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Workplace Bullying

A workshop for the Association of Teachers & Lecturers

Justin Patten Solicitor

22nd April 2006

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Outline of workshop

The financial & moral case for tackling workplace bullying

What is workplace bullying & how it manifests?

What are the key legal issues? What is the key relevance for teachers? What practical steps can you take for

eradicating bullying?

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Why are people so important to an organisation now?

The shift from a manufacturing economy to an information economy with the  rapidly growing need for knowledge workers with advanced verbal, mathematical, and social skills

The continuing and escalating explosion of new knowledge, new technology and new products which keeps raising the requirements of economic adaptiveness

The importance of hard assets - machines, factories, and capital - declined relative to the importance of intangible assets such as brands, intellectual capital and talent

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The rise of intellectual capital-The change in equity valuations over time

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77 79 81 83 85 87 89 91 93 95 97 99

IP

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How does rise in intellectual capital impact all organisations?

Greater importance of intellectual property

Increased skills of staff such as ITIncreased relationship skills with

emphasis on client care

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Andrew Mayo - “The Human Value of the Enterprise”

“Although it is fashionable to distinguish between “old” and “new” economies, the fact is that practically every organisation in the developed world has seen a growth in the importance of services, and in the competitive advantage of knowledge in all its forms. Managing “talent” and managing “knowledge” have become the imperatives of the new millennium for all organisations.”

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How extensive is bullying within the workplace?

According to the expert, Peter Randall one in four employees have been the victim of harassment, threats or physical attacks throughout the industrialised world

According to UMIST the effects of workplace bullying are estimated to be responsible for between one third and half of all stress related claims

According to a survey conducted by Personnel Today/Andrea Adams Trust  conducted in 1999- 93.1% of all personnel practitioners say that bullying is occurring in their own organisation

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How relevant is bullying within the teaching profession?

According to the expert, Tim Field, professions requiring more empathic staff are more likely to encounter bullying problems because these staff are more likely to be targeted. In particular, nursing and teaching are susceptible

£20,000 payout made to pupil, Sophie Amor aged 23 Union helped secure £200,000 for bullied deputy head

teacher from governors Teacher receives £86,000 after being bullied by

headmistress

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The impact on an individual of being bullied

Decline in motivation reduces productivity Time off work due to sickness Post Traumatic Stress & Social Anxiety

Disorder Individuals give up jobs, career or even

worse Impact spills over to victim’s family & friends

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Observations of the Andrea Adams Trust

"Bullying at work is the precursor of  alarming and unimagined misery for its recipients and is synamous with tragic consequences. There are documented cases of major physical impairments of health and many more cases involving nervous breakdown, psychological distress and  personality change, besides the intolerable pressure of acute financial repercussions and the total fracturing of careers. It has a devastating effect on the bullied persons family. Divorce is common, and a loss of marital affection and diminished attention to one's children have been reported."

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What is workplace bullying?

Bullying has been defined as aggressive behaviour arising from the deliberate intent to cause physical or psychological distress to others.  This contrasts to tough management where there is an absence of intent to cause distress and the focus, however clumsy, is on achieving some form of target

Aggressive behaviour - characteristic of an imbalance of power

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How can bullying manifest?

spreading malicious rumours, or insulting someone ridiculing them overbearing supervision deliberately undermining a competent worker by

overloading or constant criticism blocking promotion prospects refusing requests for leave with no reason refusal to delegate because the bully does not trust

anyone but him/herself

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How can assertiveness & aggressive be distinguished?

Assertiveness is behaviour directed towards reaching some desired goal in spite of obstacles in the environment or the opposition of others

Aggressive behaviour emanates from hostile attitudes and its primary purpose is to attack other individuals or exert power over them. The rights of others are disregarded and/or violated

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The subtlety of workplace bullying

A manager may not promote a very able subordinate, because of a fear that they prove to be more competent and ultimately take over the job

A manager may alter objectives knowing that the new ones cannot be achieved. Once there is evidence that the person has failed to meet the requirements of his or her job, the prefect excuse to bring about dismissal becomes available

A manager may take a series of steps against a work colleague that she dislikes because of that person’s age. She may make a point of being critical, putting down the other worker in public, clock watching, refusing to give the leave days that the individual wanted

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The quest to determine responsibility

Has there been bullying and if so, to what extent?

Does the organisation predispose bullying? The victim- innocent target or malingerer?

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The bully

Peter Randall “bullies are created and are not born”

Roots of adult bullying are firmly established in childhood

Poor parental behaviour helps to create a pattern of childhood aggression

Absence of social skills The psychological profile

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Why do people bully?

Analogy with childhood but workplace bullying is more sophisticated

Working too slowly Spineless Popular, success, good looks Frustrated with own career

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Questions to ask a bully

Why do you single out this individual? What do they represent to you? What do you feel about them? How do you want to make them feel? Is there any part of them that you identify in

yourself?

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Does the organisation predispose bullying?

A Finnish survey conducted in 1996 highlighted that poor authoritarian dispute resolution, poor information transfer, lack of participation in discussions could lead to a bullying environment

Some jobs may be more disposed to encourage a bullying style such as sales work or security. Reports are competitive work environments tend to be associated with workplace bullying

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Factors that do give rise to whether the organisation predisposes bullying

Do management genuinely respect its staff? Are individual staff members passive when

they witness instances of bullying? Is the organisation successful at what it

does? What is the role of stakeholders(pupils,

parents and governors)?

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What other variables may be relevant?

According to the Association of Insurance and Risk Managers, stress is likely to become the “most dangerous emerging risk to business in the early part of the 21st century”

There are around 5 million employees who believe that they were exposed to workplace stress, with 1 in five describing their work as “very” or “extremely” stressful

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The victim – innocent target or malingerer

Peter Randall : “It is paradoxical that many of the adult victims of bullying who present themselves to me and my colleagues for counselling keep saying “I don’t understand how this can be happening to me.” Yet for the most part, they do have this understanding because the behaviour has been happening to them for years and goes back to their childhood…Most of the clients who seek counselling are the unhappy products of dysfunctional parental systems. Some have been overindulged, overprotected and kept socially naïve by the kind of loving that reinforces dependent rather than independent behaviour.”

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The victim

Less knowledge about victim status as bully considered higher risk

Childhood issues not resolved Many victims a history of mental health

problems which are exacerbated rather than caused by bullying

Can be a particular relationship with bully

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Childhood features of victim

"smother love" or a rejecting parental style can play a role within

someone becoming a victim of bullying later in their lives

adapting to a parental environment which is punishing can involve developing a placatory disposition where protecting oneself from attack or disapproval becomes a central motivation

The ability of a victim to fight back is often linked with self esteem formulated in childhood

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Irony is there is similarity between bully & victim

Both have unresolved childhood issues Neil Crawford: “The real victim is the

individual stuck in the role of bully or victim. Both are in fact victims – of the inner conflicts which determine their psychological fate and imprison them.”

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The organisation – Andrea Adams

"It is vital to understand that bullying is a symptom. It is a manifestation of conflicts within an individual, or within an organisation, but dealing with it head on, as if it were the whole problem, will fail to get at the roots"

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Jim Collins author of book “Good to Great”

His book "Good to Great" is a bestseller in both United States and the United Kingdom

By analysing data from the US stock exchange over a 30-year period, Collins initially identified 1,435 companies that appeared in the Fortune 500 over the 1965 to 1995 period and whittled the list down to 11 companies who made the tough criteria that he set

The selected companies that made the final cut into the study obtained an average cumulative stock market return of 6.9 times the general market in the 15 years following the transition point when they experienced at least 15 years of unexceptional stock market growth

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Jim Collins – “Good To Great”

There is Duality Of Leadership - Every leader of the good to great companies was a study in duality. They were modest and wilful, humble and fearless

Rigorous but Not Ruthless - The companies rarely used head-count lopping tactics as a tactic and almost never used it as a primary strategy. 6 out of the 11 good to great companies recorded zero layoffs from the 10 years before the breakthrough date and 4 of the others only recorded one or two lay-offs

Importance of Character Traits in Recruitment -The good to great companies placed greater weight on character attributes than specific educational background, practical skills, specialised knowledge or work experience

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Direct solutions to solving workplace bullying

Training managers and supervisors Awareness raising as a means of prevention Seeking and using employee suggestions Conflict resolution Clear manuals as a means of resolving harassment

issues Employee Assistance Programmes Recognition of cultural factors which underpin

workplace bullying

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The approach to investigating workplace bullying

Employees should be made aware that harassment of all types is unacceptable and will lead to disciplinary action

Clear investigatory and disciplinary procedures applied consistently

Investigators should consider mitigating factors – focus on victim’s behaviour

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The legal issues

The employment laws setting Grievance procedure Constructive dismissal Disciplinary procedure The right to claim unfair dismissal Health and safety obligations Various general law

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Grievance procedure

Any worker may have concerns or complaints about their work, employment terms, working conditions or relationships with colleagues that they want to discuss or bring to your attention. They will want you to address and, if possible, resolve these grievances

Since October 2004, all employers must provide their employees with a written grievance procedure complying with the statutory standard grievance procedure below. Failure will result in an extra award of four weeks' pay to an employee who succeeds in an employment tribunal claim against the firm

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Standard grievance procedure

Employee gives written statement of grievance - the employee must explain the grievance in a written statement

Meeting is held and employer informs employee of the outcome -Inform the employee of any decision made and notify them of their right to appeal

Appeal if necessary - if the employee wishes to appeal against the disciplinary action that has been decided, you must invite the employee to a further meeting

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Modified grievance procedure

There are two steps within the modified grievance procedure- Applies if the employee no longer works for the employer and it has been agreed in writing that it will apply

There are two steps within the modified grievance procedure

Written statement of grievance - the employee must put their grievance in a written statement and send a copy to the employer

Employer gives written response - it must write back to the employee giving the response to the points they have raised

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Constructive dismissal

It is a legal phrase which means someone has resigned because of the employer’s breach of contract

You are entitled to claim “constructive dismissal” when the employer is in repudiatory breach of contract

Not easy to prove Resignation must be prompt

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Disciplinary rules

Standard disciplinary and dismissals procedure has 3 stages:

Put the complaint in writing and set up a meeting, giving the employee sufficient time to prepare

Employees have the right to be accompanied at that meeting

Hold the meeting with the employee and, if relevant, their colleague. Inform the employee of any decision made after the meeting and notify them of their right to appeal

The employee has a right to appeal against the disciplinary action that has been decided

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Modified dismissals procedure

Can apply with gross misconduct Written statement - the employer must give the

employee a written statement setting out the conduct that has resulted in the dismissal and informing the employee of the right to appeal against the decision to dismiss

Appeal meeting - if the employee wishes to appeal they must inform the person named in the procedure. A meeting must be held -the employer must inform the employee of his decision following the meeting

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Consequences of failure

Any dismissal (assuming the employee has worked for more than one year’s continuous employment) will be automatically unfair

Any compensation the employee recovers will be uplifted by between 10 to 50%.

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The right to claim for unfair dismissal

In order to claim for unfair dismissal, an employee must have worked for an organisation for at least 1 year

An employee needs to have worked for a continuous period of more than 1 year before he or she obtains the right to make a claim for unfair dismissal

Are there any exceptions to 1 year rule ?

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Exemptions to 1 year rule

Trade Union activities Employee's pregnancy and maternity rights. Dismissal of a “whistle-blower” observing

health & safety rules Dismissal of a worker elected as a

representative for collective redundancy or transfer consultation purposes

Consider non-Tribunal claims – statutory cap

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Employed or self employed

Why does it matter? Only “employees” have unfair dismissal

protection and a right to a redundancy payment

Requirement of employers to insure Tax liabilities Tax position is no panacea Approach “paint a picture”

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Health and safety at work

Employers do have a duty to ensure so far as is reasonably practicable, the health, safety and welfare of employees

Carry out risk assessments Duty to self-employed workers? Insurance position should be clarified

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Health and Safety Executive Management Standards

Do not replace the law but provide a framework

Developed in conjunctions with trade unions, employers, HR specialists

Designed to simplify risk assessment

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Management Standards – What areas do they cover?

Demands Control Support Relationship Role Change

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Some key legal considerations for all cases

Is the risk of psychiatric harm to the employee foreseeable?

What steps can the employer take to reasonably help the employee?

Has the employee given any previous warnings about the level of work or health?

Is there a grievance procedure that can be used?

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General legal observations

In negligence, every employer owes a duty to take reasonable care for the health and safety of his employees

An employer may be personally liable for the bullying of an employee either on the basis that he ought to have been aware of the offending employee's propensity to act in that way  

Employer may be vicariously liable for acts by its employees, including criminal acts, where the employer gave an opportunity for the employee to commit those acts

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Some practical tips to minimise legal risk

Risk assessment analysis Stress & bullying policies Access to counselling Grievance forums Monitoring e.g someone who has been sick Adjustments to work – consider reducing

workload if employee stressed

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The problems of litigation – An opportunity for trade unions?

90% cases settle Litigation – unpredictable & costly Is final – no 2nd bite at the cherry Litigation is also limited in that it can be

restrictive in solutions offered Litigation costs spiral due to creation of

documents Mediation is now being supported by the

Courts

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What is mediation?

Parties select an independent 3rd party a neutral party to act as a go – between to guide the parties to an acceptable solution

Role of the mediator is an honest broker and not a judge

Mediator does not have power to impose a solution

Each party has power to walk away Without prejudice

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What practical steps can you take to introduce mediation?

Contracts of employment and with 3rd parties can have a mediation clause within it

You can advise staff/contacts to take this step

You can request lawyers to take this step should legal action have commenced

Such a process can be flagged up in dealings with parents regarding disputes

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What is the specific law supporting mediation?

Within civil context, CPR now gives specific support to mediation

Within employment law, there is generally no costs provision – Still can be desirable

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How does mediation work?

Call the parties all together in one room Allow them to set out the position as they see

it Thereafter mediator splits and will meet each

party It is confidential and without prejudice

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Dynamics of bullying

Victim’s perspective will mean that he or she will be resistant to any form of contact with perpetrator – Assurance is critical

Law leans against victims and could provide additional incentive to use mediation

The possibility of psychological damage may contradict need to settle – Within this context great deal of consideration of need to settle

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Questions