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.
This entry was posted in Uncategorized and tagged Bully In Sight, constructive dismissal, Employment Tribunal, gender discrimination, Head Teacher interviews, internal appeal, Local Authority School, Nolan Principles, protected characteristics, sex discrimination, Tim Field, workplace bully.
Summary of Legislation and Policies enacted by counties other than the UK to protect Workers against Workplace Bullying
This blog summarises the approach taken by countries other than the UK to the issue of workplace bullying. This supplements the previous blogs which have looked at Germany, Spain, Sweden and France.
The following is taken from ‘International laws / When the abuser goes to work’ http://abusergoestowork.com/legislation.international-laws
NORWAY. In 2004, Norway’s Prime Minister launched a campaign against workplace bullying as part of the country’s Tripartite Agreement on an Inclusive Workplace.
THE NETHERLANDS: Since 1994, employers in The Netherlands have been legally obliged through the Working Conditions Act to protect their employees from psychological aggression in the workplace and their negative consequences, including mobbing/bullying.
LUXEMBOURG: Luxembourg signed its first collective agreement on moral harassment in 2001. More recently, in 2009, Luxembourg published a labour regulation that provides a general definition of the term ‘moral harassment’ that is not limited to harassment based on discrimination. The regulation provides that:
“Harassment occurs when a person belonging to a company commits wrongful, deliberate and repeated acts against a worker or manager of the company with the purpose or effect of: violating his or her rights or human dignity; altering his or her circumstances or working conditions or compromising his or her professional future by creating an intimidating, hostile, degrading, humiliating or offensive work environment; or affecting his or her physical or psychological health.”
TURKEY: An employer must protect all employees from psychological abuse in the workplace pursuant to an amendment to Article 417 of the Debts law passed by the Turkish parliament in January 2011. The law makes it an offense to commit certain acts or fail to take action to prevent the commitment of acts such as verbal insults, belittling, and intentional isolation.
AUSTRALIA: Effective July 1, 2013, workers who believe they have been bullied can complain to the federal Fair Work Commission (FWC) , the nation’s national workplace relations tribunal. The FWC will deal with the matter as a priority. The FWC can issue an order in response to the complaint and/or refer the matter to the relevant state safety regulator. Perpetrators face civil penalties and fines ( up to approximately $34,000 American dollars). Bullying” is defined as “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.” It does not include “reasonable management practices including performance management.”
BELGIUM: Belgium enacted legislation against moral harassment in 2002 which obliges companies to:
- set up an internal procedure to handle harassment complaints by employees;
- establish a plan for preventing the occurrence of violence and harassment at work;
- appoint a prevention adviser.
- Failure to develop a prevention policy or to assign a prevention advisor is punishable by criminal prosecution (imprisonment of up to one year) or administrative penalties and fines against the employer.
The following is taken from the Seminar on Workplace Bullying and Harassment, JILPT Report 2013 http://www.jil.go.jp/english/reports/documents/jilpt-reports/no.12.pdf
In the Work and Health Survey by the Finnish Institute of Occupational Health, the prevalence of workplace bullying has been assessed every third year since 1997. In the survey, bullying is defined “Psychological violence and bullying at work means negative, oppressing and insulting treatment that is continuous and repetitive.”
Finnish Occupational Safety and Health Act (738/2002) came into operation on 1.1. 2003, and includes a special section on harassment and other inappropriate behaviour at work. The section on harassment is reactive by nature. Harassment and other inappropriate treatment are also mentioned in the general obligations for employees.(inEnglish:http://www.finlex.fi/fi/laki/kaannokset/2002/en20020738.pdf)
The Act obliges the employer/manager/supervisor to take action when he/she receives information about inappropriate treatment and bullying. If the perpetrator is the supervisor it is his/her superior who is to take action to investigate and resolve the situation.
If the employer doesn‘t take action the employee is advised to contact occupational safety and health authorities/ inspectors. The Occupational Safety and Health Act has been in force for ten years, and most employers are nowadays aware of the “Harassment” section, and their duties on the bases of the Act. Also safety and health representatives, shop stewards, occupational health care personnel, and most employees are familiar with the section on harassment and inappropriate behaviour.
The section on harassment in the new Occupational Safety and Health Act (1.1.2003) has activated organizations to develop and implement policies and guidelines for workplace bullying.
Safety and health inspectors discuss inappropriate behaviour and harassment always when they are carrying out an inspection in a workplace. Inspectors ask if any cases have taken place in the organization, about the existence of policy and procedures for inappropriate behavior and bullying, and about training on harassment and inappropriate behaviour. If there is no policy in place in the organization, the inspector advises the organization to draw up one. In inspections, a survey called VALMERI is used which includes also a question on harassment and inappropriate behaviour.
In the Finnish Quality of Work Life Survey 2008, the measures taken to eliminate or prevent workplace bullying at the workplace the most commonly observed measures were:
1) good treatment or elimination of bullying had been taken into consideration in
supervisory activity (45% of respondents),
2) prevention of bullying had been taken into account in occupational health and safety (39%), and
3) a set of rules for good treatment had been drawn up (33%) (Lehto & Sutela 2009).
Next week the blog will look at how these countrys’ laws and policies differ to the UK and the reasons given why UK politicians haven’t agreed to pass the Dignity at Work Bill even though it was passed by the House of Lords.
Support the campaign to introduce legislation to protect workers against workplace bullying in the UK.
This entry was posted in Uncategorized and tagged Dignity at Work Bill, legislation to protect workers against workplace bullying, workplace bullying in Australia, workplace bullying in Belgium, workplace bullying in Finland, workplace bullying in Netherlands, workplace bullying in Norway workplace bullying in Luxembourg, workplace bullying in Turkey, workplace bullying in UK, workplace harassment.
“The anti-bullying movement began in Sweden. In the 1980’s, ex-patriat German Heinz Leymann (1932-1999), psychologist and doctor of medical science, studied worker trauma. He established a unique clinic at Violen for individuals traumatized by the workplace. His scientific articles linking mobbing (bullying) to Post Traumatic Stress Disorder were published from 1990 to 1999. He wrote books and became a staunch advocate to stop bullying at work. Excerpt taken from The Workplace Bullying Institute http://www.workplacebullying.org/the-movement/
The following is an excerpt taken from 2013 JILPT Seminar on Workplace Bullying and Harassment http://www.jil.go.jp/english/reports/documents/jilpt-reports/no.12.pdf
“Leymann (1990) defined mobbing as hostile and unethical communication which is directed in a systematic way by one or a number of persons, mainly towards one individual. These actions often take place (almost every day) over a long period (at least for six months) and because of this frequency and duration, result in considerable psychic, psychosomatic and social misery (1990). Such hostile and unethical activities repeated frequently over long periods of time can change the climate of the workplace and stigmatize the exposed individual. The bullying is legitimized when workplace management accepts and adopts prejudices concerning the stigmatized person. Bullying implies an imbalance in the power between the bullied victim and the bully.” (Thylefors 1999)
“The process of bullying can be described as developing through slander, deceit, insults, injustice, or special treatment. Its purpose is to alienate the bullied individual from the community at work, and finally from the workplace itself. Bullying appears to be to an attempt solve problems at the workplace, but these continue in other forms and involve other people after the bullied individual has been expelled.” Strandmark & Hallberg 2007b.
Hallberg & Strandmark (2006) explored the health consequences of workplace Bullying. Adult bullying is perceived by its victims as a severe psychological trauma or a traumatic life event. Sub categories included 1) feeling guilt, shame and diminishing self-esteem, 2) developing symptoms and reactions, 3) getting limited space for action, 4) working through the course of events, and 5) trying to obtain redress. Bullying included the spreading of rumours and repeated insults aimed at changing the image of the bullied person negatively, resulting in feelings of guilt, shame and diminishing self-esteem in the exposed person. Physical and psychosomatic symptoms gradually emerged ( developing symptoms and reactions ) and medical treatment often follow. The longer the bullying continued, the more limited became the possibility to change the situation ( getting limited space for action ), such as changing the workplace. Returning to a normal life might be possible, but presupposed the process of working through the course of events related to the bullying. This process was often painful, as events from bullying are re-lived over and over again, both in dreams and when awake. The bullied person was also trying to obtain redress through such means as monetary compensation, professional confirmation, or by gaining a new meaning in life.
Despite this, bullying left an internal scar or vulnerability they never entirely heal; the bullied person remains marked for life. The following excerpt from the interviews illustrates the core category:
No, I will never forget the bullying, never ever. There is still a large scar left inside me. I always have to carry this scar with me . . . . and I have never managed to understand the bullies, either. That was an episode that now has passed away and now I have to continue living my life. But I think it would have been much easier to live my life without this scar inside. . . . that is what I think . . . . definitely. When I, for example, read in the paper about someone being bullied somewhere, the old scar reopens and it hurts. In some way I must try to repress it all the time . . . . if it is possible.
The Swedish Work Environment Act (SFS: 2008) states the grounds for a good work environment. The purpose of this act is to prevent ill-health and accidents at work and generally promote a positive atmosphere environment. The law says that work circumstances shall be adjusted to human beings different prerequisites taking into account physical and psychological considerations. It should strive to enable variation, social contact, and collaboration, and connection between individual work tasks. Another basic law that opposes bullying is the Criminal Code (SFS 1962:700), including avoidance of powerlessness, abuse of one’ s exposed disposition, and insulting behaviour. Sweden published its first legal regulation (AFS 1993:17) targeting workplace bullying in the early 1990s. It is entitled Victimization at Work.
- outlawed “recurrent reprehensible or distinctly negative actions which are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community”;
- created a duty for employers to swiftly investigate, mediate and counter any instances of bullying as well as implement preventative organizational measures against workplace bullying; and
- took a “non-punitive” approach to bullying by aiming to resolve the problem through dialogue and consensus rather than through sanctioning employers.
However, Hoel and Einarsen (2010) have evaluated the effect of the ordinance Victimization at Work by semi-structured interviews with 18 stakeholders from employer and trade unions, enforcement authorities, academia, and victims support organizations. They conclude that the legislation has been far from successful. Their findings show that the ordinance has shortcomings related to the vagueness of its regulations, difficulties in engaging employers control and in managing attitudes and human relationships, problems with the Labour Inspectorate, and lack of progress in getting responses from the trade unions. They argued that the prevailing Swedish culture appears to sanction tacit bullying and the right to exclude somebody from the workplace.
Hoel and Einarsen went on to argue that the legislation must be supported by a competent enforcement agency.
In 2012 GullBritt Rahm et al. also found that there was still a prevalence of workplace bullying in Sweden. Their research shows the following;
- Prevalence from 3.5% to 11%
- 18.5% were bullied based on the critera of one negative act per week during the last six months (Leymann 1996)
- 6.8% were bullied by two negative acts per week during the last six month (Mikkelsen & Einarsen 2001)
- 4% experienced self-labelled bullying
- 22% had witnessed bullying
- 38% had been bullied earlier in life
- 8.5% had been occupational bullied
- 2.3% had been exposed to severe bullying
In summary then, it seems to me that Sweden takes bullying in the workplace seriously and has done so over a long period of time. Swedish research shows the life time harm bullying does to its victims and legislation has been enacted, the first country to have done so. Sadly though, research shows that legislation has not been strong enough as there is no competent enforcement agency to take action against perpetrators of bullying.
Country after country have reported the negative impact workplace bullying has upon the efficiency of the workplace organization and the long term health problems the victims suffer. Both of these problems then causes a huge financial drain upon each of the economies. Many countries have acknowledged that legislation is necessary to help combat this workplace problem but as we have seen with Sweden’s experience, a strong competent enforcement agency is also necessary.
In the UK, we have still got to persuade our policy makers to acknowledge that there is a problem with regard to bullying in the workplace and effective legislation is required to combat it. Next week let’s look at the reasons our policy makers have given for not implementing legislation contrary to our European counterparts.
Support the campaign to introduce legislation to protect workers against workplace bullying in the UK.
This entry was posted in Uncategorized and tagged Adult bullying, anti bullying movement, legislation, Leymann, psychological trauma, Seminar on Workplace bullying and harassment, Strandmark and Hallberg, Sweden, The Swedish Work Environment Act, Victimisation at Work, workplace bullying.
In Germany the Ministry Of Labour and Social Affairs on its website page, “Bullying at Work” states,
“Employers are obliged to protect their employees’ right of privacy and health. They must therefore prevent mobbing, act against employees who mob others and take all possible measures to prevent mobbing in their companies.”
The German Constitution provides protection of personality, honour health and equal rights of individuals. This is deemed to include the outlawing of bullying. The German Civil Code (GCC) provides a legal foundation for contractual liability and tort claims which can be extended to claims for bullying and stress at work.
In addition many businesses treat bullying as a violation of their collective work agreements and/or have implemented internal regulations to address work-related stress and harassment.
Within this general framework, there are three categories of bullying:
1. harassment that is not based on Protected Characteristics (called bullying or mobbing);
2. harassment that is based on Protected Characteristics; and
3. bullying as a criminal offence.
Isn’t it about time that the UK also treated bullying as a criminal offence regardless of any protected characteristics?
Next week the blog will look in detail at the legislation in Sweden to protect their workers. Sweden was the first country in the world to enact specific anti bullying legislation. Following that, the blog will summarise legislation in other countries around the world and look at the reasons why UK politicians have not accepted the Dignity at Work Bill to provide the workers in the UK the same protection.
Support the campaign to introduce legislation to protect workers against workplace bullying in the UK.
This entry was posted in Uncategorized and tagged Bullying, bullying as a violation, constitution, contractual liability, Dignity at Work Bill, employment protection, Germany, Humiliation, intimidation, mobbing, outlawing of bullying, protection of personality, Stress, Stress at work, Sweden, workplace bullying in the UK.