Julie Sabba, Author at MLP Law

Q&A Session – Managing Sickness Absence

Sickness absence can have a disruptive effect on a business and should therefore be managed well, not only to minimise any negative impact on the employer but also to safeguard the welfare of staff.

 

We have therefore set out answers to some frequently asked questions by employers on the topic.

 

How does an employer know when to take action in connection with an employee’s sickness absence?

The first step in managing any absence process is ensuring that you have adequate employee reporting procedures, to allow any concerning patterns of absence to be identified.  In particular, problematic short-term/intermittent absences or long term absence.

 

Moreover, with many employees now working from home, absence notification policies should be reviewed and amended to make certain employees understand that they must still inform their employer if they are unable to work, due to ill health.

 

How should an employer raise a concern about an employee’s sickness absence with them?

Where an employee has a certain level of absence (usually outlined in the sickness absence policy), you should write to them, setting out the concern and arranging to meet with them to discuss it further.  You must then continue to communicate both in writing and in person with the employee, setting out your concerns and the steps you intend to take to investigate and tackle the issue.  This may include seeking the employee’s consent to obtain a medical report regarding their ill health.

 

As with any formal process, it is important to keep a paper trail of the communication and consultation process that you undertake with the employee and minutes of any meetings.

 

How much information is an employer entitled to when investigating an employee’s ill health?

An employer is entitled to obtain access to an employee’s medical records or commission a medical report in respect of a specific health concern, only where the employee’s consent has been obtained.  If an employee refuses to give their consent to medical evidence being obtained, the employer has to make any decisions in relation to the employee’s ill health and related absence(s) with regard to their continued employment, based on the limited information it does have.  Employers can include a clause in the employment contract highlighting this and outlining that to refuse to co-operate with such a process may have adverse consequences for the employee’s continued employment with the business.

 

Where medical reports/records have been obtained, it is important to share and discuss the contents of such documents with the employee.  Overall, medical evidence can assist in determining future action by the employer, including making reasonable adjustments.

 

Can an employer discipline an employee who is frequently off ‘sick’ on a Monday?

In some cases, frequent short-term absences are not caused by an employee’s ill health but are actually a conduct issue, necessitating disciplinary action.  This should only be done after a suitable investigation of the employee’s alleged health issues has been undertaken.

 

When can an employer dismiss an employee who has been absent on a long term basis?

Once you have sufficiently investigated an employee’s ill health you can consider dismissal.  Dismissal is the last resort, once you have established:

  • that the employee’s absence cannot reasonably be sustained by the business in the long term,
  • there is no hope that the employee will sufficiently recover their health to be able to return to work at all or in a reasonable time frame,
  • in the case of a legally disabled employee, that there are no reasonable adjustments that can be made to accommodate the employee and their health condition, within their role at work.

 

When an employer is determining what is reasonable when considering these issues, the size and resources of the particular business or organisation can be taken into account.

 

What happens if an employee is sick during annual leave?

In such circumstances, the employee is entitled to take any annual leave at a later date, as they have not been able to take full advantage of the annual leave by having a rest from work.  Annual leave also continues to accrue during sickness absence.

 

As is often the case, having comprehensive policies in place and well trained managers to deal with absence management can help to avoid costly mistakes and problems with employee morale.

 

Please don’t hesitate to contact the team at MLP Law with ideas about topics or for detailed advice in connection with any of the issues raised. You can reach us at employment@mlplaw.co.uk or @HRHeroUK or on 0161 926 9969.

 

 

Managing the risk of redundancies

It’s hard to juggle all the necessary demands involved in a redundancy process correctly, especially when you consider the wider context of the pressures that have resulted in having to make reductions in the workforce for the sake of your business in the first place.  It’s even harder when you factor in that you often know, and may work closely with, some of the individuals who are going to lose their jobs.  That’s often why mistakes are made; it’s stressful and can even be emotional for staff, not to mention the disruption caused to those conducting the process, often on top of their day to day roles and, more widely, the consequent negative effect on morale.  That’s why we want to set out how to navigate the challenges of a redundancy process, so that if or when the time comes, you’ll be familiar with the best way to conduct the process and minimise risk.

So, here is our expert guidance on how to avoid the all-too-common mistakes that can lead to unfair dismissal claims arising from redundancy.

 

So, the initial point to clarify is, what is a redundancy

It occurs when there is either a:

  • Business closure,
  • Closure of premises (ie a particular branch or site), or a
  • Reduction in numbers of staff.

Once you know your business has to make redundancies for one of these reasons, there is a particular process to be followed to ensure that any resulting dismissals are fair.

 

The first step is therefore to Warn employees…

The employer must give as much warning as possible of impending redundancies so that the representatives (if any) and the affected employees can inform themselves of the facts, consider possible alternatives to redundancies or seek alternative employment.

The warning is usually given at a meeting of all those affected.  Whoever holds the meeting should prepare a script, so that they are sure to be able to summarise WHY, WHEN and HOW the decision will be made.

At such a meeting the employer should inform staff of the following:

  • the reasons for redundancy
  • the numbers expected to be dismissed
  • who is in the pool of employees at risk
  • the consultation period
  • the process of selection, including the criteria for assessment and the timetable
  • the right of appeal
  • opportunities for redeployment
  • next steps – ie that there will be individual consultation and, possibly, further open meetings

Staff should be given the opportunity to ask questions at that meeting but, obviously, although some employees may try and press you – no indication should be given at this stage as to who will be made redundant, unless it’s obvious i.e. a whole department or workplace is to be closed.

Following this meeting, a letter should be given to individual employees:

  • confirming that they are at risk of redundancy
  • identifying the options of voluntary redundancy, redeployment and compensation for redundancy
  • referring to further meetings to consult on an individual basis (with the right to be accompanied)

 

Consult

Then comes the all-important consultation stage – to me, this is the real heart of the process and is central to any eventual dismissal being deemed to be fair.  Further, from a management point of view, it’s also the human side of the process, involving one-to-one contact and discussion so, done well, it can help the employee to process and accept the situation a bit more easily.  It can also steady the ship more generally, through the provision of information and the process of listening to concerns.

 

Nature of consultation

 Consultation should involve:

  • consultation when the proposals are still at a formative stage
  • adequate information on which to respond
  • adequate time in which to respond
  • conscientious consideration of the response to consultation

It is clear that, where there is no consultation on a collective level, the employer is required to consult individually on:

  • the individual’s selection for redundancy, and
  • whether there are alternatives to redundancy

It must be at a formative stage, in order for the consultation to be ‘genuine and meaningful’  – essentially meaning that an employee or employee representative can still, potentially, influence the outcome. What this means in practice may depend upon the particular circumstances.

Ultimately, a failure to consult may render the dismissal unfair even where fair selection criteria have been applied, as it will mean the employee is unable to discuss certain issues, such as ways of avoiding dismissals.

 

Right to be accompanied

 An employee does not have the statutory right to be accompanied at a redundancy consultation meeting, since such a meeting is not a ‘disciplinary’ meeting.

However, we consider that it may affect the fairness of the dismissal if a reasonable request to be accompanied to a redundancy consultation meeting is refused.

Where the redundancies arise from the closure of the whole business, the process may be truncated as there will usually be a much-reduced need for consultation in relation to selection, opportunities for alternative employment or enhanced redundancy.

Generally, however, during the consultation process there are therefore a few issues that should be considered and addressed.

One such key point is to consider ways of avoiding redundancy.

Indeed, we would recommend that, as a matter of good practice, an employer should always consider ways of avoiding compulsory redundancy, e.g.:

  • restricting new recruitment
  • voluntary severance
  • retraining and transfer to other work
  • moving the affected employees to another site
  • cost-saving measures such as:
    • short-time working and job sharing
    • reducing overtime
    • wage cuts
    • removing discretionary benefits
    • sabbaticals

Another key issue is to…

 Identify a selection pool. A selection pool is a group of employees from which the employees to be made redundant will be selected.

Where the redundancy dismissals are as a result of the closure of the whole business, all the employees will be dismissed, and a selection pool will not be relevant.  However, where the situation leading to the redundancies involves a reduction of a particular kind of work, a selection pool will be relevant.  The issue for an employer in such circumstances will be whether to include in the pool just those performing the same role, or also those whose skills are interchangeable.

An employer’s preference will usually be to keep the pool as narrow as possible, as this will keep the number of employees affected by the uncertainty of redundancy to a minimum but it’s not always the preferred approach, as it can be an opportunity to remove employees that are not up to par and keep more valuable members of staff who would otherwise be made redundant.

If there is an agreed redundancy procedure as part of a collective agreement, check this for any process to be applied to selecting the pool.

Where an individual is selected to be in the pool, ensure they are given an opportunity to question their inclusion as part of the consultation process. There is no rule that there must be a pool; an employer, if they have good reason for doing so, may consider a single employee for redundancy, i.e. there may be a pool of one.

However, the range of reasonable responses test applies to the employer’s decision as to what is the appropriate pool for selection, i.e. where the employer adopts a pool of one it will be for the tribunal to consider whether it was reasonable for the respondent not to consider a wider pool of employees. When considering whether an employer has used a correct pool of candidates from which those to be made redundant should be selected, the applicable principles are:

  • the question of how the pool should be defined is primarily a matter for the employer to determine but the employer must be reasonable in its approach
  • there is no legal requirement that a pool should be limited to employees doing the same or similar work unless the relevant categories have been selected by agreement with the union
  • conversely, the employer may well be justified in limiting selection to employees holding similar positions
  • the tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if they have genuinely applied their mind to the issue of who should be in the pool
  • if the employer has genuinely applied their mind to the issue of who should be in the pool, it will be difficult, but not impossible, for an employee to challenge that decision

It follows that, if the employer has selected a pool which is within the range of reasonable responses open to an employer in those circumstances, it will not be open to challenge.

 

Identify fair selection criteria 

If there is an agreed redundancy procedure as part of a collective agreement, the employer should check this for any pre-agreed selection criteria.

Selection criteria should be as objective and measurable as possible. However, not all aspects of employee performance or value lend themselves to objective measurement, and there is no obligation only to use criteria which are capable of objective measurement. ACAS guidance gives the following examples of selection criteria:

  • standard of work or performance
  • skills, qualification or experience
  • attendance record, which must be accurate and not include absences relating to disability, pregnancy or maternity)
  • disciplinary record

Other criteria that have been held to be appropriate include:

  • efficiency
  • skills/qualifications/training
  • greater experience in certain particular tasks or on certain machines
  • length of service

Use of length of service, or ‘last in, first out’ (LIFO), alone as a selection criterion is now rare, although it is often used a tie-breaker between two employees scoring equally on other criteria.

Generally, the employment tribunal will not substitute its own view of what are fair selection criteria unless the criteria adopted by the employer are ones that no reasonable employer could have adopted.

 

Apply the criteria fairly

The employer should select employees for redundancy fairly and objectively on the basis of the criteria.

A tribunal is likely to be satisfied as long as a reasonable system for selection has been set up and can be shown to have been administered fairly. Detailed analysis of scoring systems is unlikely to be permitted by the tribunal when considering a claim of unfair dismissal. On the other hand, if the employee is able to show the employer has failed to apply a non-judgmental criterion fairly (eg length of service), they may be entitled to disclosure of a number of documents relating to the retained employees and pertaining to all of the criteria.

An employer is entitled to rely on the judgement of the individual manager carrying out the selection process. Their application of the selection criteria will not be subjected to detailed scrutiny by the tribunal, although a glaring inconsistency in the application of the criteria may render the dismissal unfair.

Where two sets of employees are scored by different managers, it may be prudent for the employer to use some form of ‘moderation’ to ensure there is no inconsistency. However, a selection process will be unfair, even though it avoids the application of subjective criteria, if it measures the skills of those in the redundancy pool:

  • by subjecting them to an assessment conducted by persons with no previous knowledge of the individuals
  • without any reference to their past performance (either by questioning those who had managed them or by looking at their past appraisals)

Individual employees will wish to be consulted on how the selection criteria have been applied and how they scored, both individually and in comparison with other employees. A failure to allow an employee to contest their assessment scores until after the decision to dismiss was taken has been held to render the dismissal unfair.

An employee should usually be provided with a copy of their own assessment. Employees will want to know the scores of the other employees in the pool so that they can see their own scores in context. There is no case which says that an employer is obliged to disclose the scores of others in order to ensure that the dismissal is fair, but the employer should think about disclosing some information (eg, the average score or the ‘break point’) where the scoring will otherwise be meaningless.

If other employees’ scores are disclosed, for data protection purposes this should be done in such a way that the employees in question cannot be identified from the information.

 

Consider and consult on alternative employment

The employer should take reasonable steps to find the selected employees alternative employment within the organisation (or the group, if it is part of a group) and should consult with them about it.

Alternative employment is also relevant to the employee’s entitlement to a statutory redundancy payment: if the employee unreasonably refuses an offer of suitable alternative employment made within the requisite time period, they will lose their entitlement .

The precise scope of the duty on the employer to find alternative employment is not strictly defined, but it is clear that all reasonable steps should be taken. With modern communications such as email, even in a large group of companies, enquiries of the relevant person in each of those group companies as to the available vacancies should be possible. A key point of note here are that suitable alternative posts can include an offer of a demoted post. The obligation to offer alternative employment where a new role becomes available continues until the expiry of the employee’s notice period.

Finally, don’t forget to contact those on maternity leave and absent due to ill health with internal opportunities.

 

Redundancy Dismissal Meeting

As with any dismissal, once the decision to make an employee redundant has been reached, that employee should be invited to attend a dismissal meeting to discuss the rationale in more detail and the various payments that the employee is entitled to.  The employee is entitled to be accompanied as such a meeting. The decision taken at the meeting should then be followed up and confirmed in writing.

 

Conduct an appeal

 It will very rarely be fair to make an employee redundant without offering them the opportunity to appeal the employer’s decision. If there is an agreed redundancy procedure as part of a collective agreement, check this as it is likely to include an appeal process. It would be wrong for an employment tribunal to find a dismissal unfair only because of a failure to provide the employee with an appeal hearing. However, the absence of an internal appeal is always a relevant factor to consider when looking at the overall fairness test.

Sometimes the overall circumstances of the case will mean that the absence of an internal appeal in a redundancy dismissal case does in fact render a dismissal unfair. Nonetheless, it’s good practice to allow an employee an opportunity to appeal a dismissal for redundancy.

 

Calculating the payment

The redundancy payment itself is calculated by taking into account the employee’s age and length of service (up to a maximum of 20 years’ service).  The statutory cap then needs to be applied – currently at £643 per week.

The maximum statutory redundancy payment is therefore currently £19,290 (until this April).  Of course, enhanced payments can be also be made. The employee is also entitled to notice (either to be worked or paid in lieu) and outstanding holiday entitlement, if due.

 

Voluntary Redundancy

 Although a voluntary redundancy may look like a consensual termination, an employee who volunteers for redundancy is routinely to be regarded as dismissed for redundancy.  It’s therefore often useful to consider a Settlement Agreement in such circumstances.

 

Pregnancy and Maternity

We also just want to remind you of a change to the law in April.  Employers have an obligation to offer suitable alternative employment, where a vacancy exists, to a parent who is on maternity leave if their job is at risk of redundancy.  Essentially, those employees have to go to the front of the queue. The current protection is limited to the duration of the maternity leave but from 6 April of this year, it is to increase to cover pregnancy and the period of 18 months from birth (or adoption placement).

 

A Quick word about Collective Consultation…

As we mentioned above, it applies where:

  • an employer is proposing to dismiss as redundant 20 or more employees within any period of 90 days or less, ie where there is a statutory obligation to consult
  • there is no statutory obligation to consult collectively, but the employer otherwise needs to consult with employee representatives, because:
    • there is an agreement to do so under the Information and Consultation Regulations or a European works council agreement
    • it is considered prudent to consult with existing employee representatives as part of a fair procedure and for good industrial relations, eg where a collective agreement with a recognised trade union is in place in relation to the business affected by the redundancies.

We recommend that you contact us for more information if it may be relevant to your business, but, essentially, everything we have discussed today would apply, together with additional requirements to liaise with employee reps etc.

 

In conclusion…

Getting the redundancy process right can not only minimise legal and financial risk but can also allow you to recalibrate your business, equipping it for future success.

Anticipating a new arrival in 2024?

Draft changes to paternity leave Regulations have just been published and Julie Sabba, Employment Associate at mlplaw, outlines the key points.

 

For babies due on or after 6th April 2024, various changes to paternity leave are due to come into force.  The significant changes are as follows:

 

  • employees will be able to take paternity leave at any time in the 52 weeks following the birth, extending the period beyond the current 56 days after birth;

 

  • the current two-week paternity leave entitlement will be able to be taken as two separate one-week blocks, instead of two consecutive weeks (or being restricted to taking only one week); and

 

  • the current requirement, to provide 15 weeks’ notice prior to birth of the intention to take paternity leave, will be reduced to only 28 days’ notice.

 

These changes are coupled with the extension of redundancy protection, giving relevant employees preference, relating to suitable alternative employment in any redundancy process.  Such protection will now go beyond the period of actual leave and will apply for a period of 18 months from birth.

 

If you would like advice from the Employment team at mlplaw in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Baldness – The New Frontier in Workplace Harassment?

Julie Sabba, an associate in the Employment Team, considers a recent Employment Appeal Tribunal (EAT) decision, Finn v The British Bung Company, and its implications for harassment on the grounds of gender in the workplace. She asks the question – is commenting on the fact that someone is bald, akin to commenting on the size of a woman’s breasts?

 

Facts

Tony Finn (TF), had worked for a manufacturing firm, The British Bung Company, for 24 years before being dismissed last May. TF raised various claims in the Employment Tribunal, including one of harassment, which related to the fact that his lack of hair had been commented on during an argument at work.

 

He stated that during an altercation with his supervisor he was threatened with being ‘decked’, sworn at and called ‘bald’. TF claimed that the use of the word bald amounted to harassment on the grounds of his sex.

 

Law

In essence, harassment under the Equality Act 2010 is where unwanted conduct has the purpose or effect of:

 

•violating the victim’s dignity or

 

•creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim

 

The conduct must also be related to a protected characteristic, such as sex, race or age.

 

Decision

In arriving at its decision, the EAT upheld the original Tribunal Judge’s decision, which was that he determined that calling someone bald is an insult that amounted to harassment. He found that there is a connection between the word ‘bald’ on the one hand and the protected characteristic of sex on the other, due to the fact that baldness is much more prevalent in men than women.

 

The Judge concluded that baldness is inherently related to sex and that the derogatory comments in relation to TF’s appearance had been intended to hurt his feelings, and therefore amounted to harassment. The Judge continued by stating that commenting on a man’s baldness in the workplace is equivalent to remarking on the size of a woman’s breasts.

 

Comment

It is important to ensure that staff are aware that unpleasant or negative behaviour or comments towards colleagues are completely forbidden, whether they relate to appearance or to any other factor (such as mimicking the way someone talks). Policies promoting equality and diversity, underpinned by training, provide employers with the means to challenge accusations of discrimination between members of staff, in addition to encouraging a kind and collegiate atmosphere in the workplace.

 

If you would like advice from the Employment team at MLP Law, in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

 

 

The Art of Defending Constructive Dismissal Claims

Constructive dismissal refers to a situation where an employee resigns from their job in response to a fundamental breach of their employment contract by the employer.  The breach may be a single serious incident or a series of incidents that cumulatively create an untenable working environment.  In essence, the employee resigns because they feel they have no other reasonable option due to the employer’s actions.

To effectively contest a constructive dismissal claim, it’s crucial to understand the key elements involved.  The Employment team at mlplaw have therefore set out how to best navigate defending such a claim.

 

Understanding the Elements of Constructive Dismissal

First, it’s crucial to identify the specific terms of the employment contract that the employee claims were breached.  This could include issues such as changes in job responsibilities, working conditions, harassment, or a breakdown in trust between the parties.

Next, it is important to determine if there has been a fundamental breach of the employment contract.  Is the alleged breach of such significance that it goes to the root of the employment relationship, making it impossible for the employee to continue working?

 

Defending a Claim

Once you have established the central pillars of the case brought by the employee, you must determine the grounds for refuting the claim.  The two key areas of challenge are:

  • That the employer did not breach the contract as alleged; and/or
  • That action (or inaction) by the employer was not sufficient to amount to a material breach of contract.

Once the overarching approach has been determined, it must be narrated in the defence form – known as an ET3 – that is then submitted to the Employment Tribunal.  The ET3 must be submitted within 28 days from the date the employer received the claim form and can be done online.

It is also necessary to collate detailed written records of all relevant communications, incidents, and significant events, relating to the employee.  This includes emails, meeting notes and any other documentation that may be pertinent to the case, as they will form the basis of the documentary evidence in the employer’s defence.

Similarly, employers who utilise a fair and reasonable procedure when faced with an aggrieved employee, can rely on the documentary evidence generated during that process in the event of a claim.  Thorough grievance procedures, supported by detailed policy documentation addressing various issues, such as discrimination in the workplace, bullying and harassment, are all vital.  In addition, having those robust policies in place can also demonstrate an employer’s commitment to fair treatment and compliance with the law and can help to reduce the risk of employees making a constructive dismissal claim in the first place.

Moreover, a constructive dismissal claim is often founded on the assertion that there has been a breach of the implied duty of trust and confidence.  This requires an employer to demonstrate that they had reasonable and proper cause for behaving in a particular way.  Ensuring that employees are aware of the reasons behind decisions that may impact their employment can minimise the risk of litigation.  Where this approach has been taken, those involved in the process will be useful witnesses in the event of a claim.  Therefore, businesses that have communicated changes that affect the employment relationship in a transparent manner (such as changing an employee’s role or terms and conditions) can refer to those processes to refute an accusation that the employer has acted in such a way as to undermine trust.

Finally, given that prevention is better than cure, businesses should consider early intervention when faced with an unhappy employee.  Many employers find that when they encourage open communication in the workplace, it can lead to concerns being addressed before they escalate.  This may involve internal mediation or other alternative dispute resolution methods, which can resolve issues without the need for the employee to resort to legal action.

In summary, by combining legal expertise, communication strategies, and proactive measures, employers can be in a stronger position when reacting to constructive dismissal claims.  It’s important to approach each case individually, considering the unique circumstances and tailoring the defence strategy accordingly.

Proposed Legislation aimed at Tackling Bullying at Work

Legislation that aims to make preventing bullying at work a stand-alone right has been proposed in Parliament for MPs to consider.

The Bullying and Respect at Work Bill, tabled by Labour, seeks to strengthen workplace processes to assist in the reporting and investigating of incidents and introduce guidance on best practice regarding respectful work environments.  This will be done through a Respect at Work Code, to be enforced by the Human Rights Commission.

Not only does the Bill introduce a legal definition of bullying, it also intends to impose robust mechanisms in relation to:

  • reporting incidents of bullying;
  • Investigating claims of bullying; and
  • Enforcing the outcome of any such investigation.

Currently, employees rely on protections offered by the Equality Act 2010 or the right to claim constructive dismissal, to legally challenge workplace bullying.  The Bill is in its early stages and will be watched with interest, by staff and employers alike, as it progresses through the legislative process.

Navigating Social Media in the Workplace: A Comprehensive Guide

The increasing use of social media presents both benefits and risks for employers and employees. The ability to connect with others, create a network and communicate quickly to a wide and often targeted audience can enormously benefit an organisation when used positively. However, those same features of social media sites can also cause significant problems for an employer when the use of social media by an employee or former employee is not in the organisation’s best interests, particularly if controversial comments are re-tweeted, shared, re-posted or ‘go viral’ and reach a mass audience.

In this blog post, we will delve into key aspects of social media in the workplace, addressing issues such as setting rules and standards for employee use, tackling online bullying and harassment, understanding the role of digital evidence in HR processes, and determining ownership of employees’ professional social media profiles. By exploring these topics, we aim to provide a comprehensive understanding of the implications and best practices associated with social media in the workplace.

What is Social media?

First, let’s define what social media actually is. There is no legal definition of social media. It generally means internet-based applications which people use on computers, tablets and smartphones to connect, keep in touch and interact socially by creating and sharing content in the form of text, photos or video. There is a wide range of different types of social media sites including social and professional networks, community sites, blogs, microblogging sites, wikis, web forums, social bookmarking services and user rating services. Indeed, we have all no doubt heard of Facebook, Twitter, Linkedin and Instagram.

Setting Rules and Standards for Employee Social Media Use

One of the fundamental steps in managing social media in the workplace is establishing clear rules and standards for employee use. Acas recommends the implementation of a social media policy that outlines guidance for employees regarding acceptable behavior, both online and offline, for instance by clarifying what employees can and cannot say about the organisation. The policy should address the distinction between personal and professional use of social media, protecting the organisation’s reputation, and minimising reputational risks. Additionally, it should clarify the consequences of breaching the policy, emphasising that disciplinary action, including dismissal, may be taken in response to inappropriate social media conduct.

Employer-owned social media accounts require clear guidelines. In any social media policy, employers should emphasise the account’s value and their ownership rights. Access to login credentials should be ensured, and rules must be set regarding information disclosure and expressing opinions. Confidentiality, political neutrality, and adherence to legal requirements should be addressed. For businesses reliant on client connections, additional rules on engaging with business contacts can be considered in the social media policy.

Who Owns Your Employees’ Professional Social Media Profiles?

Due to the grey area as to who ‘owns’ social media accounts or the connections made on them, it is better for an employer to make this clear from the outset in its social media policy. The policy should therefore outline whether work-related social media accounts are owned by the employer and establish rules for connections made with business contacts during employment. Contracts and settlement agreements may also need to include provisions related to social media contacts and post-termination restrictions.

Indeed, in the case of Whitmar, the claimant company successfully applied for an interim injunction to prevent former employees from, amongst other things, misappropriating and misusing its confidential information. This included four LinkedIn groups managed by one of the former employees on behalf of the claimant in the course of her employment.

Employees using personal accounts for work or professional purposes raise ownership and confidentiality concerns. While an individual’s LinkedIn network is typically considered their private property, this is not always straightforwardly the case. Factors such as creation during employment and relationship development of clients and suppliers of the employer can mean that the employer also has a vested interest. To protect against breaches, post-termination restrictions can require employees to disconnect from employer clients and prohibit reconnecting during a specified restraint period. Employers should therefor ensure employment contracts or settlement agreements include these provisions for effective safeguarding.

Dealing with Cyber-Bullying and Harassment Online

The rise of social media has unfortunately brought forth instances of cyber-bullying and harassment. It is crucial for employers to take such incidents seriously and address them as disciplinary matters. Making it explicitly clear to employees that online harassment and bullying will not be tolerated is essential. An illustrative case is Otomewo v Carphone Warehouse, where an employer was found vicariously liable for harassment related to sexual orientation on an employee’s Facebook page. Employers must ensure that their response to online harassment is proportionate and aligned with their established policies and procedures.

Misconduct Relating to Social Media

Employee misuse of social media can lead to various forms of misconduct that require appropriate disciplinary action. Instances such as bullying, disclosure of confidential information, writing disparaging comments regarding the employer, employees or customers, or publishing offensive material can significantly impact an employer’s reputation and relationships. When addressing such misconduct, employers should consider factors like the nature and seriousness of the offence, any previous warnings, the impact on customer relationships, and the reasonableness of the employer’s disapproval. Dismissal for a first offence will rarely be fair, although may be justified in certain circumstances, but fairness and proportionality should always be assessed.

Another important matter to consider is whether rights under the European Convention of Human Rights (ECHR) – such as the right to privacy – might be engaged. On some social media sites, such as Facebook, there are privacy settings that employees may use to limit the number of people who can view their posts. Although a tribunal will take into consideration range of users who can view an individual’s posts, a tribunal may recognise the lack of control a user has regarding reposts etc. Users of social media can publish content to a limited audience of their friends, but that content can easily be ‘shared’, ‘Retweeted’, ‘reposted’ and can go viral to thousands of other users, therefore the lack of control over the information is likely to remove a reasonable expectation of privacy.

Even if the right to privacy is engaged the employer may still be able to justify interference with that right if the employer’s actions are proportionate in the circumstances, for example, if necessary to protect the employer’s legitimate interest in protecting its reputation and relationship with customers.

The Role of Digital and Online Evidence in HR Processes

Digital and online evidence plays a vital role in HR processes, including disciplinaries, grievances, and sickness management. Employers can rely on screen-grabs or screenshots of relevant social media posts as credible evidence. Verbal testimony from involved parties can also contribute to understanding social media interactions. However, it is important to give employees an opportunity to respond to allegations based on social media posts, allowing them to provide explanations or clarifications. This ensures fairness and a comprehensive evaluation of the evidence.

Conclusion

Social media in the workplace presents numerous opportunities and challenges for employers and employees alike. By setting clear rules and standards, addressing cyber-bullying and harassment, understanding ownership of professional social media profiles, and effectively utilising digital evidence in HR processes, organisations can navigate the social media landscape more effectively. It is essential for employers to proactively establish policies and procedures that strike a balance between protecting their interests and respecting employees’ rights to privacy and freedom of expression. Through careful management and clear communication, organisations can leverage the benefits of social media while mitigating potential risks.

Gender Identity in the Workplace

Due to societal and cultural changes in recent years, employers are increasingly involved in managing members of staff who are trans or gender non-conforming individuals.

 

Gareth Matthews, Head of Employment, therefore explores this issue in more detail, with a focus on the relevant terminology, the legal obligations required of employers and good work practices.

 

So, what is Trans?

 

In its updated guidance materials, the Advisory, Conciliation and Arbitration Service (Acas) uses the term ‘trans’ as an umbrella term to include both:

 

  • a transsexual person, ie an individual assigned female at birth who has transitioned or is transitioning to live as a man, or an individual assigned male at birth who has transitioned or is transitioning to live as a woman, and

 

  • an individual with a non-binary identity, ie who identifies neither as male nor female

 

‘Transitioning’ or ‘gender reassignment’ is a process by which a person aligns their life and physical identity to match their gender identity.

 

Specific gender identity terminology

 

Where possible ‘non-triggering’ language should be used. Terminology in the transgender field is constantly evolving as understanding and perceptions of gender-variant conditions and expressions change. There can be differences of opinion about terms, and their acceptance can differ among people. The use of outdated language can cause offence and may in itself be discriminatory. Employers should be sensitive to this and should regularly review the terminology they use.

 

The starting point for many employers is therefore the use of appropriate language, so we are going to run through the relevant language and meanings:

 

Gender reassignment      The process of transitioning from one binary gender to another; when a person takes steps to alter the outward expression of their gender so that it better aligns with their sense of how they identify themselves. For some, but not all, this will involve medical intervention to adjust the appearance so that it aligns with the gender identity. Some people take hormones or undergo surgery as part of their gender reassignment, but medical intervention is not required. It is often associated with changes to the gender role, name and pronouns. If someone adopts a new gender by changing their name, title or pronoun, and/or by wearing different clothing, altering their body language, speech or hairstyle, they have reassigned their gender.

 

Gender recognition certificate (GRC)         A certificate enabling an individual to be legally recognised in their affirmed gender under GRA 2004. An individual does not need to possess a GRC in order to qualify for protection under EqA 2010

 

Transgender/trans           An umbrella term used to cover a number of different gender identity labels. It is commonly used to include both ‘transsexual’ and non-binary identities. This term does not currently appear in any legislation

 

Transsexual         A term used in EqA 2010 to describe a person who has the protected characteristic of gender reassignment. It does not specifically cover non-binary gender identities. A transsexual person may or may not undergo gender reassignment. A transsexual person identifies as a member of the gender opposite to that assigned at birth, and is defined (as set out above) as someone who:

— is proposing to undergo

— is undergoing, or

— has undergone gender reassignment

 

This term is now considered outdated and is being replaced by the term ‘transgender’ or ‘trans’. According to Acas, it is never appropriate to use the word ‘transsexual’ as a noun.

 

Other terms which are important to understand:

 

Bi-gender            A person who considers themselves to be both male and female at different times.

 

Cis/cisgender      Where sex assigned at birth and gender identity are congruent; a term used to break down the idea that non-trans people do not need a descriptor. ‘Cis’ derives from the latin term for ‘on the side of’. Some trans individuals find this term offensive.

 

Cross-dresser      While anyone may wear clothes associated with a different sex, this term is typically used to refer to men who occasionally wear clothes, makeup, and accessories culturally associated with women. Replaces the term ‘transvestite’, which according to Acas is generally viewed as inappropriate and likely to cause offence.

 

Differences in sex development (DSD)      Defined by the NHS as a group of rare conditions involving genes, hormones and reproductive organs, including genitals. It means a person’s sex development is different to most other people’s, some people may prefer the term intersex or use the term variations of sex development (VSD).

 

Gender dysphoria/incongruence  Where the person experiences distress due to the mismatch between the sex they were assigned at birth and the gender they identify with. Conforming to society’s cultural expectations causes a persistent personal discomfort. It may accompany a desire to live in the opposite gender of birth.

 

Gender fluid        An individual may change how they feel about their gender from time to time, eg they may identify as a woman on some days, as a man on others, or as a combination of both.

 

Gender identity  Psychological identification of oneself. This may be as boy/man or girl/woman (the binary model), or may be one of the other identity labels

This is the term that the Women and Equalities Committee in their Transgender equality inquiry report recommended the protected characteristic of gender reassignment should be amended to.

 

Gender neutral   A gender neutral person does not identify with any gender; they may embrace aspects of both man and woman and may possibly fall on a spectrum between the two.

 

Gender neutral pronouns such as they, per, zie, ze, fey may replace binary pronouns (he/she, his/her); and a gender neutral title such as Mx may replace Mr, Mrs, Miss or Ms.

 

Intersex     The anatomy or physiology of an intersex person differs from contemporary stereotypes of what constitutes male or female. In some intersex conditions, the appearance at birth is atypical being neither male nor female. Intersex is a physical condition, as opposed to a gender identity.

 

Non-binary          Not identifying solely with either male or female; a non-binary person may say they are neither gender, or may have some other sense of gender such as pan-gender, poly-gender or third gender.

 

Sex         A term referring to the male/female physical development; historically judged entirely on genital appearance at birth.

 

Sexual orientation            Sexual orientation is associated with sexual attraction between one person and another; it is a separate issue to gender identity. A transgender person may be heterosexual, gay, lesbian, bisexual or a-sexual.

 

Transition            A series of social, psychological, emotional and sometimes medical steps a person takes to present in the gender identity they wish to take. Transition is the term used to describe the permanent full-time adaptation of the gender role in all spheres of life (family, work, leisure, society generally). The steps and timescale for transitioning will vary from individual to individual.

 

Gender Recognition Act 2004 (GRA 2004)

 

GRA 2004 provides a mechanism for someone to be legally recognised in, and gain the rights and responsibilities of, their gender affirmed through gender reassignment (ie from a man to woman, or woman to man). Obtaining a GRC leads to the issue of a new or replacement birth certificate reflecting the holder’s new gender (provided the birth was registered in the UK). An individual must be 18 years of age or older to apply for a GRC.

 

Where a full GRC is issued to a person, the person’s gender becomes for all purposes the acquired gender, so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman.

 

Therefore a male to female transsexual person can bring an equality of terms claim in her acquired, female, gender from the date the GRC is issued, but (probably) only in relation to events occurring after that date.

 

GRA 2004, which currently only applies to those aged 18 years and older, requires applicants to satisfy the Gender Recognition Panel (a judicial body of doctors and lawyers) that they:

 

  • have or have had gender dysphoria

 

  • have lived in the acquired gender for at least two years prior to the application, and

 

  • intend to live permanently in the acquired gender

 

Physical medical intervention is not necessary to receive a GRC.

 

Strict privacy requirements are set out under GRA 2004. If a person has a GRC, information about that person’s gender history is ‘protected information’. GRA 2004 makes it a criminal act subject to a fine for a person who has acquired this protected information (ie information which relates to a person’s application for a GRC or information which identifies a person with a GRC as transgender) in an official capacity (eg through a recruitment process or in the course of doing their job) to disclose information to any other person.

 

The offence does not apply in certain circumstances, including:

 

  • if the individual has agreed to the disclosure of such information

 

  • disclosure for the purpose of preventing or investigating a crime

 

Asking an employee or job applicant if they have a GRC, or asking to see a GRC:

 

  • is not permitted

 

  • could be regarded as harassment

 

A GRC is not needed to change one’s name, pronouns or the way one dresses at work.

 

Areas of Note for Employers 

 

Terms and conditions of employment, including pay

 

An employer should ensure there are no terms and conditions of employment that disadvantage a person on grounds of gender reassignment, for example pay, bonus or ability to work flexibly.

 

An employer may be able to justify different treatment if the difference is not related to the gender reassignment, but instead to another factor such as experience or location.

 

Acas gives the example of a man needing to take leave for medical assessments as part of his transition, who is told he will not get paid for the time off. This is likely to be discriminatory, as the individual would have been paid if he were off work sick or injured, or having treatment for a health issue.

 

Recruitment and selection

 

Advertisements and application forms

 

There is no requirement for a transsexual job applicant to tell a prospective employer that they have changed gender, either before or if they are offered the job. Similarly, we suggest that a transgender job applicant should not be expected to comment on their gender identity.

 

An employer should:

 

  • use gender neutral language in job advertisements, eg ‘they’ instead of ‘he or she’

 

  • consider if it is necessary for a job applicant to identify their gender and, if not:

 

◦avoid asking for a title (eg Mr, Mrs) if possible

 

◦make providing a title optional, or

 

◦include ‘other’ or Mx as an option

 

  • be sensitive to the possibility that, where a background screening company is struggling to find accurate information, the applicant may have changed their name and/or gender

 

  • be aware that a trans applicant may have forms of documentation which do not tally, eg passport, qualification certificate, written references

 

  • consider appointing a named point of contact within the organisation for any potential trans applicants or issues

 

An employer should ensure that if it is necessary for an applicant to provide previous names, the request is dealt with sensitively, and any information provided is stored securely.

 

Interview/selection process

 

The GEO (Government Equalities Office) guidance on recruiting and retaining transgender staff suggests that:

 

  • recruiting managers could receive training and ongoing refresher training on best practice, the employer’s recruitment and equality policies and the law

 

  • managers need to be able to ‘sell the benefits’ of the job in terms of the support that is available to all staff, eg through an inclusive culture and networks

 

The GEO guidance also reminds employers that:

 

  • candidates may not wish to disclose their trans status at interview and it is not a question that should be asked

 

  • it is best not to assume someone’s gender simply by their appearance

 

  • in some circumstances, candidates may advise a recruitment panel that it is their intention to transition. In such circumstances recruiting managers could:

 

◦thank the candidate for their openness

 

◦explain that if appointed the employer will support the individual

 

◦remain focussed on the purpose of the interview, ie does this person have the skills and experience for the job

 

Promotion and training

 

An employee must not be discriminated against in promotion opportunities because of gender reassignment. It would, for example, be discriminatory to:

 

  • turn down an employee’s application for promotion because that employee is proposing to transition

 

  • dissuade a trans employee from applying for promotion

 

  • take into account gender assignment-related absences

 

  • not promote an employee because they reported a case of harassment of a transgender colleague

 

Similar considerations will apply in relation to training opportunities; it would be discriminatory to withhold training from an employee because of their own gender reassignment or perceived gender reassignment, or the gender reassignment of someone they are associated with.

 

Job adaptations and capability

 

A transitioning employee may wish to make a temporary, short term change to working arrangements during or shortly after the transition process, such as:

 

  • a period away from client-facing roles

 

  • working from home

 

  • changing shift patterns

 

An employer cannot insist that changes to working arrangements take place, and indeed the Acas archived guidance suggests that doing so may amount to direct discrimination; any change must be with the agreement of the transitioning employee.

 

Dress code

 

An employer should offer a gender neutral uniform if possible. Where dress codes are different for men and for women, it may be necessary to allow some flexibility in the dress code to accommodate the process of transitioning from one gender to another or for others who require it, for example:

 

  • where a uniform requires trousers to be worn by both men and women, a trans woman may prefer to wear a skirt so that others are clear about her gender status

 

  • flexibility on hair and style may be necessary at the start of a transition

 

There should also be flexibility for:

 

  • those who live androgynously, ie those who have a neutral gender expression in terms of dress and would not be comfortable in a strictly feminine or masculine mode of dress

 

  • those who present sometimes as one gender and sometimes as another, by providing both male and female uniforms for that person – another common flexibility is where an employee has an ID lanyard which allows them to present their gender identity on any given day.

 

Case law and conflicting rights

 

A case of obvious direct discrimination was laid bare in the case of de Souza…v Primark (2018).

 

Here, the claimant brought claims for direct discrimination and harassment under the Equality Act 2010 (EqA 2010) in relation to gender reassignment. She was a transgender woman, who had lived as a woman on a permanent basis for several years. At the time of her employment with the respondent, her official first name on her passport and national insurance was still her birth name ‘Alexander’, although she went by the name ‘Alexandra’.

 

She began work as a retail assistant at a branch of Primark. She had used her female name Alexandra on her job application, but used her passport as identification at her interview, at which she explained that she was transgender and wanted to be known by her female name.

 

At her induction, she identified herself using her passport, but told the respondent’s HR representative that she was transgender and presented as a woman called Alexandra. Primark had a system of ‘legal’ name and ‘preferred’ name, and the claimant’s legal name, rather than her preferred name, was put on the rota sheet. This meant that several of her colleagues were aware that she was transgender and, on several occasions, she was subjected to discriminatory treatment because of her transgender status.

 

This included being ‘outed’ by her supervisor, who called her Alexander/Alexandra and laughed at her, and who continued to refer to her as Alexander even after being corrected. The claimant’s colleagues made insulting or other upsetting comments in front of her. On one occasion, a colleague sprayed scent near the claimant and said it smelt like a men’s urinal, another told an electrician that there were no ladies in the female lavatory even though she knew the claimant was in there, and others said she had ‘evil inside her’ and that she was ‘a joke’.

 

The claimant resigned because of the behaviour and the respondent’s failure to deal with it.

 

The claimant was successful and was awarded £47,433.03 in damages to compensate her for her past and future loss of earnings and loss of pension (£19,872.86), injury to her feelings (£25,000), and interest (£2,560.17).

 

The conflicting rights of philosophical belief (ie gender critical beliefs) and ‘transgenderism’ came before the EAT in April 2021 in Forstater v Centre for Global Development.  #istandwithmaya

 

In Forstater, the claimant was a researcher and writer who entered into consultancy agreements with the respondents. Ms Forstater wrote tweets concerning the proposed changes to the GRA 2004 which would allow people to self-identify their gender. Some of the respondents’ staff raised concerns about the tweets, alleging they were transphobic. When Ms Forstater’s consultancy positions were not renewed, she contended that the reason was the gender critical opinions she had expressed. She brought employment tribunal proceedings alleging direct discrimination on the grounds of a philosophical belief, and indirect sex discrimination.

 

Judgment from the EAT concluded that the belief that sex is biologically immutable, that there are only two sexes (male and female), that men are adult males and women are adult females, and that it is sex that is fundamentally important, rather than ‘gender’, ‘gender identity’ or ‘gender expression’, is a philosophical belief protected under EqA 2010, s 10. The landmark decision overturned the first instance London Central Employment Tribunal decision which held that the particular belief that a person’s ‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’, and that being female is an immutable biological fact, rather than a feeling or an identity, is, in its absolutist nature, a belief that is incompatible with the fundamental rights of others and was not a belief worthy of respect in a democratic society, and accordingly was not a philosophical belief protected under EqA 2010.

 

There is, however, a limit to the protection offered by holding a gender critical belief.

 

In June 2022 the EAT handed down the first post-Forstater claim involving alleged discrimination in relation to gender-critical beliefs. In October 2019, in Mackereth, a Christian doctor who refused to address a transgender person by their chosen pronoun had unsuccessfully argued in the employment tribunal that his dismissal amounted to discrimination on the grounds of his religious belief. The tribunal held that his belief (a lack of belief in transgenderism and conscientious objection to transgenderism) was incompatible with human dignity and conflicted with the rights of trans individuals. On appeal, the EAT overturned the tribunal’s primary finding that the claimant’s relevant beliefs did not satisfy the Grainger criteria.

 

However, the EAT concluded that although the claimant’s gender-critical beliefs were protected in law, a policy operated by the DWP compelling its health and disabilities assessors, including the claimant, to use the preferred pronouns and mode of address of trans service users when conducting assessments of them for receipt of disability benefit was justified in the circumstances of the case, and hence the respondent had not acted unlawfully against him.

 

Having training and progressive policies in this area was highlighted in the case, Taylor v Jaguar Land Rover, the employment tribunal considered for the first time the application of EqA 2010, s 7 to non-binary or gender fluid individuals. The claimant in this case was a longstanding engineer working in Jaguar Land Rover’s plant who from 2017 informed their employer that they were transgender, thought themselves to be on part of a spectrum, transitioning from the male to female gender identity, and that they self-identified as gender fluid and non-binary and had no plans for surgical transition. From that time they usually dressed in women’s clothing as a result of which they were subjected to abusive insults and jokes, had issues regarding which toilet facilities they should use and had been given inadequate support by HR and management.

 

Awareness

 

It’s clear that the first step for employers is to ensure that staff at all levels, but especially management, are trained and therefore aware of this issue; equipped with the appropriate knowledge, language and practical tools to ensure they can deal with the issue confidently and sensitively.

 

A few common practical issues that we are asked about:

 

  • toilets – depends on size and resources – from 3 sets, ‘men, women and gender neutral’, to one or two single cubicles with locks, that are not specifically designated;
  • accurate internal records, updated to reflect the appropriate gender identity of staff;
  • signage (a name badge – 2 name badges); and
  • email sign off with pronouns ie she/her, they/their, ze etc

 

Essentially, communication is key and you should be guided by the employee’s concerns and suggestions, balanced against the well-being of all staff (if, indeed, there is any conflict between the 2, which there may well not be).

 

 

Costs Awarded against Employee Claiming Work Email was Sexual Harassment

An IT worker who sued her boss for sexual harassment, after believing his use of “xx”, “yy”, and “????” in an email was a coded way of asking for sexual relations, has been ordered to pay costs, after failing in her claim.  Julie Sabba, Associate in Employment, provides more detail on the case of Gasparova v essDocs.

 

Karina Gasparova raised a claim against her former employer for sexual harassment, discrimination and unfair dismissal.

 

In evidence, she claimed that the following email was loaded with sexual innuendo:

 

“Can you please complete the following:

 

The solution us currently used by xx Agris companies and yy Barge lines in corn cargoes in south-north flows in the ???? waterways.

 

Also, can you remind me of what the balance of the rollout will be and the approx. timing.

 

Thanks”

 

Ms Gasparova, who represented herself, argued the ‘xx’ referred to kisses, ‘yy’ to sexual contact and ‘????’ as a coded way of asking “when she would be ready” to engage in sexual acts.

 

She also stated that when Alexander Goulandris renamed a work file with his initials ‘ajg’ it was an abbreviation of “A Jumbo Genital” and that he spoke in an alluring voice when wishing her a ‘nice evening’.

 

In rejecting her claims, the tribunal panel described them as a “skewed perception of everyday events (which) demonstrated a tendency to make extraordinary allegations without evidence”.

 

Ms Gasparova’s claims of sexual harassment, discrimination and unfair dismissal were rejected and she was ordered to pay £5,000 costs to essDOCS.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Last Orders for Booze at Work Parties

Julie Sabba, an Associate in MLP’s Employment team, considers a new survey highlighting the potential negative consequences of alcohol consumption at work social events.

 

Following a new poll by the Chartered Management Institute (CMI), one third of managers say they have had to deal with harassment and inappropriate behaviour at work events, often caused by staff drinking alcohol to excess.  The significant majority of those who felt they had suffered such unwanted behaviour due to intoxicated colleagues were female employees.

 

Furthermore, as increasing numbers of younger people (between the ages of 16 and 34 ) are eschewing alcohol in general and many also abstain from drinking for cultural or religious reasons, employers are being encouraged to move away from alcohol as a focus of work-related social events.  Indeed, the CMI’s boss said alcohol “doesn’t need to be the main event” at parties.

 

Indeed, employers are now often finding the idea of booze fuelled parties too much of a risk and are moving away from such events to try other activities to reward staff and promote good relations at work, such as paint-balling and escape rooms.  Limiting the number of drinks available and ensuring that there are plenty of soft drinks and food can also help create the right atmosphere, without being overly restrictive.

 

Employers are also using existing safeguards, such as workplace anti-harassment and discrimination policies, to ensure that they have been extended to cover work social events.

 

Ultimately, employers need to balance good staff relations against their responsibility to keep employees safe, even outside what could be considered the normal working environment.

Bullying in the Workplace

The issue of bullying in the workplace has come to the fore recently, particularly in light of the report into Dominic Raab’s conduct at work and the finding that some of his behaviour amounted to bullying.

Following this report, there has been much discussion in the media about appropriate conduct at work, what style of management gets the best out of staff and how employers should react to allegations of bullying. What is one person’s ‘hard taskmaster’ is another person’s ‘bullying tyrant’.

Moreover, in 2021 there was a 44% increase in claims to the Employment Tribunal mentioning bullying. So, what should employer’s take from the recent furore?

In answering that question, we will consider aspects of bullying in the workplace, including:

  • The effects of bullying in the workplace;
  • Potential legal risks; and
  • How to manage and respond to allegations of bullying in your organisation

 What is bullying?

Before delving into the finer detail of the issue, it’s useful to describe bullying more fully.

Although there is no legal definition of bullying, it can be described as unwanted behaviour from a person or group that is either:

  • offensive, intimidating, malicious or insulting
  • an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone

Bullying might:

  • be a regular pattern of behaviour or a one-off incident
  • happen face-to-face, on social media, in emails or calls
  • happen at work or in other work-related situations
  • not always be obvious or noticed by others

Examples of bullying at work could include:

  • spreading malicious rumours about someone
  • consistently putting someone down in meetings
  • deliberately giving someone a heavier workload than everyone else
  • excluding someone from team social events
  • someone consistently undermining their manager’s authority (know as upwards bullying)
  • putting humiliating, offensive or threatening comments or photos on social media

One of the key issues with bullying is its inherently subjective nature. Indeed, in a report into the complaints against Mr Raab, Adam Tolley says he heard a “good deal of evidence” about Mr Raab’s “use of physical gestures in communication”. In one case, he said: “This was put as extending his hand directly out towards another person’s face with a view to making them stop talking.”

“Another example of such an allegation was loud banging of the table to make a point.”

However, the report stated: “I was not convinced that the DPM used physical gestures in a threatening way, although those unused to this style of communication might well have found it disconcerting.”

What was found to be bullying, however, was referring to the Civil Service Code in a way that Mr Raab should have known could be seen as a “threat”, the report said. Essentially, threatening the job security of the employee by holding over them the fact that a serious complaint might be made about their conduct.

Essentianly, bullying can take many forms and has to be viewed in context, taking into account the nature of the working relationship and the impact of the behaviour on the ‘victim’.

The effects of bullying in the workplace

 Where bullying does take place, in can have a very serious and detrimental impact not only on the individual but also on the workplace as a whole.

Mental Effects

People who have been bullied in the workplace experience a wide range of problems. Impacts of bullying at work can include post traumatic stress disorder, in part because people self-identify so strongly with their work. Prolonged bullying may cause panic attacks, depression, stress breakdown, poor concentration, insecurity and compromised memory. Victims may become irritable, obsessive, hyper-vigilant or overly sensitive. They experience mood swings, indecision or a loss of humour, and may begin biting their nails, grinding their teeth or a relying on such substances as caffeine, nicotine, alcohol or sleeping aids.

Physical Effects

Bullied employees experience a wide range of physical effects, largely due to stress, such as chronic fatigue syndrome. Bullying also causes anxiety and a lowered resistance to such things as colds, coughs, flue and fever. Other reported symptoms include high blood pressure, migraine headaches, pains in the back and chest, hormone disturbances, physical numbness, irritable bowel syndrome, thyroid problems, skin irritations and ulcers. The impact of workplace bullying includes a greater risk of cardiac disease.

Researchers are also exploring whether there is an indirect link between bullying and such diseases as asthma, allergies, fibromyalgia, multiple sclerosis, diabetes and some forms of cancer.

Workplace Productivity Effects

Workplace bullying has effects on those who witness it as well as those who experience it, affecting the overall health of an organization. Victims spend much of their time trying to gain support and defend themselves from the bullying, time that would otherwise be spent working. Those who witness workplace bullying may look for another job that offers a better working environment. Other effects of bullying on the workplace include greater absenteeism and turnover, more accidents, lower quality customer service, higher costs for employee assistance programs and decreased motivation and morale.

Legal Risks

Unchecked bullying can result in potential legal risks, particularly:

  • Constructive Dismissal
  • Discrimination – if harassment is based, or perceived to be based, on a protected characteristic.

Constructive Dismissal

One of the key components in a claim of constructive dismissal (where the employee’s position is that they were forced to resign due to the treatment of them by the employer) is that there was a fundamental breach of the employment contract. The term that is often said to be breached is that of the implied term of trust and confidence.

A range of unpleasant behaviours may amount to a breach of the implied term.

In the case Protopapa, an employee who had been absent from work for a short time because of toothache was rebuked in a manner which was ‘humiliating, intimidating and degrading’. This was a breach of the implied term of trust and confidence.

Over the years case law has established that the fact that an employee receives very substantial remuneration does not buy their employer the right to threaten the employee with instant dismissal and use obscene language and insults.

Nor does the alleged nature of a particular industry justify lower standards of behaviour towards employees – for instance banking in the City.

One of the key features of such claims is the reaction of the employer, once bullying allegations have been brought to their attention. Taking such complaints seriously, considering disciplinary action where appropriate, thorough grievance procedures and the use of meditation are all measures which can be used by an employer to minimise the risk of such a claim.

Discrimination

Unlawful discrimination will often, but not always, amount to a breach of the implied term of trust and confidence (which can mean that the employer is on the receiving end of 2 claims; constructive dismissal and discrimination).

Harassment on the grounds of a protected characteristic can often be an example of the most insidious form of bullying – picking on a someone because of a protected characteristic. Again, however, context can be everything, as demonstrated by the case of Evans.

Here, the EAT upheld the employment tribunal’s conclusion that the comment ‘fat ginger pikey’ did not amount to harassment (despite the individual having links to the traveller community), taking into account the context in which the comment was made and also the relationship between the claimant and the person who made the comment. The facts found by the tribunal included that:

  • the office culture was one of jibing and teasing among friends
  • the claimant often said ‘c***’ and called another employee ‘fat paddy’ on a regular basis
  • the claimant was an active participant in inappropriate comments and behaviour in the workplace and seemingly comfortable with the office culture and environment

In these circumstances, the EAT reasoned that:

  • the comments were not unwanted, since the claimant was such an active participant of the culture of banter (for want of a better word for it)
  • the comments did not have the purpose of violating the claimant’s dignity or creating an intimidating etc environment for him
  • the comments did not have the effect of violating the claimant’s dignity or creating an intimidating etc environment for him, as he was not offended
  • it would not have been reasonable for the claimant to have considered his dignity was violated or the environment was hostile etc given the particular circumstances and all the context and material facts relevant to the claim

Claimants should take note that if they actively participate in a culture of offensive ‘banter’, they may struggle to satisfy a tribunal that they were subjected to harassment, in accordance with the elements of the statutory test, in respect of any comments made to them within that environment.

Nonetheless, taking all we have discussed into account…

How should employers best manage/respond to bullying in the workplace?

Policies

Needless to say that robust policies – focussing on outlining standards of expected behaviour and conduct – are the first line of defence. Comprehensive policies governing diversity, equality and general civility in the workplace should be made available to all members of staff at the outset of their employment.

Training

Policies alone, however, are not wholly sufficient and should be supplemented by relevant training (especially for managers and supervisors) underpinning expected behaviours and reminding managers about processes for performance management of staff and those governing conduct.

All too often, bullying behaviour can be the result of a manager who does not have the appropriate tools for addressing underlying problems, such as performance, which can result in heavy handed and bullying behaviour.

Leading by Example

Research has also shown that where those at the top of an organisation can lead by example, promoting a culture of appropriate and professional behaviour, the rest of the organisation follows suit. Behaviours at work, which promote ‘psychological security’ (where employees feel comfortable to share problems or mistakes) enhance performance and morale.

Disciplining for bullying behaviour

If you do get to the stage where you have to discipline an employee for potential bullying behaviour, the usual process should be followed, with a few pertinent factors to be noted.

Investigation

This should be carried out as soon as is reasonably possible once the bullying allegations come to your attention and will help establish an understanding of the facts before deciding whether to discipline. You need to ensure that this is carried out with an open minded approach and avoid jumping to conclusions.

Once you have completed your investigation you should determine if the conduct is serious enough to warrant some form of disciplinary sanction (it would not normally be reasonable to proceed to a disciplinary hearing if, even at its highest, the misconduct alleged is clearly too trivial to warrant any form of disciplinary response).

An investigation can be carried out without giving the employee any warning or allowing them to be accompanied – this is often the moment in the process when you are most likely to get truthful and credible accounts of events, as the individuals in question have not had time to prepare (or concoct!) a more sanitised version of the truth.

In speaking to witnesses, some may wish to remain anonymous and this should be considered, especially if the allegations are against a person who is more senior than them.

Disciplinary Hearing

Prior to the hearing, the employee should have been given written notification of the details of allegations against them, which should include, where possible, dates and times of relevant events. The more opportunity the employee has had to defend themselves, the harder it will be to challenge any decision at the end of the process.

The employee should also be given all the evidence which will be considered at the hearing (anonymised where required). You should also be prepared for quite a tense meeting, as the accused individual may be become angry or upset.

Finally, in reaching a decision, you should work out how to articulate an appropriate justification for that decision. Obviously, in the most egregious cases of proven bullying, dismissal for gross misconduct can be appropriate.

Grievances during the disciplinary process

It is often the case that during a disciplinary process the employee who is under investigation will raise a grievance, especially if the reason for the disciplinary is related to attitude or behaviour. The general consensus is that the disciplinary process should be postponed and the grievance dealt with but that is not always necessary. If the issues in both are intrinsically linked then the issues can be looked at side by side/concurrently.

Sexual Misconduct Dismissal at the CBI

The boss of the Confederation of British Industry (CBI) has been dismissed and three other employees suspended, in the wake of a sexual misconduct scandal at the business lobbying group.

 

Tony Danker has been dismissed with immediate effect and will receive no financial package, following an independent investigation into complaints of harassment made against him by a female colleague.

 

The CBI is not the only organisation, however, which has had to respond to allegations of sexual misconduct against senior members of management.  Julie Sabba, an Associate in the Employment team, therefore asks – How should employers respond in such circumstances?

 

Investigation

 

As with any disciplinary process, regardless of the nature of the allegations, the employer should first investigate the circumstances as fully as possible, before deciding whether or not the employee in question should face a disciplinary hearing.  In cases involving sexual misconduct this can include taking witness statements (which may be anonymised when given to the employee) and can also include gathering relevant documentation, which can range from inappropriate emails to screen grabs of WhatsApp messages.

 

It is also often appropriate to suspend the employee (with pay) whilst the investigation is conducted.

 

Disciplinary Hearing

 

Thereafter, a disciplinary hearing should be held, during which the employee should be given ample opportunity to respond to the case against him or her.  The employee also has the right to be accompanied at such a meeting.  Before attending the hearing, the employee should be made aware of the potential sanction which may be imposed.

 

It is not unusual in cases of sexual misconduct to consider summary dismissal (where no notice is given or paid) for gross misconduct, when determining an appropriate outcome.

 

Appeal Hearing

 

Once the sanction has been notified to the employee in writing, the right of appeal should also be given.  An appeal can include a full rehearing, be limited to specific grounds or can be focussed on the severity of the sanction.

 

Employer’s Reputation

 

Of overarching importance is that the employer sends a signal to its employees that any type of sexual misconduct or harassment is unacceptable and any such complaints will be taken seriously.  This can help to minimise any external reputational damage and can also prevent poor morale internally.

 

Having relevant policies in place and targeted training can bolster that impression and can reduce the likelihood of claims, such as constructive dismissal or discrimination claims, from staff who feel they have been the victims of such behaviour.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.