The Absurdity of our Present Employment Law: See some examples

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Here is an example, given by Baroness Gibson, of the absurdity of our present law.

“I can best illustrate the absurdity and ambivalence of the law by telling the House of the experiences of two members of my previous union. A young man and a young woman worked in a London teaching hospital. Both received appalling treatment at the hands of their male supervisor by whom they were constantly undermined and their lives made a misery. The young woman’s bullying and denigration also included unwanted sexual advances. At the same time, the supervisor embarked on a campaign to humiliate and reduce the standing of the young man by a series of mean and malevolent acts.

They both went to the same internal appeal. The young woman was held to have been sexually harassed and the young man to have been bullied. Both sustained substantial financial losses as well as suffering emotionally. The young woman was advised that she had a sex discrimination claim which she lodged and eventually settled out of court. The young man had no legal basis for a claim and received no effective remedy for his very similar experiences. He would have had to leave his job had he wished to claim constructive dismissal, as I explained earlier. I believe that that highlights graphically why a new law is needed. If the Bill had been in place, both could have presented bullying cases and both could have received their just rewards.”

I can provide another similar example which shows the absurdity of our present law. In this particular case the bullying involved “Blocking promotion or progress within the workplace.” ACAS

Governors from a Local Authority School requested support from a Local Authority Officer to help them with their Head Teacher process and interview which can take months to complete. At the same time a number of Local Authority Officers were being made redundant due to cut backs.  The Head Teacher vacancy was advertised and the school received a number of applicants which included the Acting Head Teacher, Local Authority Officers who were due to be made redundant (colleagues of the LA Officer who was ‘supporting’ the governors) and there were other well qualified applicants from other schools. When it came to the short listing the only people to be shortlisted were the Acting Head Teacher and the colleagues of the LA Officer who were due to be made redundant. During the interview process the school governors became aware that the LA Officer, who was supposed to be impartial (according to the Nolan Principles), was trying to put pressure on the school governors to appoint the LA Officer’s  favoured candidate. Hence, not only were the Nolan Principles not being adhered to but also this LA Officer was trying to block the promotion of certain candidates.

Luckily in this case, the governors became aware of what the LA Officer was trying to do and made a complaint to her line manager. No action was taken against the LA Officer. She continued to ‘support’ school governors at other schools.

A couple years later, an Acting Head Teacher of another school (School A) came into conflict with the same LA Officer because of a statement that the LA Officer made about the school to the Local Council. The statement contradicted a statement the LA Officer had previously made to the Acting Head Teacher.

The school governors of school A advertised the post for the substantive Head Teacher. The same LA Officer was used to ‘support’ the governors in the interview process which took 3 months. This was during the time that the LA Officer and the Acting Head Teacher were in conflict. The Acting Head Teacher was short listed with a few other candidates. The female  Acting Head Teacher was not appointed. The successful candidate was male and had been an Acting Head Teacher at a previous school (School B)  that had gone into special measures. The governors at that school (School B) did not interview him for the position of the substantive post. There is perhaps reason to understand why.

Members of staff and staff governors at school A, were concerned about the LA Officer’s lack of impartiality regarding the process for the Head Teacher interview. A grievance was raised and it was discovered that

  • a bizarre scoring process had been set up for the various interview tasks. For example, a 10 minute conversation with 3 children aged from 9 to 11 was given equal importance  as the half hour professional interviews with governors on leadership and school standards.
  •  The LA Officer did not follow or inform the governors accurately the guidelines set down by the LA regarding Head Teacher interviews.
  • The LA Officer did not inform the governors at the short listing stage that a candidate, which ended up being the successful candidate had previously been an Acting Head Teacher of a school that went into special measures. This, the LA Officer was legally bound to do.
  • The governors on the interviewing panel told the governing body that the successful candidate was appointed based solely on the scores. When the scores were looked at, the successful candidate did better on tasks such as the 10 minute conversation with 3 children, a 10 minute school assembly and a presentation entitled, ‘Washed up on a desert island and given 3 wishes.’ Staff accused the LA Officer of not acting impartially during these tasks and trying to manipulate the scoring.
  • The successful candidate however did not do well in the half hour interview on leadership and the school budget task, which most people would consider to be more important and should receive heavier weighting in terms of scores.
  • School A the previous year, had been given a ‘Good’ with outstanding features by an Ofsted inspection with Good capacity for further improvement . 15 months after the male candidate had been in post, the school went into special measures.

The Acting Head teacher of School A felt that she had been discriminated against because of the conflict over the allegation the LA officer made about the school to the local council in order to support the LA management’s plans for change.

As Time Field wrote

“You have foolishly dared to disagree with the bully or drawn attention to the absurdity or illogicality or the bully’s way of managing or have the temerity to point out the foolhardiness, impracticability, short sightedness and equableness of management’s plans for change and will now be subjected to (bullying) behaviours. The bully realizes that total control over the victim will never be possible and therefore the only way forward is to eliminate the offending individual.

The Acting Head Teacher believes this describes why she was discriminated against. Yet, defending the school was the Acting Head Teacher’s job.

If she had claimed discrimination on the grounds of gender, a protected characteristic, she would have had grounds to go to an Employment Tribunal. Because she believed   she was discriminated against on the grounds of the professional conflict regarding planned changes to the school, she had no grounds, yet suffered the same mistreatment and detriment as if it had been on grounds of gender discrimination. A complaint was made to the governors and to senior level in the Local Authority and again no action was taken.

In the first example I gave above, the Head Teacher was being discriminated against  not because of a protected characteristic but because the LA Officer wanted to enable her colleagues, to get a job. Luckily in that instance, the discrimination didn’t succeed because of the awareness of the governors. If it had, that particular Acting Head Teacher would have had no grounds to take to an Employment Tribunal because it was not based on a protected characteristic, even though she too would have suffered the same treatment and detriment as if she had been discriminated against based on one of the protected characteristics.

I would argue that the behaviour of the LA officer amounts to misconduct. This brings me to  Tim Field and his book ‘Bully in Sight,’

He would class this type of behaviour as ‘corporate bullying.’ “He states on page 182 that some contributory factors that could be loosely termed as corporate bullying include such things as when bullying is reported, there is an unwillingness to admit that those responsible for recruitment and promotion could possibly have made a mistake.” This appeared to the Acting Head Teacher of School A, the stance the governors took when she raised a grievance.

“If there have been previous complaints or investigations – there are uncomfortable questions of competence, negligence and liability”  This appeared to the Acting Head Teacher,  the stance the LA took, as according to her,  the LA denied knowing about any such previous complaint.

“dismissal of evidence, regardless of value or quantity” The Acting Head Teacher provided a great deal of evidence which was ignored and the governors and LA provided a great deal of contradictory evidence which was not questioned.

Tim Field also went on to say that corporate bullying is also characterized by “an unwillingness to admit that anything could be wrong; a cover-up culture; and an unwillingness to address bullying.”  The Acting Head teacher of school A felt that this described her experience when trying to get her grievance / complaint heard.

No action was taken in either of these examples against the LA Officer. A great deal of time and money was used to investigate which came out of the public purse as the Local Authority is a public body.  Yet there is no impartial body to take such a complaint to. As bullying and discrimination based on non protected characteristics  are not illegal, there are no grounds to take to an Employment  Tribunal. The Local Government Ombudsman also has no remit to look at such complaints.

I believe these examples support Baroness Gibson’s argument for the reason to legislate against bullying in the workplace and to widen the scope of discrimination and not just base discrimination on protected characteristics. I also believe that there should be an impartial body to investigate misconduct by public officers such as the Local Government Ombudsman.

As Tim Field wrote in Bully In Sight

“Over the decades, precedents have been set, including discrimination (based on protected characteristics) sexual harassment and child abuse. In each case, there was initial resistance and reluctance to act, but now respect for others, especially those who differ from society’s currently accepted ‘norm’, is incorporated into human knowledge and where appropriate enshrined in law.

It is time for bullying at work to join the list.

Support the campaign to introduce legislation to protect workers and our economy against workplace bullying.

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