Source: www.out-law.com
Date: Friday, July 14, 2006

Lords ruling could trigger new claims

A House of Lords ruling has made employers liable for workplace harassment even if they were not in any way negligent. Wednesday’s landmark ruling could open the floodgates to new kinds of harassment claims.

The decision is based on anti-stalking legislation which was used by an NHS employee to hold his employer responsible for a superior’s treatment of him.

The law in question is 1997′s Protection from Harassment Act. The Act does not define harassment, which has enabled courts to permit it to mean tabloid newspaper campaigns and the behaviour of animal rights activists.

The claim of William Majrowski was originally summarily struck out by the Central London County Court by Judge Collins. “He held that the 1997 Act was not designed to create another level of liability in employment law. Employees are already adequately protected by the common law,” said this week’s judgment. The Court of Appeal overturned that decision.

The House of Lords decided that the Act covers the behaviour of employees at work even when the employer has not caused or failed to prevent the offending behaviour. Those employers now have vicarious liability for the acts of employees.

Previously employees had to prove that the employer was negligent in not stopping bullying taking place and that it had caused them psychological damage. The new ruling means that companies can be sued even if the company can not be expected to have known about the bullying.

“The decision has serious implications for employers as it gives employees who are bullied or harassed at work a further basis on which to claim compensation from their employers,” said Louise Donaldson, a senior associate specialising in employment law at Pinsent Masons, the law firm behind OUT-LAW.COM.

“Moreover, some of the existing limitations and defences will not be available. For example, an employer has a defence under existing discrimination legislation if it can show that it took all reasonably practicable steps to prevent discriminatory harassment occurring – this defence was recently made out where an employer had implemented an effective harassment policy. This would not help an employer facing a claim that it was vicariously liable for an employee’s harassment under the Act,” said Donaldson.

Majrowski worked for Guy’s and St Thomas’ NHS Trust in London and claimed that his superior, Sandra Freeman, was rude and abusive to him in front of colleagues. Majrowski, who is gay, claimed that the abuse was fuelled by homophobia.

The new ruling will open employers to new cases. “It will be necessary to show that an offence under the Act has been committed – this involves showing a course of conduct, defined as conduct on at least two occasions, by an employee amounting to harassment, so a single act will not be sufficient,” said Donaldson. “It is also necessary to show a sufficient connection between the harassment and the employment if the employer is to be vicariously liable. However this is widely construed and any bullying or harassment taking place at work will almost certainly be covered.”

Source: Sunday Times
Date: Sunday, July 16, 2006

Bullying laws may lead to higher insurance costs and could even force businesses to close, according to The Sunday Times.

Organisations representing small businesses have hit out at the House of Lords ruling that employers could be held liable for bullying at work. They say it is an inappropriate solution that could also drive up their premiums for employers’ liability insurance.

The Lords ruled last week that firms could be held “vicariously” liable for workplace bullying by their staff under anti-harassment laws and forced to pay compensation. The decision came after a test case brought by an NHS office worker who claimed he was bullied by his manager for being gay.

The landmark decision gives employees a new route for bringing claims if they feel they have been bullied or discriminated against by colleagues. Lawyers say it could lead to a flood of new cases.

Workers will have up to six years to take their case to court and employers may be forced to pay compensation even if they had policies in place to prevent bullying and could not have foreseen the incident.

Stephen Alambritis, spokesman for the Federation of Small Businesses, said the ruling would fall heavily on tiny firms, many of which did not have the sophisticated management systems used in larger companies.

He said: “It will be very difficult for small and medium-sized firms. The ruling is saying that employers will have to find and root out bullying and make sure they are constantly monitoring the situation.

“But a little business may not have the management systems to prove to a judge that it not only had an anti-bullying policy but that managers regularly monitored it. It’s very worrying because it opens the door to imposing a huge liability on employers so that they are totally responsible for all the actions of their workers.”

He said that the ruling could lead to higher insurance premiums, something that would hit small firms hardest. “Anything that leads to more claims against firms means employers’ liability insurance will go up.”

Alambritis said that those most affected by the ruling would be small and medium- sized businesses that had two or three branches but were not large enough to have a personnel department. “In a business of that size there is no authority for other staff to take care of things, and everything lands on the employer’s desk.”

Pauline Birdsall is the owner of Key, Air and Sea Ltd, a freight-forwarding company based in Hayes, Middlesex, which has six employees. She agreed that it was important to tackle the issue of bullying in the workplace, but insisted that legislation was not the right way to go about it.

She said: “Employees do need to be protected from these situations but, as the owner of a small business, if somebody suddenly has the right to sue you for something that may be beyond your control or even beyond your knowledge, it could mean the closure of your company.

“Most small firms are very conscious of these issues — we spend a lot more time per person keeping an eye on the workforce because the environment we work in is generally very close, so I think there could be a better solution to this problem than legislation. It does seem a bit heavy-handed.”

Nick Goulding, chief executive of the Forum of Private Business, said the ruling meant that small firms were being saddled with a system that was designed for big companies.

He said: “Big operations are really bad at managing because they can’t know employees individually so they need to have detailed rules and write things down. Small firms are much better at management for the simple reason that they are much closer to the problem. If there are four of you in a business, you don’t need a policy to control bullying because the four of you will know when someone is bullying someone.”

He pointed out that bureaucrats and lawyers tended to think of employers as large organisations, but that in reality most private-sector workers were employed in small firms.

He added: “It is, of course, the proper duty of any business to ensure that relations between employees are at a proper professional level, but if the legal system drives people towards bureaucratic solutions that may have no relevance to the way in which a business works, then that is a dead weight on the economy. For small businesses this is an inappropriate solution — it’s another complication and another jeopardy.”

Alambritis advised firms to minimise the risk of bullying taking place in the workplace without their knowledge by making sure that they communicated effectively with their staff at all times.

He said: “Small businesses should talk to their staff regularly and make sure they have their trust. They should have a written anti-bullying policy that is drawn to the attention of all staff, and make sure that any incident is followed through with a paper trail.”

Source: Personnel Today – article
Date: Thursday, July 27, 2006

Women make up 23% of Britain’s 3.9 million directors, according to a survey by Experian. That’s an increase of one quarter of a percentage point on 2005 figures, with male directors still outnumbering female directors by three to one. In Britain’s utilities companies, the average is nine male directors to every female one. Women are most likely to be on the board of education, health and social work and hospitality and leisure organizations.

Source: The Independant
Date: Tuesday, August 01, 2006

The Independent reports that Helen Green, the 36-year-old Deutsche Bank employee who worked in the firm’s secretariat division in London between October 1997 and October 2001, has been awarded an estimated £800,000 in damages today, over the bullying she said she had to endure in what she described as a ‘department from Hell’.

Justice Owen, speaking from the UK High Court in London, said that Ms Green was ‘subjected to a relentless campaign of mean and spiteful behaviour within the ordinary meaning of that word’. She was awarded around £30,000 for pain and suffering, £20,000 for being disadvantaged in the workplace, £110,000 for past loss of earnings, and £640,000 for future earnings loss (including pension). Deutsche will also be responsible for Ms Green’s costs, and has been ordered to pay an interim £300,000.

Ms Green said that she was victimized by four women in her department, and suffered a nervous breakdown because of alleged ‘offensive, abusive, intimidating, denigrating, bullying, patronising, infantile…..behaviour’. She claimed that on one occasion one of the women inferred that she stank, and that she was subjected to laughing in her face and raspberry blowing.

Deutsche denied that Ms Green was bullied, and relied in court on her pre-existing vulnerability to mental illness as a defence.

Source: Personnel Today – article
Date: Thursday, August 03, 2006

Employers have been urged to change their attitudes to female staff or risk burning them out.

The warning came as a report called on organisations to recognise the pressures women are under, juggling multiple roles at work and at home, and to foster a more supportive working environment.

The study, from the Economic and Social Research Council, indicated that the UK’s long-hours culture is damaging women’s health, as they are more likely to snack on unhealthy food, drink caffeine, smoke and take less exercise when working excessive hours. But working longer hours had virtually no negative impact on men, according to the study of 422 employees.

Jenny Watson, chair of the Equal Opportunities Commission, said flexible working was key to improving the situation. “The UK’s long-hours culture is not only damaging the health and wellbeing of individuals; it is also damaging the economy,” she said. “Fresh thinking is needed now to stop the UK burning out.”

Separate research reveals that 70% of working mothers still take day-to-day responsibility for raising children, and only one-quarter share the responsibility with their partners.

Sarah Jackson, chief executive of charity Working Families, said employers often made the assumption that working mothers would lower their career expectations. “They have to make flexible working available for all senior-level people, or risk throwing away good skills,” she said.

Glenda Stone, chief executive of the Aurora women’s networking organisation, said: “There’s a dichotomy between rhetoric and reality when it comes to diversity. Lots of companies are just paying lip service to it.”

But she said there were “many progressive businesses out there that are re-thinking the world of work”.

Source: DTI
Date: Tuesday, August 15, 2006

The DTI has today published the first findings from the 2004 Workplace Employment Relations Survey.

It provides an up to date account of the state of employment relations in Britain, together with information on changes that have occurred in workplaces since the last survey was conducted.

The survey covers methods of recruitment, workplace consultation, pay and benefits, workplace conflicts (such as disciplinary and grievance procedures), equal opportunities, work-life balance and other fascinating areas. The summary is at page 35.

Source: Globis
Date: Thursday, August 31, 2006

Globis People Solutions (GPS) has been selected to provide mediation skills training across four local authorities in the West Midlands. Recent legislation changes relating to Local Authority Customer Relations departments now mean that there is a requirement to engage in mediation when customer disputes arise. Clive Lewis, founder and managing director of GPS will lead the training and consulting across the authorities advising on incorporating mediation principles within the customer relations process. GPS has a growing reputation for working with local authorities and this work further cements GPS as a premier provider of conflict resolution training and management provision.

Source: People Management Magazine
Date: Thursday, August 31, 2006

Bullying in HR departments is a continuing problem and HR professionals don’t know how to deal with it.

An impassioned discussion on the CIPD’s website has highlighted the difficulty HR staff face in knowing who to go to when they are being bullied.

Experts agree that the profession is not immune. Those working in HR are often more susceptible to bullying than employees in other professions, according to chartered psychologist Noreen Tehrani.

“HR professionals continue to promote the view that they are tough and can cope with everything,” she told PM. “But HR is not the toughest profession and people have to realise that it is not a sign of weakness to admit it.”

At anti-bullying charity the Andrea Adams Trust, there is no indication that the issue is abating. “It’s an all too familiar problem,” said Lyn Witheridge, founder and chief executive of the trust. “HR people are the guardians of anti-bullying policies, but when they are the victims, who do they go to?”

Both Tehrani and Witheridge acknowledged that, although some victims felt the need to leave their job, something could still be done.

“If you don’t feel anyone will listen to you while you’re in the job, make sure your reasons for leaving are recorded in an exit interview,” said Witheridge.

Imogen Haslam, former CIPD professional adviser, said it would be a mistake to presume HR had no bullies in the ranks, but emphasised that they were not the worst perpetrators. “CIPD research shows HR is low down on the list of those responsible for bullying,” she said.

YOUR SAY
How big a problem is bullying within HR?

Esther O’Halloran, head of HR, Space.NK:
“Within HR it is difficult because how you deal with it depends on the culture of the organisation and how big the team is. I would hope HR is the last department to experience bullying.”

Alan Warner, director of people and property, Hertfordshire County Council:
“I don’t think the issue is endemic in HR. I speak with a number of people in HR and I’ve not heard it discussed, and if I had I would be very worried.”

What do you think? Email us at info [at] globis.co.uk

Source: Personnel Today
Date: Friday, September 01, 2006

A female prison officer has won a six-figure payout for being forced to carry out body searches on male inmates.

Carol Saunders claimed sex discrimination against the Home Office, claiming that as male officers did not search female prisoners, she was being discriminated against.

Saunders said the searches at Long Lartin Prison in Worcestershire made her feel sick.

She won her original case in October 2004 and the Prison Service has now settled out of court after losing an appeal.

The exact compensation figure has not been disclosed but it runs into six figures.

A Home Office spokesman said: “Following the tribunal judgment that found in favour of Carol Saunders, the Prison Service has agreed an amount to be awarded out of court based on the guidance from the tribunal regarding an appropriate level of compensation.”

A separate claim for victimisation at the high-security jail was thrown out by the tribunal in 2004.

Source: Personnel Today
Date: Tuesday, September 05, 2006

Increasing numbers of civil service staff are overturning dismissals because government HR departments are failing to follow statutory dismissal procedures, an official report has revealed.

The annual report by the Civil Service Appeal Board (CSAB) showed that more than one-fifth of all disciplinary cases involving appeals during 2005-06 were deemed ‘unfair’ – a rise of 15% on the previous year.

Of 253 appeals considered by the CSAB last year, 55 found in favour of the appellant – including 10 cases where the board demanded that the employee be reinstated immediately.

The statutory procedures were introduced by the government in October 2004, requiring employers to follow a three-step process when disciplining or dismissing staff. Failure to follow these steps automatically renders a dismissal unfair.

CSAB chairman John Davies, a former HR director at Barclays Bank, said in the report: “It is clear that departments and agencies do not always appreciate the importance of respecting the standard statutory procedures and it has, perhaps, not been fully appreciated that if there is a breach the board has no choice other than to find the dismissal automatically unfair.”

The strongly worded report will increase the pressure on under-fire Whitehall HR departments. Recent capability reviews, introduced by cabinet secretary Sir Gus O’Donnell, highlighted poor people management and inadequate HR provision at the heart of government failings.

Davies also criticises the time taken by some departments to complete disciplinary procedures – in several instances, more than a year. He called these delays “at variance with the principles of natural justice”.

He also accused some managers of using appeals to “justify and uphold” original decisions, rather than objectively look at the facts of the case.

A Cabinet Office spokeswoman said: “We have received the report and will consider these issues.”

Most appeals heard (by department)

• HM Revenue and Customs 50
• HM Prison Service 46
• Jobcentre Plus 37
• Department for Work and Pensions 21
• Immigration and Nationality Directorate 13

Source: CSAB annual report 2005/06