Top 5 strategies and tips for City executives suffering bullying and harassment in the workplace

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Introduction

Are you a City executive? Are you experiencing  bullying and harassment in the workplace?

Guest contributor George Duncan writes:

‘The City is a highly pressurised environment in which to work at the best of times. As an employee you are entitled to work in an environment free of unwarranted and unwelcome behaviour and benefit from precisely the same employment protections as other employees under UK law.  Many employers have anti harassment and bullying policies in place. Even where your business has such policies, it is impossible safeguard completely against such behaviour occurring.  If you feel you are suffering from bullying or harassment in the workplace, it is important you take action without delay to bring such unwanted behaviour to an end. The tools at your disposal for doing so include raising an internal grievance and, if this does not resolve the issue to your satisfaction bringing proceedings in the Employment Tribunal.

Following a decision of Supreme Court, the financial barrier to pursuing a complaint arising out of bullying and harassment e.g. discrimination and/or constructive dismissal through an employment tribunal no longer exists.  This provides greater accessibility to justice and provides a forum for redress if you are unable to resolve your complaint internally with your employer.

Here at iLaw we have over 20 years’ of experience assisting employees with internal grievances and employment tribunal claims.

Here are our top five tips for City executives faced with what we understand and appreciate can be a stressful situation:

1. Identify the bullying or harassing behaviour

Bullying or harassment can take many forms.  It may be direct or indirect; it may be obvious or insidious.  You should identify the behaviour before deciding what your next step should be.  Examples of unacceptable behaviour include:

  • Spreading malicious rumours;
  • Unfair treatment;
  • Threats or comments about job security;
  • Preventing career progression;
  • Offensive emails;
  • Jokes, teasing and pranks.

Bullying or harassment does not necessarily have to occur face to face.  It can also take the form of email, phone or supervision methods (i.e. recording of time).

The offending behaviour does not even have to take place in the work environment.  For example, an employee was fairly dismissed for posting obscene and lewd comments about the promiscuity of a female colleague on his Facebook page while at home.  The tribunal found that the comments created a degrading and humiliating work place environment for his victim which in their view amounted to harassment.

It should also be noted that unwanted and unacceptable behaviour received from a customer or client of the business can constitute harassment or bullying if you have told your employer and they do not take reasonable steps to prevent it happening again.

2. Keep a record

Keeping a diary of the offending incidents may not be your first thought when being subjected to bullying or harassment, but it will help to demonstrate the frequency and nature of the incidents.  You should record dates, times, witnesses and keep copies of emails, minutes of meetings letters.

3. Talk to someone

Even if the business has effective procedures in place to handle bullying or harassment, you may feel unsure whether to make a formal complaint.  You may want to talk to colleagues to find out if anyone else is suffering similar treatment.  Someone might have witnessed the unacceptable behaviour and be willing to support you if you make a formal complaint.  Alternatively, you should talk to a trade union representative or approach your manager.

Talking to the person who is behaving unacceptably should also be considered.  They may be unaware of the effect that their behaviour is having on you.  If you do not feel comfortable approaching the individual of whom you are complaining yourself, your union representative or colleague may be willing to act on your behalf. You may also want to involve HR in the meeting so as to guard against being subjected to further bullying and harassment by the individual.

4. Follow procedures

Employers should have appropriate safeguards in place to protect against unacceptable behaviour at work.  They should provide clear, transparent employment policies dealing with bullying and harassment which are to be followed in the event you receive unwelcome and unwarranted behaviour from another individual.  The policies should state both the employers and employees responsibilities as well as set the expected standards for workplace behaviour.

If your employer does not have policies in place, you should talk to your manager or HR regarding what your next steps should be.

5. Legal action

If the matter is not resolved, despite talking to someone and following formal procedures, you should consider seeking legal advice.

If you are suffering from harassment and it is because of or is related to a protected characteristic, a claim can be brought under the Equality Act 2010.  Protected characteristics include:

  • Age
  • Disability
  • Gender reassignment
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation.

You may feel that resigning is the only option you have left.  If you feel that this is the route you would like to exercise, make sure that you have pursued all other formal procedures.  It is important to note that to make a claim of constructive unfair dismissal; you have to have been working at the business for at least 24 months before you resign.

At the same time you should be mindful that there are time limits for bringing complaints of discrimination in the employment tribunal. Generally speaking, the time limit expires three months after the act(s) complained of occurs.  It may be possible to argue that a pattern of behaviour amounts to a continuing act, in which case the time limit would apply from the last act committed.

It is also open to the employment tribunal to extend time where it considers it just and equitable to do so. However, it would be reckless to assume the tribunal will extend time. Their willingness to do so will depend on the circumstances of your case. Our strong advice therefore is to seek appropriate guidance at the earliest possible stage and certainly well before any time limit is due to expire.

Final Thoughts

By following the strategies and tips in this article, together with obtaining legal advice and support on your particular circumstances, tackling any bullying and harassment you may be facing in the workplace need not be such a daunting prospect.’

Are you facing harassment or bullying in your workplace?  Why not talk to our dedicated team of employment lawyers here at iLaw?  We can help guide you through the process of making a bullying or harassment complaint so that it runs smoothly and does not cause further unnecessary anxiety or stress.

Please call Julian Cox who heads iLaw’s employment team on 0207 489 2059 or email him at julian.cox@ilaw.co.uk.

This information does not give a full statement of the law. It is intended for guidance only and is not a substitute for professional legal advice.

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Learning lessons from Ryanair’s cancellation turbulence: Our Top 5 Tips for effective holiday planning

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Ryanair have recently hit the headlines for having to cancel flights over the next six weeks due to pilot shortages. Chief executive Michael O’Leary has admitted this has been caused, in his words, “because we’re giving pilots lots of holidays over the next four months. He went on to explain candidly ”What we have messed up is the allocation of holidays and trying to over allocate holidays during September and October, while we’re still running most of the summer schedule, and taking flight delays because of principally air traffic control and weather disruptions”   A spokeswoman for the budget airline said Ryanair is preparing for up to €20m in compensation claims, according to Reuters.

Here are our top tips for effectively managing holiday so as to avoid unanticipated problems and liabilities for your business.

1. Assess the needs of your business

At the start of your business year, assess your organisation’s staffing needs. How many employees do you need in place to cover your likely workload on a month on month basis?  Before agreeing individual holiday dates make sure you have enough staff in place as cover in order to avoid interruption to your business.  Consider whether you have any especially busy week when no one can have a holiday, such as summer holidays and Christmas? Consider overtime and organising extra staff to cover for these peak holiday periods if necessary.

2. Plan for peak holidays periods

For the majority of businesses, summer and Christmas represent the peak holiday periods.  Taking a summer holiday is traditionally popular. For employees with families and child care responsibilities, the school summer holidays represents the most likely period they want to take holiday.  How are you going to cover for this likely two week period? Many employees also tend to save up their holidays till the end of the year either insurance policy just in case something comes up at short notice requiring them to take time off work or because they want to take the Christmas period off. So what will happen at Christmas? Can everyone be off? Can no one be off?   Depending on the business sector you work in  the holiday peak period may be different. For example for Ryan Air, it appears to be just after the summer when pilots who have had to work over the busy summer period want to take holiday.

3. Consider shut downs

Consider shut downs. These are a useful tool for ensuring your workforce uses up its holiday entitlement during the current holiday year. Many companies shutdown for at Christmas for example as it is traditionally a quiet period. Other companies shut for a week or two during the summer for much the same reason to coincide with the bank holiday periods.

4. Monitor and Record Holiday Bookings

Your business needs to have in place a mechanism recording all staff holiday requests so that you can readily and properly assess if you can allow or decline a holiday request against the staffing needs of the business.  A holiday year planner, represents a simple and relatively inexpensive solution allowing you to record an individual employee’s holiday requests and allowing you  to see at a glance how much holiday who else is off that day in terms of assessing the needs of the business and how much holiday entitlement the applicant has left before agreeing it.  For larger organisations there is specialist HR software that can greatly assist with effective holiday planning.

5. Have an Annual Leave Policy

We recommend your business ought to have fair and comprehensive policy in place to ensure that staff understands the rules and procedures when it comes to taking annual leave entitlement and what is expected of them in applying for holiday.  This can be in the form of either a standalone policy or included as part of a raft of employment policies in the organisation’s staff handbook. Either the policy can be made available on request or included on the organisation’s intranet for easy access.

Final thoughts

Here at iiLaw we have over 20 years of experience advising employers in relation to holiday issues, including drafting holiday policies and procedures.  Please call the author of this article, Julian Cox who heads iLaw’s employment team to discuss on 0207 489 2059 or e-mail him at julian.cox@ilaw.co.uk to discuss.

 

Forthcoming changes to UK employment law: what employers need to know

2016

UK employment law continues to develop at a rapid pace. It is important that employers continue to keep up to date so as to avoid unanticipated liabilities for their organisation. There are several key changes due to come into effect in April 2016.

These include:

From 1st April

Introduction of National Living Wage

The new National Living Wage comes into force. It will apply to workers aged 25 and over at a rate of £7.20 an hour.

From 6th April

Increase in Tribunal compensation limits 

The maximum compensatory award for unfair dismissal will rise from £78,335 to £78,962.

The maximum amount of a week’s pay, used to calculate statutory redundancy payments and various awards including the basic and additional awards for unfair dismissal, also rises from £475 to £479.

Introduction of financial penalties for unpaid tribunal awards and settlements.

A new scheme is introduced penalising employers who fail to pay tribunal awards or settlement sums under a COT3.

Introduction of Tribunal postponement rules

Legislation comes into force limiting the number of postponements to two for each party in each case, introducing a deadline for postponements of seven days before the hearing and requiring a costs or preparation order to be considered where a successful application for a postponement is made less than seven days before the hearing.

For more information about these forthcoming changes contact Julian Cox, Head of Employment at iLaw either by e mail (julian.cox@ilaw.co.uk) or phone on 0207 117 4737.

 

Zero hours workers now have the right to claim against employers who penalise them for wanting to work for other employers – will it make a difference though?

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Introduction

 Zero hour contracts have been the source of much controversy over recent years. Politicians, unions and employee organisations have all united to accuse employers of abusing them leading the Government to try to tackle some of the commonly perceived underlying problems associated with them.

The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (‘the Regulations’) now in force, represents part of this initiative, providing a remedy for zero hours workers against employers who include exclusivity clauses in their contracts of employment.

Why are such Regulations necessary and will they make a difference?

 Zero hours contracts – what are they?

A zero hours contract is a standard contract for a casual worker where there will be no guarantee that the employer will offer or provide any work, but the worker is expected to accept any work offered. The intention is that the individual will be a worker, rather than an employee or self-employed contractor.

Employers in the retail and hospitality sectors commonly use such contracts.

The controversy

These types of contracts are the source of some controversy as some employers included exclusivity clauses that effectively prevented workers engaged under such agreements from working for another organisation, or at least prevented them from doing so without their consent.

In 2014 the Government calculated that 125,000(around 20%) of zero hour workers had contracts including exclusivity clauses meaning that they could not work for anyone else.

Zero hour contracts became a major issue at the last general election with Labour campaigning against them. This led to the Government subsequently seeking to address the abuse of such contracts.

Ban on exclusivity clauses

Exclusivity clauses in zero hours contracts have been unenforceable since May 2015, under section 27A(3) of the Employment Rights Act 1996. The Government’s justification for doing so, as set out in its guidance, is that employers must allow zero hour workers ‘to take work elsewhere, in order to earn an income if they themselves do not have sufficient hours’.

The loophole

This means employees cannot be bound by exclusivity clauses and can therefore effectively ignore them. Until now though employers have still been able to try to avoid the exclusivity ban and penalise zero hour contract workers who chose to work elsewhere by failing to offer them any further work for example.

Remedy now available to employees for trying to avoid the ban

This loophole has now, effectively, been closed with the introduction of the Regulations giving zero hours employees the right not to be unfairly dismissed and zero hours employees and workers the right to not be subjected to a detriment for choosing to work for another employer also or asking their employer for permission to do so.

Where a zero hour worker successfully brings a claim for detrimental treatment the new Regulations give employment tribunals a fairly wide discretion over the amount of compensation to award on “just and equitable” grounds.

The future

Whether the effective outlawing of exclusivity clauses and penalties employers now face for seeking to circumnavigate this ban has any real impact on the numbers of workers engaged on zero hours contracts remains to be seen. Only time will tell. This commentator suspects not though given the flexibility such contracts afford businesses in managing their staffing levels with many retailers such as Sports Direct still using them.

 

Do employees really have the green light to snoop on employees private e mails and messages following European ruling?

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‘WARNING: Your boss can now read EVERY Facebook and WhatsApp message you send at Work’   The Daily Express

‘Your boss now has the right to snoop on your private online messages’   The Metro

‘Bosses can snoop on workers’ private emails and messages, European court rules’  The Telegraph

In a decision by the European Court of Human Rights (ECHR) that has led to sensationalist news headlines in certain sections of the media, they have ruled that a company reading an employee’s Yahoo Messenger chats sent during work time was within its rights.

Not surprisingly the headlines that have greeted this decision like the ones above have caused a certain degree of alarm and consternation amongst employees in member states. On closer examination though, the decision does not give employers the right to snoop on their employees with quite the level of impunity the media have suggested?

What is the background to this case?

The judges said that the employee – in Romania – who was sending private messages to his fiancée and brother from his work computer when he supposed to be working and had breached the company’s rules and that they were therefore entitled to check his activities as a result of which he was eventually dismissed.

The decision, handed down at the start of the week, binds all countries that have ratified the European Convention on Human Rights, and this includes the UK,

The facts in the case go back to 2007. The engineer, a man called Bogdan Barbulescu, had been using a Yahoo Messenger set up for work as well as a second private one to chat with his family as well as professional contacts, and had asked the ECHR to rule that the company had breached his right to a private life by accessing and reading a log of his messages.

Crucially in the case the messages were sent from a work messaging account, Mr Barbulescu’s employer had a policy in place banning its staff from sending personal messages at work and had given him prior warning that the company could check his messages.

In July 2007, the employer informed him that his communications had been monitored, presenting him with a 45-page transcript of his messages, including exchanges with his fiancée and his brother.

He was dismissed for breaching the company’s e mail and internet policy, which clearly stated that it was strictly forbidden ‘to use computers, photocopiers, telephones, telex and fax machines for personal purposes’

What did the judges actually say?

It is important to note that whilst the case included claims in relation to both the work and private messaging account, the judges restricted their decision to discussing the work account.

They ruled the employer could monitor the messages because it believed it was accessing a work account.

The ECHR said that it was not unreasonable for an employer to want to verify their employees were completing their professional tasks during working hours.

The judges also stated the employer acted within its disciplinary powers since, as the domestic courts found, it had accessed the work Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate.

At the same time though the ECHR also made clear in its judgment that it was not acceptable to carry out unregulated snooping of staff’s private messages.

Employers needed to draw up policies to define the scope of the information they intended to collect and their method for doing so.

The judgment went on to state that If the employer’s internet monitoring breaches its own internal data protection policy or the relevant law or collective agreement, it may still entitle the employee to terminate his or her employment and claim constructive dismissal, in addition to pecuniary and non-pecuniary damages.

What does the case mean for employers and employees?

Contrary to the somewhat alarmist impression given in some sections of the media, the ECHR’s decision does not effectively give employers carte blanche to access and read employees’ private messages sent at work. Employers still need to proceed with caution.

The employer in this case had a clear, absolute ban in place clearly defined in its e mail and internet policy forbidding its employees from using its IT systems for personal messaging whilst working. The employee in question denied doing so.

In order to investigate whether the employee was in breach of this policy the court ruled it had to follow that to check his activities it was entitled to access his work messaging account and records.

An employer would therefore need a similar policy in place with clearly defined rules prohibiting its employees from using their IT resources for private messaging to be able to justify accessing and reading individual employees private messages sent via its IT systems.

Many UK employers have in place e mail and internet policies that allow, or at least tolerate, some level of personal email use at work (for example during work breaks).

An employee may have a claim for breach of contract, and/or constructive dismissal, not to mention the UK’s existing raft of data protection and electronic communications privacy statutory rules and legislation therefore without having suitable provisions also in place allowing the employer  to monitor private messages sent using its IT systems  together with providing reasons for the precise purpose for doing so.

Employers ought to ensure they have notified their employees individually that they have a policy in place at the start of their employment whereby their online activity may be monitored and that the content of this policy is properly communicated to them. Employees should be asked to indicate that they have read the policy and accepted its terms. Employers ought to be sent reminders about the policy and notified of any changes.

iLaw specialist employment lawyers

Given this is a fast changing area of law it is important to ensure your business has appropriate e mail and internet policies in place and they are reviewed on a regular basis so as to avoid unanticipated liabilities.

Here at iLaw we specialise in drafting and reviewing employment policies and procedures. Call Julian Cox, Head of Employment at iLaw on 0207 117 4737 or email julian.cox@ilaw.co.uk to discuss your employment and HR requirements.