Unfair and Wrongful Dismissal - UK

Unfair Dismissal - The Current Position in a Nutshell

Recent statistics reveal that of the 86,000 cases brought before tribunals, 46% involved claims for unfair dismissal, making it the single biggest cause of action.

At common law, an employer can dismiss an employee whenever he chooses, whether he has good reason or not. The only criteria are that he gives the employee full notice and complies with the conditions of the contract. If these measures are followed, the employee has no remedy even where the contract is breached.

Employees will be relieved to learn that the law has progressed from the position above and currently incorporates the concept of "fairness" into the determination of contracts of employment. The burden is now on the employer to demonstrate:

1. He had good reason to dismiss.
2. He acted fairly in dismissing.
3. The general way in which he handled the dismissal was not unfair to the employee.

Is There A Potential Claim For Unfair Dismissal?

There are three basic criteria that need to be satisfied for a claim of unfair dismissal:

1. The employee must be an "eligible employee"

   The first port of call is whether a potential claimant is in fact eligible to claim relief under the Act. Section 94 of the Employment Rights Act 1996, states that every "eligible employee" has the right not to be unfairly dismissed by his employer.

   Who is an "eligible employee"?
   An eligible employee will, as a general rule be an employee that has completed one year's continuous employment in order to qualify to bring an unfair dismissal claim.

   It is worth noting however, that the answer above is over-simplistic; the question of "eligibility" is a potentially complex one.

   It is important to understand that there are a number of exceptions to the one-year qualifying period that need to be considered. These exceptions do not require the employee to have completed one year's employment in order to bring a claim for unfair dismissal. To illustrate this point, a non-exhaustive list follows:

   1. Dismissals related to trade union membership.
   2. Dismissals related to pregnancy, childbirth or maternity.
   3. Dismissals related to health and safety reasons.
   4. Dismissals related to part-time status.
   5. Dismissals related to enforcing the right to be paid minimum wage.
      

   On the other side of the coin, there are also are categories of employees who will not be able to bring a claim even after one year of employment as listed (non-exhaustive) below:

   1. Employees above normal retirement age.
   2. Member of the armed forces.
   3. Civil servants if national security is involved.
   4. Expiry of a fixed term contract. [Note: a person who has had a series of fixed term contracts of one year or over on aggregate may in some circumstances qualify as an "eligible employee" and therefore be able to bring forth a claim for unfair dismissal.]
   5. Illegal contracts.
   6. Striking workers. [Note: an employee taking part in official industrial action can only complain of unfair dismissal if there has been selective dismissal of employees taking part in that action. If the employer dismisses all the employees taking part in the action, they cannot claim unfair dismissal.]
      
      
2. The employee must have been dismissed

   The second criterion is that the employee must have been dismissed and his employment terminated. If the issue is in dispute, the onus of proof is on the employee to show that he has indeed been dismissed. This would be particularly relevant in the event of a constructive dismissal.

   What is constructive dismissal?
   Constructive dismissal occurs when an employer commits a "repudiatory" or serious breach of an express or implied term of the contract of employment. Contract is a sacred aspect of the English legal system and therefore the breach referred to above must be sufficiently serious to warrant the ending of a contract.

   It is important to realise that unreasonable behaviour by an employer will not of itself be conduct that is sufficiently serious to end the contract. However, if the unreasonable behaviour is sufficiently serious it may amount to a breach of the mutual trust and confidence between the parties which is an implied term in almost any contract.

   Examples of such a situation would be the failure of an employer to pay wages, or to unreasonably change the location of work so as to make the conditions of employment untenable for the employee.

   After the serious breach by the employer, the employee is then entitled to accept the employer's breach and resign from his position. The contract is therefore discharged. It is important that the employee resigns in response to the breach of contract and should make this clear when resigning. If the employee does not make this clear in some circumstances, it may be evidence that he resigned for reasons that may not entitle him to treat himself as constructively dismissed.

   It is vital that the employee accepts the breach within a reasonable time of the repudiation. If he does not, he may be taken to have affirmed the contract and thus lose his right to an unfair dismissal claim.

3. The dismissal must have taken place unfairly

   The onus is on the employer to show that the dismissal is for one of the five permitted reasons below as defined by the ERA 1996, s. 98.

   It is for the employer to establish the only or principal reason for the dismissal, and it must fall within the following:

   1. Relating to the capability or qualifications of the employee.
   2. Relating to the conduct of the employee.
   3. That the employee was redundant.
   4. That the employee could not continue to work in the position held without contravening some statutory provision; or
   5. There was some other substantial reason justifying dismissal of the employee.

The Concept Of "Fairness" Explained

It is also important to note that it is not only dismissal for an unfair reason, which gives an employee the right to claim unfair dismissal.

The conduct and manner in which an employer dismisses an employee is of paramount importance. This is because a dismissal can and will amount to an unfair dismissal in the eyes of a Tribunal if the manner in which the dismissal was handled is unfair. For example, if an employee is not consulted and/or given a fair chance to improve the dismissal may be found to be unfair.

The current law requires an employer to carefully consider the options before him prior to terminating a contract of employment. It is important to note that there are situations in which an employer is entitled to summarily dismiss, i.e. dismiss an employee without any notice. This would be in cases where the employee is guilty of gross misconduct such as stealing or selling confidential company information. In these situations, the employer can simply "fire" an employee without any notice.

What happens once an employee is found to have been unfairly dismissed?

The remedies available are:

1. Reinstatement
   A solution provided by the Tribunal where the employee has his previous position returned to him.
   
   
2. Re-engagement
   This occurs when the employee starts a different job with the same employer, his successor or an associated employer. In practice however, the remedies described at 1. and 2. above are rarely ordered by Tribunals.
   
   
3. Compensation
   Compensation is the most common remedy awarded by Tribunals, and is considered in two parts: the basic award and the compensatory award.

The Basic Award

The basic award has a theoretical maximum of £8,700, but is calculated according to a rigid formula that only rarely reaches the maximum amount by applying a formula based on length of continuous service (years), the appropriate age factor and one week's pay.

A maximum of 20 years employment can be taken into account when calculating the basic award. A week's pay may not be higher than £290, but cannot be lower that the national minimum wage.

The age factor applies to the calculation as follows:

• For each complete year of employment working backwards from dismissal that the employee was aged 41 and over he receives one and a half week's pay.
  
  
• For each complete year of employment working backwards from dismissal that the employee was aged between 22 and 41 he receives one week's pay.
  
  
• For each complete year of employment working backwards from dismissal that the employee was aged below 21 he receives a half week's pay

The basic award will be reduced if:

• The tribunal considers that the employee's conduct before dismissal justifies a reduction.
  
  
• The employee was within a year of age 65 at the effective date of termination.
  
  
• The employee has unreasonably refused an offer of reinstatement from the employer, or has unreasonably prevented the employer from complying with an order for reinstatement; or
  
  
• The employee has already been awarded or has received a redundancy payment; or
  
  
• The employee has been awarded any amount in respect of the dismissal under a designated dismissal procedures agreement.

The basic award can be expressed mathematically as:

Basic award = [years of continuous employment] x [age factor] x [weekly pay]

The Compensatory Award

This award compensates the employee for the loss suffered as a result of the dismissal insofar as the employer is responsible for this loss. As well as covering the loss of earnings between the dismissal and the hearing and an estimate of future loss, the tribunal will also consider matters such as loss of pension, other rights and any reasonable expenses incurred by the employee as a result of the dismissal.

The compensation awarded may be reduced by the tribunal if, for example, it is found that the employee was partly to blame for the dismissal, or that the employee has not tried to find another job in the meantime.

The compensatory award is difficult to predict and is intended to compensate the employee for financial loss and often involves the inexact science of calculation of future earnings. It is currently subject to a maximum award of £58,400.

Time Limit for Bringing a Claim for Unfair Dismissal

An unfair dismissal claim must generally be presented to an employment tribunal before the end of three months from the date employment ended (otherwise referred to as the 'effective date of termination' or 'EDT').

There are means by which this time limit can be extended, most commonly by following a grievance procedure. This is a complicated part of the law surrounding unfair dismissal and it is therefore always best to act on the advice of a trained employment lawyer.

Wrongful Dismissal

Wrongful dismissal is a common law concept. It is simply another name for a dismissal in breach of contract. The most common example of this is the failure to give employees the contractual notice they are entitled to when the circumstances do not justify instant dismissal.

Wrongful dismissal is most relevant in cases where employees are entitled to a long notice period or to a particularly valuable remuneration package. Wrongful dismissal is therefore particularly relevant if the employee is in a senior position, due to the large amount of compensation that can be recovered from the employer for the breach of contract.

Wrongful dismissal can also occur when the employee is constructively dismissed (see note on unfair dismissal for explanation of constructive dismissal).

However, an employee can be dismissed summarily in situations where the employer is entitled to treat the contract as discharged, and dismiss the employee without notice. This will generally occur in serious circumstances such as where an employee is found to be stealing money, selling trade secrets or behaving in a manner equivalent to gross misconduct so that the reasonable response on the part of the employer is to dismiss that employee instantly.

Compensation

There is no statutory limit to the amount of damages a Court can award for wrongful dismissal, though Tribunals are limited to a maximum award of £25,000.

Time Limits for Wrongful Dismissal

High Court - An action must be brought within six years, and there is no upper limit on the level of damages, which may be awarded.

Tribunals - The action must be brought within three months of termination. This limit however, can be extended at the discretion of the Tribunal and through the use of the appropriate grievance procedure.

General Advice

Unfair dismissal and wrongful dismissal are totally separate concepts. Thus, a dismissal may be either unfair or wrongful, both unfair and wrongful, or neither.

The Obligation to "Mitigate" the Loss

The employee is under a duty to mitigate the loss of his employment and the consequences that follow. Once employment is terminated, the employee must take steps to obtain suitable alternative employment. This includes accepting reasonable offers of re-employment.

Unfair and wrongful dismissal: Where does one bring the claim?

Currently, the ordinary courts have no jurisdiction to hear unfair dismissal cases. However, since 1994, Tribunals have had jurisdiction to hear both wrongful dismissal claims as well as unfair dismissal claims.

It is important to realise the significance of Tribunals having a limit of £25,000 on the amount of compensation that can be awarded for wrongful dismissal. The result of this is that the most sensible route for a claimant may be to pursue an unfair dismissal claim before an Employment Tribunal, and a breach of contract (wrongful dismissal) claim before a County Court or the High Court.

Costs

As a general rule, no costs are awarded in employment tribunals. This means that bringing a claim in an employment tribunal is relatively risk free as far as legal costs vis a vis Tribunals are concerned.

Unlike most cases held in Courts, costs are not generally awarded in employment tribunals. It is prudent to note however, that tribunals do have the power to award costs if they deem it necessary in the circumstances.

Looking for a woman who has suffered stress at work...

Jenny Johnston is a freelance writer doing a piece for Glamour magazine on workplace stress. She writes:

I'm trying to find women aged 18-40 who have suffered some level of stress at work, either because of bullying, pressure of work etc, and who have behaved in a way they would consider out of character because of it.

It could be something like drinking or taking drugs while on duty, or assaulting a colleague. We have one young woman who lied to her employers about a partner having cancer, because she was too afraid to ask for time off in the normal way. It doesn't need to be bad or criminal behaviour - just something that illustrates how bad things got.

You do not need to be named or photographed but this is available if you are OK to be identified. Please contact Jenny by Tuesday lunchtime [tight she knows] with your phone number and she'll get back to you.

Contact:

Jenny Johnston

jennyjohnston@hotmail.com

Academic Leadership - The Bullying Boss

Leadership has mistakenly been assumed to be a quality processed by all individuals who have positions of authority. Implied is the ability to “draw others into the active pursuit of the strategic goals” (Cunningham and Cordeiro, 2006, p. 155) of the organization. This ability energizes faculty to take the organization to greater heights of achievement. But, as Elash (2004) clearly pointed out, “the corporate scandals at the turn of the millennium clearly demonstrate that leaders can be self-serving and greedy .... Even if they are well intentioned, leaders can abuse their power. ... Some are just bullies who mistreat others simply because they are in a position to do so” (p.2).

The shifting environment in which the academy must respond as individual academics and as an organizational unit requires a complex set of skills. Utmost, the leader requires highly refined interpersonal skills. To help ensure that qualified candidates are placed into leadership roles, many school level organizations are putting into place administrative licensure requirements. They exist to ensure, at the minimum, knowledge and skills essential for competent practice. The key is “competent practice”. Consequently, some administrative courses are normally required to establish a base of knowledge and skills associated with the demands of leadership. In doing so, administrators are held to a standard similar to their faculty. The hope is such safe guards will minimize the likelihood that a bully boss will be evident and certainly not tolerated. Unfortunately, academia is not known for putting in place similar safe guards. Their unions are hesitant, reluctant, and fear the backlash of the administration. As one union lawyer stated, prime concern is to maintain positive working relationships with the administration.

If this preparatory requirement is left uncheck, fertile ground for the bully boss to enter has been nurtured. With the entrance of the bully boss one has an unprepared administrator with a dangerous power and authority working platform. It is the platform that inspires the bully boss. All actions are justified in giving substance to the purpose and direction of the organization. Their claim is I am just tough and demanding and look how much more profitable the organization is. The bottom line becomes the justification. But, the bottom line has a number of interpretations. In the world of academia, the bottom line is the advancement of knowledge through highly skilled professionals. This is where the insecurities and incompetence of the boss are open for public display. It is an arena the bully boss will do anything to hide from. So, to distract the focus one needs targets. And so, the green flag has been waived.

The green flags permit

Examples of bullying that is allowed to flourish with little, if any, check are:

- Erosion of protected union rights

The faculty members’ rights are casually violated. When the member objects, the objection is viewed as unreasonable and interfering with the work of the Faculty. Lengthy meetings, involving union representation, finally sort the matter out as per collective agreement. But, in the process the member is presented as a trouble maker as opposed to the administration acting unreasonably. For example, collective agreement clearly states a faculty member’s teaching workload is not to be over all terms unless mutually agreed. Administration arbitrarily violates the agreement and refuses to discuss the situation with the faculty member. Member is forced to grieve administrative action as only available alternative. Result is numerous meetings with each agreement reached subsequently violated by the Administration. Each violation forces the member to file a grievance. As the grievances increase in number member is increasing viewed as a very difficult faculty member to deal with. The member is portrayed as unwilling to cooperate with the administration.

- Extreme usage of the collective agreement

The administration invokes or threatens to invoke disciplinary measures without establishment of the facts. The process imposes emotional and professional stress on the faculty member. Again, the faculty member is presented as a problem that must be dealt with as opposed to the administration acting unreasonably. For example, the administration receives a letter from a student expressing dissatisfaction about the structure of a course taken and successfully completed several months prior. Without first approaching the faculty member about the concerns in the letter and thereby establish a more complete understanding of the situation, the Administration writes a letter to the faculty member informing the member they are being charged under the disciplinary section of the collective agreement. The full process of the section is active and the professional status of the member is placed in jeopardy without the member having prior knowledge of why. Investigation as per disciplinary section reveals there is no justification to the Administration’s action and matter is withdrawn. But, Administration maintains documentation on member’s file.

- Erosion of professional conduct

In private meetings with the faculty member, the administration becomes abusive and attempts to psychologically demean the faculty member. When confronted with exhibited behavior, the administration denies any inappropriateness in conduct. For example, in all public encounters the Administration portrays an individual who is very friendly and engaging. However, in private the Administration adopts behavior that reveals someone on an extreme power trip. Members are dealt with as if they are anything other than a professional and are reminded who is the Administration and they are expected to toe the line. Verbal and physical abuse is not abnormal. Non-tenured faculty members are quickly brought into line. The Administrator remains them their job security is dependent on a positive Administration recommendation. Tenured faculty members who are more likely to not tolerate such conduct are pursued relentlessly.

- Disruption of individual careers

The bully boss cannot afford to be seen as anything other than a winner. Therefore, all targeted faculty members must be moved out and preferably with identifiable public lashes so that all others will toll the bully line. For example, the Administration makes very public the discipline of two professors. The process adopted unnecessarily involves others. The desire result for the bully boss is an assurance other faculty member would think twice prior to taking on the administration.

- Disruption of collegiality among individuals

The persistent and unchecked administrative behavior towards the faculty members signals others to find fault in the faculty member as a way of self preservation. If they can keep the victims as victims then there is less likelihood they will become victims. For example, out of frustration and a sense of hopelessness, faculty members decide to take public concerns about the actions of the administration. Administration is upset about the public exposure and makes it known. Furthermore, former administrative individuals and active administrative personnel are used to put in place a strategy to oust the faculty members who dared to go public. The strategy worked in dividing faculty members so the administration now has a clear newly generated list of potential victims.

The green flag is clearly essential to the bully boss. As Ms Horm (cited in MacDonald, 2004) state, “Studies indicate that bullies are actually inept people who are not talented, maybe have a rage against themselves that they express outward toward people they see as being better than they are. It’s from a point of weakness that they express their violence toward others” (p.2). Thus, without the flag there is little room for the bully boss and it is she or him that must prepare to leave the organization as opposed to the victim of the bullying.

This preventive step to bullying has been taken by at least two universities in the United Kingdom. City University London deals with bullying within its harassment and dignity at work policy. Specifically, the policy defines bullying as “a serious form of harassment. It may involve actions, comments, physical contact or behaviour that is found to be objectionable. Personal vindictiveness against an individual(s) is also a factor. Bullying can be defined as persistent actions, criticisms or personal abuse either in public or private, which humiliates, intimidates, undermines or demeans the individual(s) involved.

“Bullying is to be distinguished from vigorous academic debate or the actions of a manager making reasonable (but perhaps unpopular) requests of his/her staff including the need to manage performance effectively” (www.city.ac.uk/hr/policies/harass_policy.html).

The University of Cambridge also deals with bullying within its university harassment policy. Specifically, the policy defines bullying as follows:

“Bullying is a form of psychological harassment; it is intimidation which serves to undermine the self-esteem, confidence, competence, effectiveness and integrity of the bully’s target.

“Bullying behaviour may include continual, undeserved criticism, belittling remarks, imposition of unreasonable deadlines, unreasonable demands for perfection, arbitrary and inconsistent demands, shouting, swearing and offensive language, constant interruption in discussion, and the display of overbearing or intrusive behaviour. Bullying behaviour may also be manifested by electronic means of communication such as email.

“Bullying is behaviour which may take place between those of different status or those of the same status. Bullying when reinforced by power within a relationship is particularly reprehensible. [emphasis added]

“Behaviour which makes the recipient feel threatened, humiliated or patronised and which undermines his or her self-confidence or self-esteem is unacceptable, whatever the context.

“The defining features of bullying are that the behaviour is unacceptable to the recipient, is unwanted by the recipient, and would be regarded as bullying by reasonable people” (www.admin.cam.ac.uk/offices/personnel/policy).

The effects of bullying on the individual and the organization have clearly been recognized by these two universities. What is important to acknowledge is in each policy management is not presumed to be innocent of actions. In fact, the University of Cambridge makes the statement that “bullying when reinforced by power within a relationship is particularly reprehensible”. The North American normal reality of failure to have policy on the issue of bullying protects the bully boss not the victim. This win is not a win for the organization. Academia relies on skilled professionals. A bully boss will serve to motivate the practice of these skills downward; even for the non-targeted victim. For, the non-targeted could easily become the target.

Concluding comments

“Bullying is a sign of emotional immaturity in a leader” (Elash, 2004). At a time when academia needs to serve the knowledge economy in an innovative manner, the inaction, unwillingness to act, and fear to act against bullying from the boss within the organization is a sad commentary on the academy. The prevalence of bullying within academia is of concern. As noted by Czernis (2005), “respondents to The Times Higher survey had worked at their jobs an average of seven years and reported bullying as lasting typically from two to five years, suggesting academic staff who completed the survey spent a large proportion of their working lives being bullied” (p. A8). This is a tragedy. The human loss in potential and the organizational loss in possibilities are and should be intolerable. As Bennis (1989) observes, “ Leadership can be felt throughout an organization. It gives pace and energy to the work and empowers the work force. Empowerment is the collective effect of leadership. In organizations with effective leaders, empowerment is most evident in four themes: [people feel significant, learning and competence matter, people are part of a community, and work is exciting]” (pp. 22-23).

The tolerance of administrative bullying is costly to every aspect of an organization. The cost for the academy and society is exponential. The reason is the pivotal role in the development and advancement of knowledge projected onto the academy. This role is hindered when its implementation is under the guidance of administrative bullying

References

Bennis, Warren. (1989). Why leaders can’t lead: The unconscious conspiracy continues. San Francisco: Jossey-Bass.

City University London. (2005). Harassment and Dignity at Work Policy. (www.city.ac.uk/hr/policies/harass_policy.html).

Cunningham, William G., & Paula A. Cordeiro. (2006). Educational Leadership: A Problem-Based Approach. Toronto: Pearson.

Czernis, Loretta. (2005, November). Facing off against workplace bullies. CAUT Bulletin, pp A3, A8.

Elash, Daniel. (2004). When the Boss is a Bully. (www.refresher.com/!ddebully.html)

MacDonald, Jay. (2004). Beating a bullying boss. (www.bankrate.com/brm/news/advice/bully-boss1.asp)

University of Cambridge (2005). Dealing with Bullying and Harassment: Advice and Instructions for Staff. (www.admin.cam.ac.uk/offices/personnel/policy).
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By Anne L Jefferson Ph.D., Academic Leadership - The Online Journal. Volume 4 - Issue 4, Feb 12, 2007

New Research on Bullying & Harassment at Work - Toolkit Published: The Barriers to Returning to Work Post-Bullying

The Government is being called on to do more to help victims of bullying and harassment at work. Just Fight On! have published a Return to Work Toolkit looking at the barriers to returning to work after being bullied and harassed at work, including some shocking findings. This is the first assessment of what happens post-workplace bullying in the world.

Key Findings

Our assessment of bullying and harassment and it's impact looked at the cost to the individuals affected, to employers and the Government.

Of the 65 UK based respondents to the questionnaire, 34 had been on Incapacity Benefit [IB] for more than a month - so far. Of those, 47% had been on IB for than 2 years and 18% for more than 4 years. 70% of respondents felt the harassment had a severe impact on their mental health.

45% of respondents felt the harassment had a severe impact on their physical health.

Our findings showed that the mechanisms currently in place to deal with bullying and harassment are not working. Two thirds of respondents said their employer had a policy on bullying and harassment, however 100% said it was not effective. Every respondent who spoke to the harasser was not satisfied with the outcome;

90% of those who made an informal complaint were not satisfied with the outcome; nor were 95% of those who made a formal grievance. 84% of those who sought union representation were not satisfied. [We have been through this before, i.e. the inaction and/or the less than satisfactory stance of our academic union. Please read here and here.]

Specific feedback that features in the Toolkit identifies a major lack of understanding, a failure to take bullying seriously and little support and help available to get people back to work.

Jo Anne Brown, Chair of JFO and the Toolkit developer commented "There is a lack of support and help to enable people to get back to work after being bullied. People who are harassed find themselves without a job, without their health and discriminated against when trying to find employment because they are seen as 'trouble-makers'. The Government need to urgently look at dedicating resources to help people affected by workplace bullying; they would save the benefits paid to people who become unemployed or too ill to work and stop huge amounts of income tax being lost."

96% of respondents believed the following outcomes to their employment was directly related to the harassment.

24% resigned

16% were sacked

9% were ill-health retired

A further 3% were retired early

The questionnaire found significant barriers to returning to work because of bad references, finding it difficult to explain to potential employers gaps on their CV, that they had left their job because of harassment and a perception that employers view people with a history of mental illness as a liability.

56% of respondents worked for the public sector and 29% the private sector. Two thirds of respondents were in a manager/senior role or professional occupation; almost two thirds were earning more than £25,000 per annum and more than a third earned over £40,000.

Conclusion

Our conclusion is that the cost of employees becoming unemployed or too ill to work because of bullying and harassment and the associated health care costs is considerable and one that cannot be ignored. Tackling bullying and harassment needs all parties to be involved if it is to be effective and this is the same to enable an effective return to work. The resources needed to effectively reduce time out of work would bring a significant saving through the provision of dedicated help and support in getting people back to work...

Statistics and facts

It is estimated that bullying and harassment contributes towards 18 million lost working days every year [TUC] and costs the UK economy £2 billion per annum [CIPD]. There is currently no funding for dedicated help, advice or support to enable victims of bullying to return to work, some of whom have lost their jobs, been on long-term incapacity benefit or seeking to return to their existing employment after significant periods of sick leave...

About Just Fight On!

JFO is a not for profit organisation operating the Centre Against Workplace Bullying UK to help victims of bullying and harassment at work. They provide advice, support and training. Website: http://www.jfo.org.uk

Non-disclosure and hidden discrimination in Higher Education - UK

Findings from an anonymised survey of staff working in ten Higher Education Institutions explored patterns of non-disclosure, showed that staff attitudes to working in HE vary and that harassment is a serious issue to tackle. Equal opportunities training can have the most positive impact on staff perceptions of equal opportunities.

'...The reasons why people chose not to answer one question in a questionnaire, while answering another, is complex. Factors such as fatigue towards the end of a form feature highly. All these questions appeared together towards the end of the questionnaire. However, a final question about union membership which followed these questions had a response rate of over 98 per cent. The complexity of the question may also be a factor. On the other hand, a reasonably complex question on ethnicity also attracted a response rate of 98 per cent.

The content of these questions is important and several of these questions are likely to be considered inappropriate or intrusive by at least some respondents. Most respondents answered the questions on gender and on ethnic background (99 and 98 per cent respectively). Seven per cent of respondents chose not to answer the question regarding religion and belief, while 6 per cent chose not to answer the question on sexual orientation...

Seventeen per cent of respondents reported in the survey that they had personally experienced harassment within the previous 12 months. The incidence of harassment did not vary significantly across the institutions in the sample, ranging from 12 per cent to 22 per cent. The most common form of harassment experienced was unwelcome comments, while the second most common form was verbal assault. Table 6.1 shows the nature and source of harassment, presented as a proportion of respondents who indicated that they had experienced harassment. Of the 17 per cent of respondents who had experienced harassment, 37 per cent had experienced harassment in the form of unwelcome comments from colleagues. Percentages add up to considerably more than 100 per cent because some individuals may have experienced more than one type of harassment, or been harassed by seniors, colleagues and students...

Findings show that:

• Female and minority ethnic respondents are significantly more likely to be employed on temporary or fixed contracts.
  
  
• The average full-time equivalent salary for male respondents was £32,324, compared with £24,696 for female respondents.
  
  
• Not surprisingly, those on a permanent contract earn a significantly higher salary than those on a temporary contract (average full-time equivalent £29,274 compared with £24,472).
  
  
• The average salary for female respondents was consistently lower, across the different occupational groups, than for male respondents. This pattern is consistent irrespective of the type of employment contract.
  
  
• The average salary for white respondents was £28,342, while the average for minority ethnic respondents was £21,473. Almost a quarter of the small number of minority ethnic respondents earned less than £14,000. The small number of minority ethnic respondents in academic occupations earn significantly less than their white counterparts.
  
  
• A similar pattern to that found for gender seemed to emerge for minority ethnic respondents. Numbers in subgroups are however too small to draw any conclusion. This would need checking with a larger sample, as it may indicate that minority ethnic staff may earn consistently less than their white counterparts across all occupations, and the effect may be compounded for female minority ethnic respondents.
  
  
• Staff attitudes about working in HE are associated with the extent to which their institution cares for them, the support they get from colleagues and managers, and the extent to which they are being developed. Job satisfaction is related to the way staff performance is managed, the level of autonomy and communication, and the amount of stress experienced.
  
  
• Academic participants are the most dissatisfied with the amount of stress they experience. Research participants are more satisfied with their level of autonomy compared with academic participants. Respondents from manual occupations are the least satisfied with the level of autonomy in their job.
  
  
• Administrative and clerical and manual participants who are males are less positive about the extent to which they are being developed compared with their female counterparts. Male manual respondents are also dissatisfied with most aspects of job satisfaction including the way their performance is managed.
  
  
• Respondents with a self-identified disability report higher levels of stress; and, together with those with health problems, are less positive about all aspects of working for their HEI.
  
  
• Those respondents who care for an adult are less satisfied with their level of autonomy and the amount of stress they experience.
  
  
• Seventeen per cent of respondents have personally experienced some form of harassment at work. This is more likely to involve unwelcome comments and verbal assault from senior colleagues, and abusive emails and offensive jokes from colleagues.
  
  
• Incidents of harassment are unlikely to be reported, and those who report them are unlikely to be satisfied with the response of their HEI.
  
  
• Non-academic respondents in technical and manual occupations are more likely to experience harassment at work.
  
  
• Respondents in the middle age group, those who declare a disability or health issue, and respondents with caring responsibilities for children and adults are more likely to experience harassment at work.'

Complete report available online by HEFCE.

Corrosive Leadership (Or Bullying by Another Name): A Corollary of the Corporatised Academy?

'The literature reveals that the incidence of bullying is increasing in corporate workplaces everywhere. While the data is scant, it suggests that bullying in universities is also on the increase. Interviews with Australian academics support this finding. It is argued that the trend has to be understood in light of the pathology of corporatisation, which is designed to make academics do more with less. The focus on productivity parallels the harassment to which workers in the private sector may be subjected in the hope that they will work harder and maximise profits. Avenues of redress are considered which show that dignitary harms remain inchoate as legal harms. While common law and anti-discrimination legislation regimes may occasionally offer a remedy to targeted individuals, it is averred that these avenues are incapable of addressing the causative political factors that induce corrosive leadership...

Powerful line managers, whose role it is to exhort greater productivity from these unruly units, have made themselves indispensable in the transformation of universities as producers and facilitators of the new economy. Hence, the corporatised university, with its over-zealous managerialism, competition for resources and eviscerated notion of academic freedom, is likely to represent an ongoing source of grievance about workplace aggression. A formal avenue of redress will have to be devised to placate this dissonance. However, rather than relying on a traditional model of linear causality, which focuses on linking ‘victim’ and wrongdoer, a new remedial model would be better off addressing the political environment that has engendered the harm. A single-minded focus on psychopathic managers absolves corporations, including universities, from responsibility for the fear, the insecurity and the relentless pressure to be evermore productive that the market message induces.'

Margaret Thornton, Australian Journal of Labour Law, 2004 - Complete paper available online as pdf file.

Never Surrender

"Never be bullied into silence. Never allow yourself to be made a victim. Accept no one's definition of your life; define yourself." - Harvey Fierstein

"Most of the important things in the world have been accomplished by people who have kept on trying when there seemed to be no hope at all." - Dale Carnegie

Resisting Unfair Dismissal

You've just been dismissed - unfairly. Perhaps it was because you spoke out about problems at work. Perhaps it was discrimination. Perhaps you were the target of envious co-workers. Perhaps the boss just didn't like you. What should you do? If you go to court, you may receive some compensation, but you probably won't get your job back. Even if you do, it can be pretty unpleasant if you have the same boss. If you obtain compensation, it usually won't be very much. There's another option: campaigning. To understand how it works, it helps to examine the dynamics of public indignation. Think of a really serious injustice, such as torture, genocide or shooting of peaceful protesters. Many people feel indignant about such actions.

Perpetrators typically use five methods to reduce the indignation. (1) Cover-up: the action is hidden. Torture is almost always carried out in secrecy. (2) Devaluation of the victim: if the victim is thought to be dangerous, inferior or worthless, then what's done to them doesn't seem so bad. That's why enemies are labelled as ruthless, subhuman and terrorists. (3) Reinterpretation: a different explanation is given for the action, making it seem more acceptable, or blaming someone else. The protesters might be called dangerous and threatening. Or shooting them might be claimed to be an accident, or the action of "rogue" elements. (4) Official channels: experts, formal inquiries or courts are used to give a stamp of approval to what happened. Justice appears to be done, but actually isn't. For example, an inquiry into prison abuse might take months or years and lead to minor penalties against a few scapegoats. Meanwhile, public anger dies down and the system remains in place. (5) Intimidation and bribery: victims and witnesses are threatened or given incentives to keep quiet and not oppose what happened. Witnesses to a brutal assault might be threatened that they could be next.

Powerful groups regularly use these five techniques to reduce indignation. The Nazis used them in its genocide of the Jews. The US government used them during the Vietnam war. The Indonesian government used them to manage responses to massacres in East Timor. Unfair dismissal is not nearly as drastic as genocide, but the dynamics of indignation are quite similar. Employers regularly use these same five methods in unfair dismissal.

(1) Cover-up. The person dismissed knows what happened, but others are kept in the dark. No announcement may be made. Settlements often involve a silencing clause. When the dismissal is public, often the reasons are covered up. Files may be destroyed.
(2) Devaluation. The person dismissed is slandered as a poor performer, difficult personality or slacker. Rumours may be spread alleging theft, bullying or unsavoury sexual behaviour.
(3) Reinterpretation. The dismissal is said to be due to restructuring, redeployments, financial difficulties or some other pretext. Alternatively, the dismissal may be justified as due to the victim's failures.
(4) Official channels. Dismissed workers are advised to go to tribunals, ombudsmen, courts, or any of a host of other agencies that supposedly offer justice. Seldom do these address the source of injustice in the workplace.
(5) Intimidation and bribery. Workers may be reluctant to oppose a dismissal because they will receive a poor reference or be sued for defamation. Co-workers may support management in the hope of retaining their own jobs, a form of implicit bribery.

Increasing indignation

To increase indignation from unfair dismissal, you need to challenge the five methods. Here's the general approach. (1) Expose what happened. (2) Validate the person, by showing their good performance, loyalty, honesty and other positive traits. (3) Interpret the dismissal as unfair, and counter the official explanations. (4) Either avoid official channels or use them as tools in exposing the unfairness. (5) Refuse to be intimidated or bribed, and expose intimidation and bribery.

It's extremely helpful to write a short summary about what happened, giving the facts and revealing the injustice. You need to obtain documents that show what happened, such as records about your good performance or documents revealing prejudice. Get help from sympathisers to make your summary clear to outsiders and absolutely accurate. Avoid speculation and avoid abuse or attacks. Just give the facts and let readers come to their own conclusions.

When you've checked everything many times, you're ready to show the summary to others who might be sympathetic. Start small and build up. Show it to some co-workers or friends. Revise the summary if necessary. Then gradually show it to more people. You could email it to other workers. Or you could produce a leaflet and stand outside the workplace distributing it. Send it to the employer's clients.

The next step up is publicity to the wider community. Sometimes the media will be interested. There are also newsletters and email lists. You might set up a website. The key is to expose the injustice to people who will be receptive.

The employer may try to discredit you, so you need to be prepared. Have documents showing your good performance. Have others vouch for you and stand up for you. You also need to behave in an exemplary fashion. If you shout, swear, abuse others, don't do your work or dress poorly, it will be easier for others to blame you for your misfortune. You need to behave as if you're the best worker on earth. Of course it's hard and unfair, and you're under incredible stress. Do as well as you can, and trust that others will see the unfairness in the way you're treated.

In your conversations, your written summary and other communications, emphasise what's unfair about the dismissal. If you were sacked for speaking out, show double standards: point to other workers with the same performance, who didn't speak out and weren't sacked. If you were dismissed in violation of the rules, point that out.

Rather than rushing to tribunals or courts for vindication, use them only with care. Check out what happened to others, similar to you, who used the same tribunal or court. Find out how much effort and money is required, and estimate your chance of success. Find out the likely delay and what you're likely to receive at the end. Remember that if a court rules against you, it will make the dismissal seem more legitimate, even if it was unfair in practice.

Sometimes you can use official channels as part of your campaign. You can ask supporters to attend hearings, or circulate email updates about proceedings. You can post your submissions on a website. Alternatively, you can avoid official channels altogether. Often that's the best option.

If you are threatened, you need to make a careful decision: proceed or acquiesce. If you decide to proceed, try to collect evidence of threats, attacks and bribes. Expose these too.

Mobilise support

Your campaign will be much more powerful if others are willing to join in. If other workers have been dismissed at the same time, try to join forces with them. Try to find others, including co-workers and friends, who will help. If many people join the campaign, it will greatly increase your chance of having an impact.

If your union is willing to support you, that's a tremendous advantage. But sometimes you may need to proceed on your own. If so, make absolutely sure you're prepared and able to follow through. Sometimes it's safer to go quietly and survive.

If you're successful, lots of people will hear about your dismissal and believe that you've been wronged. If there's enough disturbance from your dismissal, the employer will regret doing it. In other words, firing you will backfire on the employer. What happens next depends a lot on the case. If there's enough public pressure, you might get your job back. More likely, you will be offered a bigger compensation package. Or the employer may tough out the uproar.

Even if you don't obtain compensation, a good campaign will damage the reputation and undermine the authority of the employer. You will thus obtain "punitive justice." That can be quite satisfying! Finally, and not least, you will gain greater credibility and self-respect.

Probably the biggest benefit will be for those who remain on the job. The employer will be more reluctant to dismiss them, in fear of another backfire. Your efforts will help prevent further injustice.

Deterrence

If you're prepared to take action against unfair dismissal, then you're less likely to be dismissed in the first place. Employers dislike bad publicity. They hate organised campaigns that might hurt their business. So here are some ways to prevent dismissal by good preparation.

• Collect lots of information about your own good performance. Keep copies in safe places. If you plan to act against corruption or bad practices, collect extensive information to back up your claims.
  
  
• Develop your skills in speaking and writing. Know how to talk with others. Learn how to write persuasive accounts, how to prepare a leaflet, how to run a publicity campaign and how to set up a website - or have reliable friends willing to assist.
  
  
• Avoid doing things that can be used against you. If you spend much of your time bad-mouthing others, getting others to do your work, and claiming credit for what you didn't do, you can't expect support when the crunch comes. Have others help you gain insight into being collegial, collaborative, approachable and civil.
  
  
• Be prepared to survive. You may need financial reserves. You will need psychological toughness. You need exercise and good diet to maintain your health. You need supportive relationships. When you come under attack, you may need all your reserves: financial, psychological, physical and interpersonal. If you're living on the edge, you're more vulnerable.
  
  
• Build alliances: there is great strength in collective action. If you have a decent union, join it and be active.
  
  
• Develop options. Find out about other potential jobs. Think about a career change. Consider downshifting to a less costly lifestyle. Sometimes it's better to walk away from a stressful job. If you have such options, you're actually in a stronger position to campaign against an unfair dismissal.
  
  
• Be prepared to resist. Many workers learn to be subordinate and can't bring themselves to resist even the worst abuse. When dismissed, they do just what the boss wants: leave quietly, perhaps with token compensation. If you're known as a resister, you're less likely to be targeted.
  
  Help others. If you assist other workers who come under attack, you develop useful insights and skills - and others are more likely to help you should you need it.
  

Brian Martin (Whistleblowers Australia). Brian Martin is international director of Whistleblowers Australia, associate professor at Wollongong University, and on the international council of FtC. Email: bmartin@uow.edu.au. He thanks Sharon Callaghan, Truda Gray, Yasmin Rittau, Jeff Schmidt, Kylie Smith and Ian Watson for helpful comments.

China university sacks dean after blog rant - breaking the hidden rules

A prestigious Chinese university has fired one of its deans days after he complained about being sidelined for bold remarks on academic freedom and berated the country's higher education woes on the Internet.

Zhang Ming, dean of political sciences at Renmin University of China, posted articles detailing a row with his superior and attacking the "bureaucratization of Chinese colleges" on his well-read blog last week. Zhang was formally stripped of his post on Friday, the Southern Metropolis Daily reported on Monday.

"They told me that I should be punished for... breaking the hidden rules," the 50-year-old was quoted as saying.

Zhang remained a professor at the university and was likely to be able to continue teaching, the report said. Zhang said in a March 12 blog post that he had irritated his superior last year by telling the media that the university had withheld some dissertation subsidies from graduate students.

The superior was also angry at Zhang for speaking up for a colleague he believed was wronged by a reviewing panel whose members were selected for their official ranks instead of academic achievement, Zhang added.

The university confirmed his dismissal as dean on its Web site, but denied the allegations Zhang made on his blog. The Communist Party has kept a close watch on the Chinese intelligentsia since coming to power in 1949, by setting up party committees in all academic and educational institutions. Controls have eased since market reforms began in the 1980s, but unorthodox studies or teachings are still frowned upon.

"Universities have become an officialdom ... The over-intervention and manipulation of academia by power definitely fetters its growth," Zhang was quoted as saying.

"How is China's academia doing now? Does anybody overseas read papers written by Chinese scholars? Plagiarism and theft are rampant ... Obedient kids are being taught to be minions."

Renmin University's School of International Studies, which administers Zhang's department, dismissed his blog posts as "lies" which had "brought great pressure to the school," "victimized its faculty" and "damaged its reputation."

"Any organization has this or that problem with varying degrees. Professor Zhang made a precedent in China by whipping up the internal problem in the media," read two rare open letters on the school's Web site.

From: Scientific American.com

Effects of Psychological Harassment

'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 (McCarthy, et al. 1995, 1998, 2001, Leymann 1996b, Ayoko, et al. 2003, Di Martino, et al. 2003, Einarsen & Mikkelsen 2003, Djurkovic, et al. 2004, Matthiesen & Einarsen 2004, Nielsen, et al. 2004).

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 (Leymann & Gustafsson 1996, Matthiesen & Einarsen 2004, Nielsen, et al. 2004, Tehrani 2004). 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 (Di Martino, et al. 2003).

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.

The third effect of bullying is the family and social implications. The results of exposure to psychological harassment are likely to affect several important spheres of life, for example, relationship with family or friends, leisure activities, household duties or sex life (Einarsen & Mikkelsen 2003). Di Martino, et al. (2003) report that in a German national study of bullying, a total of 20 per cent of the sample reported conflicts with partners or family, with eight point one per cent eventually leading to a separation from their spouse. Research shows that all of these individual effects are dependent on various variables such as severity and duration of harassment, coping strategy of the victim, coping strategy of the organisation, characteristics of the victim (sensitivity, education and experience). These effects create many costs for the organisation.'

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.

Complete paper available online.
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Can somebody please forward the above to Sally Hunt?