Employers see workplace discrimination victims as nuisances

A new report from the conciliation service ACAS shows that people who complain at work about discrimination on grounds of religion or belief or sexual orientation often end up being treated as nuisances rather than victims. Employees who have tried to resolve disputes over discrimination under new equality regulations have ended up facing demotion, dismissal, career changes, mental health problems including depression or anxiety, financial difficulties, relationship problems and having to move house. Some even contemplated suicide.

In the first study of the impact of the employment equality regulations on sexual orientation and religion or belief introduced in 2003, research by the Institute for Employment Studies (IES), on behalf of ACAS, suggests internal workplace grievance procedures are ‘flawed’ and do not provide a way to resolve these issues. This may encourage more people to resort to an employment tribunal.

Analysis by ACAS shows that between January 2004 and September 2006, 470 individuals brought Employment Tribunal claims where the main allegation concerned discrimination on grounds of sexual orientation and 461 brought cases where discrimination on grounds of religion or belief was the main claim. Two-thirds of claims were brought by men.

From in-depth interviews with claimants it was found that sexual orientation discrimination cases were typically based on claims of bullying and harassment, including verbal abuse, physical assaults and unfair treatment by managers. This had led to disciplinary action or demotion for poor work performance until the claimant felt they had no option but to resign.

For religion and belief cases, claims most commonly related to terms and conditions of work that made the observance of religious practices more difficult – such as holiday arrangements. There were also examples of organisations with a religious ethos reportedly discriminating in areas such as promotion on the basis that the claimant did not have a religion or was from a different faith.

The study highlighted how claimants dismissed as “futile” internal grievance procedures aimed at resolving disputes within organisations. Complaints were made about how the submission of a grievance by an employee was often triggered by disciplinary action by employers and how they could work against achieving a satisfactory resolution; it was also thought to be difficult to find colleagues to represent them, that there were often unnecessary delays and the involvement of unsuitable managers who, in a number of cases, were felt to have been complicit or active in the original discrimination experience.

Overall, claimants felt they did not receive a fair hearing at internal grievance procedures. The cost of obtaining representation was seen to be a significant barrier in pursuing claims, and the lack of proper representation and the necessary understanding of the ‘language of the law’ was seen as being a severe disadvantage in obtaining justice from employment tribunals.

IES author Ann Denvir said “One strong theme which emerged from both sets of claimants was the tendency of their employers to respond to their complaints by seeing them as the problem, rather than the victim of unfair treatment.

“But despite the sometimes difficult experiences of submitting an employment tribunals claim many felt the process allowed them to defend against discrimination in a way they felt unable to within the workplace and to make an important symbolic gesture. Justice rather than financial compensation was seen as being the main motivation. Overall, the interviews with claimants highlighted the crucial importance of good independent advice and representation.”

From: http://www.secularism.org.uk

Here you have it: 'Beware Big Brother paranoia 1'

From the Times Higher Education Supplement. Letter to the Editors, published 25 May 2007.

'The tone of your story "Staff see red over online policing" (May 18) was alarmist and misdirected, as it gave the impression that higher education managers, administrators, personnel and marketing staff have nothing better to do than trawl through e-mails, blogs and discussion groups looking for evidence of dissent.

Anyone would think that we are run by the Staatssicherheitsdienst. On the contrary, these important workers simply do not have the time for that sort of thing, even if they wanted to.

If criticism does come to the attention of the authorities, then it has probably been reported to them by academic colleagues. The motives are not hard to fathom: envy, score-settling, career advancement, or a wish to appear compliant to power. These passions exist in all societies, so why should academe be any different?

Stoking paranoid fantasies of the omnipotent gaze of power simply encourages narcissism. Why not "out" academics who perpetuate it - as a prelude to some warm and fuzzy truth and reconciliation, of course.

Jeremy Valentine, Queen Margaret University, Edinburgh'
------------------------------
So there you have it... All you targets/victims of workplace bullying that dare to imply that managers and other important persons in academic hierarchies have nothing better to do than trawl through emails, do so because of 'envy, score-settling, career advancement, or a wish to appear compliant to power'. So there you go...

And if this is not enough, if you have lost your job under tragic circumstances, if you suffer from PTSD or work-related stress due to workplace bullying - and you dare to complain - oh, well, you should be 'outted' because you are perpetuating a fantasy!

My dear lovely Dr Jeremy, perhaps you should become a bit more familiar with the literature on workplace bullying, for you may discover that it is the competent, committed and efficient academics who fall victims of workplace bullying. The bullies tend to be insecure, incompetent and inefficient. It is the latter that undermine the former and not the other way around.

And while you are at it, you may also want to read a recent publication titled: 'Good Practice Guide for Higher Education Institutions on Dealing with Bullying and Harassment in the Workplace'. Why the need for this guide?

And if you are still in the mood, read the following interesting story about 'important' persons checking emails. Paranoia or ignorance?

HEFCE: People management self-assessment tool

The self-assessment tool was developed by the Universities Personnel Association and the SCOP Personnel Network, to measure progress in people management in the HE sector...

1. Remuneration and fair employment

The institution has:
a. HR staff skilled in providing advice and support on pay, rewards and employment
b. HR staff skilled in or receiving skilled support in job evaluation
c. Expertise on equal opportunities and diversity...
f. Regular reviews of equal opportunities and diversity policies and practice...
k. Schemes for recognition and reward of individual or team excellence in teaching and learning effectiveness...

The institution achieves:
b. Staff who feel motivated and satisfied in their work
c. Staff who believe the institution is a fair employer – there is a healthy psychological contract...
h. Investors in People status (in parts or for the whole institution)
i. Staff who feel there are opportunities for teaching career progression...

The institution avoids or effectively manages the risks associated with:
a. Industrial tribunal or legal cases brought by staff for unfair dismissal, unfair employment practice or discrimination (including equal pay claims)
b. Negative publicity about unfair or discriminatory employment
c. Being seen as having poor terms and conditions of employment compared with other employers (locally, nationally and/or internationally)...

2. Staff recruitment and retention

The institution undertakes/has undertaken:
a. Recruitment and selection guided by clear policies and procedures
b. Exit interviews with staff who leave
c. Skills audits of future workforce needs
d. Monitoring and evaluation of:
- the service provided on staff recruitment (e.g. managers’ views on recruitment practice) on a regular basis
- staff turnover
- staff views on employment...

4. Staff development and skills needs

The institution has:
a. Managers and staff aware of staff development processes within the institution
b. Investment in learning and staff development
c. Expertise in staff development
d. Staff skilled in job design and work organisation (or access to these skills externally) to support staff development through job re-design and enrichment...

The institution avoids or effectively manages risk associated with:
a. Staff leaving because of inadequate opportunities provided for staff development and learning
b. Poorly focused staff development that leads to no appreciable gains for the individual and the institution
c. Lack of take-up of staff development provisions available
d. Under-resourcing of staff development
e. Missed market or programme development opportunities because of lack of appropriate skills or expertise amongst staff...

5. Leadership, involvement and change management

...The institution avoids or effectively manages risk associated with:
a. Industrial relations disputes
b. Lack of commitment to change and improved performance at different levels in the institution
c. Staff perceiving a lack of effective leadership in the institution
d. Staff feeling poorly informed and not consulted about changes made in the institution...

The institution avoids or effectively manages risk associated with:
a. Legal cases brought against it on work related ill-health and breaches of health and safety practice
b. A poor accident or health risk record
c. Stress-related illness and absence
d. Staff who leave because of work pressure or an unacceptable working environment
e. Perceptions of bullying, unfair workload practice, etc. because of poor staff management practice...

7. Performance management – linking people management to organisational performance

...The institution avoids or effectively manages the risks associated with:
a. Poor performance and poorly performing staff not dealt with
b. Managers lacking the skills and confidence to manage their own and their staff’s performance effectively
c. Staff feeling unclear about roles and responsibilities
d. Staff feeling poorly informed and receiving insufficient guidance and support from their line managers
e. Poorly managed grievance and discipline cases...
---------------
From: http://www.hefce.ac.uk

Whistleblowing: Legal Question & Answer

Last month, the Daily Mail highlighted the case of a community centre employee who was victimised after she exposed a colleague as a convicted sex offender who had won her whistleblowing claim.

Q What lessons can employers learn from this case?

A The case points out the importance of having proper policies and procedures for dealing with whistleblowers. Employers need to learn how to recognise when employees gain rights under whistleblowing legislation against detriment or dismissal. In whistleblowing situations, careful management will be required, which should include thorough investigation of the issues raised by the whistleblower.

Q Are employers required to introduce whistleblowing policies?

A The UK's whistleblowing law is derived from the Public Interest Disclosure Act. This does not expressly oblige employers to introduce whistleblowing policies, but their introduction is best practice.

Some employers that operate in regulated sectors are under separate obligations regarding whistleblowing. London Stock Exchange-listed companies are subject to the requirements of the Combined Code on Corporate Governance, which requires arrangements to be in place for staff to raise concerns in confidence about financial reporting or other matters.

US-listed companies are subject to the Sarbanes-Oxley Act, and this also requires procedures for the raising of accounting concerns to be in place.

Q Why would we introduce a whistleblowing policy if we are not legally required to do so?

A There are all sorts of good practical reasons for employers to maintain whistleblowing policies. For example, by fostering a culture of openness and transparency, employers are more likely to root out any malpractice or wrongdoing and so protect themselves against reputational and financial loss.

Effective policies and procedures are also the best protection against whistleblowing claims, since they will emphasise that genuinely held concerns will be thoroughly investigated, and that those who speak up will be protected against victimisation or dismissal as a result.

Aside from the legal costs and wasted management time involved, whistleblowing claims can result in high awards of compensation. There is no limit on the compensation that employment tribunals can award. Depending on the circumstances of the case, the tribunal may be able to make an injury to feelings award, as well as financial compensation.

The majority of claims settle on confidential terms, but there have been a series of high-profile cases involving six-figure compensation. The Prison Service was ordered to pay almost £500,000 to an employee who alleged that there had been serious wrongdoing in Wakefield Prison (Mrs C P Lingard v HM Prison Service).

Q What does the legislation cover?

A Danger to the health and safety of any individual is one of the six categories of malpractice that the legislation specifically mentions. The others are criminal offences, breach of any legal obligation that has been held to include (in Parkins v Sodexho) a breach of the whistleblower's own contract of employment, miscarriages of justice, damage to the environment, and the deliberate concealing of information about any of these. Disclosures about such matters may qualify for protection.

Q Who do whistleblowing rights apply to?

A Whistleblowing rights apply more widely than many other employment rights. Workers, and not only employees, are covered by the law, while certain groups - including agency workers - are specifically protected.

Q So what should we do if a worker is victimised for raising a genuine concern?

A Those involved should be warned that the victimisation of a genuine whistleblower is potentially a serious disciplinary offence, not least because it could expose the organisation to a claim by the whistleblower. The whistleblower should be offered extra support.

Q What if unfounded allegations are made maliciously?

A The raising of untrue allegations maliciously is also a serious disciplinary offence, and this should be explained in a whistleblowing policy and/or your disciplinary procedure. If you need to discipline a worker in such circumstances, be particularly careful to check that you have a good record of a thorough investigation showing that the employee made up their allegations for improper motives. Ensure that you follow the statutory dismissal and disciplinary procedure, as well as your own internal procedures.

By Andreas White, employment solicitor - 13 March 2007.

Anonymous said...

Anonymous said...

As bullying would appear to be rife in academia (Boynton 2005) it is to be hoped that UCU [University and College Union, UK] are selecting their first case to support...

...the first task for UCU is to engage with and actually read the documentation that members send them.

...another helpful strategy would be to ensure that members do not have to wait over six months for advice from UCU's solicitors. [Or receive the wrong legal advice.]

...another strategy would be for Sally Hunt to respond to letters from members who have lengthy and complex cases involving workplace bullying.

...the level of support I have received from UCU has been very low key... [You and some other union members - there are even allegations of collusion.]

...like... well OK we'll meet with you if we really have to... if you must keep emailing us... but don't expect us to give you much advice... because well really we're not that interested... too much like hard work really...

... I'm sure it can't be as bad as you're making out...

...gosh haven't they sorted anything out yet... haven't they had the meeting with you yet... hasn't HR responded to your emails...

...really... well yeah we'll support you... like yawn...

Aphra Behn

Harassment in the Workplace - Legislation, UK

Legislation was introduced in 1997 following a significant number of very high profile cases involving stalkers. The legislation called the Protection of Harassment Act 1997 was intended to simplify the process of prosecuting those involved in the practice of stalking.

It was never envisaged that the legislation would have any impact within the workplace, it was designed to protect victims from nuisance individuals. However, the ambit of the legislation has been widened significantly by a decision of the House of Lords in August 2006.

The facts of the case, Majrowski –v- Guy’s and St Thomas NHS Trust, were that Mr Majrowski contended successfully that he had been bullied and harassed by his manager whilst working for the health trust in London.

Mr Majrowski was unable to claim unfair dismissal because the bullying had not resulted in the termination of his employment. He was unable to establish that the bullying in any way amounted to discrimination on the basis of his sex, race, disability, religion or sexual orientation and was consequently unable to bring a claim for discrimination. Mr Majrowski was further unable to show that he had suffered any kind of physical or psychiatric injury which would have been necessary to support a personal injury claim, he could only establish that he had suffered anxiety and distress. However, despite the apparent weakness of Mr Majrowski’s claim the House of Lords determined that he was entitled to compensation under the 1977 Act for the anxiety and distress he had suffered due to the bullying he had experienced at work.

What is equally concerning is that an employee can bring a claim under this Act, unlike claims for discrimination, for up to six years after the harassment was supposed to have occurred. Mr Majrowski brought his claim more than four years after the harassment he had experienced had ended. To make matters worse the claim is brought in the County Court and as such the employer may be responsible for the employee’s legal costs.

Moreover, the claim can be brought regardless as to the efforts, which may have been taken by the employer to ensure that the workplace was free from harassment. An employer may actively seek to ensure that the workplace is a professional environment in which people behave properly towards one another. However, one maverick employee could result in the employer, through no fault of its own, being exposed to the risk of a claim.

It appears that a one off incident by one employee is unlikely to support a claim, but two or more incidents or one incident involving more than one employee will be sufficient. The incident does not have to take place within work, but must occur within the course of employment which would cover work parties and nights out.

It is too early to tell how actively this legislation may be used by harassed employees. However, it is clear from this case and the ever expanding coverage of discrimination law, in particular to cover age as from 1 October, that all employers have to ensure that they have the necessary training and policies in place to try and ensure that harassment and bullying simply does not occur within the workplace.

By Joe Thornhill, November 29, 2006

How performance appraisals send you GAGA

Many performance appraisal systems are helping to produce dysfunctional organisations, according to a workplace ethics expert. Michele "Micki" Kacmar, a management professor at the University of Alabama, says performance appraisals that just put ticks in boxes result in bad workplaces, bullying and high turnover.

She says most workers are motivated more by respect than money. The trouble is, most performance management systems fail to pick this up.

"You don't quit your job, you quit your supervisor," Professor Kacmar says. "But they don't say that. Instead, they say there was no flexibility, the hours were bad and the commute was too long. What they're really saying, though, is, my boss doesn't respect me, I'm not getting the treatment I deserve.

"People will take a lot of hardship if they believe people respect them. The money is great, but if you go to work every day and hate what you do and hate what's going on around you, the pay cheque will go to the doctor to fix the physical symptoms that the stress in the organisation is causing you."

Professor Kacmar, whose work focuses extensively on the "dark side" of organisations, says performance appraisals need to be conducted more often, at least quarterly, if they are to pick up black spots in an organisation. Part of the problem, she says, is that all organisations are political.

The problem is not with the performance appraisal systems, but the way these are thought through and implemented. An abusive supervisor, for example, would be allowed to continue because no one would speak up and the bullying behaviour would not be deemed relevant by the supervisor's superiors.

"In organisations, you will find fiefdoms where the people you hire and fire will do your bidding. It creates an environment that allows you to be king," she says. "In order for this supervisor to be fired, whoever does their performance appraisal would have to document their behaviour. But the problem is, the person in charge of that person doesn't see the bad behaviour because it's focused outwards, and not upwards."

In her work consulting with companies and government agencies, Professor Kacmar has developed a scale for assessing organisational dysfunction. Her scale has three indicators: behaviour, policies and systems, and the level to which people in the organisation turn a blind eye (a process that she labels Going Along to Get Ahead, or GAGA).

Professor Kacmar says there are very few organisations that would score well on all three indicators. The ones that do score well have strong ethical cultures, motivated workforces and performance management systems that focus on people's success stories, not their shortcomings.

From: http://www.theage.com.au

Academic Unions are hopeless...

This is what the University and College Union (UCU) will do to defend you at a cost of over £130 per year to join:

If you are convinced that you are being unjustly accused, and/or that the complaint is malicious, you should:

• Contact a branch/local association (LA) officer. It may be that an informal discussion between you, the person alleging ill-treatment, and a third party will solve the problem. [Imagine senior managers who manufactured evidence calling an independent external party to investigate...]
  
  
• If this does not occur, and it is clear that formal proceedings will ensue, ask for UCU representation. A branch/LA officer or official may agree to represent you. [You can ask for it, but not everyone gets it. And what of the cases where the union rep supported the bully and refused representation to the victim?]
  
  
• You should gather evidence in your defence, including witnesses. [Does this count as UCU help?]
  
  
• If the outcome of a formal hearing is to find you guilty of bullying or harassment, UCU may continue to represent you through any internal procedures for appeal. However, you should be aware that UCU may not support you further (unless the representatives are convinced that a miscarriage of justice has occurred) beyond advising you of your legal rights. [Simply impressive.]
  

There is not a single case of workplace bullying where the UCU (AUT + NATFHE) went all the way to Employment Tribunal or County Court to defend a member. Not one.

Let us not forget what the National Union of Teachers did to Tim Field.

What’s the major challenge facing your organisation in tackling bullying?

...The role of senior management in leading this change process can’t be over-emphasised. Where senior managers only give lip service to the idea of creating a culture of respect and don’t take the necessary steps to change their own inappropriate behaviours, it won’t happen. Employees quickly become cynical when faced with statements that urge them to behave in ways they don’t see reflected in their managers’ behaviour on a day-to-day basis.

Leadership competencies

A number of leadership competencies are important in building a climate of change. These leadership competencies include:
• relating to people
• personal integrity
• visibility
• commitment to excellence
• willingness to challenge the status quo.

Leaders need to be seen to be championing a culture of respect by having an ongoing conversation with employees about the organisation’s values and by providing formal and informal recognition for people’s achievements. Senior managers also need to develop and communicate the importance of engaging in teamworking, mutual respect and dignity and valuing the individual at work...

From: Bullying at work: beyond policies to a culture of respect, CIPD

DIT settles bullying case among senior staff, all allegations withdrawn - Ireland

The Irish Times, 21 May 2007

A long-running bullying case between two senior members of staff at Dublin Institute of Technology's business faculty has been resolved. This has led to the withdrawal of all allegations made against the director of the business faculty, Paul O'Sullivan, by his junior colleague, Dr James Urquhart.

Under the terms of an agreement with the college, Dr Urquhart is believed to have received a severance package worth more than €250,000. In return he has agreed to leave his post as head of DIT's graduate business school. However, it is understood that while he has vacated his post with immediate effect, he remains on the college payroll.

The case, which first commenced in January 2004, revolved around allegations of bullying and harassment levelled by Dr Urquhart against Mr O'Sullivan and which have now been withdrawn fully. An independent investigation by a rights commissioner examined 31 complaints and upheld six of the allegations in December 2005, one of which was subsequently overturned by DIT. The majority of the other complaints were not upheld by this investigation, which included interviews with a range of witnesses and DIT president Prof Brian Norton. The investigation found that Dr Urquhart had sustained a case of bullying against Mr O'Sullivan.

The findings of this report have now been set aside and all allegations withdrawn by Dr Urquhart. Mr O'Sullivan is understood to have sought to clear his name through an appeal of the findings of the report, and is believed to have been confident that this would transpire during any appeals process.

However, Dr Urquhart through his union, the Teachers' Union of Ireland (TUI), was also unhappy with DIT's interpretation of the report's findings and launched an appeal. The matter came to a head last month when the former chairman of the Labour Court, Finbarr Flood, who was appointed to handle the appeals process, succeeded in securing an agreement. Mr O'Sullivan incurred significant legal costs as a result of the long-running case. However, it remains unclear what percentage, if any, of the legal costs incurred by Mr O'Sullivan and the TUI have been met by DIT under the terms of the agreement.

The amount to be paid to Dr Urquhart is thought to include the equivalent of 18 months' salary, plus additional pension benefits and other monies. The agreement includes a commitment not to pursue any further disciplinary or other action in relation to the matter. It also includes a clause containing a commitment that no officer of DIT would be pursued legally or any further allegations about the matter made against them. Mr O'Sullivan and Dr Urquhart have agreed to a confidentiality clause and refused to comment. When contacted by The Irish Times a spokeswoman for DIT refused to comment.