Take effective action against your boss
I talk about your consumer rights, but sometimes I get asked about employment. This is not consumer and is a specialist area. I have to signpost. However, because I get asked often and because I like to bring in people for specialist topics that I can’t help with I am pleased that Laura Reilly who runs her own HR consultancy firm agreed to do this blog post!
Introduction
If you are an employee who is being treated badly or experiencing discrimination at work, it can be a difficult and stressful situation to manage, and you may feel reluctant to speak to HR as there can often be a perception that HR is paid by the employer and therefore they will be biased. However, taking action is important to protect your position if things don’t improve and you find yourself taking your employer (or former employer) to a tribunal.
Here, we look at a series of things that commonly go wrong in the employment relationship and we talk about what you can do about them.
What if I’m being bullied?
The starting point is that your employer should have a Bullying and Harassment Policy, this can sometimes be called ‘Dignity at Work’ which is either a separate policy or usually in an employment handbook or manual. Your employer should follow these steps, but equally, you need to make sure you follow them as well. If your employer doesn’t have one of these policies (a fair few don’t) then try and deal with the issue informally at first (if you can) and follow the process that should have been in place.
Initially, this involves speaking to the person on a one to one basis and explaining how the behaviour is making you feel and asking them to stop; keep the conversation professional and avoid being confrontational. If this doesn’t work, then you need to escalate the matter. Some policies will allow you to complain through them – such as raising a complaint through the Bullying and Harassment Policy – but many will direct you to their grievance policy or procedure.
In the absence of a Bullying and Harassment Policy, I would advise raising a grievance, particularly if informal action hasn’t worked. Make sure you keep a log of what has happened to you, specifically what has happened/been said, the names of any witnesses.
Normal management practices are not bullying, such as asking you to undertake a task that is within your capabilities, but humiliating you in front of people such as swearing at you in view of your colleagues would be considered bullying behaviour.
Bullying can be a one-off incident or it can be a gradual process which eats away at your confidence over time and causes a toxic working environment for you – the process to follow will be the same and nipping it in the bud early will be key.
Discrimination and harassment usually come under different policies, and I will explain more about these shortly.
What if I’ve been discriminated against?
Discrimination has a very specific meaning under the Equality Act 2010, and can take several forms such as direct and indirect – there are others, but they are much more rare and we won’t cover them in detail here.
For you to have been directly discriminated against, you have to have a protected characteristic which most of us do, and the unfavourable treatment has to have been because of that protected characteristic.
The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
For you to have been indirectly discriminated against, your employer has to have applied a policy, practice or procedure to everyone but it would affect you and others sharing your protected characteristic more negatively than anyone else because of the protected characteristic. This could be requiring employees to work certain hours which are when children might be at home, and proportionately more women are caregivers so this would affect them more.
However – for indirect discrimination – the employer can justify it if it was proportionate. This essentially means there has to be no less extreme way of achieving the same aim.
If you have a disability then your employer is legally obligated to make reasonable adjustments for you, and whether these are reasonable will depend on the size and resources of your employer. Your employer needs to have knowledge of your disability for this to apply though, so sometimes it can benefit you to be open with your employer if you need help and support with a disability.
Most employers will have a Diversity Policy, or an Equal Opportunities Policy which you should familiarise yourself with. It is likely to have its own complaints procedure but again, sometimes you will be directed to the grievance procedure which is fine.
If you feel you are being discriminated against then it is important to speak out. If there is no policy and you do not feel you can address the behaviour then you should raise a grievance. Most policies consider discrimination or harassment as being gross misconduct offences – this means that if the employer believes the employee is guilty then they will potentially be dismissed immediately.
Your employer should act promptly, which may include suspending the employee pending an investigation. This is common if two people work in the same area and there is nowhere else to redeploy to whilst the investigation is taking place.
Usually, grievances are raised to your line manager unless the person you are complaining about is your line manager, in which case you should raise it to their line manager or the HR department (if you have one).
Harassment in the Workplace
The definition of harassment also sits within the Equality Act 2010, which provides protection against harassment. Again, harassment is only relevant where at least one of the nine protected characteristics I mentioned applies. If they don’t, then you should follow the advice given for complaining about bullying. It doesn’t make it any less serious but one is unlawful (harassment) and the other doesn’t have a definition in law (bullying).
It is important that for harassment to have occurred, the behaviour or comments made have to have been unwanted, relative to a protected characteristic and have created an intimidating or hostile environment. It has to be reasonable that such behaviour would make you feel offended. In other words, if you regularly have “banter” with other employees and one day you decide you don’t like the way they are behaving, it may not be harassment on that occasion if you have indicated previously that you accept or tolerate a certain behaviour.
If you are no longer comfortable with a certain behaviour, then it is important to address this before any unpleasant situations occur and make your feelings known as early as possible, this acts as giving a pre-warning and makes your position clear. Make sure you are in a private setting and explain exactly what you no longer find acceptable and then draw a line.
Commonly, we hear about sexual harassment which can involve unwanted sexual advances, inappropriate comments or physical contact. Harassment can take other forms as outlined above, though.
Good practice for employers is to have a policy in place, but to follow this up with training or education in some form to make it really clear that the business has a zero-tolerate approach to these behaviours is always a good idea. If your employer currently doesn’t do this or have this in place, then you could suggest it to them.
I can’t take any more – what can I do?
If you’ve reached that point you need to consider what is best to do for your health and personal circumstances, and is a personal decision for you to make. If the behaviour is very extreme and goes to the “heart” of the contract – meaning that by behaving in a certain way your employer has suggested they won’t abide by your employment contract because they feel they can treat you however they want, then resigning and claiming constructive dismissal may be an option.
Constructive dismissal claims are notoriously difficult to win, and of course, working a notice period does not help if you are alleging the behaviour was so bad you had no option but to resign. That said, it is not impossible to win a claim and the behaviour would need to be sufficiently serious. It can be a one-off incident or it could be “the last straw” which is a series of events. The series of events can always be harder to define, so keeping a diary is important for any of these situations.
An example of this would be to resign in response to your employer repeatedly paying you late and causing you to incur charges.
You can only bring an unfair dismissal claim (under ordinary circumstances) if you have more than two years’ service. Before that, it is very unfortunate, but you may be unable to bring any claims.
Why is raising a grievance important?
Raising a grievance is important because, although there is no legal procedure a grievance needs to follow, there is the ACAS Code of Practice which businesses are expected to follow as a minimum. If they don’t follow this process then they could be liable (if you win at a tribunal) for an additional 25% uplift on any award they may have to pay to you.
On the reverse of that, any award due to you (if you win) may be reduced by up to 25% if you haven’t followed this process, so following the Code of Practice is important for all parties.
If your employer doesn’t have a formal grievance process or procedure then you should ensure you follow the ACAS version, it is available publicly online here: https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures
Although an employer is expected to follow this as a minimum, they can create their own policy or procedure, as long as it encompasses the key principles of fairness within the ACAS Code of Practice.
What should I write in my grievance or complaint?
Firstly, it is important to set out that you are raising a formal grievance, this makes things clear and avoids any confusion – sometimes employers are unsure whether to handle your grievance as a complaint in which case you wouldn’t necessarily get a meeting and the right to be accompanied.
Next, make it easy for the person receiving your grievance to understand what it’s about; it is very difficult when a grievance is received that goes back years and years for several reasons. Firstly, it’s difficult to investigate and some key people may no longer be in the business. Secondly, it can be unsatisfying because the grievance is so detailed and complex, that you don’t really get satisfaction from the outcome because it misses the mark.
When writing your grievance, separate each complaint out as a heading and then put factual information in chronological order underneath each heading, such as dates, times and witnesses. Also, refer to any evidence you have and make sure you include this with your grievance.
Make sure you reference the impact it has had on you, your health, anything you have lost out on as a result of the issue(s) you are raising.
Importantly, focus on what you’d like to see as an outcome and make sure it’s a realistic one. There may be some things your employer cannot share with you for confidentiality reasons, but being clear on the outcome is important. Try to approach a grievance with a view to genuinely resolving the dispute and not with a settlement in mind (unless the way you have been treated warrants this).
Finally, send it to the person named in the policy and if the grievance is about that person, their line manager or the HR department if you have one. if you don’t have a policy then still follow this advice, or the ACAS Code of Practice (if may be updated after this blog is published).
My top tips are:
- Get someone else to read your grievance and take the emotion from it, explaining the effect it had on you is fine but using emotive language detracts from the real issue and can be distracting for the investigator.
- Always take a copy of your grievance. They can get lost or misplaced, and if you’ve spent a lot of time and energy on it then this will only irritate you further.
The role of ACAS
ACAS stands for the ‘Advisory, Conciliation and Arbitration Service’ and its objective is to improve organisations and working life through better employment relations, working with employers and employees to solve problems and improve performance.
They are an impartial government body, and try to stop disputes reaching the employment tribunal.
This means they won’t give you legal advice, or tell you how to approach your case, they will try and find some common ground between you and your employer with a view to settling matters.
Sometimes people are shocked to hear this or say that ACAS are unhelpful, but they simply aren’t in a position to give legal advice.
About the author, Laura Reilly
Laura Reilly is a highly experienced and well qualified HR Director specialising in employment law, talent acquisition and development, organisational development, employment relations and litigation with over 15 years of private and non-profit sector experience. Laura runs her own HR Consultancy, Taurus HR Solutions, and has a small team supporting with any HR and employment law query.
