THE UNIVERSITY OF MANCHESTER HARASSMENT DISCRIMINATION AND BULLYING INVESTIGATING

THE UNIVERSITY OF MANCHESTER HARASSMENT DISCRIMINATION AND BULLYING INVESTIGATING COMPAINTS GUIDANCE FOR MANAGERS (Consultation Draft) November 2005 HDB Investigating Complaints Guidance Contents 1 2 3 4 5 6 Introduction Informal complaints Preparation and planning Page 3 3 3 4 5 6 6 6 8 10 10 11 11 14 13 13 14 15 Suspending attendance at work during an investigation Conducting interviews Interviewing the person complaining 6.1 Questions that should not be asked 7 8 9 10 11 12 13 14 15 16 Interviewing the alleged harasser or bully Evidence General points Dealing with stress Dealing with group complaints Monitoring and review Summary of the formal procedure List of associated documents Contact details Accessible format information Appendix Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 2 HDB Investigating Complaints Guidance 1 Introduction The aim of this document is to provide managers and supervisors guidance on how to handle informal and formal complaints of harassment, discrimination and bullying. 2 Informal complaints A member of staff or student may wish to take an informal approach to resolve the problem with the minimum of conflict/disharmony. The informal process will be as quick, confidential and sensitive as possible. • The informal procedure firstly involves discussion of the problem with the complainant. • With the complainants' permission, discussions are held with the relevant parties which you will facilitate. Where appropriate you can involve the relevant management and others in order to deal with the problem • No detailed formal record will be maintained of proceedings carried out in this process • Review meeting(s) to prevent recurrence and ensure the issue remains resolved to the complainant's satisfaction shall be an integral part of the process • Counselling will be arranged for either party at any stage, if required • At any time the complainant may choose to pursue the complaint under formal procedures. 3 Preparation and planning The aim of an investigation is to discover what took place and why, and to propose steps to resolve the conflict. Investigations are a vital part of any anti-harassment policy, and the way they are conducted sends clear messages to promoting a healthy workplace culture. They should begin at the earliest opportunity after a complaint has been made, but certainly within five days. Investigations are not easy to conduct, but with careful preparation and clear and agreed procedures the challenges can be minimised. Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 3 HDB Investigating Complaints Guidance Consider the following set of questions before drawing up an action plan: • Who will lead the investigation and who will make up a panel of investigators? Panel membership should be determined by the needs of the particular case. For example, it may be appropriate to consider the ethnic background and gender mix of panel members. People involved in the conduct of the investigation must be neutral and not part of the line management and reporting arrangements of either party to the complaint, and not a close colleague or friend. • Who will need to be interviewed? This will usually be the person(s) complaining, alleged harasser/bully and witnesses. As the investigation progresses it may be necessary to expand the list. • What other information may provide supporting evidence? For example, absence records, training provision, development reviews, and copies of local procedures. • What is the anticipated timescale involved, taking account of the number of interviews that need to be conducted? The timescale should be adhered to as far as possible. But if serious slippage occurs everyone involved in the complaint should be informed and told why. Every effort should be made to complete an investigation as soon as possible. An extended process can cause difficulties. Evidence becomes less reliable as people’s memory of the event fades. The ongoing stress and anxiety experienced by people involved in the investigation can have a devastating effect on their health. In addition, the uncertainty can impact on people not directly involved. Whole teams can disintegrate as a result of a protracted investigation which can have a significant effect on the University’s performance and reputation. 4 Suspending attendance at work during an investigation Where a staff member has been suspended from work clarify the requirements about contact with colleagues in writing. The letter should include instructions not to discuss the Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 4 HDB Investigating Complaints Guidance complaint with work colleagues, other than their trade union representative or occupational health advisor. You should refrain from any contact with colleagues as this may be interpreted as an attempt to influence the outcome of the investigation, or as further harassment/bullying. The letter may also instruct the suspended person to inform the human resources department or line manager if they want to visit the workplace. Where relatives and/or close friends are also employees the organisation should not attempt to limit normal social contact with suspended staff. 5 Conducting interviews The rights of all people interviewed must be protected. Both parties to the complaint should be encouraged to have either their trade union representative, or work colleague to accompany them. Witnesses may also wish to be accompanied. At the start of the interview explain the investigation process, emphasise the importance of confidentiality, and clarify the intended timescales. Interviewees should be reminded of the University’s commitment to ensure the person(s) complaining is/are protected from inappropriate behaviour and victimisation. It is very important that interviews are conducted in a manner that sets people at ease and gives them support. Nevertheless it is essential to probe and clarify any apparent discrepancies in statements. But the style of questioning should always be objective and non-accusatory. Comprehensive notes of the interviews should be made. They should be signed by the interviewee as accurate and reflecting the discussion. The interviewee must be able to make written comments about any section of the notes that they do not agree with. Once any comments have been added a copy of the signed interview notes should be given to the interviewee. Tape recorders should only be used if the interviewee gives permission in advance. If this happens the interviewee should be given a copy of the tape. Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 5 HDB Investigating Complaints Guidance 6 Interviewing the person complaining The person(s) investigating the complaint should first find out the facts from the point of view of the person complaining. At interview ask questions such as: What happened? In what context did this happen? Who was involved? When did the incident take place? How did you react? Was this the first time this has happened? Have there been any other occasions? Did anyone see/hear this or a previous incident? Is there any physical, documentation, or other evidence of the incident? • Have you talked about this incident to anyone? • How has it affected you? • What do you want to happen to resolve this situation? • • • • • • • • • 6.1 Questions that should not be asked include: What were you wearing at the time? Did you do anything to lead him/her on? Surely he/she was only joking? I know the person you are talking about. I can’t believe he/she would do something like that. Are you sure there hasn’t been a misunderstanding? • Do you really want to take this complaint further? • • • • 7 Interviewing the alleged harasser or bully The alleged harasser or bully must be given a full and fair opportunity to explain his or her version of the events that have taken place. It is helpful to know the complainant’s version of events before seeing the alleged harasser/bully. Questions to the alleged harasser/bully should include: • X has described an incident to me and says that you were involved. Can you tell me anything about it? Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 6 HDB Investigating Complaints Guidance • X has told me that he/she asked you not to behave in this way. Why do you think x asked you this? • Are there any witnesses who saw what happened? • How did x react when this incident took place? Often in cases of harassment the alleged harasser/bully may give one of the following explanations: • • • • I did, but I thought X wanted me to I did it, but I didn’t think it bothered X I always behave like that with other staff I did not do it If the explanation is one of the first two listed, the person investigating should find out what led them to believe this. Harassment and bullying are unwelcome, and no one activity solicits or invites unwelcome conduct. The alleged harasser/bully may claim that he or she thought that their behaviour was welcome or acceptable. He or she may not deny that the conduct or behaviour occurred, and might state that it was freely entered into. He or she may say that the allegation is being made because of a particular action or decision in the workplace has adversely affected the person complaining. Also that this is an opportunity to ‘get back’ at him or her. In an interview with an alleged bully it is important to ask why he or she thinks the person complaining feels they are being bullied. The alleged bully may respond that they have a particular style of working that the person complaining finds difficult to cope with. Find out what it is about their behaviour that causes these problems. If the complainant’s work performance is the relevant issue: • Look back over previous performance development reviews. • Establish what the alleged bully has been doing to help the person complaining meet the standards or targets. • Check that training and support is provided if new tasks are allocated. Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 7 HDB Investigating Complaints Guidance • Identify whether the person complaining thinks that the standard of their own work has dropped. • Check if work is programmed with realistic deadlines and clear instructions. • Establish whether goal posts get changed, and if the person complaining is criticised for failing to anticipate this. There are some warning signs that indicate bullying has taken place. The person investigating should establish: Has there been a new line manager? Have jobs changed recently? Do complaints sound trivial? Is there a pattern of ill treatment? Are there accounts of persistent undermining? Have the complainant’s personal standards been consistent? Does the person complaining believe the mistakes are their own fault? • Is the person complaining under close scrutiny? The person investigating must come to a conclusion about which version of events is most credible and resist any temptation to apply their own standards to the seriousness of the complaint. The person on the receiving end is the judge of whether particular behaviour is offensive. • • • • • • • 8 Evidence People should be encouraged to keep records of harassment/bullying experiences that include: • • • • • • • • Date of incident(s) Location Time Nature of the incident(s) Their response Their feelings at the time Any action taken by them The name of any witnesses. There may be other evidence the person investigating could collect: Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 8 HDB Investigating Complaints Guidance • Have sickness absence levels increased? The reason for absence may be given as stress, anxiety or depression. • Has staff turnover increased? People being harassed or bullied may leave, and other staff who witness the bullying behaviour may also decide to leave. • Has the working atmosphere changed? A content and productive workplace may become strained, with good working relationships deteriorating. • Do appraisal reports show a changed perception about an employee’s performance? The work standards an employee sets themselves may not change, but bullying/harassment may have had an adverse effect on their performance. • Are there previous complaints about the alleged bully/harasser that have been disregarded? • Are there any common features to a series of complaints? • Have exit interviews with staff revealed any problems? The investigation may make use of evidence collected by the person complaining: • Accounts of incidents of harassment • Accounts of meetings or exchanges in which the individual or his/her professional competence were attacked. • Dates, times and locations of harassing behaviour. • Slurs on their character • Copies of annual appraisals or letters relating to their ability to do their job Harassment and bullying often take place without witnesses, so the resolution of a complaint may depend on the credibility of the two parties. The investigation must reveal what evidence there is to support the version of events given by the person complaining. Supervisory staff and, where appropriate colleagues should be asked what they know about the alleged harassment/bullying, and if they saw how the complaining behaved after the incident. If the person complaining discussed the incident with any one else they should be interviewed too. Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 9 HDB Investigating Complaints Guidance 9 General points If the alleged harasser/bully denies that the incident took place, the person investigating must decide whose version of events seem more likely. The case of the person complaining will be stronger if he or she complained at the time or made notes of the incident and the response. However, take into account that the person complaining may have been too upset or distressed to do so, or may not have thought of it at the time. In harassment cases where the alleged harasser says that the behaviour had been welcomed on a previous occasion, he or she must be able to show how and where this occurred and that the person complaining welcomed it. Someone who is being harassed or bullied may delay complaining fearing repercussions. They may believe that they can sort out the situation themselves. If there has been a delay in complaining, the investigation must find out why. If the alleged harasser/bully admits “I did it, but I didn’t think it bothered x”, the situation may be relatively easy to resolve. It could be implied that if they had known that the behaviour or conduct was offensive they would not have acted in that way. This explanation is not acceptable where the person complaining has previously told the alleged harasser/bully that the behaviour is unacceptable. It may be possible to resolve this type of complaint informally, and for both parties to resume their working relationship without further repercussions. A way of encouraging this is for the manager or supervisor to explore with both parties why the behaviour was offensive, and the effect it had on the person complaining. With an improved understanding of the impact their behaviour, the alleged harasser/bully is less likely to act in a similar way in the future. 10 Dealing with stress Participating in an investigation as the person(s) complaining, alleged harasser(s)/bully(s), or as witnesses Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 10 HDB Investigating Complaints Guidance creates considerable stress and anxiety. Lack of information and/or understanding of the process add to the stress. Investigators and staff representatives should address the following issues: Inadequate preparation for the investigation process Lack of understanding of the investigation process Lack of understanding about the use of statements Lack of understanding of how evidence is interpreted and used • The role of the trade union representative • Knowledge of people’s rights and responsibilities • Timing and duration of interviews • • • • 11 Dealing with group complaints There are occasions when several complaints are made about a person at the same time. This usually happens when the alleged harasser/bully is a manager and the complaints are made by staff. In most cases, the people complaining have said they chose to lodge a group complaint because they believed: • the complaint would be taken more seriously • that they would be better protected against victimisation When a group complaint is lodged, each complaint should be investigated separately. If one of the reasons for the group complaint is a lack of trust in the University’s procedure, then these comments should be passed on to the key personnel responsible for policy implementation. The University will review events in the light of this, and ensure that useful lessons are taken on board, and efforts are made to rebuild confidence or amend procedures accordingly. 12 Monitoring and review To ensure there is no repeat harassment/bullying, or victimisation/retaliation it is imperative for line managers to Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 11 HDB Investigating Complaints Guidance put in place procedures for monitoring and regularly reviewing the situation. 9 List of associated documents • • • • • HDB Policy Student Complaints Procedure Equality and Diversity Policy and Guidance Race Equality and Guidance Student Disability Policy 10 Contact Details For further information or guidance regarding any of the issues covered in the Policy, please contact: Equality and Diversity C28, Sackville Street Building, Sackville Street, Manchester, M60 1QD Tel: 0161 306 5857 Fax: 0161 306 5877 Minicom: 0161 306 5870 Email: equalityanddiversity@manchester.ac.uk Human Resources Ground Floor John Owens Building Oxford Road Manchester M13 9PL Each Faculty and Directorate has its own Human Resources staff and further details can be found at: http://www.campus.manchester.ac.uk/staffnet/theguide/ directorateofhumanresources/ Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 12 HDB Investigating Complaints Guidance 11 Accessible format information This document can be made available in large print and electronically upon request. If you require another alternative format please contact us to discuss your requirements. Contact Details: Equality and Diversity C28, Sackville Street Building, Sackville Street, Manchester, M60 1QD Tel: 0161 306 5857 Fax: 0161 306 5877 Minicom: 0161 306 5870 Email: equalityanddiversity@manchester.ac.uk Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 13 HDB Investigating Complaints Guidance 13 Summary of formal complaints procedure 1. Grievance arises contact your HR Manager who will meet with you within 5 working days. 2. HR Manager meets your Head of Department within 5 working days which will result in either 3. HR writes to alleged individual with details of complaint and to arrange a formal meeting with rights to representation detailed (Or, if HR/HOD agree no further action will take place). 4. Alleged individual meets to discuss complaint and decision by HR/HOD will be given in writing within 24 hours which will be either 5. Disciplinary procedure instigated (need to check if further meeting takes place) (Or, if HR/HOD agree no further action will take place and confirmed in writing) 6. Disciplinary decision given in writing with right of appeal. 7. If appeal given then meet within ? days 8. Appeal decision either disciplinary verdict downgraded or overturned (Alternatively, original disciplinary decision upheld with no further right of appeal) Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 14 HDB Investigating Complaints Guidance Appendix 1 Employment Legislation Disability Discrimination Act 1995 The forms of discrimination which are unlawful in relation to employment were amended in 1 October 2004 when coverage of the DDA was extended to take account of the EU Council Directive of 2000, establishing a general framework for equal treatment in employment. They are as follows: Direct Discrimination An employer’s treatment of a disabled person amounts to direct discrimination if: • It is on the ground of his/her disability. • The treatment is less favourable than the way in which a person not having that particular disability is (or would be) treated, and • The relevant circumstances, including the abilities, of the person with whom the comparison is made are the same as, or not materially different from, those of the disabled person. Failure to comply with a duty to make reasonable adjustments • A failure to comply with a duty to make a reasonable adjustment in respect of a disabled person amounts to discrimination in its own right. Such a failure is therefore unlawful. Disability-Related Discrimination An employer’s treatment of a disabled person amounts to discrimination if: • it is for a reason related to his/her disability Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 15 HDB Investigating Complaints Guidance • the treatment is less favourable than the way in which the employer treats (or would treat) others to whom that reason does not (or would not) apply, and • the employer cannot show that the treatment is justified. Victimisation Victimisation is another form of discrimination which is made unlawful by the Act. It is unlawful for one person to treat another (‘the victim’) less favourably than he/she treats or would treat other people in the same circumstances because the victim has: • brought, or given evidence or information in connection with, proceedings under the Act (whether or not proceedings are later withdrawn) • done anything else under or by reference to the Act, or • alleged someone has contravened the Act (whether or not the allegation is later dropped), • or because the person believes or suspects that the victim has done or intends to do any of these things. Indirect Discrimination No concept of indirect discrimination under the DDA. Harassment A person subjects a disabled person to harassment where, for a reason relating to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of violating the disabled person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Conduct shall be regarded as having this effect if, having regard to all the circumstances, including the perception of the disabled person, it should reasonably be considered as having that effect. The Employment Equality (Religion or Belief) Regulations 2003 Direct Discrimination Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 16 HDB Investigating Complaints Guidance Occurs when one person (A) treats another person (B) less favourably than s/he would treat other persons, and the reason is B’s religion or belief. Indirect Discrimination Occurs if one person (A) applies a provision, criterion or practice, which s/he to other persons not of B’s religion or belief, but which puts B at a disadvantage when compared with those others, and which cannot be shown to be a proportionate means of achieving a legitimate aim. Harassment On grounds of religion or belief arises if a person engages in unwanted conduct which has the purpose or effect of violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Conduct will have that effect only if having regard to all the circumstances, including the perception of the complainant, it should be reasonably considered as having that effect. Victimisation Arises when a person is treated less favourably because he has brought proceedings against the discriminator, given evidence in proceedings, done anything under the regulations, or alleged that the discriminator has committed an act which amounted to a contravention of the regulations. General Note The Advisory, Conciliation and Arbitration Service (ACAS) tend to use the word Festival for the various differing holidays, holy day, celebrations, etc. Race Relations Act 1976 Direct Discrimination Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 17 HDB Investigating Complaints Guidance This occurs if on racial grounds a person treats another person less favourably than he would treat someone else. Indirect Discrimination The meaning of indirect discrimination (the term is not used as such in the Act) is complicated because there are in fact two regimes to consider. The first occurs when 1. a person applies a requirement or condition which he applies equally to persons not of the same racial group. 2. which is such that the proportion of persons from that same racial group who can comply is considerably smaller than persons who are not of that racial group. 3. s/he cannot show that the requirement or condition is justified irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied, and 4. it is to that person’s detriment that s/he cannot comply. Harassment A person subjects another to harassment where, on grounds of race or ethnic or national origins, s/he engages in unwanted conduct which has the purpose or effect of violating that other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Conduct shall be regarded as having this effect if, having regard to the circumstances (including the perception of the person affected) it should reasonably be considered as having that effect Victimisation It is unlawful to treat a person less favourably because s/he has: 1. brought proceedings under the Act; 2. given evidence or information connected with proceedings brought by another person; 3. done anything under the Act in relation to the discriminator; or 4. made allegations that a person has committed an unlawful act of racial discrimination. Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 18 HDB Investigating Complaints Guidance The Employment Equality (Sexual Orientation) Regulations 2003 Direct Discrimination Occurs if a person treats another person less favourably on the grounds of sexual orientation Indirect discrimination May occur when a ‘provision, criterion, or practice’ is applied which puts persons of a particular sexual orientation at a disadvantage when compared with other persons. Harassment Occurs where, on the grounds of sexual orientation, a person engages in unwanted conduct which has the purpose or effect of violating the dignity of another person, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person. Victimisation Occurs when a person treats another person less favourably, because that person has done one of the protected acts, i.e. bringing proceedings, giving evidence or doing anything else under or by reference to the Regulations Sex Discrimination Act 1975 as amended by the Employment Equality (Sex Discrimination) Regulations 2005 Direct Discrimination This arises when a person of one sex is treated less favourably than a person of another sex, and the sex of that person is the reason for the unfavourable treatment Indirect Discrimination Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 19 HDB Investigating Complaints Guidance A person discriminates against a woman if he applies to her a provision, criterion or practice which he applies or would apply equally to a man but 1. which puts or would put women at a particular disadvantage when compared with men, 2. which puts her at that disadvantage, and, 3. which he cannot show to be a proportionate means of achieving a legitimate aim. Discrimination on the grounds of pregnancy or maternity leave A person discriminates against a woman if 1. at a time in a protected period (each time she becomes pregnant), and on the ground of the woman’s pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or 2. on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right. Harassment A person subjects a woman to harassment if 1. on the grounds of her sex, he engages in unwanted conduct that has the purpose or effect • violating her dignity, or • of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, 2. he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 20 HDB Investigating Complaints Guidance • violating her dignity, or • of creating her intimidating, hostile, degrading, humiliating or offensive environment for her, or 3. on the ground of her rejection of or submission to unwanted conduct of a kind mentioned above, he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct. Victimisation It is also unlawful to victimise a person because he/she: 1. brought proceedings under the Act, or the Equal Pay Act 1970, or 2. given evidence or information in connection with proceedings under either Act, or 3. done anything (in relation to either Act) to the discriminator or any other person, or 4. has made allegations of a contravention of either Act. General Points Positive discrimination Positive discrimination, which generally means employing someone because they come from a disadvantaged group regardless of whether they have the relevant skills and qualifications, is unlawful Positive Action Positive action is lawful and can involve: • providing training for people of a particular racial group or sex if only a few or no people of that racial group or sex have been employed in that type of work in the previous year. • encouraging applications from people currently underrepresented in the workforce, e.g. by wording advertisements to give positive welcoming messages. The Race Relations Act already permits certain types of positive action. The consultation document proposes that the new legislation on sexual orientation, religion and age should enable Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 21 HDB Investigating Complaints Guidance employers to take positive action on grounds comparable to those set out in the RRA. Positive action is of course different from positive discrimination, which is unlawful, and it is desirable that employers should be able to help underrepresented groups - in any of the categories to which the directives apply - in this way. Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 22 HDB Investigating Complaints Guidance 11 Accessible format information This document can be made available in large print and electronically upon request. If you require another alternative format please contact us to discuss your requirements. Contact Details: Equality and Diversity C28, Sackville Street Building, Sackville Street, Manchester, M60 1QD Tel: 0161 306 5857 Fax: 0161 306 5877 Minicom: 0161 306 5870 Email: equalityanddiversity@manchester.ac.uk Name: HDB Investigating Complaints Guidance Owner: Equality and Diversity Draft Version 29.11.05 23