A cult figure...

According to ‘Personneltoday.com’ – the online magazine for business and HR personnel: An employment lawyer has gained a cult business after suggesting on his blog that the unfair dismissal law should be scrapped. Mark Ellis, a solicitor at business consultancy Ellis Whittam (who provide corporate support), said the law benefited lawyers and staff at the expense of the UK economy.

"Are the feelings and the personal hardship suffered by an individual employee more important than the success and happiness of UK plc?" he posted earlier this month. There were 41,832 unfair dismissal claims in 2005-06, according to the Employment Tribunal Service. But Ellis told Personnel Today that if organisations were able to sack people they didn't like, productivity would soar, and there would be more work and money for everyone.

"If an employer doesn't like someone - as long as it is not a case of discrimination - then why should they have to go through a six-month procedure to tick the right boxes?" he said. An increasing number of "litigious employees" and no-win, no-fee lawyers were taking advantage of employment laws, he added.

Employers leapt to agree, and there was even a comment - albeit non-committal - from Conservative Leader David Cameron's office. And Peter Schofield, director of legal and employment affairs at manufacturers' body the EEF, told Personnel Today: "There is a legal regulation for almost every detail of the employment relationship."

We suspect that Mr Ellis’s ‘cult’ status does not come from the thousands (?) of victims/targets of workplace bullying who ‘experienced’ what a recent ACAS 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.’

No, his ‘cult’ status comes from the magazine ‘PersonnelToday.com’ which represents the interests of HR, and employers. The role of HR is well documented – in the vast majority of cases, human resources do not rock the boat and rubber-stamp the unfair application of internal procedures - they often collude with the employer and participate in such procedures. In any case, their job is on the line. And of course, the ‘cult’ status is supported by employers who in effect are judge and jury when it comes down to ACAS guidelines in dealing with internal disciplinary procedures.

The CIPD (Charted Institute of Personnel Development) - the professional body for those involved in the management and development of people – have guidelines for their staff on how to do the right things when dealing with internal procedures, but have never held accountable any of their members for not doing so…

These points are of no interest to Mr Ellis. His emphasis is not on making sure that ACAS guidelines are followed properly, but rather how some cases that end up in Employment Tribunals are often trivial, and as such are slowing down UK businesses. Nor does Mr Ellis deal with the effects of unfair dismissals on victims of workplace bullying. It is like if PTSD does not exist. In many ways, Mr Ellis represents the interests of business – his clients. We also suspect that Mr Ellis has not been in touch with the Andrea Adams Trust to get the picture from a different perspective.

Mr Ellis tries to be ‘pioneering’ in his blog by suggesting that the recent review comissioned by the DTI (Department of Trade and Industry) was his idea; Michael Gibbons – the person comissioned to write the report on the efficacy of the 2004 Regulations – was informed by Mr Ellis’s blog. No need to comment on such claims to fame, but worthwhile quoting what the DTI states:

‘…This consultation sets out a package of measures for taking forward the recommendations of the Gibbons review of employment dispute resolution in Great Britain. The review was set up to look at the options for simplifying and improving all aspects of employment dispute resolution, to make the system work better for employers and employees. It looked at all aspects of the system, including the existing legal requirements, how employment tribunals work, and the scope for new initiatives to help resolve disputes at an earlier stage.

The consultation is seeking views on a package of measures to help solve employment disputes successfully in the workplace so that:

• Productivity is raised through improved workplace relations.
• Access to justice is ensured for employees and employers.
• The cost of resolving disputes is reduced for all parties.
• Disputes are resolved swiftly before they escalate.

The specific measures being consulted on include repealing the current statutory dispute resolution procedures; providing better help and guidance to resolve disputes at an earlier stage; and improving how employment tribunals work.’

We suspect that in principal no victim of workplace bullying has any problems with the application of fair and impartial internal moderation to resolve issues before escalation. One of the failings of the current system is indeed the fact that the vast majority of employers refuse to engage in the services of external independent consultans – there is no obligaiton on them to do so, a point missed completely by Mr Ellis, who somehow assumes that the major failing of the current system is an increasing number of "litigious employees" and no-win, no-fee lawyers taking advantage of employment laws. Why would Mr Ellis bite the hand that feeds him and critique employers for not following properly ACAS guidelines and not exercising leadership qualities in brining in independent consultants to weed out management bullying?

The DTI is calling for interested parties to respond to the review by 20 June 2007. A response can be submitted by letter, fax or email to:

Dispute Resolution Review Team
Department of Trade and Industry
1 Victoria Street
London SW1H 0ET
Tel: 020 7215 5000
Fax: 020 7215 0168
Email: disputereview@dti.gsi.gov.uk

Regarding Mr Ellis’s ‘cult’ status, we are confident that victims of workplace bullying have a different opinion. In his world the victims of workplace bullying are dealt with as if they have no emotions, as if unfair dismissals have no health effects - only the interests of his corporate clients exist. A real cult figure...

Whistleblower's 'reasonable belief' is sufficient: Babula v Waltham Forest College [2007] EWCA Civ 174

Background

Mr Babula was a college lecturer. He became concerned that his predecessor had made remarks to students that had incited racial hatred. When he reported his concerns to the college he was ignored, so he decided that he had no option but to report the matter to the police - he 'blew the whistle'.

Babula claimed that the college's treatment of him following this disclosure left him with no alternative but to resign. He brought a claim for unfair (constructive) dismissal contending that the disclosure he made was a protected disclosure under section 43 of the Employment Rights Act 1996.

The tribunal struck out Babula's claim, stating that it was bound by the Employment Appeal Tribunal's (EAT) decision in Kraus v Penna, which the tribunal stated was authority for the proposition that a disclosure is not a qualifying disclosure unless a criminal offence, or legal obligation, capable of breach actually existed. The tribunal said the lecturer's comments were incitement to religious hatred, not racial hatred. There was no such offence at the time, so Babula's disclosure could not be protected.

As the college's equal opportunities policy did not refer to religious discrimination, Babula failed to show that the college was likely to fail to comply with a legal obligation. The tribunal said he could not, therefore, have reasonably believed that a criminal offence would be committed or a legal obligation breached so there was no whistleblowing claim. The EAT dismissed Babula's appeal, but he appealed to the Court of Appeal.

Decision

The Court of Appeal allowed Babula's appeal, holding that Kraus v Penna was wrong in law and should no longer be followed.

In determining whether a disclosure is a qualifying disclosure, the whistleblower must show that they reasonably believed their disclosure tends to show that a criminal offence is likely to be committed, or legal obligation breached. What is relevant is the whistleblower's reasonable belief and not whether or not they are right.

The fact the whistleblower may be wrong is not relevant, provided their belief is reasonable and the disclosure to their employer is made in good faith.

Babula had identified a criminal offence (incitement to racial hatred) and a legal obligation (the college's equal opportunities policy). The question was whether or not he had a reasonable belief that the criminal offence had been or was going to be committed, or that the legal obligation had been or was likely to be breached. As his belief was reasonable, his disclosure was protected.

Key implications

This case shows that a whistleblower's belief may be reasonable even though it turns out to be wrong. Whether or not the whistleblower's belief is reasonable is a matter for the tribunal to determine.

The purpose of the whistleblowing legislation is to encourage employees to come forward and make disclosures of information that are in the public interest. To expect employees to have detailed legal knowledge sufficient to determine whether in fact an offence is likely to be committed, or legal obligation breached, works against the purpose of the legislation.

From: http://www.personneltoday.com

My dream...

Utterly Completely Useless (UCU)

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