Sexual harassment continues to make the news in the UK and the US with so many scandals emerging. The cost to an employer for failing to deal with sexual harassment in the workplace can be unlimited. Sexual harassment claims can be lodged in an employment tribunal and if the claimant wins the compensation can potentially be unlimited. In this blog there are hints and tips how to deal with sexual harassment.
Sexual harassment is very serious and organisations can be held vicariously liable for the actions of their employees. In accordance with the Equality Act 2010, it is unlawful to harass an employee because of their sex. Harassment can include unwelcome sexual advances, requests for sexual favours and other verbal or physical harassment of a sexual nature. It can also include making offensive remarks about a person’s sex. Victim and harasser can be either a man or a woman. The victim and the harasser can be the same sex. Harassment can create a hostile, degrading, humiliating or offensive work environment.
Verbal signs of sexual harassment include:
comments about appearance, body or clothes
indecent remarks
questions or comments about sex life
Non verbal signs include:
staring at someone’s body
displaying sexually explicit material eg calendars, pin ups
Physical signs include:
physically touching
sexual assault
rape
The first step for a person being harassed would be for them to confront the harasser and ask them to stop. If incidents continue to occur a diary should be kept. It the behaviour continues then the person being harassed should approach their employer with a grievance – either a line manager or HR. They do not need a specific length of service to raise a claim of sexual harassment which is a form of sex discrimination.
Following a grievance hearing, the employer should do a full investigation considering whether to suspend the perpetrator or not depending on the severity of the circumstances. Following a full investigation a report should be produced on which the outcome should be based. The outcome should be provided in writing to the person who has been harassed with the right to appeal if the outcome is not favourable ie no case to answer.
If it has been decided that the harassment took place then a decision must be made whether to move the perpetrator or not and whether they should be disciplined. Serious sexual harassment is gross misconduct which may command summary dismissal.
Employers should make sure they have a robust bullying and harassment in place and training for line managers.
Racism in football has long been making the headlines. The most recent case is Nicolas Anelka a West Brom player who made the controversial quenelle gesture after scoring a goal against West Ham. The quenelle gesture is an anti semetic sign and it is said Anelka was supporting Dieudonné M’bala M’bala an anti Zionist French comedian who has recently been in the media for his comments. Anelka has been banned by the Football Association. Zoopla, a sponsor of West Brom has now withdrawn its support. Racism has long been inherent in football, but there are lessons we should learn.
At the beginning of the twentieth century Walter Tull was the first black man to play for Tottenham Hotspur. It is believed that his glittering career was cut short by racism; he was dropped from the first team then sold to Northampton Town.
In 1914 Tull enlisted in the Footballers Battalion (Middlesex Regiment). He was promoted three times after leading a raid across enemy lines. He was then recommended for a Military Cross for outstanding bravery and leadership, however, he never received this. His family were informed that he had been recommended by two fellow officers who broke the rules to do so. According to the manual of Military Law infantry officers had to be of pure European descent. Tull was killed in action in the Somme in 1918. In 1999 Northampton Town unveiled a memorial in his honour. Hopes are growing that finally he will be recognised for the sacrifice he made. A play about his life is being unveiled at a theatre in Bolton.
In December 2012 Liverpool’s Suarez was given an eight match ban and a £40,000 fine after being found guilty of racially abusing Manchester United’s Evra. In July ex-England captain John Terry was in a high profile racism case, but he was cleared of racially abusing Anton Ferdinand. There is a long way to go to reduce racism in football. Many management and boardroom positions are all white and all male, there is no diversity. There is evidence to show that homophobia is a bigger problem than discrimination.
Racial discrimination is damaging to all organisations, not just the football industry. It occurs when a person is treated less favourably because of their race, colour, nationality, ethnic or national origin. The Equality Act makes it unlawful for an employer to discriminate against other employees because of these characteristics.
ACAS describes four areas of discrimination:
direct discrimination: treating someone less favourably because of their actual or perceived race, or because of the race of someone with whom they associate
indirect discrimination: can occur where there is a policy, practice or procedure which applies to all workers, but particularly disadvantages people of a particular race. An example could be a requirement for all job applicants to have GCSE Maths and English: people educated in countries which don’t have GCSEs would be discriminated against if equivalent qualifications were not accepted.
harassment: when unwanted conduct related to race has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual
victimisation: unfair treatment of an employee who has made or supported a complaint about racial discrimination.
Employers should have an equal opportunities policy in place that is well communicated to the workforce. Training should be provided for employees and managers so everyone knows how it operates.
Racism has its roots in the difference between skin colour, yet what everyone needs to realise is that there is an elegant theory that we are all descended out of Africa and we all used to be black. Our skins became white overtime because we only need a few minutes to sunshine to manufacture sufficient vitamin D whereas black people need one hour in the sun. This is evidence of natural selection which flies in the face of the human race judging everyone’s differences .
Today is international Stand Up to Bullying Day which is celebrated by 25 countries including the UK.
Bullying and harassment is nasty conduct which makes people feel intimidated, degraded, humiliated or offended. It might not be obvious to other people, but it is always about the perception of the person being bullied or harassed. The behaviour may be between two people, manager and employee or two employees or may even involve groups of employees. It has various forms – it could be a one off incident or may be persistent. It can be written in an email or letter, by phone and even face to face. No matter what form it takes, it can be very damaging to those affected.
Examples of bullying and harassment include:
constant criticism
picking on someone
undermining of competence
exclusion or victimisation
insulting someone
unfair treatment
denying promotional opportunities
Harassment could be related to a protected characteristic as outlined in the Equality Act 2010 which includes race, age, disability, gender, sexual orientation, maternity, religion, marriage or civil partnership and it is unlawful.
It is often very difficult for a person being bullied or harassed to complain. Often they can not cope with the situation and resign.
It is important for employers to have a policy in place that spells out all the options available to employees and so they know who they can complain to. If it is an employee’s manager who has been doing the bullying and harassment, then it should be possible for the employee to approach HR or a trade union for assistance. Many larger organisations have harassment counsellors in place who are employees specially trained to assist employees.
There could be a huge impact on an organisation for failing to acknowledge and deal with a bullying and harassment situation which includes loss of morale, poor performance, loss of profits, absence, turnover and unlimited compensation in an employment tribunal.
As well as employees, an organisation is responsible for preventing harassment against:
■ agency workers,
■ ex-employees – where the discriminatory act is closely connected to
their employment,
■ job applicants,
■ contract workers including consultants and other professionals,
■ students on work experience,
■ vocational trainees,
■ volunteers, if they receive an allowance or are contracted to provide a service,
■ board members, non executive directors, and councillors, and
■ customers harassed by an employee providing a service to t
Employers can be held vicariously liable for the conduct of their employees if they have taken no action to defend a situation. By having a policy in place this will provide a defence.
A policy should include:
a statement from senior managers
definitions of unacceptable behaviour
details of responsibilities
how employees can raise complaints about bullying
an outline of the procedure that will be taken
information on potential outcomes
It should be well communicated to the workforce and training provided to all employees so they know how the policy is operated.
Furthermore it is important to promote a zero tolerance culture lead by senior management.
Only one fifth of small businesses are ready for Real Time Information (RTI); an initiative is to be introduced by HMRC from 6 April 2013 for SMEs. Larger organisations will come on board later this year. Worryingly, almost half of small employers have no knowledge of this and only a third are only vaguely aware of the imminent changes. This is of concern, because HMRC will slapping £100 fines on those who do not comply so if is really important to sit up and take notice of what is happening.
With RTI information on pay, income tax and national insurance is submitted to HMRC as the employees are paid, which could be weekly or monthly thereby drip feeding HMRC rather than fill in the annual P35 which will be phased out.
Employers need to ensure their in house software will comply with RTI requirements, however, for those who employ nine or less staff there is free software on the HMRC website. Employers that outsource their payroll need to ensure that the payroll providers understand their responsibilities in this area.
Employers need to ensure that all employee data is correct as this will need to be submitted; if it is not correct the submission to HMRC could be rejected. Employers also need to check they are registered for PAYE online.
The following new information will also need to be submitted to HMRC:
Company data
District number
PAYE reference number
PAYE accounts office reference (account number)
Employee data
Surname
Forename
Date of birth
Address
NI Number
Working hours
Employers will also need to submit:
Information on lower paid, temps and casual staff
Changes to employee working patterns
New starters and leavers
If you are interested in attending some Q&A sessions on real time information being organised in Northampton email info@sjbealehrconsult.co.uk for details.
Today, 18 February, is “Drink Wine Day” so cheers!
Some interesting wine facts include:
It takes two pounds of grapes to make a bottle of wine
Red wine gets its colour from the grape skin
White wine gains more colour with age
Women make better wine tasters than men because they have a better sense of smell
Wine has been drunk for thousands of years and it is recommended that you drink wine on a moderate basis because it can actually be good for you helping reduce the risk of strokes and heart disease. However alcohol abuse can be bad particularly when its effects spill into the workplace.
An employer has a duty of care under the Health and Safety at Work Act 1974 with their employees and needs to be aware of possible alcohol (and drug) abuse in the workplace. It is essential that a policy that covers the use of alcohol (and drugs) is developed and put into place. An employer should protect workers and encourage anyone who is suffering from alcohol abuse to seek help.
Alcohol abuse can contribute to poor productivity as well as poor health. Mistakes can be made and colleagues put at risk. It is important to recognise the signs – attendance issues, attitude and conduct, poor performance dress and hygiene issues.
A policy should ensure that problems are dealt with quickly and give guidance to employees on conducting themselves in relation to alcohol, how problems will be identified and under what circumstances an employee’s drinking will be referred to as a disciplinary rather than a health problem. Managers should be educated in how to help staff who are mis-using alcohol. Accurate written records should be kept of documented meetings that have discussed the issues. Meeting should be confidential and held in a private manner. The employee should be asked about the issues and invited to give an explanation. If they mention a problem with alcohol then it might be a good idea to suggest an occupational health referral or provide access to an employee assistance programme. An action plan needs to be agreed to address the matters with follow up meetings arranged in the diary.
Some employers implement drug and alcohol testing where employees are in control of machinery or drive as part of their job. This is a good defence in case there is an accident. However employers need to think carefully about what they want the screening to do and what they will do with the information gained.
11-16 February is National Student Volunteer week, which celebrates the great contribution of volunteer students. Whilst their efforts are to be applauded, it is important for organisations that use volunteers to be aware of potential risks in relation to doing so and take appropriate actions. There is currently no legislation that covers volunteer workers or a legal definition of what a volunteer is. Volunteering England defines volunteering as “an activity that involves spending time, unpaid doing something that aims to benefit the environment or individuals or groups other than (or in addition to) close relatives.” Whilst they provide a flexible motivated resource that can help cash strapped organisations such as charities and voluntary organisations, it is very important to differentiate between employees and volunteers to avoid any future legal problems which may include discrimination and unfair dismissal claims. Recent case law has shown that volunteers can not claim discrimination as they are not classed as employees. It is important that the relationship between organisation and volunteer will stand up to scrutiny. In practice volunteers should not be treated like employees and any written agreements must clearly demonstrate the nature of the working relationship. Tribunals tend to rule on behaviour which can demonstrate a contract even if there is no written document in place. However it is good practice to have written documents in place. A volunteer role description (not job description) can clarify the intentions of both parties in terms of the duties or activities required. It might be safer to avoid providing a volunteer contract, but instead have an agreement that expresses the intentions of the relationship and reference to appropriate policies that govern the role. It is best to avoid any connotations that could deem to express a contract such as contract, pay, employee, employer. Instead use words such as volunteer, intentions and relationship. The agreement could include details regarding the level of supervision and support, training, whether they are covered by insurance and any expenses they will get. Furthermore it is recommended to develop separate policies for grievance and disciplinary situations possibly referring to problem-solving instead.
The main legal rights of volunteers are with health and safety, driving and data protection. Volunteers have the right to a safe workplace, they are covered by special driving at work legislation as outlined by the HSE and they have the right to have their personal information protected in accordance with the Data Protection Act. www.sjbealehrconsult.co.uk
Once again Valentine’s Day is upon us, a day for sweethearts to declare their love for one another and to mark the occasion with a card, flowers and perhaps a meal. A situation that should be applauded you may say, however, it depends on the circumstances of the relationship. When a relationship has been formed in the workplace, there are key things that employers need to be aware of.
When things are going well there can be increased productivity and everything is sweetness and light. However workplace relationships can lead to competition, distraction and office gossip. According to research four in ten employers have experienced problems with workplace relationships. Issues that can arise include complaints of favoritism, decreased morale, bullying if a relationship has ended, sexual discrimination, sexual harassment and constructive dismissal all of which could have a negative impact in the workplace.
It is difficult to have an outright ban on relationships, which would be impossible to manage but there should be clear guidelines with regard to conduct. Consideration should be given to and guidance provided on relationships between supervisors and those they manage, employees and clients and possibly between team members. The circumstances under which relationships should be disclosed should be included – after a first date, after several months or if the employees move in together. The policy should apply to all members of staff regardless of seniority, marital status or sexual orientation. Disciplinary sanctions may need to be incorporated into a workplace relationship policy that could include a verbal warning, a transfer or even possibly dismissal depending on any possible misconduct circumstances. Furthermore a robust harassment procedure should be in place.
When drawing up procedures, it might be a good idea to consult with employees to ensure that they are acceptable. After implementation the procedures should then be well communicated and training for managers provided.
In the US there is a “love contract” which is an agreement between the employer and the employees which states that their relationship is concensual and free from coercion, intimidation and harassment and that employees agree not to enter into any conduct that could be harassing, unprofessional or inappropriate. This concept has come to the UK, but it would not prevent an employee from bringing a claim of sex discrimination due to the Equality Act 2010. However a love contract could demonstrate an employer has taken all reasonable steps to prevent discrimination or harassment.
Workplace romance should not be discouraged, but employers should take action to minimise their risks.
Later this year the UK will accept Bulgarian and Rumanian immigrants to live and work here. This follows a two year restriction on doing so that was implemented in November 2011 in order to protect the UK economy and all time jobs low but follows various EU treaties that allow the unrestricted movement of people within the EU states.
With this latest possible influx of EU migrants it is important that employers check the status of their employees to ensure that they have the right to work in the UK. Its difficult to know without checking given that there are many nationalities who have come to the UK to find work. A recent Panorama programme showed the UK Border Agency raiding a South London company who were illegally employing foreign nationals. It’s not just the migrants who were in trouble, employers who fail to make robust checks on their employees can face huge fines with civil and criminal penalties.
There are key documents that employees need to provide to their employer that show their immigration status eg passport, visa. An employer should ask for these documents as part of the recruitment process before taking on the employee and keep a photocopy on file which will help them if they are audited; details of the documents that can provide proof of immigration status can be found on the UK Border Agency website. Provided you can show you have correctly checked the documentation it provides a statutory defence against a penalty. It’s not just about checking whether the workers have the right to work in the UK, it’s about ensuring that they are not working too many hours or undertaking a type of work that they should not be doing; students for example can only work a certain number of hours per week. Also some migrants may have time limits on their right to stay in the UK, that is why it is important to undertake regular checks at least once every 12 months.
The legislation that governs the employment of foreign nationals is the Immigration Asylum & Nationality Act 2006 that came into force on 29 February 2008 and applies to staff who are employed from that date. Guidance on managing migrants employed 27 January 1997 to 28 February 2008 is governed by the Asylum & Immigration Act 1996.
In an effort to turnaround what has happened at the Mid-Staffordshire hospital it has been announced that there is to be a change in culture within the organisation. Apparently the situation arose because bosses were concentrating more on cost-saving than ensuring compassionate care to patients. Customer care should be at the centre of the new culture, it’s a serious thing to get right, but making the change is no mean feat and is a strategy that needs to be carried out with a variety of coordinated actions. The planned shift in recruitment focus that was announced is important, but there needs to be joined up thinking in all areas to make things work. There has to be real commitment by everyone not just management speak. The Chief Executive has already apologised for the scandal promising to put things right but words are cheap and it is demonstrable actions that will count in the long run.
At the heart of the strategy for culture change it will be important to develop a framework for all the required activities going forward. It’s essential to create a new belief system with a mission statement and values that everyone will buy into. Culture change requires a change in thinking by everyone. Bringing onboard new employees is crucial so they develop into the new ways of thinking and working. Developing a robust induction programme based on the framework will help them along with mentoring.
Develop a Competency Framework
The implementation of a competency framework in which key competencies based on the new values could provide a platform for recruitment, performance and development. The framework should be based on promoting the best possible customer service. There needs to be management buy in with demonstrable actions from the top not just lip service paid to proposals. Employees observe management and will see how they support any culture change. If it is not done well then everything will fail.
The service to the patients (the customers) needs to be scrutinised to understand exactly where things have gone wrong. The slide in customer service could be due to a number of factors – cost cutting, decreasing standards, outsourcing and a change in attitudes.
Recognise The Importance of Leaders
Leaders are the key to making the culture change work. They need to fit the new competencies and exhibit the desired behaviours with profiled roles in a new management structure. Detailed job descriptions need to be developed and leaders should be interviewed against the competency framework to ensure fit for their new role. If they don’t fit then someone who does should be recruited. Ongoing their performance needs to be measured against the framework to ensure their performance is up to scratch.
With customer service at the heart of the new culture it is important the leaders interact with the customers – the patients. This behaviour is very rarely seen in the NHS. Management are usually locked away in their ivory towers and it is only the doctors and nurses that see the patients. If the leaders interact with the patients they will find out at ground floor level exactly what is going on and if things are not right then hopefully action will be taken.
Change recruitment processes
The recruitment process should be designed to attract the highest quality staff who will stay because they belief in what they see and the job they do. Job descriptions should be developed against the competency framework and staff recruited in accordance with the desired competencies. Competency-based interviews should be developed that ensure that employees with excellent customer service skills, compassion and care are recruited.
Develop performance standards
Clear standards of behaviour should be developed as part of an integrated performance management process with a top down approach. Not just everyone going through the annual appraisal and locking the form away in the drawer for twelve months, but an active commitment to fulfilling the objectives set that will bring about real change.
Provide training & development
Training and development against the competency framework is essential to develop the key competencies of compassion, care and customer focus. Integrated learning initiatives should be developed using a whole range of techniques to develop the desired behaviours. This can include work shadowing, courses as well as the use of literature for example.
Look at Compensation & benefits
Reward both financial and non-financial act as huge motivators and need to right to attract and retain high quality staff. If employees perceive that the existing compensation system is not fair, it will affect their attitudes, and in turn, their behaviours. People are consistently evaluating what they, and others, are getting in terms of wages, benefits, and work environment attributes against the daily efforts they are making. In many cases, their perceptions are exaggerated. In other cases, their perceptions of inconsistency and inequity are justified. By moving towards a more equitable compensation system that rewards people for supporting the desired work culture, a major roadblock to culture change effort can be removed. In the cash strapped world of the NHS it’s not just about increasing financial reward but by providing job satisfaction through interesting work, non-financial reward can be a great motivator.
Improve communication
With many communication systems, communication is infrequent and one way in nature. People don’t get a lot of information or feedback about how they are doing or how the organisation is performing, and when they do, this information is more often than not negative. The net results of this cultural issue is that most employees see the existing meetings, newsletters, and bulletin board postings as a waste of time.It is important to keep the values and beliefs alive with regular meetings and discussions. It is a good idea to make sure that written correspondence includes references to service. This spreads and reinforces the message.
Implement Customer satisfaction surveys
By carrying out customer satisfaction surveys with the patients key information will be gained on progress along the desired course of action for culture change. Surveys should be analysed for success and failure, with the latter being addressed to make improvements. Customer service should be continuously monitored and reviewed.
It is important to maintain continuous improvement. Culture systems have momentum and can easily spin into a totally different direction if action is not taken. Desired, or undesired, behaviours and work practices are reinforced on a daily basis by the work systems in place. Many organisations think that culture change can be brought about by hiring consultants (which the NHS is notorious for), sending people on training courses or forming new teams, but sustainable change can not be brought about in this manner. Culture is a hard thing to change just like everyday habits, but change is an ongoing event that has to be constantly worked at.
It has recently been reported that an African born man is taking Virgin airlines to an employment tribunal for racial discrimination. He alleges that he submitted his detailed CV to Virgin that contained his African name and did not get through the first stage of the recruitment process. However when he then resubmitted his less detailed CV substituting his name for and English sounding one he was invited for an interview.
The recruitment process can be fraught with opportunities for discrimination so it is important for employers to examine each stage to minimise the risks.
Before commencing recruitment it is really important to draw up a job description which contains a list of all the required duties together with a person specification that contains skills, experience and qualifications. This is an essential document and forms the basis of the recruitment process going forward.
When creating a job advert it is important to focus on the key skills and experience you are looking for to successfully undertake the job. It is a good idea to include in the advert a brief list of the job duties along with the desired skills all taken from the job description. This will help candidates to de-select if they feel the job is not right for them and will save an employer time and money.
Once a good selection of CVs or application forms have been submitted you can then commence the shortlisting process. When using an application form it might be a good idea to have the name and contact details on a removable sheet so that the shortlisters only concentrate on essential job related skills. Using a shortlisting grid can aid the process and prevent discrimination. If using CVs the same process can be used, but ideally the names of the applicants should be covered up.
Following shortlisting there should be a small list of candidates to call to interview. The interviewing panel should plan the interview process which could include an interview schedule of what information will be given to the candidates during their interviews and questions drawn up that link to establishing whether they have the right skills and experience to do the job. By focusing on teasing out this information there is less likelihood of discriminatory questions being asked. The interviewers should use the same process and questions with all the candidates and use a scoring sheet to score each one.
At the end of the interviewing process the panel need to decide on the successful candidate using the scores in order to make a job offer.
By sticking to this structured process it is less likely that the recruitment process will lead to claims of discrimination in an employment tribunal.
