UK Leading Experts in Workplace Conflict Resolution: WELCOME TO HR & DIVERSITY MANAGEMENT. Our article, Workplace Investigation Toolkit, has been published in EDGE online by the ILM. Sep 2012. The best for your erection is generic levitra. It has a very soft effect and you can be sure that you will treat your problem and after you can finally start having sexual acts without any pills. Try also Vardenafil 20mg (Levitra) drug as it was named as the best one in 2014. Read more here: Statutory Law, the employment act, harassment and ACAS code of conduct — Bullying in the Workplace

 STATUTORY LAW

IMPORTANT LAW CHANGES: JULY 2013

July 2013
SETTLEMENT AGREEMENTS (formerly known as Compromise Agreements).

“From Monday 29 July 2013 entering into a Settlement Agreement enables employers and employees to explore a mutual and amicable parting – even where there is no conflict between the two. Where risk is perceived by either of the parties, this is a common sense approach”.  Christine Pratt. HR & Diversity Management Ltd. Founder of The National Bullying Helpline.

Section 111A of the Employment Rights Act 1996 introduces the concept of confidential pre-termination negotiations – previously referred to as Compromise Agreements or gagging clauses! Simply put, these negotiations will not be admissible in tribunal proceedings – the intention being to make it easier for employers to have an off the record discussion with an aggrieved employee with a view to reaching an amicable resolution regarding the termination of that employee’s contract of employment.

So what’s new about that then? Well, under the Settlement Agreement approach (in contrast to the existing “without prejudice” rules), section 111A will not require there to be a pre-existing dispute in order to have a confidential, off the record conversation. This is, potentially, quite exciting for employers – and very helpful too – especially for employers who want to ‘test the water’ with an employee before deciding on what formal steps to take.

The Code is not legally binding on employers or tribunals but it will be taken into account by tribunals when deciding whether a party is protected by section 111A. The new ACAS Code on Settlement Agreements goes so far as to make recommendations as to guidance on the meaning of improper behaviour in this context. Ultimately, a Tribunal will decide what amounts to improper behaviour in specific cases but examples given under the Code includes; physical assault, harassment, victimisation and discrimination, bullying and intimidation. The concept of ‘undue pressure’ is described as including:

(i) failing to allow a reasonable time for consideration of a settlement agreement (the Code suggests 10 calendar days will normally be required);
(ii) saying before any process has begun that if a settlement is not reached then the employee will be dismissed (however, the Code says it will not be improper to set out in neutral terms the “likely alternatives” to settlement);
(iii) an employee threatening to damage an employer’s public reputation if a settlement is not reached.

Disputes over whether an employer’s frankness amounted to undue pressure or even intimidation are likely. Would a statement that the employee will get a less favourable reference unless terms are agreed amount to “improper behaviour”? It shouldn’t, but context, careful phrasing of any settlement proposal and taking an accurate note of what is said will be important. Ten calendar days is a long time to consider a settlement proposal and employers may want to agree shorter periods with employees. This should not fall foul of the Code, so long as there is no suggestion of undue pressure in obtaining the employee’s agreement.

Settlement Agreements will be useful in the most straightforward of cases. Employers will want the wider security of falling within the “without prejudice” principle before starting negotiations.

We see this new approach to be entirely professional and in the very best interests of conflict resolution. The myth that you need to be a CEO or a senior director to agree a ‘golden handshake’ no longer prevails. If the parties are receptive to an amicable parting under a Settlement Agreement, so be it.

July 2013
TRIBUNAL FEES

With effect from 29 July 2013 Employment Tribunal fees are being introduced. It will now cost up to £1,200 for an employee to take their employer to an Employment Tribunal.

Two important points;
1. The fee will be waived in hardship cases.
2. The employee will be refunded if s/he goes on and wins their case. Simply, ‘the other side’ will be  ordered to pay the tribunal fee and the employee will be reimbursed.

Nevertheless, the Unions are ‘up in arms’ and say this is “a great day for Britain’s worst bosses”. Employment Law Solicitors predict widespread chaos for those wishing to seek a fair outcome in discrimination cases (Race, Sex or Disability cases). Whilst the intention is to save money for businesses and taxpayers – these changes are to impact significantly on an employees’ fundamental rights in the workplace.

Presently, the taxpayer is footing the entire £74m tribunal dispute bill. You can almost understand why our Government wishes to address the problem – but is this the way to do it? “Seeking redress for unfair dismissal and discrimination and other injustices in the workplace is a fundamental human right – but now ministers are putting up insurmountable financial hurdles for working people in pursuit of justice. We estimate that this will affect 150,000 workers every year” say the Unions.

We are extremely concerned that these fees will disproportionately hit those suffering discrimination because of their age, race, disability and/or gender. Women returning from maternity leave, for example, will be hit hard as they will be assessed on their final salary rather than their statutory maternity pay.

“Some people will simply feel unable to challenge an unfair dismissal case, regardless of how badly they were treated. We tend to forget that the fear and uncertainty associated with legally challenging an employer in an open court is an already extremely daunting and stressful prospect for the average person, without the added worry of funding the initial tribunal application (ET1). In a high percentage of cases the employee is already suffering with work related stress – a serious and often underestimated mental health condition.

We also question what is meant by ‘hardship cases’ and how these will be assessed by the Tribunal system. Surely, everyone who has lost their job unlawfully is automatically a hardship case – by simple virtue of the fact that they are no longer receiving a monthly salary”.  Christine Pratt. HR & Diversity Management Ltd. Founder of The National Bullying Helpline.

 EMPLOYMENT LAW CHANGES: 2012

Importantly; from 6 April 2012, the qualifying period to claim unfair dismissal is extended from one year to two years. This applies only to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year. See below for further information.

Other important changes include;

RESOLVING EMPLOYMENT DISPUTES (including 2012 updates). We are experts in this area. Call us on 07734 701221 for an initial FREE consultation.

To simplify workplace disputes, a number of proposals have been made with the objective of reducing the number of claims going to employment tribunal (and to speed them up when then get there). Here is an update;

Mediation: Two regional mediation networks for small and medium enterprises (SMEs) have been set up, in Cambridge and Manchester, as pilot schemes. The Department for Business, Innovation and Skills is funding training for employees from 24 SMEs in each area, to enable them to provide mediation to organisations in their network, to help resolve employment disputes at an early stage in SMEs. The aim is to preserve the employment relationship wherever possible. More details will follow when results are published.

Pre-Claim Conciliation: The Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, includes a requirement for details of all employment claims to be submitted initially to ACAS, before they can be lodged with the tribunal. Claimants will be offered pre-claim conciliation, but there will be no obligation on either party to take up the offer; if the offer is refused or conciliation is unsuccessful the claim can proceed to the tribunal. Limitation periods will be extended to allow time for ACAS conciliation.

This is different from the original proposal, which would have required all claims to go through pre-claim conciliation with ACAS before they could go to tribunal. The pre-claim conciliation provision is in ss.7-9 of the bill.

Rapid Resolution: S.10 of the Enterprise and Regulatory Reform Bill allows for regulations to be made permitting appointed legal officers to make decisions on behalf of the employment tribunal, if all parties to the dispute agree in writing, in specified low value, straightforward claims such as holiday pay. The intention is to be quicker and cheaper, for example by allowing for non-judicial determination based only on papers, without an oral hearing.

No-fault dismissals for micro-employers: This legislation is unlikely to actually become law but following the government’s “red tape challenge” on employment-related regulations in October 2011, the Department for Business, Innovation and Skills carried out from 15 March to 8 June 2012 a call for evidence on the implications of compensated no-fault dismissals for micro-employers with fewer than 10 employees. Under this proposal, a micro-employer would be able to dismiss an employee even if there was no fair reason for doing so and without going through a disciplinary and dismissal procedure, on payment of a set amount of compensation.

COMPROMISE AGREEMENTS

Tel: 07734 701221 for urgent help.

Compromise Agreements: Under the Equality Act 2010 it is clear that compromise agreements can be safely used to settle discrimination claims. Vince Cable, secretary of state for business, innovation and skills, said on 11 June 2012 that the compensated no-fault dismissal proposal would not be taken forward. Instead, the emphasis will be on settlement agreements, which can be used by all employers but which cannot be forced on the employee.

WITHOUT PREJUDICE

Protected conversations: The government consulted from January to April 2011 on proposals to simplify resolution of workplace disputes and reduce the number of claims that go to tribunal, and announced its response on 23 November 2011. The consultation documents and response, which included proposals for protected conversations and compromise/settlement agreements, are on the BIS website. Further, the provisions can be found in the; Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012. Note: Protected conversations are now referred to as confidential negotiations before termination of employment. The provision would allow employers to discuss issues which could lead to dismissal, such as retirement or poor performance, in an open manner with staff, and offer a no-fault termination package through a settlement agreement, without these discussions and the settlement offer being used in any subsequent unfair dismissal tribunal claims. Unlike “without prejudice” discussions which also cannot be disclosed in tribunal or court proceedings, the confidential negotiations provision can be used even if there is no existing dispute.

As proposed, the provision for confidential negotiations would apply only to unfair dismissal claims. For claims other than unfair dismissal — such as breach of contract, discrimination, or dismissals that are automatically unfair such as whistle-blowing — negotiations will continue to be able to be taken into account unless they are explicitly without prejudice. As worded, the proposed legislation seems to provide that if an unfair dismissal claim is brought at the same time as another claim, the negotiations will be able to be taken into account in the unfair dismissal claim as well. Negotiations will also be able to be taken into account in relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour. “Improper behaviour” is not defined, but would presumably include an employer seeking to coerce an employee into accepting a settlement agreement. Some say that, ‘in order to decide whether something improper was said or done’ the tribunal would have to hear about the negotiations anyway!

The Enterprise and Regulatory Reform Bill can be accessed on the Parliament website. The confidentiality provision is clause 12.

Settlement agreements: Under clause 17 in the Enterprise and Regulatory Reform Bill compromise agreements will be renamed settlement agreements and the process will be made more straightforward for both employers and employees. A compromise/settlement agreement is a legally defined agreement under which an employee whose working relationship with the employer has become irretrievable agrees, in return for a negotiated financial sum, not to bring a tribunal claim against the employer.

See our section on Compromise Agreements.
Call us on 07734 701221 if you would like assistance in this respect.

Importantly; There is a requirement for the employee to receive independent advice from a solicitor, trade union official or qualified advice worker before entering into a compromise agreement.

If the employee rejects a settlement agreement and has the necessary period of qualifying service, the employer will have to have a fair reason for dismissal and go through a fair dismissal procedure in order to reduce the risk of an unfair dismissal claim, and regardless of length of service will need to follow any contractual disciplinary and dismissal procedures to reduce the risk of a wrongful dismissal claim. Under the Equality Act 2010 it is clear that compromise agreements can be safely used to settle discrimination claims.

WHISTLE-BLOWING

Whistle-blowing: Under ss.43A-43L of the Employment Rights Act 1996, inserted by the Public Interest Disclosure Act 1998 (PIDA), a worker who reveals information about an employer that would normally be confidential (whistle-blowing) is protected against victimisation or dismissal, provided the worker reasonably believes the disclosure tends to show one or more of six categories, and it is made through a protected route. The categories are criminal offence, failure to comply with any legal obligation, miscarriage of justice, danger to an individual’s health or safety, damage to the environment, or deliberate concealment of information tending to show any of these. Protected routes include the employer, a legal advisor, or prescribed bodies such the Charity Commission, Health & Safety Executive, HMRC, Environment Agency etc; there are other protected routes. Disclosure to a protected body must be made in good faith.

Disclosure of information that the worker does not reasonably believe shows or tends to show one of the six categories or is not made through a protected route is not protected.

A clause included in the Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, would change the definition of whistle-blowing so that the worker not only has to reasonably believe the disclosed information tends to show one or more of the six categories, but also reasonably believes it is made in the public interest. Unlike other employment-related provisions in the bill, the government did not carry out any consultation on this. A change in the legislation is necessary, because the employment appeal tribunal found in Parkins v Sodexho that an employer’s breach of an individual’s contract of employment is a failure to comply with a legal obligation, and therefore disclosure of a contractual breach could be protected. There have been concerns that since this 2001 decision, PIDA is being abused in particular by City bankers using it to claim that disclosures about their bonus payments are protected disclosures.

STATUTORY MATERNITY

Statutory maternity pay (SMP) is 90% of the woman’s weekly earnings for the first six weeks of maternity leave. For the remaining 33 weeks of the 39-week SMP period, SMP is a flat weekly rate or 90% of average weekly earnings, whichever is less. For complete pay weeks starting on or after 1 April 2012, the flat rate is £135.45 (increased from £128.73).

For complete pay weeks starting on or after 1 April 2012 statutory paternity pay (SPP) and statutory adoption pay (SAP) are £135.45 per week (increased from £128.73) , or 90% of the employee’s average weekly earnings, whichever is less. The earnings threshold for eligibility for SMP, SPP and SAP is £107 per week (increased from £102). An employer who paid, or was liable to pay, gross class 1 national insurance contributions of £45,000 or less in the individual employee’s qualifying tax year can recover 100% of the SMP, SPP or SAP, plus 3% compensation. Employers who do not qualify for this small employer relief can recover 92%.

Proposals to increase SMP and SAP from 39 to 52 weeks have been put on hold indefinitely, but additional paternity leave and pay were introduced where the child is due or is matched for adoption on or after 3 April 2011.

PATERNITY

The Additional Paternity Leave Regulations 2010 gave a new right to additional paternity leave in relation to babies expected on or after 3 April 2011 or children placed for adoption on or after that date.

TIME OFF FOR DEPENDENTS

A case in April 2011, Clarke v Credit Resource Solutions, illustrates the importance of understanding the statutory right of all employees, regardless of length of service, to take reasonable time off to deal with unexpected or sudden situations relating to dependants, or to make necessary longer-term arrangements for dealing with the situation. There is no right to pay for the time off unless the contract says it is paid, but it is unlawful to subject an employee to a detriment for exercising their right.

Employers need to have a clear policy to ensure managers and staff know about this and understand it.

TRIBUNAL AWARDS

£ Tribunal Awards: From 1 February 2012 the maximum compensatory award for unfair dismissal is increased from £68,400 to £72,300. The compensatory award is intended to compensate employees for loss of earnings. The maximum basic award is increased from £12,000 to £12,900.

The maximum “weekly pay” for calculating certain statutory entitlements, including statutory redundancy pay for redundancies taking effect on or after 1 February 2012, is increased from £400 to £430.

The limit on guarantee payments when an employee is not provided with work is increased from £22.20 to £23.50.

The minimum basic award for unfair dismissal on grounds of health and safety, trade union involvement, serving as an employee representative or occupational pension scheme trustee, or other reasons that are automatically unfair is increased to £5,300, and the minimum compensation for a worker excluded or expelled from a trade union goes up from £7,600 to £8,100.

MINIMUM WAGE

From 1 October 2012 the national minimum wage for workers aged 21 and over will go up 11p, from £6.08 to £6.19 per hour. It will remain £4.98 for 18-20 year olds and £3.68 for 16 and 17 year olds who are above school leaving age and are not apprentices. The government’s justification for freezing the youth rates is that in the current economic climate, an increase would make it harder for them to get a job in the long run. The apprentice minimum wage of £2.60 per hour will go up to £2.65 for apprentices aged under 19, or over 19 and in the first year of their apprenticeship. This applies to apprentices on traditional contracts of apprenticeship, and employed apprentices on government-supported level 2 and 3 schemes. The apprentice minimum wage came into effect on 1 October 2010, replacing the £95 per week minimum rate of pay for apprentices.

The accommodation offset rate (the amount that can be taken into account for living accommodation) will be increased from £4.73 per day (£33.11 per week) to £4.82 per day (£33.74 per week). Since 1 October 2011 the accommodation offset has not applied to students in full-time higher education and further education who are employed by the institution at which they are students.

Information may be found via the Governments website (The Department for Business, Innovation and Skills), via Business Link and/or via HM Revenue & Customs.

RIGHTS FOR TEMPORARY WORKERS: The rights of temporary workers: From 1 October 2011, when the Agency Workers Regulations 2010 came into effect, agency workers (often referred to as temps) in England, Wales and Scotland, who are placed on assignment by a temporary work agency (TWA), are entitled to the same basic employment rights as a comparable employee or worker (the comparator) directly employed by the receiving organisation (the hirer).

FLEXIBLE WORKING: The Right to request flexible working: The government proposes that the right to request flexible working be extended to all employees who have been with their employer for 26 consecutive weeks, not just those who are parents or carers as at present. The current statutory procedure for flexible working requests would be replaced by a statutory code of practice for employers and a duty to consider requests reasonably, but there are no plans to alter the current eight business reasons for an employer to turn down a request. At present employees can request flexible leave only once in a 12-month period. Under new proposals they would be able to make a further request within 12 months where the initial request was for a temporary arrangement.

The government’s response was expected in early 2012 but has been delayed.

STATUTORY SICK

Statutory Sick Pay: For sickness absence on or after 6 April 2012, the earnings threshold is £107 per week (increased from £102) and the statutory sick pay rate is £85.85 per week (increased from £81.60). Employees earning less than £107 p.w. or not eligible for SSP for other reasons may be entitled to employment and support allowance.

TRIBUNAL REFORM

From 6 April 2012 a number of changes in employment tribunal procedure kicked in to reduce the complexity and perceived inefficiency of the system. For further details refer to the Employment Tribunals Act 1996 via the Parliament website.

Judges: For example, from 6 April 2012 employment judges will hear unfair dismissal cases alone in the employment tribunal, unless the judge directs otherwise. Some concern has been expressed about Judges sitting alone for unfair dismissal cases in the ET. See EAT decision in McCafferty v Royal Mail.

Deposit orders: The maximum amount for a deposit order is increased from £500 to £1,000. The employment judge or tribunal can order any party to pay a deposit as a condition of being allowed to proceed if it considers its case has no reasonable prospect of success.

Costs cap: The maximum amount for a costs order, requiring the employer or employee to contribute to the other’s costs, is increased from £10,000 to £20,000. The tribunal or employment judge has a duty to consider awarding costs where the case had no reasonable prospect of success or where one of the parties or its representative has acted vexatiously, abusively, disruptively or unreasonably, but can award them even if this is not the case. Practical Lawyer magazine suggests that tribunals are likely to move away from a general “no costs” presumption towards the county court system of “loser pays”, which could make the consequences of losing more serious for both employers and employees.

If a claimant persists with a claim after being ordered to pay a deposit at a pre-hearing review and then loses, the deposit may be awarded as costs to the other party.

Witness statements: Witnesses’ written statements will be “taken as read” and witnesses will no longer need to read them aloud, unless the tribunal or employment judge orders otherwise.

Witness costs: The tribunal or employment judge has power to order the parties to a dispute to pay witnesses’ expenses, and to require the party who loses the case to reimburse the successful party for any such witness costs they have already paid.

See: The Employment Tribunals (Constitution and Rules of Procedure)(Amendment) Regulations 2012.

Maximum awards: The method of calculating the basic award in unfair dismissal claims, and the maximum compensatory award, are both being changed.

Discrimination compensation: The government has concerns about the high level of compensation awarded by employment tribunals in some discrimination cases, and whether this leads some workers to take weak, speculative or vexatious cases in the hope of a large award and/or leads employers to settle such cases before they reach the tribunal. In the BIS employment law review annual update in March 2012, the government said that because discrimination law derives from EU law, it would not be possible to put a cap on awards. However, information on median awards will be included in tribunal claim forms, so workers and employers realise that large awards are not the norm.

Judges Discretion: ref financial penalties for employers. Under clause 14 of the Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, employment judges will have discretion to serve a penalty on employers who breach employment rights where there are “aggravating features”. So as well as paying compensation to the employee, an employer could be required to pay a penalty (a fine) to the Exchequer of up to 50% of the tribunal award, subject to a lower limit of £100 and an upper limit of £5,000. The penalty will be reduced by 50% if it is paid within 21 days.

QUALIFYING FOR UNFAIR DISMISSAL

Qualifying Period to Claim Unfair Dismissal: From 6 April 2012, the qualifying period to claim unfair dismissal is extended from one year to two years. This applies only to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year.

The right to request a written statement of reasons for dismissal is also extended from one year to two years for employees who start on or after 6 April 2012. Claims for unfair dismissal where there is no qualifying period, for example where the dismissal is for a reason based on unlawful discrimination, continue to be able to be made from day one.

CONFLICT IN THE WORKPLACE

DEALING WITH ISSUES: Whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. In summary:-

• Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
• Employers and employees should act consistently.
• Employers should carry out any necessary investigations to establish the facts of the case.
• Employers should inform employees of the basis of the problem and
• Employers should give the employee an opportunity to put their case in response before any decisions are made.
• Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
• Employers should allow an employee to appeal against any formal decision made.

The ACAS Code of Practice is cleaer. Employers are advised to have separate policies on Capability, Bullying and Harassment, Redundancy and should have ‘a Collective Agreement Policy‘ for dealing with overlapping complaints.

The key changes in the ACAS Code are simply that :
1. Employers can make decisions in the absence of employee’s where the employee is persistently unable, or unwilling, to attend formal meetings.
2. Employee’s no longer need to be accompanied at investigatory meetings. Follow in-house policies as a ‘rule of thumb’.
3. Employee’s need to advise the employer in writing where they wish to be accompanied at formal meetings and witnesses may be called but must be given ‘notice’.
4. There is no ‘automatically unfair dismissal’ for failure to follow the code.
5. Disciplinaries and Grievances should be raised in writing, in advance of meetings.
6. There is no longer ‘a right’ for ex-employees to have grievances heard (although it is recommended that employers take such complaints seriously).
7. Failure to follow the Code may result in an uplift, or reduction, in tribunal awards of up to 25%.

The employers in house policy should always be followed.

The abolishment of The Employment Act started with The Michael Gibbons Report which recommended a complete repeal of the statutory dispute procedures. The Report proposed an alternative dispute resolution approach (at an early stage to nip contentious issues in the bud), to help bring Tribunal statistics down. Subsequently, it was agreed, we should to abolish The Employment Act 2002 and Dispute Resolution Reforms 2004 and encouraged greater use of helplines and mediators. During 2007 over 230,000 claims were made to the Employment Tribunal. The Government believes, after careful consideration of the issues, that tribunals should be permitted to adjust awards to reflect non-compliance with the statutory Code – this (it is believed) will “encourage the right behaviors and resolve disputes in the workplace” as recommended by Gibbons.

MEDIATION: But, who pays for the mediation, Employee or Employer? ACAS have concerns and believe this needs to be explicitly clear in the legislation. Tribunals do not award costs – so if an employee pays will he/she recover the costs? If the employer pays, is the mediator ‘impartial’. If there is an issue of trust this may become a barrier to mediation. At NBH we do not see this as a problem. For decades now independent mediators have managed to engage the parties at the outset. A good mediator will involve both parties at the point when the Terms of Reference are drawn up and it is ‘at that point’ that it should become clear whether mediation is viable or not.

The parties need to be mutually agreeable to the approach if mediation stands a chance. If an employer ‘begrudgingly’ feels that the employee has behaved unreasonably so should pay – the employer should have managed the issues better! Conversely, if an employee feels that the mediators hands are tied if the employer pays; they can always offer to share the cost. It shows good-will. “It takes two hands to clap” afterall. If there is no trust – mediation is a non-starter.

Last but by no means least – it is in the employers best interest to ‘nip it in the bud’. However, if one of the parties is willing and the other is not, a well documented attempt at the process will form part of a good defence.

DON’T BECOME A STATISTIC

IN A NUTSHELL: There is an implied term in employment contracts that “the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers” Arnold J. in Wigan Borough Council v Davies 1979 ICR 411, quoted with approval by the House of Lords in Waters v Commissioner of Metropolitan Police 2000 ICR 1064, HL

In the Waters case the House of Lords also quoted Spring v Guardian Assurance plc 1994 ICR 596 and Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200 as authority for the proposition that the Courts recognise a common law duty on an employer to take care of his employees, including a duty to prevent ill treatment or bullying, quite apart from statutory requirements.

As always, the position in any particular case will depend on the facts and the House of Lords was careful to point out that “it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it”.

CYBER-BULLYING

What is Cyber-bullying? “Cyber-bullying is any form of bullying behaviour that occurs through technology”.

Bullying does not discriminate, we are all potential targets. No one person is immune to Cyber-bullying either. Both individuals and organisations may be susceptible to Cyber-bullying Anonymous blogs which target an individual or an organisation is Cyber-bullying In most cases the perpetrator works alone, struggles to fit in with society and they have an axe to grind. They are bullies in the truest sense.

We hear more and more tales about this unacceptable and inexcusable behaviour. If an individual writes a blog about your organisation, or harasses someone under the guise of a blog in an attempt to try to convince others that they are a victim of circumstance, they are probably delusional.

For example, we recently heard of a case where an individual (an ex-NHS employee) wrote a blog about her former employer because she was found to be a bully through a formal ‘internal’ investigation process. She was subsequently disciplined and later dismissed. In an act of retaliatory treatment and revenge she wrote a blog that was totally misleading and inaccurate.

We know of a second, complex, case where an employee was released under a Compromise Agreement following an investigation. The investigator raised concerns about the employee’s conduct, stress and mental health at that time and recommended that the employer consider the C.A. route (as just one of many options to address matters). A third party subsequently wrote a blog about that case unaware of the full facts. In both cases cited here, some of the facts are similar, and both cases resulted in an inappropriate blog being drawn up. These are just two examples.

A third case reported to our helpline involves a teenager who had her website highjacked by a blogger – and inappropriate images were placed on her site without her consent.

Any form of Cyber-bullying is unacceptable conduct and should be reported to the Police immediately.

Bloggers will, typically, convince themselves that they are a victim and that their blog is permissible under ‘freedom of speech’ and/or that they are some sort of champion of justice. These individuals, often, have no qualifications, a limited understanding of HR or employment law and they very quickly ‘jump to conclusions’ or make assumptions. They lack the knowledge and ability to deal with concerns in a professional manner and/or very often they have failed at seeking a remedy through legal channels. These individuals are, in no way, professional businessmen or women.

A common occurrence with blogging is that authors of blogs will refuse to reveal their name and identity and/or write their blog under a pseudonym. They will also, typically, block the target of their blog from responding. Bloggers often portray only half a story or very distorted facts. In fact perpetrators of Cyber-bullying bring shame to no one but themselves.

Bullies are often frustrated, sad, lonely, mentally unstable individuals and often lone-workers – incapable of separating fact from fiction. They are bullies in the truest sense and, we all know, bullies are cowards.

If you or your company is targeted by a cyber-bully, do not reproach yourself. Ask yourself wither the perpetrator has an axe to grind. The answer is invariably yes.

Cyber-bullying, if believed by a reasonable person to be an act of victimisation or harassment, may be regarded as a criminal offense under The Harassment Act.

REDUNDANCY SELECTION

In a case involving Rolls-Royce v Unite (2008 EWHC 2420 QB), the High Court ruled that Lifo (last in first out) used as the sole criterion for redundancy selection was unlawful age discrimination. This was because it favoured older workers as they were more likely to have longer service. LIFO on its own is not a proportionate means for selection.

Have objectively measurable redundancy selection criteria

Cost cutting may be legitimate as one of several selection criteria for redundancy

Enhanced redundancy pay must mirror the statutory scheme

HISTORIC

The Employment Act 2008 received royal assent on 13th November 2008 and became operational as from 6th April 2009. In summary, the Act (set out clearly under The ACAS CODE OF PRACTICE) deals with changes dealing with workplace dispute resolution, the national minimum wage, employment agencies and trade union membership law.  The new ACT

* repeals the statutory dispute resolution procedures and related provisions (under the original Employment Act; Dispute Resolution Reforms).
* As a result:There will be no more automatic unfairness for an employer’s failure to comply with the requirements of a relevant statutory procedure.
* Empowers employment tribunals to adjust awards of compensation by up to 25% for an unreasonable failure to comply with any provision of the recently published revised ACAS Code of Practice on Disciplinary and Grievance process
* Introduces a new fast-track procedure under which cases can be determined without a hearing provided both parties agree
* Makes changes to the law relating to conciliation by ACAS, thereby allowing ACAS to prioritise cases where demand for conciliation exceeds resources available for conciliation
* Provides for tribunals to award compensation for financial loss, for example bank charges incurred by the employee, following certain types of monetary claim, such as unlawful deduction from wages or non-payment of redundancy pay.

PROTECTION FROM HARASSMENT ACT 1997 ss.1 and 3

There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying at work. This does not mean they have no legal protection. It does mean, however, that to ensure legal protection or redress they must consider existing related employment law and the Acts detailed below.

LAWS – OVER THE LAST DECADE

Over the past decade, regulations have been introduced in the UK to define indirect discrimination, harassment, less favourable treatment, unlawful harassment, gender discrimination and general principles of treatment of both men and women in the workplace today. These laws (not exclusively) include:

1. Assession (Immigration and Worker Registration) Regulations 2005
2. Agricultural Wages Order 2005
3. Compromise Agreements (Description of Person) Order 2005
4. Employment Appeal Tribunal (Amendment) Rules 2005
5. Employment Code of Practice (Access and Unfair Practices during Recognition and De recognition Ballots) Order 2005
6. Employment6 Code of Practice (Industrial Action Ballots and Notice to Employers) Order 2005
7. Employment Equality (Sex Discrimination) Regulations 2005
8. Employment Relations Act 2004 (Commencement No.4) Order 2005
9. Employment Tribunals (Constitution and Rules of Procedure) Amendment Regulations 2005
10. Employment Tribunals (Constitution and Rules of Procedure) Amendment No.2 Regulations 2005
11. ..(and 2005/1865 Unfair Dismissal/National Security involved)
12. Limited Liability Partnership (Amendment) Regulations 2005
13. National Minimum Wage Regulations 1999 (Amendment) Regulations 2005
14. Patents Act 2004 – Order 2005
15. Public Interest Disclosure – Order 2005
16. Social Security (Incapacity) Misc Amendments Regulations 2005

In addition the current laws may interest;

EMPLOYMENT EQUALITY

(Sex Discrimination) REGULATIONS 2005 SI 2005/2467

One of the most important aspects, which will impact on every day working lives, is the Employment Equality (Sex Discrimination) Regulations 2005.

Under this new piece of legislation, any form of harassment is unlawful.

Now, a woman can bring a claim IF, on the grounds of her sex, a male colleague engages in unwanted conduct that has the purpose or effect of violating her dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.

Also. if a female employee is subjected to unwanted, verbal, non-verbal or physical conduct, of a sexual nature, that violates her dignity at work – she can bring a claim against her employer.

If you are an Employer and you would like support, see our proposals for Remedy under ‘Addressing‘ section and/or look at the Employer section. Alternatively, telephone us (07734 701221) or email us at : admin@hrdiversity.co.uk

THE EQUALITY ACT

The Equality Act was introduced on 1st October 2010 and supersedes The Disability Discrimination Act and other legislation. The most important change introduced under this new Act is that, with the exception of restricted circumstances, employers are not permitted to ask any job applicant about their health or any disability until the person has been offered a job (either outright or on conditions, or included in a pool of successful candidates to be offered a job when a position becomes available). Questions relating to previous sickness absence count as questions that relate to health or disability. Please ensure your in-house recruiters (HR teams and line managers) are made aware of this important piece of legislation. If you would like further information, please contact us.

 OTHER LAWS

(i) The Sex Discrimination Act 1975;
(ii) the Race Relations Act 1976 (see RACIAL DISCRIMINATION );
(iii) Employment Rights Act 1996 (especially the parts dealing with unfair dismissal , constructive dismissal and victimisation );
(iv) the www.emplaw.co.uk/free/i40.htm Health & Safety at Work etc Act 1974 and related personal injury aspects (see e.g. Health & Safety at work/stress );
(v) Trade Union & Labour Relations (Consolidation) Act 1992 (see CRIMINAL LAW ASPECTS/offences under employment legislation/intimidation );
(vi) www.emplaw.co.uk/free/data/dup1147.htm Public Interest Disclosure Act 1998;
(vii) contract law (see e.g. www.emplaw.co.uk/free/i87.htm wrongful dismissal and www.emplaw.co.uk/free/data/047003.htm implied terms in employment contracts/duties of employer ).

GENERAL LAW

(i) Criminal Justice and Public Order Act 1994; and
(ii) Public Order Act 1986;
(iii) Protection from Harassment Act 1997 s.1 and Protection from Harassment Act 1997 s.3.
(iv) www.emplaw.co.uk/free/h42.htm Human Rights/Human Rights Act 1998.

There is an implied term in employment contracts that “the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers” (Arnold J. in Wigan Borough Council v Davies 1979 ICR 411, quoted with approval by the House of Lords in Waters v Commissioner of Metropolitan Police 2000 ICR 1064, HL

In the Waters case the House of Lords also quoted Spring v Guardian Assurance plc 1994 ICR 596 and Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200 as authority for the proposition that the Courts recognise a common law duty on an employer to take care of his employees, including a duty to prevent ill treatment or bullying, quite apart from statutory requirements.

As always, the position in any particular case will depend on the facts and the House of Lords was careful to point out that “it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it”.

ACAS (see ACAS ) publish two advisory leaflets titled “Bullying and harassment at work”, one being “Guidance for employees” and the other “A guide for managers and employers”.

WHAT WE DO

HR & Diversity Management, specialises in Conflict Management issues and is currently working on an `Alternative to Dismissal’ where an employee or senior manager is found responsible for bullying or harassment in the workplace.

HR & Diversity Management conducts confidential, independent investigations where employees lodge formal grievances and has written a series of `Step By Step Guides’ for Employers and line managers.  The introduction of the Dispute Resolution regulations meant that every Employer needed to respond in accordance with the guidelines laid down whenever an employee complains formally.  Training is aimed at; HR professionals, senior managers and line managers – in fact anyone who is responsible for managing people!  These seminars and training sessions are customised, developed and delivered in accordance with the client’s needs.

For further information on any of the above, call us on 07734 701221 or email us on admin@hrdiversity.co.uk.