1. Real Life Grievances For Yolk Recruitment Anna Denton-Jones 15 th July 2014

2. Group discussion What do you find most challenging when dealing with grievances? navigating employment law

3. OVERVIEW OF THE LEGAL POSITION navigating employment law

4. 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) navigating employment law

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 navigating employment law

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) navigating employment law

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 navigating employment law

8. 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” navigating employment law

9. 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 navigating employment law

10. 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) navigating employment law

11. 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 navigating employment law

12. 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 navigating employment law

13. 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 navigating employment law

14. 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 navigating employment law

15. 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 navigating employment law

16. 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 navigating employment law

17. 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? navigating employment law

18. 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? navigating employment law

19. Investigation interviews Don’t rely on questionnaire approach in investigations – too risky Aide memoire is fine Cross reference the letter of complaint navigating employment law

20. 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 navigating employment law

21. 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? navigating employment law

22. 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! navigating employment law

23. 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? navigating employment law

24. 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 navigating employment law

25. Tie the evidence together in a report -What is the evidence in favour of a complaint? -What is the evidence against a complaint? navigating employment law

26. 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? navigating employment law

27. Everything that the decision maker might rely on should be presented to those concerned before the hearing e.g:- attachments to invitation letter navigating employment law

28. 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? navigating employment law

29. 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? navigating employment law

30. 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? navigating employment law

31. 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 navigating employment law

32. 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? navigating employment law

33. 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! navigating employment law

34. 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 navigating employment law

35. Appeals View the appeal stage as an opportunity to flush out extra arguments and impress a tribunal with how you handle things navigating employment law

36. 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? navigating employment law

37. 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 navigating employment law

38. 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 navigating employment law

39. GROUP WORK navigating employment law

40. QUESTIONS? navigating employment law

41. @refreshinglawwww.refreshinglawltd.co.uk Contact Us: adenton@refreshinglawltd.co.uk 029 2059 9993 07977 545480