Transcript Slide 1

Real Life Grievances
For Yolk Recruitment
Anna Denton-Jones
15th July 2014
Group discussion
• What do you find most challenging when
dealing with grievances?
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OVERVIEW OF THE LEGAL POSITION
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Contract of Employment
• Implied term of trust and confidence
- duty to investigate grievances “promptly”
• Your procedures may be contractually binding
• 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)
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“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
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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)
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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
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Bullying
• No legal definition
• ACAS “offensive, intimidating, malicious or insulting
behaviour and abuse or misuse of power through
means intended to undermine, humiliate, denigrate
or injure the recipient”.
• “unwelcome behaviour at work which causes a
detrimental effect on employees”
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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
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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)
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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
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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
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A well handled grievance
• Yes it’s time consuming
• Yes it generates paperwork
• Yes it’s a distraction from other priorities
BUT…… by getting it right you can steal all the
employee’s thunder and prevent a constructive
dismissal complaint
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• Try to follow your procedures
- Your procedures may be contractually binding
- Implied term in the contract of employment that
grievances dealt with promptly
- “No action will be taken against an employee until the
case has been fully investigated” (ACAS model
procedure).
• Embarrassment factor if you don’t
• Appeals may result otherwise
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Acknowledging the grievance
• Are there benefits to taking the time to
acknowledge the grievance?
- Sends message it will be taken seriously
- Opportunity to clarify and ‘box in’ the complaints
e.g:- agreed list or headings
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Who will do the investigation?
• Choose them with care – what training or
experience have they got?
• It affects the quality of the whole process
• When would you go outside the organisation?
• Range of reasonable responses test –
Sainsburys v Hitt
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Case Study 1
• Donna has raised a grievance against her manager for
bullying and failure to make reasonable adjustments to
her role following a return to work from sick leave. She
has also raised complaints about her colleagues
bullying her and excluding her.
• The HR manager Alison commences an investigation
• Donna argues that Alison is not going to be impartial as
her attitude at a meeting before the grievance was
raised shows she is on the “management” side
• What do you do?
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Case Study 2
• Donald is the chair of a small charity who has asked
Karen to investigate a situation of bullying and
harassment that has been alleged amongst a senior
staff member and his team. Donald keeps phoning
Karen seeking to discuss the case and asking her if
she is speaking with certain witnesses and if she
would like other board members to sit in on
meetings. What do you advise Karen?
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Investigation interviews
• Don’t rely on questionnaire approach in
investigations – too risky
• Aide memoire is fine
• Cross reference the letter of complaint
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• Formulate a list of the allegations or grounds of
complaint
- To make sure you are thorough and don’t miss
anything out
- To identify if they can be grouped into wider
‘headings’
- To give your investigation direction
• Clarify heads of grievance and explain it is taken
seriously – gives them opportunity to pick up on
omissions
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Right to be accompanied
• Be flexible over the right to be accompanied –
it can take the heat out of a situation
• Doesn’t strictly apply at investigation stage
but does it really matter?
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Investigation meetings
• Create the right environment for meetings
• Test what the person is saying
• Again goes to training of the investigation
officer
• Always takes up longer than you have allowed
for!
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Case Study 3
• Karl approaches you saying he is aware an
investigation is going on. He wants to talk to
you but will only do so if his confidence is
respected i.e. he will only assist you if you
don’t reveal who he is. What do you do?
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Witness statements
• Check the quality of all witness statements
before you use them
• Risk of gaps in statements written by the
witness themselves without further
questioning
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• Tie the evidence together in a report
- What is the evidence in favour of a complaint?
- What is the evidence against a complaint?
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Structure of a report
•
•
•
•
Background
Complaints
Evidence for and against each allegation
Cross-refer to witness statements and add them
as appendices
• Would the investigator recommend a finding in
favour or against the allegation?
• The best reports are balanced: can you admit
some faults?
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• Everything that the decision maker might rely
on should be presented to those concerned
before the hearing e.g:- attachments to
invitation letter
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Case Study 4
• 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?
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Case Study 5
• Billy has been invited to a grievance meeting
next Tuesday with 7 days notice and a large
file of papers. He is saying he couldn’t possibly
attend then as he will need longer than that to
prepare.
• How will you handle this?
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Case Study 6
• Jane is due to attend her grievance meeting
this week. She has rung in sick saying that her
GP is saying she is too stressed to come to the
meeting.
• How do you deal with this?
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• Investigation Officer should expect to attend
hearing to explain what their investigation
revealed and to answer questions from both
the decision-making manager and potentially
the employee concerned
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Case Study 7
• Paul arrives at his hearing and puts his mobile
phone down on the desk in front of him.
There appears to be a red light flashing on it
and you are worried he is recording the
meeting. What action do you take?
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Meeting minutes
• You don’t have to have agreement over the
minutes from the meeting so why ask for it? It
just gives the person the opportunity to be
awkward.
• Don’t ever talk in the meeting about the legal
advice you have obtained!
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Decision-makers
• Reach a balanced outcome when making a
decision – the world is rarely black and white
• Go into detail about why a particular outcome
is reached
- Opportunity to sell the outcome to the person’s
o significant others
o lawyer
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Appeals
• View the appeal stage as an opportunity to
flush out extra arguments and impress a
tribunal with how you handle things
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Case Study 8
• Damian was given 5 working days to appeal.
He indicated that he is appealing in an email
requesting the minutes from the hearing but it
didn’t say on what grounds he was appealing.
The deadline has now been reached but no
further letter of appeal has been received.
What are you going to do?
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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
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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
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GROUP WORK
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QUESTIONS?
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Contact Us:
[email protected]
029 2059 9993
07977 545480
@refreshinglaw
www.refreshinglawltd.co.uk