Employment Law - Action To Tackle Bullying At Work - Case Study Example

Employment Law - Action To Tackle Bullying At Work Introduction The employers and the employees are required to observe certain procedures with regard to employment to avoid misunderstandings, which will improve the employment climate and promote human relationship. Following the well accepted principles will not only improve the labour relations, but also avoid litigations and minimize legal disputes. In the case of Maggie Wheeler, the facts of the case have been analysed with reference to the legal issues and the procedural requirements involved in the process. The ACAS guidelines have been issued in the interests of the employer as well as employees in this respect. However, it should not be misconstrued that not following the ACAS guidelines, by itself, would result into liability on the part of the employers. The objective of the ACAS guidelines is to help resolve the problems informally through arbitration/conciliation process. We consider the facts of the Maggie Wheeler’s case in the light of the relevant provisions of the law and case studies, taking into account the ACAS Code of Practice on disciplinary and grievance procedures. Facts of the case and the points for discussion 1. Maggie Wheeler is a qualified nursery nurse. [With experience in various nurseries] 2. Maggie worked at the Little Stars Nursery owned by Tony and Kate Mendez whenever they were short handed. In August 2009, she had been appointed and was to start on the 8th September 2009. 3. Around the same time Tony and Kate appointed Deidre O’Connell to be the business manager of the nursery, who had no previous experience of working in a nursery. 4. In January 2010 Maggie was promoted to deputy manager, and the manager was Marla George. 5. There was conflict between Deidre O’Connell and Marla as their roles were not precisely defined. This was a stressful time at the nursery. The environment impacted on Maggie’s health and as a result she had to have a number of days off sick. Maggie felt humiliated by this. 6. In June 2010 Marla resigned and Maggie was appointed nursery manager. 7. She was verbally abused by Deidre in front of other members of staff and parents. Deidre said that Maggie was always ‘skiving’ and the nursery had a better atmosphere when she was absent. 8. A week later Deidre told Maggie that her hours would be increased from 30 hours a week to 35 hours a week with no increase in pay. Maggie protested that the increased hours would be too much for her [the fact known to Kate]* but Deidre refused to listen. She was so upset that day she forgot to turn the nursery heating off when she left for the day. 9. A few days later Maggie was called to a disciplinary meeting by Deidre where she was told that she had too many days off sick, was irresponsible in leaving the heating off and was to be demoted to deputy manager. 10. Maggie immediately wrote a grievance letter which she sent to Tony and Kate. 11. Maggie was off sick for the following week [not immediately]* due to a stress related illness. 12. During this week Deidre telephoned Maggie at home and on her mobile pressurising Maggie to come to a meeting to discuss the grievance which she would chair. 13. Maggie remained off sick until she resigned by letter on the 15th October. The implied facts are given in italics within [ ... ] The facts of the case necessitated discussion and analysis, chiefly with reference to the following points: 1. Whether Little Stars Nursery is reasonable in treating the employee, and the actions taken by them at various points of time are justifiable. 2. Has the Little Stars Nursery followed the proper procedures in dealing with the employee as required? 3. Whether the employee’s action is justifiable in the circumstances obtained in the case. Analysis Stress: Maggie Wheeler is a qualified nursery nurse. She has experience working full time in a local nursery. Maggie worked at the nursery whenever they were short handed, either Kate or Tony would telephone her and ask if she could work that day on casual basis. The decision to appoint her on August, 2009on full time was taken consciously by the Little Stars Nursery after knowing her background. She was promoted as Deputy Manager, obviously on satisfied performance. The appointment of Deidre O’Connell who had no previous experience of working in a nursery as the business manager, and her conflict with the manager, Marla George as their roles were not precisely defined, led to stressful time at the nursery. This environment in the affected Maggie’s health and as a result she had to have a number of days off sick. In June 2010Marla resigned, (obviously) on account of Maggie’s performance, she was promoted as nursery manager. From the foregoing reconstruction of the scenario, we could observe the following important points emerging from the situation. 1. Up to this point of time, she was able to manage well, and there was no adverse remark on Maggie as an employee of the nursery and her promotion as nursery manager suggests that she was carrying out her duties diligently. 2. The roles of the Manager and the Business Manger were not defined precisely. In the absence of any contrary statement to this effect, this leads to an important conclusion that the Business Manager has no authority over the Manager. 3. The environment in the school gave rise to stress and resulted into Maggie’s sickness. 4. Deidre O’Connell who had no previous experience of working in a nursery. It is also not specified whether he is a qualified nursery nurse or manager to justify his appointment as a Business Manger and exercise his authority over another qualified and experienced nursery nurse. 5. His conflict with the erstwhile manager, Marla George cast a doubt on adequacy of his qualification and experience in discharging his duties. Palmer, B. (2001) pointed out that “The TUC report "Focus on Health & Safety" was published in November 2000 after 9,000 safety representatives had been surveyed. Sixty six per cent of those polled said that stress was their main health concern” and stated, “Traditionally, employees could not recover compensation for ill-health caused by stress arising from the workplace. However, the landmark decision in Walker v Northumberland County Council [1995] IRLR 35 found that the general duty of care owed by an employer to his employee could extend to the risk of psychiatric damage caused by the work which the employee was called on to perform”. He further stated that the key points which an employee must prove for a successful claim are: 1) That the stress caused a recognised mental illness 2) That that illness was caused by workplace stresses and not other factors 3) That the risk of illness was reasonably foreseeable by the employer; and 4) That the employer did not meet the standard of the hypothetical reasonable employer in exposing the employee to workplace stress.1 ---------------------------------------------------- 1 B. Palmer, Stress in the workplace: Are you sure this does not apply to your company? Employers' Law, 01 April 2001, http://www.personneltoday.com/articles/2001/04/01/7128/stress-in-the-workplace-are-you-sure-this-does-not-apply-to-your.html In the present case, the subsequent developments stated under Serial Numbers 7 and 8 of ‘The facts of the case and the points for discussion’ contributed to the severity of stress suffered by Maggie. Barber v Somerset County Council (2004): The issue in this case is whether the Somerset County Council, who employed Mr Barber as a teacher at their East Bridgwater Community School, are liable to him in damages for the mental breakdown he suffered brought about by the pressures and stresses of his workload. It was held that the school owed claimant a duty of care, and their breach of that caused the claimant’s nervous breakdown.2 Harassment: Maggie was verbally abused by Deidre in front of other members of staff and parents. Deidre said that Maggie was always ‘skiving’ and the nursery had a better atmosphere when she was absent, and this amounts to harassment. Harassment is also a form of discrimination. Harassment can include verbal abuse, suggestive remarks and unwanted physical contact.3 --------------------------------------------------- 2 www.parliament.uk. Judgments - Barber (Appellant) v. Somerset County Council (Respondents). http://www.parliament.the-stationery-office.co.uk/pa/ld200304/ldjudgmt/jd040401/barber-1.htm 3 Citizens Advice Bureau. Employment in England – Basic rights at work http://www.adviceguide.org.uk/index/your_money/employment/basic_rights_at_work.htm#Harassment_and_discrimination Working Hours: Apart from the minimum statutory requirements, the terms of the contract and the practical need for extension of working hours of the Nursery Manager should also be taken into account. Under 4.—(1) The Working Time Regulations (1998) subject to regulation 5, a worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days. Under 5.—(1) The limit specified in regulation 4(1) shall not apply in relation to a worker who has agreed with his employer in writing that it should not apply in his/her case, provided that the employer complies with the requirements of paragraph (4).4 Deidre told Maggie that her hours would be increased from 30 hours a week to 35 hours a week with no increase in pay. Maggie protested that the increased hours would be too much for her [the fact may be known to Kate] but Deidre refused to listen. However, this issue has not been mentioned thereafter in the facts of the case. Probably, though Deidre wanted to increase the working hours with no increase in pay, subsequently she might have changed her position, because the protest made by Maggie has not been cited as a reason for demotion. Disciplinary and Grievance Procedures: ACAS Code of Practice 1 - Disciplinary and Grievance Procedures states “Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. Where this is not possible employers and employees should consider using an independent third party to help resolve the --------------------------------------------------- 4 Legislation.gov.uk, The Working Time Regulations 1998, http://www.legislation.gov.uk/uksi/1998/1833/contents/made problem. The third party need not come from outside the organisation but could be an internal mediator, so long as they are not involved in the disciplinary or grievance issue In some cases, an external mediator might be appropriate”.5 The authority exercised by Deidre is questionable, as the roles of Business Manager and Nursery Manager were not precisely defined. Apart from that, from the facts of the case as given, there is a considerable gap between the Maggie’s sick leave and the first disciplinary meeting where Maggie was demoted to Deputy Manager, and it was few days after the nursery heating incident. Also, the facts of the case clearly states that Maggie was appointed nursery manager June 2010 that is after her leave of absence. Maggie forgot to turn the nursery heating off when she left for the day. However, this could not be cited as a reason for demotion of the Nursery Manager, which happened for the first time that too after stressful experience and humiliation suffered by Maggie on that day. Kate who had appointed Maggie is not at all in the picture and whether Deidre has obtained the concurrence of Tony and Kate, the owners. Therefore, prima facie the action taken by Deidre is not justifiable. Also, she has not followed any procedures properly in taking action against Maggie. According to the code: 4. Whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. There are a number of elements to this: ------------------------------------------------- 5 ACAS, Code of Practice 1 - Disciplinary and Grievance Procedures, Introduction, http://www.acas.org.uk/index.aspx?articleid=2175 Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers and employees should act consistently. Employers should carry out any necessary investigations, to establish the facts of the case. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. Employers should allow an employee to appeal against any formal decision made.6 The rules emphasize broadly the need for investigations before disciplinary hearing and the employees should be notified in writing to enable them to prepare their answers in the disciplinary meeting. As per the code 13, Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in a formal warning being issued; or the taking of some other disciplinary action; or the confirmation of a warning or some other disciplinary action (appeal hearings) ---------------------------------------------------- 6 ACAS, Code of Practice 1 - Disciplinary and Grievance Procedures, Introduction, http://www.acas.org.uk/index.aspx?articleid=2176 Written warning explaining the consequences of further misconduct is preferred as a first step, providing opportunity to the employee to appeal.7 The UK Employment Act 1999 came into force on 4 September 2000. One section or the ERA (1999) provides a statutory right for a worker to be accompanied at grievance and disciplinary meetings.8 Grievance meeting Immediately after demotion, Maggie immediately wrote a grievance letter which she sent to Tony and Kate. The code encourages the employees to resolve the grievances through conciliation only. The employer should provide opportunity to the employee to explain his/her case. The employee has a statutory right to be accompanied by a companion. Where an employee continues to be unavailable to attend a meeting the employer may conclude that a decision will be made on the evidence available. The employee should be informed where this is to be the case. . When there is problem with the employees with the equal status, other senior employees, say in this case Tony or Kate as the owner may chair the grievance meeting. During the week Deidre telephoned Maggie at home and on her mobile pressurising Maggie to come to a meeting to discuss the grievance which she would chair. It is clear the procedure is not in writing and proper records have not been maintained. ---------------------------------------------------- 7ACAS, Code of Practice 1 - Disciplinary and Grievance Procedures, Discipline -Keys to handling disciplinary issues in the workplace, http://www.acas.org.uk/index.aspx?articleid=2177 8 Bullyonline, Action to tacke bullying at work, http://www.bullyonline.org/action/caselaw.htm Resignation: The resignation could be construed as a forced one by giving indirect pressure to the employee to tender resignation under stressful circumstances. Where an employee is forced to resign, because the alternative would be dismissal by the employer, the employee can still claim Unfair or Wrongful Dismissal.9 Constructive Dismissal: The employee in this case has not been given any opportunity to present her case as required by the act. Deidre (The employer) has not followed the procedures, and this has given rise to suspicion about the real motives. Where the employee leaves their job due to the employer's behaviour, for example, the employer has made the employee's life very difficult and the employee feels that they cannot remain in their job. When this happens the employee's resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal, and this can include: Harassing or humiliating staff, particularly in front of other less senior staff. Victimising or targeting particular members of staff. Changing the employee's job content or terms without consultation. Excessive demotion or disciplining of employees.10  --------------------------------------------- 9Compact Law, Resignation, http://www.compactlaw.co.uk/free-legal-information/employment-law/resignation.html 10Compact Law, Constructive Dismissal, http://www.compactlaw.co.uk/free-legal-information/employment-law/constructive-dismissal.html In Stone v. Lancaster Chamber of Commerce, the tribunal unanimously upheld Mrs Stone's claim of constructive dismissal after she was bullied out of her job by the new training manager Paul Jones. The tribunal deemed the dismissal "manifestly unfair"11 Wrongful Dismissal should not be confused with Unfair Dismissal. Wrongful Dismissal is based on contract law. Any claim for Wrongful Dismissal will therefore mean looking at the employee's employment contract to see if the employer has broken the contract.12 Reinstatement: Remedies may involve reinstatement or reengagement, if the parties to the dispute are satisfied with this decision in resolving the issue. “An Employment Tribunal can recommend reinstatement of an employee who has been unfairly dismissed; that is, the employee will return to the job that she or he held prior to the dismissal. If an employer refuses to accept reinstatement, the tribunal can award additional financial compensation to the employee.’ 13 Additional compensation: The employers may be liable for additional compensation of 25% if it is proved that they have not followed the guidelines or reduced by 25% if the employee is at fault in not following the guidelines and this may not be applicable in the present case. 14 ---------------------------------------------------- 13 Jrank, Reinstatement - Employment Tribunal, dismissal, unfair dismissal, 21 May 2010 http://www.jrank.org/business/pages/1364/reinstatement.html 14 ACAS, Code of Practice 1 - Disciplinary and Grievance Procedures, Introduction, http://www.acas.org.uk/index.aspx?articleid=2175 Disability: There is also relief to the employee provided under the Disability Discrimination Act 1995 against the less favorable treatment received from an employer if he/she is disabled. The employer in this case is required to make “reasonable adjustment”. In the present case, obviously, the employer has not taken any reasonable efforts to investigate into the matter thoroughly as required in the act to ascertain whether the adjustment is possible. Such action on the part of the employer would not have resulted into distress and subsequent aggravation of the illness to Maggie. Also, it is clear from the facts of the case that the employer has not called for any medical reports from Maggie before taking action in demoting her. In a Landmark disability discrimination case Elizabeth Boyle v SCA Packaging, Boyle has been awarded £125,000 compensation from her former employer. Upholding a Court of Appeal ruling, the House of Lords has ruled that people with physical or mental conditions which vary in severity over time should still be termed "disabled".15 Punitive Damages/Bad Faith Damages: ‘Punitive damages can be awarded where the employer's conduct is shocking and outrageous… bad faith conduct at the time of dismissal… making false allegations of cause at the time of dismissal…’ 16 There is no mention of ‘witness’ in the facts of the case as given for consideration. However, it is --------------------------------------------------- 15 Personnel today, Landmark disability discrimination case: woman wins payout, 2010 http://www.personneltoday.com/articles/2010/04/22/55310/landmark-disability-discrimination-case-woman-wins-payout.html 16 K.A. Krupat, Wrongful Dismissal – Employment Law, JOBLAW.CA, 21 May 2010 http://www.joblaw.ca/index.php?view=dismissal stated that “She (Maggie) was verbally abused by Deidre in front of other members of staff and parents. Deidre said that Maggie was always ‘skiving’ and the nursery had a better atmosphere when she was absent.” Therefore, if any one of the staff members or parents could be turned as a witness, the position of the employer’s case is further weakened. The significance of the damage to the employer that may be caused by the award would depend upon the several factors discussed above as well at the discretion of the court. Advice There is no specific legislation in connection with the stress related issues in employment. The potential claim with regard to stress may be preferred under common law, if it could be established that the stress has led to an actual mental or physical illness, and proved with medical evidence. As the facts of the case suggest harassment in workplace Maggie could decide to sue her employer for damages using the protection available under Harassment Act, 1997 also. There are remedies available considering the chances that the resignation could be treated as unfair dismissal in this case. There is also relief by way of reinstatement. If the tribunal considers that an employee has a well-founded complaint and the tribunal is unable to make an order for reinstatement or re-engagement, it must make an award of compensation that has two elements: the basic award and the compensatory award.17 It is suggested that these types of disputes should be resolved amicably among the parties as it involves not only legal expenses but also precious time and the reputation of the institutions concerned. Therefore, generally the employers would prefer to settle the issue out of court to avoid litigations. The employees also, considering the hardships in maintaining the case and other personal inconveniences involved prefer to close the matter amicably. ACAS has issued guidelines in the interest of the employers and employees to avoid disputes and resolve the issues through mediation. The guidelines encourage both the parties to act in a reasonable manner in dealing with the issues. It should be kept in mind that these types of claims involve huge legal expenses and the proceedings are dragged on the several months or years. Resolution of disputes, especially from the employer’s angle, through reconciliation process is advisable for the simple reason that the law would like to give the benefit of doubt usually to the employees, since the spirit of the law is to protect their rights basically. Again, this basic concept should encourage the aggrieved employees to seek legal remedy against injustice meted out to them in handling their grievances by the employers. Considering the length of the service of the service, consequently the compensation that may be available to Maggie, in the event of the dispute settled in her favour, she may try to resolve the issue through mediators, --------------------------------------------------- 17 My Lawer, Awards for unfair dismissal, 21 May 2010 http://www.mylawyer.co.uk/ml/index.cfm?event=base:article&node=A76018BD32702 because proper reasoning could make the employer understand the seriousness of the issue from their point of view. Therefore, to avoid lengthy proceedings in the court of law with uncertain outcome which depends upon several factors and the discretionary factor involved in the decisions of the court, Maggie may strike a conciliatory note with Tony and Kate. The views of Tony and Kate on the matter are not given. Assuming Maggie has good relationship with the owners of the nursery, this could be considered as an option, and pursued through mediation. The Civil Procedure Rules 1999 introduced a mechanism for settling cases - Part 36 offer enables one party to make a without prejudice offer to settle a claim. If the offer is not accepted and the offeror does better than his offer when the case goes to court, the recipient of the offer will suffer from a reduction of the costs awarded by the court. If the recipient of the offer is a defendant there may also be an adverse effect in the interest awarded. 18 Conclusion It could be observed from the analysis that in resolving the disputes proper procedure should be adopted by the employers and the employees. The employer should maintain record of the proceedings, and give opportunity to employees to represent their case as required by the regulations and allow them to appeal if they are not satisfied with the decision. The ACAS guidelines encourage settling the issues through mediation only in order to promote industrial peace in the country. --------------------------------------------------- 18 Commercial Angle Out of court settlements, 2001 http://www.tradeangles.fsbusiness.co.uk/articles/out_of_court_settlements.htm References ACAS, Code of Practice 1 - Disciplinary and Grievance Procedures, Introduction, http://www.acas.org.uk/index.aspx?articleid=2175 ACAS, Code of Practice 1 - Disciplinary and Grievance Procedures, Discipline -Keys to handling disciplinary issues in the workplace, http://www.acas.org.uk/index.aspx?articleid=2176 ACAS, Code of Practice 1 - Disciplinary and Grievance Procedures, Discipline -Keys to handling disciplinary issues in the workplace, http://www.acas.org.uk/index.aspx?articleid=2177 Bullyonline, Action to tacke bullying at work, http://www.bullyonline.org/action/caselaw.htm Citizens Advice Bureau. Employment in England – Basic rights at work http://www.adviceguide.org.uk/index/your_money/employment/basic_rights_at_work.htm#Harassment_and_discrimination Compact Law, Constructive Dismissal, http://www.compactlaw.co.uk/free-legal-information/employment-law/constructive-dismissal.html Compact Law, Resignation, http://www.compactlaw.co.uk/free-legal-information/employment-law/resignation.html Commercial Angle (2001) Out of court settlements, http://www.tradeangles.fsbusiness.co.uk/articles/out_of_court_settlements.htm CompactLaw, Wrongful Dismissal – Introduction, http://www.compactlaw.co.uk/free-legal-information/employment-law/wrongful-dismissal-introduction.html Jrank, (2010), Reinstatement - Employment Tribunal, dismissal, unfair dismissal, 21 May 2010 http://www.jrank.org/business/pages/1364/reinstatement.html Krupat, K.A., (2010), Wrongful Dismissal – Employment Law, JOBLAW.CA, 21 May 2010 http://www.joblaw.ca/index.php?view=dismissal Legislation.gov.uk, The Working Time Regulations 1998, http://www.legislation.gov.uk/uksi/1998/1833/contents/made My Lawer, Awards for unfair dismissal, 21 May 2010 http://www.mylawyer.co.uk/ml/index.cfm?event=base:article&node=A76018BD32702 Palmer, B. (2001), Stress in the workplace: Are you sure this does not apply to your company? Employers' Law, 01 April 2001, http://www.personneltoday.com/articles/2001/04/01/7128/stress-in-the-workplace-are-you-sure-this-does-not-apply-to-your.html Personnel today (2010), Landmark disability discrimination case: woman wins payout, http://www.personneltoday.com/articles/2010/04/22/55310/landmark-disability-discrimination-case-woman-wins-payout.html www.parliament.uk. Judgments - Barber (Appellant) v. Somerset County Council (Respondents), http://www.parliament.the-stationery-office.co.uk/pa/ld200304/ldjudgmt/jd040401/barber-1.htm Read More