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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 March 2009 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 March 2009 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 March 2009 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 March 2009 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 March 2009 • 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 March 2009 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 Grievance and Dignity at Work Policy and Procedure 8 March 2009 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 Grievance and Dignity at Work Policy and Procedure 10 March 2009 • 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. Grievance and Dignity at Work Policy and Procedure 12 March 2009 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 March 2009 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 March 2009 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 March 2009 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 March 2009 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 Grievance and Dignity at Work Policy and Procedure 20 March 2009 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. Grievance and Dignity at Work Policy and Procedure 21 March 2009 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 March 2009 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 March 2009 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 March 2009 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 March 2009 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; Grievance and Dignity at Work Policy and Procedure 27 March 2009 • 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 March 2009 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. Grievance and Dignity at Work Policy and Procedure 29 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 Grievance and Dignity at Work Policy and Procedure 30 March 2009 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 Grievance and Dignity at Work Policy and Procedure 31 March 2009 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:- Grievance and Dignity at Work Policy and Procedure 32 March 2009 • 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 March 2009 • 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 Grievance and Dignity at Work Policy and Procedure 34 March 2009 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 March 2009 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 March 2009 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 March 2009 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 March 2009 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? Grievance and Dignity at Work Policy and Procedure 39 March 2009 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 Grievance and Dignity at Work Policy and Procedure 41 March 2009 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 March 2009 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 March 2009 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 March 2009
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