Reporting restrictions in employment tribunals

An opinion from: http://www.personneltoday.com

The threat of sensationalised media coverage of tribunal claims leaves many employers with little option than to settle a claim to escape the damage to its reputation and that of its executives, despite often having a solid case for the defence. It also does nothing to encourage deserving employees to come forward and bring a claim.

And the fact that the press typically only provides very limited coverage to tribunal decisions also adds to the problem.

This is especially true of high-profile cases involving several days of evidence when often many weeks, if not months, will have passed before judgment is finally given. By this time, irrespective of the final outcome, what is left hanging in the air is the sense that the accusations that have been made, however jaundiced the reporting may have been, were true.

While occasionally the employee may feel the overwhelming urge to put its side of the story into the public domain, even before proceedings have commenced - as did Metropolitan Police commissioner Tariq Ghaffur - this is not the norm and most cases only appear as a result of reporting from a tribunal hearing.

From the employer's perspective, to see your accuser publicly humiliated in the press is an understandable urge, and it is therefore tempting to provide the waiting court reporter with an advanced copy of arguments or witness statements to help ensure that press coverage is favourable.

However, it makes no commercial sense to encourage a character assassination of the employee in the press as this type of publicity can backfire spectacularly. The employer is likely be left to pick up the expensive tab for the loss of career earnings if the employee's accusations are upheld. This is because when it comes to the award of compensation, the employee's ability to secure future employment is a key factor. The tribunal cannot ignore the severely diminished employment prospects that will result from adverse press coverage that has taken place as a result of the proceedings.

Tribunal procedures provide only limited circumstances where restrictions can be placed on reporting. And the requirement for hearings to take place in public reflects the important principle of open justice in a democratic society. So the power to restrict reporting is principally only available in cases involving allegations of sexual misconduct - typically sexual harassment - to avoid deterring women who have potential claims for sexual harassment from bringing a claim for fear of the damaging publicity that may ensue.

Once a restrictive reporting order is in place, the media is not allowed to report the case in such a way that would lead members of the public to identify anyone making, or affected by, the allegations. Deliberate breach is a criminal offence.

Yet surely both the employer and the employee in a case should be able to apply to have such an order granted - at least for a limited period - where it is known that a serious allegation is to be made during proceedings and which, given the nature of press reporting, could fundamentally damage their reputation.

It can no longer be in the public interest that the normal rights of the press to communicate information to the public should remain unrestricted in these types of cases.

It's clearly time to look again at the rules governing restricted reporting orders.

So much for the joyous academic life

When I first started grad studies, I saw first-hand how the faculty behaved as I was a student rep in the department meetings. I found it astonishing that well-educated and (supposedly) mature adults should behave in such a manner. What made matters worse was that the chairman sat there and did nothing.

Later, when I was teaching for a living, I was a target for administrative abuse myself. Someone in my department took an extreme disliking to me for some reason and began a subtle campaign to push me out, increasing when he became assistant head. When we got a new department boss, the new chap was quickly turned against me by my adversary.

This harassment continued for several years, especially after I added more credentials to my qualifications. The allegations against me became increasingly outlandish, though actual proof of my transgressions were never provided (to protect the students, apparently). Unfortunately, the dean at the time had a tendency to back the department heads, so I was out of luck there. Even the institution's staff association was of little help.

Eventually, I quit, but at a time and in a manner of *my* choosing. I'm sure that I irritated my enemies by doing that. It took me a bit more than two years to rid myself of all the stress built up from that place.

While doing my Ph. D., I locked horns with my supervisor. Over half way through the time allowed to complete my degree, he told me that he wasn't interested in what I was investigating. The remaining time was far from peaceful, but I did finished my thesis, though largely on my own once I developed the key concept of my research topic. I passed my defence and convocated and haven't had any dealings with my supervisor for several years.

I spoke with the university ombudsman about my situation. My choices were:

- continue as before,
- fire my supervisor and find a new one (if one was willing to take me on),
- change topics and possibly put up with more abuse, or
- throw away all the time and effort I put into my degree by quitting.

I chose the first one as one major undertaking at a time was enough for me. I know of other people who were in similar situations and they walked away.

So much for the joyous academic life.

Anonymous

Academic Bullies

One professor uses an alias, refusing to disclose his location beyond "the south of England." Embroiled in a lawsuit with his university, he sees a doctor for post-traumatic stress disorder. Another academic whispers into the phone, fearful her colleagues will overhear her. Yet another scholar has left academe altogether to escape the stress that caused her to lose sleep, along with clumps of her hair.

These college professors — and others who share similar stories in the safety of the Internet — blame their troubles on a single phenomenon: the academic bully.

This is no playground bully brandishing fists in search of lunch money. The academic bully plays a more subtle game. He — or, just as likely, she — might interrupt every time you speak in a committee meeting. Or roll his eyes at your new idea. Bullies may spread rumors to undermine a colleague's credibility or shut their target out of social conversations. The more aggressive of the species cuss out co-workers, even threatening to get physical. There is nothing new about this type of academic bullying. What's new is how it's talked about now, and, thanks to the blogosphere, where and how often.

Over time, say experts who study bullying, this kind of behavior in the workplace can lead to serious stress, a dip in productivity, an inability to attract new hires, and in some cases, a dysfunctional work environment. In academe, where tenure allows bad apples to stick around longer, bullying can be particularly debilitating.

"There are high costs, and often there are hidden costs," says M. Sandy Hershcovis, an assistant professor of business at the University of Manitoba, who studies workplace aggression. Her research has shown that victims of bullies often suffer from depression and anxiety, and that they are at an elevated risk of becoming bullies themselves.

Colleges may provide a particularly ripe environment for bullies because campuses are so decentralized, says C.K. Gunsalus, special counsel to the University of Illinois College of Law, where she is also an adjunct professor. Some faculty members abuse the little power they have, whether it is over a graduate student's future, a junior colleague's promotion, or simply anyone whom they view as a threat.

The growing use of adjunct professors, who often lack influence and the protection that tenure can offer, may also encourage academic bullying: Part-time faculty appointments now count for more than 40 percent of the academic work force, and 65 percent of recent appointments, according to an article in the magazine Academe, published by the American Association of University Professors.

And department chairmen, who often lack management training, don't always know how to respond to bullying. That gives the bullies free rein...

From: http://chronicle.com

The Third Annual Tim Field Memorial Lecture

Saturday 8th Novembr 2008

The organisers warmly invite you to The Third Annual Tim Field Memorial Lecture to be held at Aston University in Birmingham, at 1.45 pm, on Saturday, 8th November 2008.

The event has the full support of Tim's family.

In 2006 we were privileged to have Professor Charlotte Rayner (from Portsmouth University) deliver the first memorial lecture, and, last year, Professors Duncan Lewis and Michael Sheehan (from the newly created Centre for Research on Workplace Behaviours at Glamorgan University) gave a joint presentation. This year's event will be different in format, and we very much envisage that the issues raised and the lessons learned will be applicable across the whole range of occupational sectors.

As in previous year's the event is free (although donations will be most welcome), but this time, as the number of places is limited, admission will be by ticket only.

'Difficult Labour' is an Interactive Theatre Programme, exploring the story of Catherine Lawrence, a midwife, who is experiencing bullying in the workplace. The performance explores Catherine's struggle to understand the pressure she experiences and the increasing desperation which leads her to an ill-judged attempt to collect evidence of her treatment. The performance is followed by a facilitated workshop through which audience members are encouraged to understand better the circumstances which lead to Catherine's crisis and to find positive ways forward for all concerned. Follow-up material will expand on the issues raised, helping promote greater understanding of bullying issues.

The programme has been created through co-operation between representatives of DAWN and OXBOW, John Somers and students from Exeter University's Department of Drama. The production team acknowledges the great help given by a range of individuals in the development of the programme. The Director, John Somers, can be contacted at:
j.w.somers@exeter. ac.uk

Requests for tickets should be submitted a.s.a.p. to Keith Munday:
keith@dignityatwork now.org.uk
and include the following information: your name, preferred postal address for future communications about the event, your telephone and mobile numbers, and your e-mail address.

Any questions you may have can be directed to Keith Munday at the above e-mail address, or on his mobile phone: 07979732037.

New study seeks those accused of bullying at work

New research in the University of Adelaide's School of Psychology will examine what happens to managers who have been accused of workplace bullying by their staff.

PhD student Moira Jenkins, who is also a registered psychologist, is carrying out a study of managers accused of bullying their workers to see how they are affected by such accusations.

"Most organisations now have bullying and harassment policies and complaint processes aimed at dealing with inappropriate behaviours such as bullying and harassment. However, evidence suggests that some employees use these complaint procedures to complain about all sorts of workplace conflict, and behaviours that are not necessarily bullying," said Ms Jenkins.

"There are very few studies that have examined how complaints affect the people who have been accused of being a bully, especially managers who often have to keep managing the team while they are under investigation for workplace bullying."

Ms Jenkins is looking for managers who have had a complaint of workplace bullying made against them in the past year to hear their perspective on the accusations, the way the complaint was addressed, how the complaint affected their ability to carry out their job and the support they received. Study participants will be interviewed and asked to fill out a short survey.

Interviewee confidentiality is guaranteed and nothing will identify individuals or workplaces.

"I hope that the results of this study will help organisations better manage workplace conflicts before they become complaints of bullying," said Ms Jenkins. "Hopefully it will also give some guidance on how to best support managers who have allegations made against them."

People interested in taking part in the study should contact Moira Jenkins by phoning 0412 733 453 or emailing moira.jenkins@adelaide.edu.au

Ethics and Education Seminar

Ethics and Education Seminar which is being held on 18 December from 5-7 p.m. at St George's University of London,Cranmer Terrace, London SW17 0RE.

To reserve a place contact Sandra Jago, phone: 020 8725 0196

Please do help... [USA]

I am a full prof. I am aware of misconduct, to put it mildly. I went from probably the most preferred faculty member to the most harassed. I did not formally blow a whistle. I face so much hostility from the admin, it cause a devastating physical illness (as can be documented). I am not a trouble maker.

It has gone on for three years, part of which I was on leave seeking medical help. I returned to pure hell. I am popular among the colleagues, and my courses are packed (even though they are hard). I run a doc program and feel very respected in my field. I don't get raises anymore (used to get huge raises that it was almost uncomfortable).

The sad part is, I just love being a prof and love my students. I have a hard time writing these days with the distraction of constant badgering, retaliation, rumors, being held against my will in meetings, asked to sign fabricated papers would compromise my ethics or coerce me into pleading guilty to false charges, or even incriminate me.

The last straw was that I met with ADA, and I already had a small reasonable accommodation for something else. They were very nice, as always. Now they want new documentation even regarding the old accommodation (which is incurable). So, the stress is making this all worse (although I have learned to meditate and deal with A LOT). Will it ever end?

ADA suggested an alternative strategy than the one determined by my doc. This is a major univ. I cannot believe what has gone on. I love being a prof, but not sure it's all it was cracked up to be... not here. I DO NOT want to leave. I like what I made for myself. I need to remain in this geographical location. I asked before, but I will ask again, since I have not made progress. WHAT KIND of LAWYER do I need? How does one find a university/higher ed, ADA, harassment, employment, and grant mismanagement fund atty? I need one and it cannot wait any longer.

Please, PLEASE HELP.
----------------------------------
The disgraceful, despicable and disgusting employers responsible for the current situation of our colleague above, are more than shame to the human race. One feels the pain and anguish of our colleague. If you live in the USA, perhaps you can offer some help. Email him at: neshema1@yahoo.com

What the government believes...

And in the UK, based on government's lax response to a petition banning SOSR (Some Other Substantial Reason) basis for dismissal, staff who report being bullied or that others are being bullied face dismissal with no recourse, as it is perfectly legal to sack someone if their reporting of bullying 'causes' a breakdown in working relationships.

Here is the petition and their rather lame, but not unexpected response:-

“We the undersigned petition the Prime Minister to Protect the rights of all workers in Britain by supporting the passing of legislation outlawing the dismissal of employees on the grounds of “some other substantial reason” (SOSR) in the absence of gross misconduct.”

Details of Petition:

“The EAT decision in Perkin v St. Georges NHS Trust, strengthens the right of employers to dismiss workers on the grounds of “Some Other Substantial Reason” (SOSR). This decision encourages employers to violate the basic British principles of fairness embodied in British employment and human rights law by discriminating freely, and by intimidating potential “whistleblowers” into silence, whilst citing the competent employee’s “difficult” personality. Employers have been able to claim that a “breakdown in working relationships, “caused by” the employee renders a dismissal substantially fair, even where the dismissal has been ruled by a court to have been procedurally unfair (e.g. where the employer is a public body and has violated the employee’s rights under Human Rights Act of 1998). We therefore call for legislation that would remove the vague and easily abused “SOSR” basis for dismissal while retaining the right to dismiss an employee on the grounds of gross misconduct.”

The Government’s response:

Under employment law, dismissal must be for a valid reason and fairly carried out - the five potentially valid reasons are; capability, conduct, redundancy, retirement, that continued employment would breach a statutory requirement. In addition, the law allows for ‘some other substantial reason’, where an employer has a good reason for dismissing an employee which is not one of these five. The legislation has been in force for some thirty years and there is extensive case law to guide the tribunals on what constitutes ‘some other substantial reason’. The Government does not believe that SOSR permits employers to act unfairly.

Anonymous

Are PhD students neglected by their supervisors?

If things had gone according to plan, Paul Jones would be seeking work as a university lecturer. Instead, he is unemployed and trying to pursue a legal action against the university where he failed to complete his PhD.

The 26-year-old claims that his research is in ruins because the School of Business and Economics at the University of Exeter put unreasonable demands on him as a graduate teaching assistant when it placed him in sole charge of a module for final-year students. He claims that the supervision for his PhD was inadequate during the same period and that when he raised his fears of falling behind with his thesis, he was bullied by a lecturer who threatened him over a reference.

The university says that it disputes his version of events and does not accept his complaint, one of an increasing number being pursued by students in the UK. Though it is rare for cases to hit the headlines – most are either dropped or settled out of court with confidentiality clauses – lawyers say that they are most likely to be hired by students on postgraduate courses rather than students on undergraduate degrees, because the postgrads are older and have more to lose.

"It is disturbing to note the extraordinary number of calls we have received from aggrieved students in recent years," says Mike Charles, a partner at Sinclairs, the education law firm that is assisting Jones. "The number is certainly increasing; perhaps unsurprisingly, in view of the tuition-fee increases that result in students having greater inclination to turn to the law when they feel let down."

While pursuing his case through the internal procedures, Jones says that he discovered an email from a senior academic at Exeter warning of the risk of putting a teaching assistant in charge of a final-year undergraduate module at a time when students were becoming "increasingly snotty and litigious".

The Office of the Independent Adjudicator for Higher Education, which handles complaints against universities, confirms the trend of increasing postgraduate dissatisfaction. It draws attention in its latest annual report to the proportionately higher number of complaints from graduate students, saying they represent 37 per cent of the workload...

The biggest stumbling block for litigants is being unable to prove inadequate supervision. "If you claim that you suffered loss as a result of negligence on the part of the university then, essentially, you are claiming that the academic involved was professionally negligent and you will have to find another lecturer to back up your claim as an expert witness," he says.

Recent cases have suggested that universities are likely to settle the most viable claims rather than run the risk of larger losses and the publicity of a court case. But they are likely to defend weaker claims to make a stand. Because settlements almost always include a confidentiality clause, that gives the impression that student claims are less successful than they are in practice, he says...

A spokesman for the university said: "It is unusual for graduate teaching assistants to deliver a full course module in the Business School and this would only be contemplated where they displayed a very high level of ability. In Mr Jones's case, he had been involved in delivering aspects of this module for the two previous years."

A hearing chaired by the deputy vice-chancellor, Professor Neil Armstrong, did not accept that unreasonable teaching demands were placed on the student. "It was not unreasonable for a graduate teaching assistant to be asked to teach an entire module and it was not in breach of the university's code of practice," said Professor Armstrong.

From: http://www.independent.co.uk

What is Corporate/Institutional Bullying?

Corporate/institutional bullying occurs when bullying is entrenched in an organization and becomes accepted as part of the workplace culture. Corporate/institutional bullying can manifest itself in different ways:

• Placing unreasonable expectations on employees, where failure to meet those expectations means making life unpleasant (or dismissing) anyone who objects.

• Dismissing employees suffering from stress as “weak” while completely ignoring or denying potential work-related causes of the stress. And/or

• Encouraging employees to fabricate complaints about colleagues with promises of promotion or threats of discipline.

Signs of corporate and institutional bullying include:

• Failure to meet organizational goals.

• Increased frequencies of grievances, resignations, and requests for transfers.

• Increased absence due to sickness. And

• Increased disciplinary actions.

If you are aware of bullying in the workplace and do not take action, then you are accepting a share of the responsibility for any future abuses. This means that witnesses of bullying behavior should be encouraged to report any such incidences. Individuals are less likely to engage in antisocial behavior when it is understood that the organization does not tolerate such behavior and that the perpetrator is likely to be punished.

From: http://66.102.9.104 Washington State Department of Labor & Industries