LRD guides and handbook October 2015

Bullying and harassment at work - a guide for trade union reps

Chapter 5

What reps can do?

[ch 5: pages 58-60]

If approached by a worker who complains of bullying or harassment, reps can take a number of steps:

Do’s:

• Take the claims seriously and be supportive. The situation will often be one of one person’s word against another’s, one of whom will often be the more senior and influential. Listen carefully, do not trivialise the complaint and make it clear that the union is prepared to help.

• Encourage the member to keep a careful note of each incident, including date and time, what they felt, what they did, and what the outcome was.

• Encourage the member to keep copies or screen-prints of any on line or digital bullying, for example, emails, texts or social media posts or tweets.

• Consider how you might be able to use the law. For example, if the bullying is because the member has asked for flexible working, remember the right not to suffer a detriment for asserting a statutory right and discuss whether to write to the employer, drawing attention to the statutory right.

• Encourage the member to keep copies of evidence of ability to do the job, such as positive feedback from managers and past performance appraisals. However, also remind the member to take care not to create additional problems for themselves by accidentally breaching the employer’s IT, internet, email or confidentiality policies.

• Encourage the member to get witnesses to bullying and harassment incidents.

• Advise the member to avoid situations where he or she is alone with the bully.

• Find out whether the member is the only person being bullied, or whether there might be a basis for a collective complaint (see pages 49-53) but only ever approach others with the member’s consent.

• Talk to colleagues and see if they are prepared to support him or her.

• Make sure the member knows exactly what his or her job description is, so that they can check whether the responsibilities they are given match it. Make sure instructions are clear, and encourage the member to follow up, for example by email, if there is any ambiguity or confusion.

• Find out if there is a policy on bullying and/or harassment or unacceptable behaviour and what it says. The Health and Safety Executive advises organisations that they should devise and implement a bullying and harassment policy in order to tackle the problems.

• Stress the importance of the member keeping you informed of all developments.

• Keep up their resolve and encourage them to take things one step at a time, and to stand firm and not let themselves be a victim.

• Ask open-ended questions to get the facts of what happened — who, why, where, when, what, how — any witnesses? Take good notes.

• Find out how they want the case pursued. Explain what is likely to happen.

• Advise them to report the incident to management. Help them do this if they wish. Take all the written information with you when you discuss it with management. If the incident involves the member’s line manager, take the case to another manager, preferably senior, or to HR if appropriate.

• If the member is an agency worker, consider approaching the hirer — at a senior management level if necessary — as well as the agency.

• Offer to represent and/or support the person during the inquiry into the allegations.

• Find out what support is offered, such as counselling and occupational health support, and make sure the worker understands how to access it if needed.

• Workers off sick through stress as a result of bullying and harassment should ensure they meet all the requirements of the sickness absence procedure, to avoid any loss of sick pay or threat of disciplinary sanction.

• Make sure the case is dealt with as quickly as possible by management. Ensure each step is followed through promptly and press for a deadline to complete the enquiry (making reference to the employer’s bullying and harassment policy where there is one).

• Make sure any agreement reached is effective.

• Follow up, over the following weeks and months to make sure any agreement is working and that the issue is resolved with no after effects for the member.

USDAW guide for reps supporting a member who is being bullied

Shopworkers’ union USDAW advises its reps that people who are being bullied will often find it very difficult to ask for help. It sets out the following advice if a member approaches them saying they have been bullied, it is important that they:

• Treat cases of bullying seriously and support the person being bullied during the investigation and afterwards.

• Make it clear to the member that you don’t think they are being over sensitive, that they do not have to put up with bullying at work and that the Union will help.

• Try to establish whether other workers have been bullied and if so ask them for details.

• Encourage the member to write down what has happened to them including what was said and done and the date and time. This will help if the member is going to raise a formal complaint. If the member isn’t sure that what they have experienced is in fact bullying, suggest they keep a diary of events. This will help if they later decide to make a complaint.

• Discuss with the member what they want to do about the bullying and how to use the procedure.

• Encourage the member to report the bullying to management. Help the member do this if they wish.

• Offer to represent and support the member at all stages of the investigation.

• With the members’ agreement, seek the support of other workers in order to reduce the risks of victimisation or further bullying.

• Advise the member that if the matter is not resolved through the procedures, they may be able to take the matter to an Employment Tribunal.

• The union also provides a survey form to give to members who are being bullied at work.

Where bullying leads to depression and anxiety, it can be a breach of the employer’s statutory duty to make reasonable adjustments for a disabled worker. For example, under the Equality Act 2010 to fail to take reasonable steps to help the member remain in — or return to — their job:

After many years’ service, Mr Foster’s relationship with his line manager broke down, leading to long-term sickness absence with stress and depression. Foster raised a grievance alleging bullying and harassment. Occupational Health confirmed that his successful return depended on his grievance being resolved, and that the longer the issues went unresolved, the less likely a successful return would become. Eventually, Foster was dismissed for capability. The EAT ruled that failing to deal effectively with the grievance amounted to disability discrimination. In particular, in this case the employer should have offered to put Foster on a redeployment to other suitable roles, away from his line manager.

Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT 0052/10/1406

www.bailii.org/uk/cases/UKEAT/2011/0052_10_1406.html