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GRIEVANCE AND DIGNITY AT WORK POLICY AND PROCEDURE

VIEWS: 45 PAGES: 44

									                        GRIEVANCE AND DIGNITY AT WORK
                            POLICY AND PROCEDURE
                                                     Final Draft


                                       Document control summary




Title                                         Grievance and Dignity at Work Policy and Procedure

Purpose of document                     To assist staff in informally and formally raising and resolving
                                        grievances or issues of bullying, harassment or victimisation
Electronic file                                                     Trust Intranet
reference
(network or intranet)
Status                                                                   Final

Version No.                                                              1.0

Date of this draft                                        March 2009. Effective from 1/11/09

Author(s)                                              Rachel Barratt, Human Resources Manager

Responsibility for                                           Director of Human Resources
implementation
Circulated to                                                Executive and Trust Directors
                                                                      Staff Side
                                                                      HR Team
Approved by
(Names, titles and                                   Joint Staff Committee – 30th September 2009
date)
Next Review Date                                                   November 2011

Equality Impact                                                      March 2009
Assessment
Completed in




Grievance and Dignity at Work Policy and Procedure       1
March 2009
                                    Version Control Summary

         Version Date                  Author        Status   Comment
         1              01.11.09       RB            Final    This policy revokes the
                                                              Grievance Policy and Procedure
                                                              V2.1 dated Feb 2008 and the
                                                              Bullying and Harassment Policy
                                                              and Procedure V2 dated Nov 07




Grievance and Dignity at Work Policy and Procedure   2
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            GRIEVANCE AND DIGNITY AT WORK POLICY AND
                          PROCEDURE

                                             INDEX PAGE


1.       Grievance and Dignity at work Policy and Procedure             P. 3

2.       Grievance Procedure                                            P. 9

3.       Dignity at Work Procedure                                      P. 14

4.       Appendix 1 – What is Mediation                                 P. 22

5.       Appendix 2 – Definitions of Bullying and Harassment            P. 26

6.       Appendix 3 – Differences of Fair Management and Unacceptable
         Behaviour                                                      P. 30

7.       Appendix 4 – Roles and Responsibilities                        P. 31

8.       Appendix 5 – Support and Advice                                P. 34

9.       Appendix 6 – Formal Investigation Guidelines                   P. 36

10.      Appendix 7 – Investigating Complaints – Guidelines for
         Interviewing staff                                             P. 38

11.      Investigating Complaints – Guidelines for interviewing the
         alleged harasser or bully                                      P. 40




Grievance and Dignity at Work Policy and Procedure   3
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                        GRIEVANCE AND DIGNITY AT WORK
                             POLICY & PROCEDURE


1.       POLICY STATEMENT


1.1      East London NHS Foundation Trust (herein referred to as ‘the Trust’) is
         committed to creating a work environment where everyone is treated with
         dignity and respect and is committed to encouraging free and open
         communication between staff and their managers to ensure that questions
         and problems arising during the course of employment can be raised and
         wherever possible resolved quickly.


1.2      In order to promote good employee relations, the Trust’s Grievance and
         Dignity at Work Policy and Procedure provides a framework for resolving
         grievances and disputes in a fair, reasonable, timely and consistent
         manner at the earliest possible stage and as close to the point of origin as
         possible. This policy therefore encourages proactive and meaningful
         discussions to take place at the informal stage of these procedures.


2.       PRINCIPLES


2.1      Before entry into the formal grievance and disputes procedure, the
         employee and/or their representative should first informally raise the
         matter with their line manager. Most grievances and disputes are best
         resolved informally in discussion between the employee and their line
         manager, the two parties or formal mediation. The organisation seeks to
         actively promote resolution at informal level, without recourse to the
         formal stages of the procedure wherever possible. Formal resolution
         should only be invoked if the informal stage has failed to settle the matter
         or in the case of the Dignity at Work Procedure where the matter is


Grievance and Dignity at Work Policy and Procedure   4
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         sufficiently serious to warrant formal action. This would not prohibit formal
         agreements being made following informal resolution.


 2.2     Effective communication and consultation at all stages of the procedure
         are essential to provide operational efficiency, good practice and mutual
         understanding.


 2.3     Other than in exceptional circumstances the status quo, i.e. the previously
         agreed working and/or management arrangements, which applied before
         the grievance or dispute, will continue through the informal stages of this
         procedure. Once a decision has been made at a formal stage or an
         agreement made at an informal stage, new arrangements may apply. In
         some cases redeployment may be considered. Please refer to section
         22.0 of Dignity at Work Procedure for redeployment.


 2,4     Records of any individual grievance will be kept on both the complainant
         and respondent’s HR file for a period of 1 year, detailing the nature of the
         grievance raised, the Trust’s response, any action taken and the reasons
         for it. All records will be kept confidential and retained in accordance with
         the Data Protection Act 1998. After 1 year records will be removed from
         both employees HR file and destroyed.


 2.5     Records of complaints raised under the Dignity at Work Procedure will be
         kept in both individuals HR files containing a letter confirming whether
         informal/formal resolution has been sought and what this resolution
         constitutes of or a letter recording the withdrawal of the complaint.


 2.6     Both staff, managers and Union Representatives should consult and co
         operate with the Human Resources department at all stages of the
         grievance and disputes process.




Grievance and Dignity at Work Policy and Procedure   5
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 2.7     All employees will be protected under current employment legislation in
         the operation of this procedure.


3.0      SCOPE


3.1      This policy and procedure applies to all Trust employees including
      locums, students, honorary staff and bank workers directly employed by the
      Trust.


3.2      As the Trust has integrated services (seconded staff from other
         organisations) any seconded person who wishes to raise a dispute
         complaint against a member of the Trust must do so under this procedure.
         For staff wishing to raise a complaint against a seconded member of staff
         this should be raised with the seconded employees line manager in the
         first instance and would usually be managed under the seconded
         employees organisational policies and procedure unless stated otherwise
         under a formal secondment agreement.


3.3      This policy and procedure applies to both individual and collective
         grievances or disputes.




3.4      The grievance and Dignity at Work Policy will not be used in situations
         that:




Grievance and Dignity at Work Policy and Procedure   6
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               • the Trust has no discretion or authority in the matter e.g. Agenda
                  for Change, Medical and Dental or Very Senior Managers
                  contractual         terms          and       conditions   of   service   (except   for
                  interpretation);
              •    Major organisational change where separate guidance has been
                   produced;
              •    Are raised by patients or other service users;
              •    Relate to concerns about malpractice that should be handled by
                   the Whistleblowing Policy or Disciplinary Policy and Procedure;
              •    Concern Income Tax, National or Graduated Insurance, pension
                   and pension rights;
              •     Relate to issues of strategic policy for the organisation;
              •    Are subject to a separate procedure such as the Disciplinary
                   Procedure




4.       INDUSTRIAL ACTION


4.1      No withdrawal of labour, lockout or other industrial action will take place if
         all stages of this procedure have not been exhausted in accordance with
         the stated time limits




5.       REPRESENTATION


5.1      All employees have the right to be represented by a recognised Trade
         Union /professional body/Staff organisation at all formal stages of the
         grievance and disputes policy and procedure.




Grievance and Dignity at Work Policy and Procedure         7
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5.2      Managers should inform an employee of their right to representation in
         writing if the formal stage of either the Grievance or Dignity at Work Policy
         and Procedure is invoked.


5.3      Where an accredited representative of a trade union or professional
         association has a grievance or dispute the Human Resources Department
         must always seek to discuss the details of the grievance with a full time
         official of the organisation concerned.


5.4      Line managers handling grievances and disputes should work in
         partnership with their assigned Human Resources representative.




6.       TIMESCALES


6.1      In line with the ACAS (Advisory, Conciliation and Arbitration Service)
         Code of Practice on Disciplinary and Grievance Procedures, April 2009,
         the Trust will aim to resolve all grievances in as timely a manner as
         possible, bearing in mind genuine operational time factors. Where
         resolution to a grievance or dispute is being delayed various options may
         be considered to ensure a timely resolution to the matter e.g Union
         representation in the absence of an employee, written submissions where
         formal meetings cannot be arranged/agreed.




7.0      TIME LIMITS
7.1      Any grievances or disputes (including complaints raised under the Dignity
         at Work Procedure) raised under the informal or formal stage of this
         procedure should be raised within 3 months of the incident occurring or
         the last/latest act of perceived bullying and/or harassment. In exceptional
         circumstances e.g a delay to try to resolve the issue informally without


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         success, this time period may be extended. The manager in discussion
         with the Human Resources Manager will have authority to extend this
         three month period if deemed necessary.


7.2      Every effort should be made to resolve formal complaints within the
         timeframes indicated at each stage and within 60 working days for formal
         investigations under the Dignity at Work Procedure.


7.3      Where the grievance or dispute relates to the immediate manager, the
         matter should be referred to the next most senior manager in the line
         relationship.




Grievance and Dignity at Work Policy and Procedure   9
March 2009
                                 GRIEVANCE PROCEDURE



8.0      A grievance exists where an individual employee or group of employees
         feel that they have cause for complaint in relation to their employment.


         It is not possible to outline an exhaustive list of issues that might give rise
         to a grievance but some of the more common ones include:


              •    Duties of employment;
              •    Interpretation of terms and conditions of service;
              •    Operational management decisions;
              •    Working procedures and practices;
              •    Work Relations
              •    Equal Opportunities
              •    Health and Safety




9.0      Stage 1


9.1      Staff are encouraged to raise and seek to resolve problems and concerns
         with their manager as part of their normal working relationship unless the
         Manager is the subject of the grievance in which case the grievance will
         be raised with the Manager’s line Manager.


9.2      The Manager will meet with the individual who has raised the grievance
         giving them the opportunity to discuss the issue. The Manager will then
         present the individual with options available to achieve a satisfactory
         resolution around the grievance. The options available are:


              •    An informal meeting with the Manager and the individual

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              •    Agreed formal mediation
              •    A formal investigation into the issues conducted by the line
                   manager


9.3      Before the grievance goes to a formal investigation every effort should be
         made to resolve the grievance on a more informal level, other solutions
         could include:


             •     Mediated discussions with the Manager and the member of staff;
             •    An informal representative meeting with the Manager but it should
                  be very clear that this is the informal part of the procedure, a
                  Human Resources Representative and/or Union Representative
                  may also be present at this meeting


9.4      Both parties should keep written notes of any informal discussions that
         have taken place. The outcome at Stage 1 should be confirmed by the
         line manager in writing within 5 days, of the outcome being communicated
         verbally, together with any action agreed.


9.5      A review meeting may be offered to both parties following the outcome of
         the meeting allowing a reasonable time frame from the date of the
         outcome meeting and the review meeting. The review meeting is optional
         and can be declined by either/both parties if felt unnecessary.


10.0     Stage 2 – Final Appeal Stage – Appeal Hearing


10.1     If the aggrieved employee is dissatisfied with the decision made at Stage
         1 they should write to the next Manager in line (as a minimum this
         manager should be a Head or Service or an Assistant Director of
         Service), within 10 working days of the receipt of the letter confirming the
         outcome of the meeting held under Stage 1, outlining why they feel the


Grievance and Dignity at Work Policy and Procedure   11
March 2009
         issues have not been resolved. The letter should be hand delivered or
         sent recorded delivery to allow for record of proof of delivery and receipt.
         The Head of Service/Assistant Director of Service will arrange a final
         appeal hearing to consider the matter. The employee will be asked to
         submit his/her full case in writing with all supporting evidence and
         information stating why they disagree with the decision made at stage 1,
         10 working days before the Stage 2 Appeal Hearing. The Manager who
         made the decision at Stage 1 of the procedure will provide a management
         case laying out the details of the grievance and decision made at the
         Stage 1 meeting 10 working days prior to the Stage 2 Appeal Hearing.
         Both cases will be exchanged 5 days prior to the Stage 2 Appeal Hearing.


10.2     The Manager Chairing the Stage 2 appeal hearing should respond to the
         employee within 10 working days of receipt of the letter with a date for a
         Stage 2 appeal hearing to discuss the grievance. At the hearing the
         management case will set out the details of the grievance and the
         reasons for the manager’s decision at Stage 1. The staff side case will set
         out clearly the reasons for contesting the decision taken at stage 1.


10.3     The appeal panel will be convened to hear the grievance within 14 days
         and no more than 28 days of receipt of the appeal from the employee. If
         the complainant or Stage 1 line manager are unable to attend the first
         date set for the Stage 2 appeal hearing an alternative date may be
         arranged. Should either party not be able to attend this date the Stage 2
         meeting may go ahead and a decision made in their absence.


10.4     The Appeal panel will comprise of up to 3 members and not less than 2.
         A senior member of the Human Resources Department should be present
         (Assistant Director of Human Resources or a Human Resources Manager
         not previously involved at any stage of this complaint) to advise the panel
         and record the decision.


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10.5     The appeal panel will consider both verbal and written presentations at
         the Appeal Hearing and a decision will be given to the employee within 5
         working days of the date of the Stage 2 appeal hearing.


10.6     The decision of the appeal panel is final and no further appeals are
         permitted.


11.0     Collective Grievances


11.1     Where a grievance is lodged by a group of employees, it will be dealt with
         and heard on behalf of the group as a whole where this is practicable.
         The group will elect a maximum of 2 people to present their case.


11.2     The process outlined in Stages 1 and 2 above will be followed for
         collective grievances.


12.0     Vexatious Complaints


12.1     If, after investigation into a complaint the line manager believes that the
         employee has made the complaint vexatiously (put forward with the
         intention of causing deliberate harm to the person against whom the claim
         has been made) then they may decide if disciplinary action should be
         taken against the complainant.


13.0     Outstanding Disciplinary Matters relating to Grievance


13.1     Where any outstanding disciplinary matters are still ongoing and an
         individual raises a grievance relating to the case under investigation the
         original disciplinary investigation will continue and the individual will be
         asked to raise the issue as a part of their defence. However, if the points


Grievance and Dignity at Work Policy and Procedure   13
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         raised materially effect the outcome of the disciplinary issue the
         disciplinary processes will need to be put on hold and the points raised
         will be considered under the Grievance Procedure before proceeding with
         the original disciplinary investigation.




                           DIGNITY AT WORK PROCEDURE

Grievance and Dignity at Work Policy and Procedure   14
March 2009
         The Trust expects all staff to commit to treating one another with respect
         and dignity and wishes to promote a work environment that is free from
         unacceptable behaviour. However, it is recognised that sometimes acts
         of bullying and harassment or other forms of unacceptable behaviour do
         occur. The Dignity at Work Procedure provides a framework for resolving
         these types of disputes in either an informal or formal way. This
         procedure encourages proactive resolution on an informal level for most
         cases.


16.0     Informal Action


16.1     The aim of the Trust is to ensure that all complaints or issues of bullying,
         harassment or unacceptable behaviour are resolved carefully and
         sensitively. Often individuals accused of unacceptable behaviour or
         bullying and harassment will be unaware of how their behaviour has
         affected the complainant and by raising the issue informally either directly
         or through a workplace advocate will be enough.


16.2     The Trust encourages complainants to follow the informal stages of this
         process in the first instance in order to give the alleged an opportunity to
         amend their behaviour before formal action is taken. Only where cases of
         bullying, harassment or unacceptable behaviour are extremely serious,
         where informal action has not stopped the behaviour or where one or both
         parties do not agree to formal mediation will the formal process be
         instigated.




17.0     Submitting a complaint


Grievance and Dignity at Work Policy and Procedure   15
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17.1     In all cases other than where an individual has addressed the issues
         directly with the alleged aggressor a written complaint will be necessary.
         Where written complaints are submitted these need to be presented to the
         alleged aggressors line manager. The written complaint must clearly
         describe the offending behaviour in detail including dates, venues or
         alleged incidents and any potential witnesses. The complaint should also
         detail the impact of the behaviour. The letter should make clear how the
         complainant wishes the matter to be dealt with and under which option
         stated in this procedure. The following options for consideration are:


Informal Options
               •    Taking Personal Action
               •    Mediation with support of line manager
               •    Formal Mediation


Formal Option
               •    Formal Investigation




18.0     Taking Personal Action


18.1     In some cases the complainant may judge that there is scope to attempt
         to approach the individual they believe to have bullied, harassed or used
         unacceptable behaviour in order to explain their perception of their
         behaviour which is considered to be offensive and why, and to ask them
         to stop using such behaviour. It is also an opportunity for the complainant
         to gain an understanding into why the respondent exhibits certain
         behaviours.




Grievance and Dignity at Work Policy and Procedure   16
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 19.0     Mediation with support of line manager


 19.1     The complainant may request a manager to assist in resolving the issues
          that have arisen. This may involve the manager meeting with the
          individual to establish the issues, meeting with the alleged to inform them
          of the individuals concerns and how this is affecting them and possibly
          asking both parties to meet in the presence of the line manager to talk
          through the issues with an aim of coming to a satisfactory resolution for
          both. A successful meeting will result with a written agreement between
          both parties. The written agreement will be sent by the line manager to
          both parties and a copy of the agreement stored on each individuals HR
          file.


 20.0     Formal Mediation


 20.1     Research indicates that most acts of unacceptable behaviour are best
          resolved with mediation. The Trust has a list of formally trained mediators
          who are able to conduct the formal mediation process (please see
          appendix 1 for information on Mediation process). Mediation is a process
          of negotiation and is generally used when disputes exist among two or
          more parties. The Mediator is not there to form or make any judgments or
          decisions but is there to help both parties reach a mutual decision which
          will assist them to move forward.


20.2      Formal Mediation will usually involve the Mediator meeting with both
          parties individually to explain the Mediation process, to establish the
          details of the matter at hand and to ask both parties to commit to the
          mediation process. The Mediator may speak to both parties individually
          on a number of occasions before bringing both parties together. At the
          joint meeting the aim is to gain agreement from both parties on a way
          forward that they are both committed to and to establish a contract for


 Grievance and Dignity at Work Policy and Procedure   17
 March 2009
          agreement. This may or may not involve a written agreement. In some
          cases the mediator may gain agreement from both parties without going
          to a joint meeting if requested and agreed by both parties.


20.3      Should either party wish to resolve the matter via the mediation process
          they should do so by writing to the line manager of the alleged harasser
          who will, in conjunction with the local Human Resources
          Manager/Adviser, establish if mediation is accepted by both parties and
          appoint a trained mediator to undertake the mediation.


20.4      Following successful mediation both parties may be offered an opportunity
          to review the outcome allowing a reasonable time period from the final
          mediation meeting and review meeting.


 21.0     Formal Stage – Formal Investigation


 21.1     The formal stage of this policy will be applied only where:


          •         The matter has been raised informally but the issues/concerns
                    continue and/or mediation has been unsuccessful
          •         The matter has been raised informally but the claim has been
                    disputed
                    The matter is sufficiently serious to warrant moving directly to a
                    formal stage without following the informal stage first.
                    One or neither party has agreed to Formal Mediation


 22.0     Suspension and Temporary Redeployment


 22.1     Prior to any formal action being taken the relevant line manager along
          with the relevant Human Resources Representative may consider the
          appropriateness of suspension or temporary redeployment of either party


 Grievance and Dignity at Work Policy and Procedure   18
 March 2009
         until resolution has been sought. This action may be taken to relieve the
         stress and pressure on one or both and/or to prevent the risk of further
         incidents occurring.


22.2     Suspension of the member of staff against whom the complaint has been
         made should be considered where the manager believes that it is in the
         best interest of either the individual, the organisation or both. It may be
         appropriate or as a last resort to suspend both members of staff. It will be
         made clear at all times that suspension is a neutral act and does not imply
         that any misconduct has occurred. Any suspension will be on full pay.


22.3     Temporary redeployment of one or both parties may also be considered.
         In normal circumstances if the complainant expresses concerns of both
         parties continuing to work together until a resolution has been sought the
         complainant may be redeployed.


22.4     Formal complaints should be raised with the line manager of the person
         who may have committed bullying, harassment or unacceptable behaviour
         in writing. The line manager, after taking advice from Human Resources
         and establishing whether the matter has been through the informal stages
         (if appropriate) may speak to a trained mediator about the complaint to
         establish if there may be scope through formal mediation to resolve the
         matter (this would not be appropriate if it has already been established
         that the matter is sufficiently serious to warrant immediate formal
         investigation) and would usually only apply where both parties have
         declined mediation. If the mediator believes that there is little scope to
         resolve the matter through formal mediation the line manager may
         instigate a formal investigation. In some instances the Mediator may meet
         with parties who have declined formal mediation to explain the mediation
         process to them to establish if formal mediation may be deemed
         appropriate by the individual/s. Both individuals may attend this meeting


Grievance and Dignity at Work Policy and Procedure   19
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         with a Union Representative or a colleague. The individuals may still
         decline Mediation at this stage.


23.0     Investigation


23.1     Where an investigation is deemed appropriate, the manager, in
         conjunction with Human Resources will appoint an independent (not
         working with the complainant or alleged aggressors’ work environment),
         experienced investigator(s) to carry out a thorough, impartial investigation.
         The investigator should be appointed within 21 working days from the
         date of the letter of complaint. The investigation should be completed
         within 60 working days (see appendix 6 for guidance on investigations).


24.0     Outcome of investigation


24.1     Following submission of the final draft of the report the Head of Service or
         their designated deputy will decide what action will follow. This may
         involve the following courses of action:


              •    No further action – no case to answer
              •    Recommendations for action
              •    Disciplinary action


24.2     Following a decision made on receipt of the final report both parties will be
         written to informing them of the outcome. In some cases the manager
         may call an individual meeting with both parties to feedback the outcome
         of the investigation and any findings or recommendations.




25.0     Vexatious Complaints



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25.1     If, after a formal investigation of complaint and following submission of the
         final report the line manager believes that the employee has made the
         complaint vexatiously (put forward with the intention of causing deliberate
         harm to the person against whom the claim has been made) they may
         decide to instigate disciplinary proceedings against the complainant.




26.0     Appeal


26.1     If    the     complainant         is    not    satisfied   with   the   decision   and/or
         recommendations they may appeal against the outcome by writing to the
         Director of Human Resources within 10 working days of receipt of the
         letter notifying them of the decision. This letter must clearly state their
         grounds for appeal.               The letter must be hand delivered or sent via
         recorded delivery to allow for record of proof of delivery and receipt. The
         employee will be asked to submit his/her full case in writing with all
         supporting evidence and information stating why they disagree with the
         outcome 10 working days before the Appeal Hearing. The Manager who
         made the decision and communicated the outcome will provide a
         management case stating how they came to their decision 10 working
         days prior to the Appeal Hearing. Both cases will be exchanged with both
         parties 5 days prior to the Appeal Hearing.




26.2     The Appeal panel will be convened within 2 weeks and no later than 4
         weeks of receipt of the appeal letter. The Appeal panel will comprise of
         up to 3 members and not less than 2. A senior member of the Human
         Resources Department should be present (Assistant Director of Human
         Resources or a Human Resources Manager not previously involved at
         any stage of this complaint) to advise the panel and record the decision.




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26.3     The appeal panel will consider both verbal and written presentations from
         both parties at the Appeal Hearing along with the original investigatory
         report and a decision will be given to both employees within 5 working
         days of the date appeal hearing.


26.4     The decision of the appeal panel is final and no further appeals are
         permitted.


27.0     Monitor and Review
27.1     This policy and procedure will be reviewed every two years with
         amendments being made as appropriate following consideration of Staff
         Side and Senior Management. The effectiveness of this policy will be
         monitored every six months by receiving feedback from staff and their
         representatives and managers, statistical analysis on the use of mediation
         and number of informal and formal complaints raised during the
         monitoring period.




Grievance and Dignity at Work Policy and Procedure   22
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Appendix 1


                                        What is mediation?


“Mediation is a process of negotiation, generally used when a dispute exists
among two or more parties, conducted by a trained mediator who works with all
parties involved so that their true interests are identified and a resolution is
achieved         that     responds          effectively   and   fully   to   those   interests”.
(www.nymir.org/zoning/Glossary.html)


Mediation is particularly appropriate when there is willingness to resolve the
issues by both parties and when there is an ongoing working relationship.


Role of the Mediator
The role of the mediator is to facilitate and manage the entire mediation process,
to understand the key issues and help both parties entering in mediation on a
voluntary basis to reach a mutual agreement, which will assist them to move
forward in the future. The mediator is also responsible to manage the mediation
process from the beginning to the end,


The format of a mediation meeting
Mediation is usually carried out using the facilitative model, which is based on a
mediator which facilitates the meeting between the parties in conflict adopting a
non directive approach.


In the facilitative model the mediator works with the parties strengths and
weaknesses. It is based on the mediator being impartial and encouraging the
parties to come to a solution to the problems they are facing. It is usually done
by a single mediator although it may be possible for co-mediation to take place
within the facilitative model.



Grievance and Dignity at Work Policy and Procedure   23
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There are 5 stages within this model, which are not always linear, so for example
it may be possible that during the mediation process, the mediator goes back to
previous stages.


The 5 stages are as follows:
    •    First contact with the parties
    •    Setting the scene
    •    Exploring
    •    Building and writing agreements
    •    Closure and follow up


First contact with the parties
The first contact stage is when the mediator meets the parts individually. It is
during this first contact that the mediator will build the parties understanding and
explain his or her role, which is to facilitate the meeting and manage the process
of mediation.


The mediator will explain in detail what mediation entails, the principles
(voluntary, impartial, confidential, non judgmental and non binding) and try to get
the parties’ commitment to take part of mediation, which is different from
persuading or putting pressure on them. It is also at this stage that both parties
will be able to explain in detail what the issues surrounding the conflict is, what is
it that they wish to gain from the mediation process.


The mediator will manage expectations, try to understand some common ground
between the parties, and also agree what the ground rules during the joint
meeting will be.


This first contact is the opportunity for parties to ask any questions, ask for
clarifications and for the mediator to manage any anxieties they may have
regarding the process.


Grievance and Dignity at Work Policy and Procedure   24
March 2009
Setting the Scene
Setting the scene is when both parties come together into the mediation. Here
the mediator will agree with both parties the ground rules (which will have been
discussed during the first contact meeting). The mediator will set the scene,
again, explaining his/her role and going over the principles of mediator again;
remind both parties again of the process, the structure of the meeting and how
he will conduct the meeting, for example who will go first, what needs to happen
when one party is talking, for example asking for both to listen carefully, be very
honest and open, abide by the ground rules, etc.


Exploring
The next stage is called exploring and here is when the issues will be discussed.
First each party will have an opportunity to explain what their issues are. Both
will be given equal opportunity to explore their main concerns. After each party
has had an opportunity to explain their issues, the mediator will summarise what
they believe to be the issues. Here, the mediator will try to take out the emotion,
he or she will reframe what is being said and put an agenda of the main issues,
which will then be explored in turn.

The next stage, which will probably happen intermittently with the one above
(going through every item on the agenda) is when both parties reach a
consensus, for example what they are agreeing to.


Closure
The final stage is the closure. The mediator writes up the agreement (if it was
agreed that a written agreement would be put together as on occasions, parties
will only accept verbal agreements). Give two copies to both parties to sign, date
and keep a copy each. As part of the closure process the mediator again thanks
both parties for taking part on the mediation process. He or she reminds both
parties of the confidentiality issues around it and any follow up that may be



Grievance and Dignity at Work Policy and Procedure   25
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required and may be agreed. The mediator reminds the parties that he or she
will not be involved any further and he or she wishes them well.




Grievance and Dignity at Work Policy and Procedure   26
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 Appendix 2



                       Definitions of Bullying and Harassment

         Harassment



         Harassment, in general terms, is unwanted conduct affecting the dignity of
         men and women in the workplace. It may be related to age, sex, race,
         disability,       religion,      sexual     orientation,   nationality   or   personal
         characteristics of the individual, and may be persistent or an isolated
         incident.       The key is that the actions or comments are viewed as
         demeaning and unacceptable to the recipient.



         Harassment can take many different forms and examples, which are not
         exhaustive, include:-

                   •        persistent incidents
                   •        a single serious incident
                   •        unwanted physical conduct including unnecessary touching,
                            assault, physical threats, insulting or abusive behaviour or
                            gestures
                   •        verbal abuse such as anonymous answerphone messages,
                            offensive language or innuendo, telling offensive jokes,
                            name calling or spreading malicious rumours;
                   •        non-verbal including display, storage or distribution of
                            offensive material (including information held on the
                            computer) such as pornographic or suggestive pictures, or
                            written material or visual material and graffiti, leering or
                            staring, ignoring or avoiding colleagues;




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                   •        covert or disguised behaviour such as social isolation and
                            non-cooperation, implicit threats, and pressure for sexual
                            favours;
                   •        incidents associated with work such as stalking


         Such behaviour is unacceptable if:

                   •        it is unwanted, unreasonable and offensive to the recipient;
                   •        it is used as the basis for employment decisions
                   •        it creates a hostile or ineffective working environment


         Behaviour that any reasonable person would realise is likely to offend will
         be harassment without the recipient having to say in advance that they
         find it offensive such as unwanted physical contact.



         Where it may not be so clear in advance that the behaviour would be
         unwelcome to, or what could offend a particular person e.g. certain
         banter, flirting, asking someone for a drink after work, then the recipient
         should make it clear by words or conduct that such behaviour is
         unacceptable to him/her. If the behaviour continues after it has been
         made clear that it is unacceptable then it may be perceived as
         harassment.

    Bullying



         Bullying differs from harassment and discrimination in that the focus is
         rarely based on age, sex, race, disability, religion, sexual orientation or
         nationality. The focus is often on competence, or rather the alleged lack
         of competence of the bullied person.




Grievance and Dignity at Work Policy and Procedure   28
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         Bullying is any persistent behaviour, directed against an individual, which
         is intimidating, offensive or malicious and which undermines the
         confidence and self-esteem of the recipient.           For formal and informal
         investigative purposes under this procedure Bullying needs to be
         measurable and demonstrable. For acts that have caused offence to the
         recipient but that cannot be measured or demonstrated please refer to
         Dignity at Work Policy.



         Bullying can take many different forms and examples, which are not
         exhaustive, include:-

              •    sadistic or aggressive behaviour over time
              •    exclusion from meetings
              •    humiliation or ridiculing
              •    criticism in public that is designed to humiliate
              •    persistent, unwanted criticism in private
              •    singling out one person for criticism where there is a common
                   problem
              •    offensive or abusive personal remarks
              •    treating colleagues as children, not as adults
              •    undermining staff by replacing their areas of responsibility
                   unreasonably or without justification
              •    setting unattainable targets
              •    withholding information to deliberately affect a colleague’s
                   performance
              •    claiming credit for someone else’s work
              •    constantly changing work deadlines or work guidelines to cause
                   someone to fail
              •    making false allegations
              •    preventing people from taking up training and development
                   opportunities in line with agreed PDP or agreed development plan.

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March 2009
 Bullying or harassment may be by an individual against an individual (perhaps
 by someone in a position of authority such as a manager or supervisor) or
 involve groups of people. It may be obvious or insidious. Whatever form its
 takes it is unwarranted and unwelcome to the individual.



 What is Victimisation?



Victimisation is treating someone less favourably than others because s/he has
complained (formally or otherwise) that someone has been bullying and
harassing him/her or someone else.                    Similarly, if the person has supported
someone to make a complaint, or given evidence in relation to a complaint of
bullying and harassment.



The Trust will take appropriate action to deal with any alleged victimisation. This
would include an investigation and, if found, may include disciplinary action
against the employee who victimised another person




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Appendix 3


                     The difference between fair management
                          and unacceptable behaviours

Within the Trust there is an expectation that managers fulfill their duties and
responsibilities. It is reasonable to expect a manager to carry out their function
in a fair, firm and consistent manner. This may involve:


    Issuing reasonable requests and/or instructions and expecting members of
    staff to undertake these and generally manage performance and conduct
    Set expected standards of performance supported by relevant appraisal,
    performance management framework, job description or KSF outline and
    objectives
    Disciplining staff for misconduct and poor performance where appropriate
    Implementing action in respect of general Trust policies e.g management of
    sickness absence
    Where these functions are carried out in a fair and reasonable way they will
    not constitute acts of unacceptable behaviour, bullying or harassment or
    victimisation.


          Firm/Fair Management                            Bullying/Harassment
          Consistent and fair                             Aggressive, inconsistent and unfair
          Determined to achieve the best results, Unreasonable and inflexible
          but reasonable and flexible
          Knows their own mind and is clear about Believes that they are always right, has
          their own ideas, but is willing to consult fixed opinions, believes that they know
          with others                                best and disregards others views
          Insists upon high standards of service in Insists on high standards of service and
          quality of and behaviour within the team  behaviour but blames others if things
                                                    go wrong
          Ask for     peoples views, listens and Tells people what will be happening,
          assimilates feedback                   does not listen



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Appendix 4

                                      Role and Responsibilities


         The Trust



         The Trust will ensure that: -

         •    all staff are made aware of their personal responsibilities under this
              policy
         •    formal training to support this policy is provided to appropriate staff, in
              particular people who investigate formal complaints, and those who
              support and advise individuals who complain or are complained about
         •    all staff are informed about the contents of this policy and complaints
              procedures
         •    all staff have access to Harassment Support Advisors if they so wish
         •    all staff have access to independent counselling if they so wish
         •    Policy provisions comply with UK law
         •    The Policy is monitored and reviewed formally on a regular basis with
              staff side representatives


         Managers

         Managers and supervisors have a particular duty to ensure that their own
         behaviour is beyond reproach at all times and that harassment and
         bullying does not occur in the work areas for which they are responsible.

         Managers and supervisors are essential in implementing this policy. They
         do this by:-




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              •    ensuring good communication with staff and between staff by
                   operating and open door policy, and discussing bullying and
                   harassment issues at team meetings
              •    setting examples and standards of behaviour in the workplace that
                   include not bullying and harassing staff, and being aware of how
                   their behaviour affects other people
              •    creating an environment and culture where destructive forms of
                   behaviour are not tolerated and where everyone is treated with
                   respect and dignity
              •    recognising destructive behaviour and taking action where it occurs
              •    ensuring staff know about this policy and know how to raise
                   harassment and bullying issues
              •    working to find solutions to bullying and harassment cases
              •    supporting staff who may feel they are being harassed and bullied
              •    dealing with any complaints fairly, thoroughly, quickly and
                   confidentially, respecting the feelings of all concerned
              •    ensuring that there is no retaliation against the person who made
                   the complaint
              •    recognising that gossip about bullying and harassment can be
                   destructive


         Staff

         All members of staff have a responsibility to behave appropriately in the
         workplace and treat each other with dignity and respect. They should be
         aware of the issues and both the serious and genuine problems which
         harassment can cause.

         All staff are responsible for adhering to this policy. They are required to:-




Grievance and Dignity at Work Policy and Procedure   33
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         •    treat all colleagues with dignity and respect and be aware of how their
              behaviour can affect other people, for example, by ensuring that
              normal workplace banter enhances rather than undermines teamwork
         •    support colleagues who are being bullied or harassed and bring it to
              the attention of their line manager, or other appropriate senior
              manager
         •    respond promptly to any feedback and advice on their behaviour, be it
              from a colleague or manager


         Human Resources Department

         The Human Resources Department has a responsibility to ensure that the
         policy is followed fairly and consistently. Their duties include:-

         •    advising managers on the application of the policy
         •    advising managers and staff, where appropriate, when individuals feel
              that they are being harassed or bullied in the course of their
              employment
         •    ensuring the effective implementation of the policy
         •    monitoring incidences of bullying and harassment and initiating
              appropriate action reviewing and amending the policy as necessary




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Appendix 5

                                       Support and Advice

         The Trust is committed to achieving informal resolution of complaints
         relating to harassment where possible.


         In line with this approach, a series of options have been put in place to
         enable staff to be supported.                    This support will be provided to
         complainants, alleged perpetrators and any witnesses.


         Harassment Support Advisors


         The Harassment Support Advisors are drawn from a wide range of jobs
         across the Trust and have been provided with specialist training. They
         are an independent and confidential resource for both the complainant
         and alleged harasser/bully. As part of their role they:-
         o provide empathetic assistance to staff with complaints of bullying and
              harassment;
         o explain how the procedures for making a complaint operate both
              informally and formally
         o establish and provide support as required for the complainant through
              the process.


         Counselling


         The Trust offers an external, confidential counselling service for its staff,
         which staff may self refer themselves to.




Grievance and Dignity at Work Policy and Procedure   35
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         Occupational Health Service


         Any member of staff who is involved in a claim of bullying and harassment
         may find it helpful to talk to the occupational health service. Staff have
         the right to self refer to occupational health.


         Trades Unions


         The Trust recognises the important role trade unions play in addressing
         harassment          and      members        are   encouraged   to   approach   these
         representatives regarding their concerns.                 The Trust will work in
         conjunction with the trade unions in addressing unacceptable and
         inappropriate behaviours.




Grievance and Dignity at Work Policy and Procedure   36
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Appendix 6


                             Formal Investigation Guidelines
Role of the investigating officer


         The role of the investigating officer will be to gather the facts of the case
         by collating written statements relating to the complaint, conducting
         interviews with the relevant parties concerned with the complaint and
         gather any other relevant documentation. They will also:-
              In writing inform the alleged aggressor of:
                   - the complaint (in most cases the original complaint letter will be
                   given to the alleged aggressor
                   - the possibility of disciplinary action if the allegations are found
                   - their right to be accompanied at any formal meetings as a part of
                   the investigatory process
                   - their right to fully respond to the allegations
              Interview the alleged aggressor
              Interview the complainant
              Interview any relevant witnesses
              Produce a written report detailing their findings and any supporting
              information gathered
              Present the report to the appropriate line manager/senior manager


         Advice can be sought through Human Resources throughout the full
         investigation process.


         Written Report
         Upon completion of the investigation, the investigating officer(s) should
         immediately prepare a written report for the manager who instigated the
         investigation. The report should contain the following:-



Grievance and Dignity at Work Policy and Procedure   37
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              Introduction/reasons for the investigation
              Method of investigation
              Individuals seen as a part of the investigation
              Summary of evidence given by all parties providing evidence as a part
              of the investigation
              Systems/processes/rules examined
              Findings
               Conclusion (the person investigating must come to a conclusion about
               which version of events is most credible)
              Statements and other relevant written material to be appended




         Completion of the report


         The first draft of the report will be submitted to the relevant Human
         Resources Representative for comments. This Human Resources
         Representative will not be involved in any further matters concerning this
         case. Once the final draft report has been completed this will be passed
         onto the relevant line manager by Human Resources.




Grievance and Dignity at Work Policy and Procedure   38
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Appendix 7


                     Investigation Complaints - Guidelines for
                        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:-


   o what happened?


   o in what context did this happen?


   o who was involved?


   o when did the incident take place?


   o how did you react?


   o was this the first time this has happened?


   o tell me about the other occasions?


   o did anyone see/hear this or a previous incident?


   o is there any physical, documentation, or other evidence of the incident?


   o have you talked about this incident to anyone?


   o how has it affected you?


   o what do you want to happen to resolve this situation?

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Questions that should not be asked include:-


    o what were you wearing at the time?


    o did you do anything to lead him/her on?


    o surely s/he was only joking?


    o I know the person you are talking about. I can’t believe s/he would do
         something like that.                  Are you sure that there hasn’t been a
         misunderstanding?


    o do you really want me to take this complaint further?




Grievance and Dignity at Work Policy and Procedure   40
March 2009
Appendix 8


      Investigation Complaints - Guidelines for 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 the seeing the alleged harasser/bully.
Questions for the alleged harasser/bully should include:-


    o X has described an incident to me and says that you were involved. Can
         you tell me anything about it?


    o X has told me that s/he asked you not to behave in this way. Why do you
         think X asked you this?


    o are there any witnesses who saw what happened?


    o 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:-


    o I did it, but I thought X wanted me to


    o I did it, but I didn’t think it bothered X


    o I always behave like that with other staff


    o I did not do it

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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 actively solicits or invites unwelcome conduct.            The alleged
harasser/bully may claim that s/he thought that their behaviour was welcome or
acceptable. S/he may not deny that the conduct or behaviour occurred, and
might state that it was freely entered into. S/he may feel that the allegation is
being made because of a particular action or decision in the workplace that 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 s/he 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 person complaining’s work performance is the relevant issue:


o establish what the alleged bully has been doing to help the person
    complaining meet the standards or targets


o check that training and support is provided if new tasks are allocated




o identify whether the person complaining thinks that the standard of his or her
    own work has dropped


o check if work is programmed with realistic deadlines and clear instructions




Grievance and Dignity at Work Policy and Procedure   42
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o establish whether goal posts get changed, and if the person complaining is
    criticised for failing to anticipate this


If there are some warning signs that indicate bullying has taken place the person
investigating should establish:-


o has there been a new line manager?


o have jobs changes recently?


o do complaints sound trivial?


o is there a pattern of ill treatment?


o are there accounts of persistent undermining?


o have the complainant’s personal standards been consistent?


o does the person complaining believe the mistakes are their own fault?


o is the person complaining under close scrutiny?


General Points
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.               The case of the person
complaining will be stronger if s/he 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.


Grievance and Dignity at Work Policy and Procedure   43
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In harassment cases where the alleged harasser says that the behaviour has
been welcomed on a previous occasion, s/he 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.




Grievance and Dignity at Work Policy and Procedure   44
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