Presentation notes from Yolk Recruitment's HR Insights Session on January 24th 2013 by Anna Denton-Jones of MDJ Law.

1. Anna Denton‐Jones
January 24th 2013
The practicalities of dealing with
allegations of bullying and harassment

2. WHAT ARE THE POTENTIAL COSTS
TO AN ORGANISATION OF HAVING A
BULLYING AND HARASSMENT
COMPLAINT?

3. THE LEGAL BIT

4. Contract of Employment
• Implied term of trust and confidence
– duty to investigate grievances “promptly”
• Your procedures may be contractually binding;
– “No action will be taken against an employee
until the case has been fully investigated”.
• Implied duty to provide safe working environment
(relevant to bullying)
• Failure = breach of contract, possibly entitling the
employee to resign and claim “constructive unfair
dismissal” ‐ Dutton & Clark ‐v‐ Daly (1985)

5. “Harassment” – Equality Act
• “treatment which has the purpose or effect of
either violating the employee’s dignity or creating
an intimidating, hostile, degrading, humiliating or
offensive environment”
• Protected characteristics : sex, sexual orientation,
gender reassignment, race, nationality or ethnic
origin, religion or belief, disability and, age
• Unlimited compensation possibility
• Cannot be justified

6. Personal Liability for Discrimination
Gilbank v Miles [2006]
– Personal liability of managers
– Award of £25,000 for injury to feelings
(employer and manager joint and severally
liable)
http://www.personneltoday.com/articles/29/11/2005/3278
4/gilbank‐v‐miles.htm

7. Vicarious Liability
• Employer is liable for the acts and omissions of its
employees
• A possible defence is to show the employer has
taken all reasonable steps to prevent the
harassment occurring

8. Other issues relevant to bullying
complaints:‐
• Health and Safety at Work Act 1974
– Legal duty to ensure, so far as is reasonably practicable, the
health, safety and welfare at work of employees
– Statutory duty of care
– Individual responsibility too
• Duty of care towards employees in the law of negligence –
obligation to provide a safe place and system of work and to
protect the employee from unnecessary risk of injury. Has the
employer done everything reasonably practicable to prevent
reasonably foreseeable damage from occurring? If not ‐ award
of damages to the employee for the injuries suffered by them.

9. Other employee rights – Unfair
Dismissal
• If the employee believes there is a “serious and
imminent” danger – right to take steps to protect
himself or others
• May include leaving work and refusing to return whilst
the danger persists
• Dismissal in these circumstances will be automatically
unfair s100 Employment Rights Act 1996
• Right not to suffer action short of dismissal (demotion,
warnings, other sanctions, loss of pay)

10. Protection from Harassment Act 1997
• Rare
• Conduct occurring on at least 2 occasions
targeted at the Claimant which is calculated in
an objective sense to cause distress which is
objectively judged to be oppressive and
unreasonable and sufficient to establish
criminal liability.

11. ACAS Code of Practice
• Applies to grievances as well as disciplinary
situations
• 25% uplift for failure to follow guidance
• Could result in 25% deduction from employee if
they didn’t raise grievance?
• Mediation – emerging trend

12. Harassment from third parties
• Extends to all PC covered by harassment not
just sex
• Employer needs to know of 2 other occasions
before becomes liable – 3 strikes
• Can avoid by taking reasonable steps to
prevent harassment on this occasion
• Proposed repeal in 2013

13. THE PRACTICALITIES

14. What do you do?
You found Carla in the toilet in tears this morning.
When you asked her what was wrong she
referred to her line manager constantly asking
her out to the pub after work despite the fact she
had told him she doesn’t drink for religious
reasons. You encouraged her to take the matter
up informally with him or formally with a
manager. She said she didn’t want to and made
you promise not to say anything to anyone.

15. Can the matter be dealt with
informally?
• When would this be appropriate?
• When would it not be appropriate?
• When must you deal with it formally?
• Have the confidence to say “this isn’t a
grievance”

16. Acknowledging the Complaint
• “We take this seriously”
• Inform them who will be dealing with
investigation
• Act promptly to initiate investigation
– danger of making things worse

17. What steps do you take towards the
alleged bully/perpetrator?
• Risk assessment
• Good procedures allocate them someone in HR
as well as the complainant
• Consider suspension

18. Considerations when appointing an
investigator
• Has the person got the time?
• Has the person got the skills?
• Do I need a team of people?
• Would an outside person be better?

19. Is the complaint clear?
• Invite to an investigation meeting – find out
more about what has been going on
• Clarify the allegations
• Who else will need to be interviewed?
(Witnesses)
• What other documents/records do we need to
check?
• Confidentiality and co‐operation issues

20. Questionnaires
• Brian is investigating complaints against the
finance manager and is struggling to get the ten
potential witnesses to co‐operate. He puts
together a questionnaire document to be sent to
the witnesses for them to fill in and return to
him. What are the pros and cons of doing this?

21. Case study
• Carol has complained that her manager has
bullied and harassed her following long‐term
sickness absence. She is objecting to Jean from
HR being the investigating officer as she says
when she first mentioned she was going to raise
a grievance to Jean, Jean said things that mean
she isn’t impartial. What do you do?

22. What do you do?
• Tom has made a complaint that Peter a
colleague is stalking him. Having spoken with
Tom at length to understand the nature of his
complaints, you call Peter to a meeting to
inform him of the complaint against him. He
makes accusations about Tom saying that it is
actually Tom bullying him, that Tom has been
sending him text messages which he shows
you. These are of a sexual nature.

23. Writing an investigation report
• Background
• Complaints
• Evidence for and against each allegation
• Cross‐refer to witness statements
• Would the investigator recommend a finding in
favour or against the allegation?
• The best reports are balanced: can you admit
some faults?

24. Case study
• Geoff is going to be conducting the grievance
meeting
• He has asked you to write him an agenda for the
meeting with some notes on how to conduct it.
• What will you say to him?

25. Meeting with the complainant
• Opportunity to have their say and explain their
case – general principles of ACAS Code
• Ask them how they would like issue resolved.
• Full hearing – do not rush!
• Obligation to notify them of the outcome – is
their grievance upheld or not.

26. Note‐Taking
• What to include
• What not to include!

27. The Outcome Letter
• Detailing the considerations taken into account
can help in a Tribunal
• Try and make it ‘balanced’
• Can you admit to some ‘fault’ without admitting
liability?
• Power of apology
• Enclose a copy of the meeting minutes
• Right of appeal to someone more senior

28. The appeal
• View it as an opportunity
• Consider procedural weaknesses eg:‐ do any
witnesses need to be re‐interviewed?
• Would the criticism make any difference to the
outcome?

29. Taking steps against the perpetrator
• They need to be aware of the allegations they
face in detail: fair to see a copy of the
investigation report
• Fully opportunity to comment in a disciplinary
hearing before any penalties are applied
• Right of accompaniment
• Right of appeal to someone more senior
• Warnings vs dismissal vs other measures

30. Should you dismiss the bully?
• …..it depends…
• Usually reasonable (if serious) where prior
warning issued
• Reasonable without prior warning if very
serious
• Test for employer
– do you genuinely believe in guilt?
– is that belief reasonably held?
– have you conducted reasonable investigations?
• BHS ‐v‐ Burchell (1980)

31. Moving forward
• Risk of victimisation claim if you move them into
a different role unless they request that?
• Want to know if you have taken disciplinary
action?
• Disciplinary action if they have made complaints
vexatiously?
• Training and support
• Mediation

32. What’s wrong with this?
Tom has made a complaint about his entire team. It was
investigated and after a hearing all the grounds were
denied by the company. Tom appealed. His appeal
failed. He agreed to mediation despite having concerns
about whether it could work. In the mediation the team
used the opportunity to have a real go at Tom and vent
their resentment at having been complained about. They
made personal insulting comments about his wife. At
one point the entire team were in the room, telling Tom
they no longer want to work with him.

33. Crunch time
• Complainant has to decide – are they resigning
and claiming constructive dismissal?
• If you have acted appropriately at every step it
might be difficult for them to pin a “last straw”
event on you
• May have to dismiss for SOSR if they can’t work
together

34. What do you do?
• Brian has raised a complaint about his line
manager sending round minutes of meetings
which he a says he feels undermines him and
belittles him. You feel that, on balance the
memos seem justified and that actually he has
a grudge about his manager who is new,
because he wasn’t promoted to the
management position.

35. Reducing the risks
• Use procedures
• Nominated anti bullying and anti‐harassment
champions?
• Monitoring

36. Reducing the risks ‐ policy
• Zero‐tolerance approach
• Dignity at Work Policy
– make clear bullying is not part of management ethos
– outlaw harassment – clear examples of what is and isn’t
acceptable
– disciplinary offence
• Other policies eg:‐ computer use
• Reminder eg:‐ memos, payslips
• Management training
• Make sure take action promptly if there is a problem
• Identify if sickness absence statistics show an area might
have a problem?

37. Any questions?
adenton@mdjlaw.co.uk
02920 537742
@mdj_law
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