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Anti-Bullying Week; What is Bullying and Harassment?

Anti-Bullying Week in the UK takes place from 16th to 20th November and is coordinated by the Anti-Bullying Alliance.
An ACAS study has revealed that many are too afraid of the perceived repercussions to speak out if they are the target of bullying in the workplace. The study has also shown that this type of behaviour was more likely to be found in organisations with poor workplace climates where bullying is allowed to become institutionalised.

What is Bullying and Harassment?
This is behaviour that makes someone feel upset, threatened, intimidated or offended. Harassment is unlawful under the Equality Act 2010 but many do not realise that bullying can become harassment when the unwanted behaviour relates to a protected characteristic i.e. age, sex, disability, gender, pregnancy and maternity, marriage and civil partnership, race, religion, sexual orientation.
I am not ashamed to say that I have previously been at the receiving end of bullying behaviour in the workplace. It got to a point where I would get serious Sunday night blues and Monday morning would bring feelings of nausea and nervousness. I dreaded going to work to experience bullying behaviour from a senior colleague, yet would not stand up for myself even though there were procedures in place in the organisation.
The ACAS study illustrated that in some extreme workplace environments, bullying could be viewed as a strategy to get results and therefore viewed as ‘the norm’. Others have been reluctant to speak out because of the tendency to underestimate the serious nature of bullying because of the environment and the perceived ‘banter’.

What Should Employers Do?
Organisations need to take workplace bullying seriously because of the detrimental effect it can have on staff morale and productivity, which leads to prolonged absences, labour turnover, unrest, loss of goodwill, etc. Lost productivity related to instances of workplace bullying is estimated to cost around £18 billion per year. Ultimately employers could find themselves in a tribunal having to defend why they allowed this behaviour to carry on.
Employers are advised to:
- Have a formal grievance procedure in place; however research has shown that these have not helped to reduce the prevalence of bullying in the workplace;
- Ensure that senior members of staff set examples for the workforce by maintaining professional behaviour and hold strong people management skills and emotional intelligence;
- Train their staff to know how to handle grievances and instances of bullying effectively and promptly;
- Nurture employee wellbeing and foster good relations;
- Empower their staff to talk openly with each other;
- Encourage informal resolution;
- Ensure that all policies and practices are consistent, clear and fairly applied.

In the end my experience was so debilitating that I was signed off sick from work and I eventually resigned in order to escape. The frustrating thing is that you do not expect to find a high school bullying mentality in the workplace. We are adults and should understand that we need to respect one another, or at least have the courage and opportunity to speak up. 

ACAS has released guidance on this matter. For more information and the view the factsheet please visit this link:

Posted by: Jessica Stock
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Holiday Blues?

Travellers were stranded this weekend due to the cancellation of flights in and out of Egypt because of the suspected terror attack on an aircraft. Our advice lines were inundated with calls from employers regarding the situation as many employees had been due back to work on Friday and over the weekend. Therefore we thought it timely to outline what rights employers have in these circumstances.

Failing to attend work is classed as an unauthorised absence from work and ordinarily, the employer’s obligation to pay the employee would not apply. However, in circumstances where the absence is beyond the employee’s control i.e. cancelled flights, adverse weather conditions, etc. then what is stated in the contract of employment helps. Whilst there is no obligation to pay for the absence (provided that the contract details this) it may be that the employer exercises discretion due to the circumstances faced by the employee. We advised our clients that they had a choice; either deduct from the employee’s wages if they were allowed; pay them for the missed day, or replace that day with annual leave. The caveat was that whichever choice was made they would have to be consistent in similar future circumstances in order to avoid any potential discrimination claims.

The advice from Opsium is to check your policies and procedures; particularly that your absence reporting procedure is clear and that you have a deduction from wages clause that would deal with any unauthorised absence situation.
If you have a similar issue and need further advice, contact us now on 0161 603 2156.

Posted by: Jessica Stock
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Jury service

As anyone who has been called for jury service will know, it’s far from the glamorous task portrayed in films. When I recently received a jury summons friends and family immediately expressed envy; however the reality is frankly pretty mundane.

Jurors are kept in a holding area for long periods of time waiting for a trial; to add to the frustration little is provided in the way of information as to what is happening or when it is likely to happen. Often the whole day can be spent waiting in the holding area for you to be then told you can go home. Even when you are actually called to be on a jury the waiting and lack of information continues - it’s no wonder the jury was angry in the film!

However, with time on my hands my thoughts turned to how businesses cope with the absence of employees called for jury service.

Not surprisingly employers should not dismiss or allow an employee to be disadvantaged for attending jury service. The dismissal of an employee for being called for jury service is generally automatically unfair.

For most businesses, coping with employee absence for what is typically 10 days should not present a problem. However where an employee is placed on a longer trial (at the extreme this could be up to 6 months) and if the absence is likely to cause substantial damage to the business then a dismissal may be possible. Much would depend upon whether the employee had been told by the employer why they need to avoid a long trial and what the employee had done to avoid being selected.

The courts recognise that some jurors simply can’t sit on a long trial and give them the chance to opt out. Needless to say, employers would need to act with extreme caution in these circumstances and take advice before doing so.

Employers also have the option to ask an employee to seek a deferment of jury service; however there is no guarantee one will be granted. This option may help the business cope with a situation where a vital member of the team is required at a critical stage in a project but it is really a case of ‘kicking the can down the road’ as a new summons will be issued during the year.

Employers are not required to pay employees during jury service, though most do. Employees who are not paid can reclaim loss of earnings, but this is limited to £64.95 per day for the first 10 days of service. A recent report by Churchill Home Insurance indicated that only 5% of employers don’t pay wages during jury service. Though I would say from my own experience many more than 5% of my fellow jurors were not getting paid.

The advice to employers is to review the current provisions of their Employee Handbook to make sure how they handle jury service is covered. Firstly the position in respect to pay should be clearly set out to avoid disputes. Also employees should be required to immediately tell the business when they receive a jury summons. This will allow the business to better plan for the absence, consider the option of seeking a deferment and brief the employee to avoid a long trial if at all possible.

Posted by: Grahame Davies
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In the heat of the moment

In any working environment tempers can get frayed on occasions and things are said in the heat of the moment, that everyone later comes to regret.  When a fall out occurs with an employee and a resignation or dismissal could be concluded, employers need to act quickly and try to repair (or mitigate) the damage to protect the business.  Tempting though it may be to accept a resignation in these circumstances!

The starting point is that employees who resign can’t withdraw the resignation later.  The employer is not obliged to reconsider the position.  However where the resignation occurred during a bust up, the employer needs to tread more carefully before accepting the resignation.

In Kwik-Fit GB Limited V Lineham the employee resigned in the heat of the moment during an argument regarding the use of the toilet at the depot.  It was found the manager was being provocative during this exchange.  The resignation was quickly accepted and Mr Linehan pursued an unfair dismissal claim which he won.

The tribunals determined the employee should be allowed a cooling off period to reflect on what was said in the heat of the moment.  The employer could not simply rely on the verbal resignation and needed to check Mr Lineham’s actual intention.

In the recent case of Townsend V Commercial Storage Limited, during an argument regarding Mr Townsend being ask to cut short his holiday, a manager told the employee to “get out of the yard and don’t bother coming back on Monday”.  Mr Townsend took this to be a dismissal, handed in his keys and phone and left the site.  The employer’s defence was that the words used were said in the heat of the moment and did not constitute a dismissal.  The employer sought to argue that Mr Townsend had in fact resigned.

The tribunal’s view was that whilst the word ‘dismissal’ had not been used, the phrase coupled with the fact the employer took no further action to clarify the position amounted to a dismissal.  Mr Townsend therefore won his unfair dismissal claim.  The employer may well have avoided this outcome had they quickly taken steps to unwind what was said.

When a bust up occurs and the words used by either party could be viewed as ambiguous, the employer needs to quickly get in to a dialog with the employee to clarify what was intended.  To simply assume (or accept) a resignation in these circumstances can result in an unsuccessful visit to the tribunal for the employer.

Posted by: Grahame Davies
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Does your social media policy protect your business?



The importance of having a social media policy and making sure all your employees are aware of it has never been greater. Arguably the bigger challenge is keeping the policy up to date; being ahead of the curve is vital to protect both your business reputation and your employees.

Social media offers a great marketing tool for business.  However a single inappropriate posting by employee can cause significant reputation damage.  This is before you consider the potential for a confidentially breach, the prospect of having to defend a defamation action or the accusation that the business had acted in a discriminatory manner.

Employment Tribunals have seen a significant rise in cases where the misuse of social media by employee has landed them in hot water.  A number of recent cases illustrate the challenges facing employers in this area. In the first, Auld V Norbert Dentressangle the employee posted a picture on Facebook of himself and a colleague that could best be described as of questionable taste. Both men were wearing company uniforms in the picture. The photo was posted in 2009, but was not spotted by the employer for over 5 years.

Mr Auld’s employer took a dim view of the post and dismissed him, believing the picture damaged the reputation of the business. As the employer had no social media policy in place, the Tribunal decided that dismissal was not a reasonable response and awarded Mr Auld £8,083.

If the employer had a social media policy and could prove that employees were aware it, Mr Auld’s case would have been more complicated and the employer may well have won.

In Law V Game Retail, the employee posted several offensive comments on his personal Twitter account. He was responsible for 100 stores, 65 of which were following him.

The employer identified 28 offensive postings and decided to dismiss him for gross misconduct. However the Tribunal found for Mr Laws. They concluded his comments were made on a private account; that he was not identified as an employee and no evidence was produced to show anyone had seen the tweets.

The Tribunal identified that Game’s disciplinary policy was not clear on the issue of whether the misuse of social media was gross misconduct.

Game successfully appealed the decision with the Appeal Tribunals taking the view that Twitter was a public forum and that Mr Laws had the option to amend his privacy settings. The employer simply needed to show the tweets could cause offence, not that they did.

In a recent decision in Smith V British Waterways Board, Mr Smith had made adverse comments on Facebook about his manager and alluded to being drunk when on call.  In his defence Mr Smith suggested his claims were exaggerations and part of the normal ‘tomfoolery’ on Facebook.

The employer was aware of the comments for over 12 months before taking action to dismiss.  Mr Smith was successful in his unfair dismissal claim, but on Appeal the decision was overturned.

To help avoid damage to business reputation and unnecessary Tribunal cases, all employers should have a clear social media policy that defines what is acceptable both in and out of work, keep it up to date and make sure employees are aware of the standards required of them. 

Posted by: Grahame Davies
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