anxiety and envy play a mediating role between self esteem and aggression. For instance, Ahmed and Braithwaite (2004) show that shame and pride are related to workplace bullying. Likewise, in other studies (Zapf & Einarsen 2003) on workplace bullying using the reports of victims, envy on the part of the bullies is considered one main reason for their bullying. According to Neuman and Baron (2003), the perception of unfair treatment, and the subsequent frustration and stress produced often serve as antecedents to workplace aggression and violence...

According to Zapf and Einarsen (2003), the second type of bullying is due to the lack of social competencies on the part of the perpetrator. Lack of emotional control, lack of self reflection and perspective taking are aspects related to bullying. For example, a supervisor may vent his anger by regularly yelling at one of the subordinates without being aware of the consequences of this behaviour. Finally, Zapf and Einarsen (2003) present bullying as a result of micro political behaviour. It has been suggested that some cases of bullying follow the logic of micro political behaviour in organisations. This type of bullying indicates harassment of another person in order to protect or improve one’s own position and interest in the organisation, and has been described as a phenomenon mainly occurring at the middle and higher hierarchical levels of an organisation.

Some managers profit by using bullying as a form of micro political behaviour, which may be one of the explanations as to why supervisors and managers are so often among the bullies. From a ‘social learning’ perspective, O’Leary-Kelly, Griffin and Glew (1996) submit that harassment is learned by observation, experience or imitation of several sources (family, school, military service, television, and firm). But as Brodsky (1976) concludes, if perpetrators may indeed have some common characteristics making them prone to bullying, they will not exhibit such behaviour unless they are in an organisational culture that rewards, or at least is permissive of such behaviours. The interaction of individuals and the work context is an essential component of the psychological harassment behaviour.

Organisation Characteristics

In France, Hirigoyen (1998, 2001) has shown that psychological harassment is more often present in certain specific industries and occupations, such as the administrative function, education and the health sector. Di Martino, et al. (2003) confirm this observation and note a recent review of European surveys of bullying identified several high risk occupations. Overall, there appears to be a higher risk of bullying within the public sector (public administration and defence, education and health) than within the private sector...

...A negative and stressful working environment has frequently been associated with bullying (Leymann 1996b). This relationship can be explained as various environmental work factors are considered to produce or elicit occupational stress, which again may increase the risk of conflict and bullying. The characteristics of the negative and stressful environment are, for example, work intensification, a high degree of pressure, unclear and unpredictable job situations, enforced team working, unclear roles and command structures, as well as various job related physical aspects (noise, heat and coldness)...

Moreover, bullying has been found to be prevalent in organisations where employees and managers feel that they have the support, or at least implicitly the blessing of senior managers, to carry on their abusive and bullying behaviourSuch views seem to be confirmed by the fact that over 90 per cent of respondents in a large survey of members of UNISON, the British public sector union, identified “bullies can get away with it” as a potential cause of bullying (Di Martino, et al. 2003). In some organisations, bullying may not be an integral part of the culture, but it is still indirectly ‘permitted’. If there is no policy against bullying, no monitoring policy and no punishment for those who engage in bullying, it could be interpreted that the organisation accepts the behaviour as normal and legitimate... “For harassment to occur, the harassment elements must exist within a culture that permits and rewards harassment.”

Two styles of leadership have been found to be associated with bullying: an authoritarian style and a laissez-faire style. Indeed, settling conflicts or dealing with disagreements through autocratic leadership has been linked to bullying (Vartia 1996). In contrast, people who had neither been bullied, nor had observed bullying taking place, reported that disagreements at their workplace tended to be solved by negotiation (Vartia 1996). Moreover, a laissez-faire style of leadership may also provide a fertile ground for bullying between peers or colleagues. A manager’s ignorance and failure to recognise and intervene in bullying cases may indirectly contribute to bullying by conveying the message that bullying is acceptable. Similarly, dissatisfaction with the amount and quality of guidance, instructions and given feedback has been shown to be associated with higher levels of bullying...

Organisational Response

Organisations respond to bullying in terms of passive behaviours. Inaction is a passive coping style. Organisational agents ignore the complaint of the victim. Seldom does the organisation appear to be concerned with the complaint. This can be explained by the fact that in accordance to the organisation, the behaviour is regarded acceptable, as ‘the norm’, or the complaint is not taken with interest (“it is not serious!”, “it is for fun!”), or the harassment situation is perceived as an interpersonal conflict (“it is their problem!”; “it is their private life!”). The inaction is also explained by the fact that managers do not often know how to act against this phenomenon ... [poor idiots]

Individual Effects

Many studies show that psychological harassment has extremely negative effects for individuals. Generally, there are three individual consequences. The first effect is a deterioration of the victim’s physical and mental health... Typically, research points to increased stress levels and reduced physical and psychological wellbeing, with the most frequently identified negative health related outcomes including: anxiety, depression, psychosomatic symptoms (hostility, hyper sensibility, loss of memory and feelings of victimisation), aggression, fear and mistrust, cognitive effects (such as, inability to concentrate, or think clearly, and reduced problem solving capacity), isolation, loneliness, deterioration of relationships, chronic fatigue and sleep problems. Workplace bullying not only affects the targets, but also their colleagues or other bystanders. According to different studies (Einarsen & Mikkelsen 2003), witnesses of bullying reported more mental stress reactions than workers who had not witnessed anyone being bullied in their department. Witnesses may also suffer due to a real, or perceived, inability to help the target.

In the most severe cases of bullying, victims have frequently been diagnosed with post-traumatic stress disorder, or PTSD... The PTSD diagnosis refers to a constellation of stress symptoms typically exhibited by victims of exceptionally traumatic events. The hallmark symptoms of PTSD are reexperiencing, avoidance numbing and arousal. First, the trauma is relived through repeated, insistent and painful memories of the event(s) or in recurring nightmares. Also, the victims may experience an intense psychological discomfort and/or react physically when exposed to reminders of the trauma. Second, victims with PTSD tend to avoid stimuli related to the traumatic situation(s) and exhibit a general numbing of responsiveness. For instance, they may have problems remembering the actual event(s) or may exhibit a reduced interest in activities they used to enjoy. Often they feel detached from others. A third symptom is hyper arousal. This may be manifested in, for example, sleeping problems, concentration difficulties, highly tense and irritable behaviour, as well as in exaggerated reactions to unexpected stimuli (Einarsen & Mikkelsen 2003). Some authors (Leymann 1996a, Hirigoyen 2001) have claimed work harassment to be a major cause of suicide. Psychological harassment may also have wider ramifications beyond those directly involved. Research has shown that witnessing violence may lead to fear of future violent incidents and as such has similar negative effects as being personally assaulted or attacked...

The second effect of psychological harassment is the economic consequence for the victim. A loss of income is often real. Harassment may generate coping strategies and health effects which can develop into sickness absence, a lessening of productivity, a reduction of performance, resignation from the organisation, and work incapacity because of a loss of self confidence. Hirigoyen (2001) notes that in 36 per cent of the cases, the victim leaves the firm. In 20 per cent of the reported cases, the person is laid off, in nine per cent of the cases, the departure is negotiated, in seven per cent of the cases, the person resigns and in one per cent of the cases, the person is put in anticipated retirement. In addition to this loss of incomes, the victim may have medical expenses, psychotherapeutic spending and fees of lawyers. According to Hirigoyen (2001), 30 per cent of the victims stopped working due to illness, disability, or are made redundant for medical inaptitude. In 66 per cent of the cases, the victim is actually excluded from the work world...

Poilpot-Rocaboy, G. (2006). Bullying in the Workplace: A Proposed Model for Understanding the Psychological Harassment Process, Research and Practice in Human Resource Management, 14(2), 1-17.

Available online at: http://rphrm.curtin.edu.au/2006/issue2/bullying.html

Recognizing Retaliation: The Risks and Costs of Whistleblowing

If you plan to challenge the agency or corporation [or university] that employs you, you should know the tactics of retaliation most often used against whistleblowers.

Spotlight the Whistleblowers
This common retaliatory strategy seeks to make the whistleblower, instead of his or her message, the issue: employers will try to create smokescreens by attacking the source's motives, credibility, professional competence, or virtually anything else that will work to cloud the issues s/he has raised.

Manufacture a Poor Record
Employers occasionally spend months or years building a record to brand a whistleblower as a chronic problem employee. To lay the groundwork for termination, employers may begin to compile memoranda about any incident, real or contrived, that conveys inadequate or problematic performance; whistleblowers who formerly received sterling performance evaluations may begin to receive poor ratings from supervisors.

Threaten Them into Silence
This tactic is commonly reflected in statements such as, "You'll never work again in this town/industry/agency. . ." Threats can also be indirect: employers may issue gag orders, for example, forbidding the whistleblower from speaking out under threat of termination.

Isolate or Humiliate Them
Another retaliation technique is to make an example of the whistleblower by separating him or her from colleagues. This may remove him or her from access to information necessary to effectively blow the whistle. Employers also may exercise the bureaucratic equivalent of placing a whistleblower in the public stocks: a top manager may be reassigned to tasks such as sweeping the floors or counting the rolls of toilet paper in the bathroom. Often this tactic is combined with measures to strip the whistleblower of his or her duties, sometimes to facilitate subsequent termination.

Set Them Up for Failure
Perhaps as common as the retaliatory tactic of isolating or humiliating whistleblowers by stripping them of their duties is its converse-overloading them with unmanageable work. This involves assigning a whistleblower responsibilities and then making it impossible to fulfill them. One approach is to withdraw the research privileges, data access, or subordinate staff necessary for a whistleblower to perform the job. Another is to put the whistleblower on a pedestal of cards-to appoint him or her to solve the problem s/he has exposed, and then refuse to provide the resources or authority to follow through.

Prosecute Them
The longstanding threat to attack whistleblowers for "stealing" the evidence used to expose misconduct is becoming more serious, particularly for private property that is evidence of illegality. Government workers even have been threatened with prosecution under a McCarthy-era statute for being "disloyal" to the United States, after they made disclosures to or participated in meetings with environmental groups involved in lawsuits challenging illegal government activity. Until adoption of an anti-gag statute, passed annually in appropriations legislation since 1987, workers with security clearances risked prosecution unless they obtained advance permission before blowing the whistle (even on information that was not marked as classified), effectively waiving their constitutional rights.

Eliminate Their Jobs or Paralyze Their Careers
A common tactic is to lay off whistleblowers even as the company or agency is hiring new staff. Employers may "reorganize" whistleblowers out of jobs or into marginal positions. Another retaliation technique is to deep-freeze the careers of those who manage to thwart termination and hold on to their jobs: employers may simply deny all requests for promotion or transfer. Sometimes it is not enough merely to fire or make whistleblowers rot in their jobs. The goal is to make sure they "will never work again" in their fields by blacklisting them: bad references for future job prospects are common.

From: Alaska Whistleblowers Resource Guide
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Whistleblowers’ concern about retaliation not without justification, Virginia Tech sociologist’s study shows

...Rothschild, Professor of sociology at Virginia Tech, did an eight-year study, conducting indepth interviews with 300 whistleblowers and more than 200 surveys of people who observed wrongdoing but chose to remain silent. She found that 69 percent were fired as a result of exposing wrongdoing, even when they only reported it to higher ups within their own employer’s organization. Of those who left their organization to report misconduct to outside authorities, more than 80 percent were fired.

Rothschild, who has published five academic articles on her studies, found in many cases that the moment senior management realized an individual might blow the whistle, “they began a race to discredit the would-be whistleblower before the whistleblower could discredit them.” In the battle for vindication, and for their jobs, whistleblowers seldom emerged unscathed. In 84 percent of her cases, former whistleblowers said they became depressed and could no longer trust the managers of organizations. In 53 percent of her cases, the whistleblowers suffered deterioration even in their family relations.

Indeed, Rothschild says, statistical analysis of the data found that the larger and more systemic the misconduct reported by the whistleblower, the more swift and severe were the reprisals. Neither gender, nor race, nor age, nor level of educational attainment, nor years on the job could insulate a whistleblower from retaliation.

Why do people take these personal risks? Rothschild found that 79 percent of her whistleblowers were stirred to action by their values. “Sometimes they said that they got their sense of right and wrong from the codes of professional ethics embedded in their various occupations; sometimes they attributed their moral compass to religious upbringing or family teaching; but in nearly all cases, they said they were trying to do ‘the right thing’,” Rothschild says. “Of the remaining ones, 16 percent said that their whistleblowing had been defensive: they were afraid that they would be blamed for the misconduct of others if they did not report it, and 5 percent said that they really weren’t sure why they had spoken up.”

Many organizational factors lay the groundwork for whistleblowing, Rothschild says. She found that the employee is most likely to blow the whistle when he or she observes the same misconduct many times and comes to view the employer as immoral and the senior managers as non-democratic and probably complicit in the wrongdoing...

So the kangaroo court refused you an appeal hearing...

An [abusive university] employer must normally follow the statutory dismissal procedure before dismissing an employee. Failure to do so results in a finding of automatic unfair dismissal. The statutory dismissal procedure involves three steps:

1. A statement by the employer outlining the grounds which lead the employer to contemplate dismissing the employee and inviting the employee to a meeting.

2. A meeting to discuss the grounds outlined by the employer in the step 1 statement.

3. An appeal if requested by the employee. Upon request, the employer must invite the employee to a meeting, which the employee must take all reasonable steps to attend. After the appeal meeting the employer must inform the employee of its final decision.

In Masterfoods v Wilson UKEAT/0202/06/ZT, the employer applied its contractual disciplinary procedure which required employees who wished to appeal a disciplinary decision to set out the grounds of their appeal in writing within five working days. The employee informed the employer that he wished to appeal but did not submit the grounds of appeal within the specified time limit. When the grounds were submitted, the employer refused to hear the appeal. The employee claimed unfair dismissal and the Employment Tribunal held that the dismissal was automatically unfair as step three of the statutory dismissal procedure (the appeal stage) had not been complied with.

The Employment Appeal Tribunal (EAT) agreed with the Tribunal. It noted that there is no requirement in the statutory procedures for an appeal to be made in writing, let alone for the grounds of appeal to be set out in writing. The only requirement is for the employee to inform the employer of their wish to appeal. By refusing to go through the appeal process, the employer had not followed the minimum statutory dismissal procedure and had denied the employee his right of appeal. The dismissal was therefore automatically unfair.

Dignity at Work - A Good Practice Guide for Higher Education Institutions on Dealing with Bullying and Harassment in the Workplace

...One of the primary purposes of the project was to promote dignity at work for all staff within higher education. The project aimed to provide practical guidance on the steps that can be taken to encourage successful working relationships between staff and to work towards the elimination of bullying and harassment in the workplace.

This guidance pack has been produced to assist Higher Education Institutions (HEIs) in the development of their own policies, practices and support mechanisms to promote dignity at work, using examples of good practice from other universities and colleges…

Key Features of a Model Policy on Bullying and Harassment:

• Commitment from Senior Management;
• Acceptance that bullying is an organisational issue;
• A statement that bullying is unacceptable and will not be tolerated;
• Clear definitions of unacceptable behaviour;
• Legal implications for organisations and individuals;
• A statement that bullying may be treated as a disciplinary offence, and it should be listed as a misconduct and gross misconduct in the disciplinary procedure;
• Steps to assess and prevent bullying;
• Mechanism for third party complaints;
• Mechanism for initiation of the policy without a complainant;
• Duties of Heads of Department/Faculty/Services and supervisors;
• Confidentiality for complainants when they report bullying;
• Procedures to protect complainants from victimisation;
• Clear complaints procedures, separate from the normal grievance procedure;
• Availability of ‘confidential advisers’ and where to contact them;
• Informal complaints procedure;
• Formal complaints procedure;
• Procedure for investigating complaints;
• Information and training about bullying/harassment and the policy;
• Repair mechanisms/options outlined;
• Access to support and counselling;
• Review, monitoring and evaluation.

Other important considerations:

• Is it jointly agreed by the employer and recognised trade unions?
• Does it cover everyone?
• Is it effectively implemented?
• How will you measure progress?

Confidential advisers

It is recognised that individuals suffering from harassment or bullying may feel too embarrassed to make a complaint, may worry that they will not be taken seriously or fear that they might be blamed for provoking the incident or incidents. Experiencing harassment or bullying as well as making a complaint can cause much distress. It can also be extremely distressing to be accused of harassment or bullying. For this purpose [ ] wishes to appoint confidential advisers to assist the individual employee and provide confidential support in cases of harassment - whether the employee is making a complaint, being accused of harassment or a witness to it.

Investigators

In order to investigate complaints of harassment effectively, [ ] will appoint a number of employees who will receive specialist training as investigators. The training will be designed to ensure that they are provided with the range of skills necessary to conduct, document and complete investigations in a fair and thorough manner.

The role of the investigators is to:

• ensure that investigations are carried out promptly and that time scales for resolution are adhered to;
• ensure that all parties are communicated with and kept informed of progress as appropriate;
• protect the rights of both the complainant and complained-of and ensure that they are able to exercise their right to trade union representation throughout the process;
• clearly define the rights and responsibilities of witnesses;
• ensure that complainant and witnesses are provided with a fair opportunity to give their full version of events;
• ensure that details of the complaint are clearly outlined and that the complained-of gets a fair opportunity to answer the charges and identify witnesses;
• ensure that the commitment to confidentiality and non-disclosure of information ruling is evident during the investigation and after its completion;
• use judgement to ensure that all relevant facts and information are sought;
• be responsible for collecting all available evidence in a thorough manner;
• ensure that accurate note-taking and record keeping is carried out;
• draw as complete a picture of events as possible;
• objectively reach an informed conclusion as to whether the complaint is substantiated or not;
• provide the Designated Officer with a detailed report and appropriate recommendations…

Some of the staff who are likely to benefit from training include the following:

• Line managers, who need to understand the legal obligations of the institution as well as their potential personal liability), as well as understanding how to implement the Dignity at Work Policy and procedures;
• Senior managers and members of the Governing Body, who also need to appreciate the impact of their decision making and behaviour on the culture of the organisation;
• Professional HR staff, who need to understand how to effectively implement the Dignity at Work Policy, and how it interacts with the institution’s existing disciplinary and grievance procedures;
• Trade union representatives, who will be the first point of contact for a significant number of staff in relation to dignity at work issues;
• Harassment Advisers, who need to be fully trained to effectively support complainants and alleged harassers;
• Members of the investigation panel, who will consider any cases;
• Specific groups of staff who may have a particular need to understand how your policies and procedures work, such as front line staff (security, accommodation office, etc.)…

Monitoring and Evaluation

It is essential to give some consideration to how you intend to monitor and evaluate any dignity at work initiatives you wish to introduce. It is important to involve the staff unions (for both academic and support staff) in the development of the survey, and to work with them in the analysis and action planning that will/may arise from the findings. You will not be able to demonstrate whether or not the steps you have taken to tackle bullying and harassment have been successful if you have no evidence to support this view.

Monitoring is important to provide basic data on the numbers of users of the service, broken down into various categories (e.g. harassment of lesbians and gay men, sexual and/or racial harassment, etc). This will enable you to identify any particular patterns of complaints, and thus alert you to areas on which you need to concentrate additional attention and/or resources. It will also enable you to identify what resolutions were achieved in each case and those where complainants decided not to proceed with formal complaints...

Bullying vs Firm Management

Many managers are concerned about the possibility of being accused of bullying when they are required to discipline staff or deal with poor performance. This is not only unhelpful for the manager concerned, it may lead to a situation whereby staff are allowed to behave in ways which is detrimental not only to the organisation but for other individuals working within the manager’s area of responsibility. Bullying is frequently prevalent where the management style is autocratic and overbearing but may equally be a feature of departments where the management style is weak and laissez-faire.

The key principles for managers are to treat staff fairly, communicate effectively and use appropriate measures to deal with those who are struggling to deliver to target. If you adopt the following principles, you are very unlikely to be accused of bullying. If you are unfortunate enough to be in this position, you can be confident that you can defend your actions and your approach if you have acted appropriately and fairly at all times.

• Remember that managing other people’s performance is a legitimate part of your job, and there will be times when you are required to take unpopular decisions. You should however appreciate that being told you are not performing well is stressful for the member of staff and do this as tactfully and sympathetically as possible.

• Address any issues in the appropriate way. You should not lose your temper or gossip about your staff’s shortcomings behind their back, but discuss each specific problem in turn, before agreeing a course of action.

• Be a good listener. Make sure that your staff understand and agree with what you discuss – it needs to be a two-way conversation, not a monologue. If staff have personal issues that are affecting their work, take an interest and make a genuine effort to help them cope. Recent research suggests a link with work-related stress for staff that feel they are without a voice, or their views are not heard.

• Praise your staff as often as you can – it is very easy for managers to fall into a pattern of relating to staff in a generally negative way. If this happens, staff will regard an invitation to your office as a cause for concern, when it can just as easily be an opportunity for a positive interaction. Motivating staff is a key feature to promoting a healthy and productive culture in the workplace and thus is a primary management responsibility. People respond to positive attention much more readily than to criticism, so when you do have an unfavourable comment to make, try to use the “positive sandwich” approach whereby you start and end with something good and put the criticisms in the middle.

• Keep communication channels open. Ask yourself if your manner is as approachable as it could be and if not, what you can do to improve it. It should go without saying that if you have a sensitive issue to address that you should take the member of staff aside and do it in private.

• Be fair and avoid favouritism. Do not allow yourself or other staff to take credit for someone else’s work.

• Make sure all members of the team are included when you organise events. This should include social activities.

• Try hard not to be moody or temperamental. One of the most difficult types of behaviour to deal with for staff is that of a manager who has extreme mood swings. If you are feeling fragile, upset or simply having a bad day, don’t be afraid to let people know. A self deprecating comment is much more likely to win you sympathy and understanding than losing your temper over a trivial matter for no apparent reason.

• Finally – don’t forget that everyone makes mistakes and you are no exception. No-one is perfect, so if you do get it wrong, don’t be afraid to say so. An acknowledgement and an apology are often all that are needed if you have approached an issue in the wrong way or at the wrong time or place. If you are prepared to acknowledge your mistakes, it will make it easier for your staff to do so too. This will help to establish a culture that avoids blame when things go wrong, and in which everyone pulls together with a focus on putting things right rather than finding scapegoats…

Conducting Investigations

The way in which any investigation is conducted will be a key element in the success of your dignity at work strategy – there is no point in introducing a comprehensive policy, training a network of harassment advisers and communicating widely and successfully if you do not have good, fair and transparent procedures for conducting investigations into complaints. Such investigations are very sensitive and there should be procedures separate from your normal disciplinary and grievance procedures to investigate such complaints, using people who have had specific training in investigating bullying and harassment complaints.

You should bear in mind that many complainants and witnesses will be fearful not simply about the outcome but about any repercussions of making the complaint in the first place and they should be reassured that the institution will protect them and make every effort to deal effectively with the aftermath and minimise trauma after the investigation has taken place and the outcome is known. Therefore you should consider:

• Providing compulsory training for investigators and panel members;

• Ensuring that the investigation is conducted by two people, to gain the maximum benefit from the interviews. If you have investigators who are relatively new, try to team them with someone who has a lot of experience.

• Dealing with complaints in a sensitive, objective manner, respecting the rights of all parties involved;

• Keeping all the participants, including the witnesses, well briefed about the process and ensure that everyone involved is aware of how the findings will be communicated. Ensure that both the accused and the complainant are aware of what information they will receive at the conclusion of the investigation.

• Maintaining confidentiality – this is particularly important in a small institution, where the parties are likely to be well known to many other employees;

• Ensuring that complainants and witnesses are fully protected from victimisation. It is not sufficient to state in your policy that those concerned will be protected – you must have robust systems in place to ensure that this actually happens in the event of an allegation of bullying or harassment.

• Using open questions to elicit the facts of the case and ensure that all questions are as neutral as possible. In particular, try to avoid questions that appear to allocate blame, which will make the respondent overly defensive and will obscure the facts.

• Concluding the proceedings within a reasonable timescale;

• Making every effort to ensure, if possible, that the investigatory team and the panel are balanced in terms of race, gender, etc (this is particularly important in cases where sexual/racial harassment are at issue). Members of the Investigatory team and panels should also include staff from all levels of the institution and represent both support and academic staff.
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This guide was published January 2007, by the Equality Challenge Unit (ECU) and was produced with the collaboration of UCU and UNISON - it is long overdue.

The full copy is available online as a PDF file. Make sure you forward a copy to your HR department, and make sure you remind your investigators about it. Any internal grievance hearing or investigation that is not not following this guide, is likely to be unfair and unjust.

The guide is certainly a good start. What it needs, is 'teeth', i.e. what are the repercussions if a university is not following this good practice guide? In this respect it is incomplete. It is no more satisfactory - if it ever was - that an employee/academic has no other option but to take his/her case to an Employment Tribunal or refuse to commit 'professional suicide'. There has to be independent and impartial monitoring of universities for the can't always be trusted to implement the guide. Good words and nice rhetoric in a booklet are not enough.

Ministers vilify researchers

Politicians are accused of discrediting academics and distorting results, report Phil Baty and Jessica Shepherd - Times Higher Education, 1 December 2006

The Government stands accused of undermining academe's "vital independence" after academic critics revealed how far politicians have gone to discredit them.

Academics who have hit the headlines for research that challenges government policies have told The Times Higher how they have been subjected to concerted campaigns of "vilification", have had their work publicly rubbished and have been subjected to repeated personal criticisms.

Some said that they had suffered psychological problems and long-term damage to their career after speaking out, with their research funding drying up.

The anecdotal evidence emerged weeks after the Commons Science and Technology Select Committee raised "extreme concerns" about allegations that the Government manipulated research findings to favour its agenda. The committee concluded last month that the Government should stop claiming its policies were "evidence-based".

Sally Hunt, University and College Union joint general secretary, said: "It is completely unacceptable for academic work to be rubbished because it does not fit with the Government's own agenda."

Boris Johnson, Shadow Minister for Higher Education, said: "In a free society, universities are the vital independent repositories of research, discussion and debate. There is nothing more damaging for political freedom than to close down that debate in universities."

He said that in addition to the often devastating effects of being on the receiving end of the Government's public relations machine, academics were controlled in subtle ways through funding and regulation. "The most worrying thing is that academics should be inhibited for saying things they think may be displeasing to their ultimate political masters. But they should not have ultimate political masters."

The revelations follow a survey reported in The Times Higher in October that found that 80 per cent of academics thought that scholars could no longer "speak truth to power".

Eight academics this week detailed how their work was attacked because it raised questions about the success of government policies. Many more critics declined to comment, reflecting concern over raising heads above the parapet.

The testimonies include that of Edgar Whitley of the London School of Economics. He describes how his colleague Simon Davies, who worked with him on research that criticised the Government's plans for ID cards, was put on "suicide watch".

Peter Tymms of Durham University, who was savaged over his findings on school homework, said that "putting your head above the parapet risks losing jobs".

Michael Rutter, a professor at the Institute of Psychiatry who criticised the Government after advising it over its Sure Start programme for families in disadvantaged areas, said: "The Government definitely doesn't want evidence, although the rhetoric is entirely different."

The Prime Minister's office declined to comment.
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We are not very surprised that the Prime Minister's office declined to comment, are you? So what do we have here... Bullying from academic managers, bullying from the government, and union tolerance and rhetoric...

Make workplace bullying in academia an important issue in the forthcoming union elections

Make workplace bullying in academia a major issue in the forthcoming union elections. Contact the candidates for the position of General Secretary with your opinion on workplace bullying in academia. It is up to us!

Please, please visit Roger Kline's blog (the National Head of Equality and Employment Rights for UCU), and post your opinion and comments about workplace bullying in academia.

Roger Kline is standing for General Secretary of the new University and College Union (UCU), and it is our opportunity to make certain that workplace bullying in academia becomes an important issue in the forthcoming union elections.

You can find Roger Kline's blog at:
http://roger4gs.blogspot.com/2006/12/putting-members-first.html
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The other candidate for the position of General Secretary is Sally Hunt.

Please, please visit Sally Hunt's blog (currently joint general secretary of UCU), and post your opinion and comments about workplace bullying in academia.

You can find Sally Hunt's blog at:
http://sallyhuntucu.blogspot.com/index.html