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The Law

Laws relating to Bullying in the Workplace

These regulations were introduced to define indirect discrimination, harassment, less favourable treatment, unlawful harassment, gender discrimination and general principles of treatment of both men and women in the workplace today.

These laws (not exclusively) include:

  1. Assession (Immigration and Worker Registration) Regulations 2005
  2. Agricultural Wages Order 2005
  3. Compromise Agreements (Description of Person) Order 2005
  4. Employment Appeal Tribunal (Amendment) Rules 2005
  5. Employment Code of Practice (Access and Unfair Practices during Recognition and De recognition Ballots) Order 2005
  6. Employment6 Code of Practice (Industrial Action Ballots and Notice to Employers) Order 2005
  7. Employment Equality (Sex Discrimination) Regulations 2005
  8. Employment Relations Act 2004 (Commencement No.4) Order 2005
  9. Employment Tribunals (Constitution and Rules of Procedure) Amendment Regulations 2005
  10. Employment Tribunals (Constitution and Rules of Procedure) Amendment No.2 Regulations 2005
  11. ..(and 2005/1865 Unfair Dismissal/National Security involved)
  12. Limited Liability Partnership (Amendment) Regulations 2005
  13. National Minimum Wage Regulations 1999 (Amendment) Regulations 2005
  14. Patents Act 2004 - Order 2005
  15. Public Interest Disclosure - Order 2005
  16. Social Security (Incapacity) Misc Amendments Regulations 2005

In addition the direct Employment Act 2002 with Dispute Resolution Reforms 2004 and the Employment Act 2008 are important and are discussed below

Employment Equality (Sex Discrimination) Regulations 2005 SI 2005/2467

One of the most important aspects, which will impact on every day working lives, is the Employment Equality (Sex Discrimination) Regulations 2005.

Under this new piece of legislation, any form of harassment is unlawful.

Now, a woman can bring a claim IF, on the grounds of her sex, a male colleague engages in unwanted conduct that has the purpose or effect of violating her dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.

Also. if a female employee is subjected to unwanted, verbal, non-verbal or physical conduct, of a sexual nature, that violates her dignity at work - she can bring a claim against her employer.

If you are an Employer and you would like support, see our proposals for Remedy under 'Addressing' section and/or look at the Employer section. Alternatively, telephone our Help Line (01793 338888) or email us at : admin@hrdiversity.co.uk

 

The Employment Act 2002

Dispute Resolution Reforms 2004

Although now repealed by the Employment Act 2008, the Dispute Resolution Regulations became a `Statutory' obligation on 1st October 2004. They are the basis of the ACAS Code of Conduct but the mandatory aspects have been removed. Please see also the notes below on the Employment Act 2008.

These important changes in Employment Legislation affected us all.  Every Employer needed clearly written and communicated Grievance and Disciplinary procedures.  The concept was simple; procedures for handling internal grievances and disciplinaries in the workplace needed to be communicated to all staff.   Managers needed to be trained and Contracts of Employment will needed implementing and/or updating as a matter of priority to reflect the new laws.

The Grievance and Disciplinary procedure regulations, which fall under The Employment Act 2002, had finally become Law.  Basically, there were three steps to a Grievance or Disciplinary procedure. These applied where dismissal and gross-misconduct had occurred.    

HR & Diversity Management, specialises in Conflict Management issues and is currently working on an `Alternative to Dismissal' where an employee or senior manager is found responsible for bullying or harassment in the workplace.

HR & Diversity Management conducts confidential, independent investigations where employees lodge formal grievances and has written a series of `Step By Step Guides' for Employers and line managers.  The introduction of the Dispute Resolution regulations meant that every Employer needed to respond in accordance with the guidelines laid down whenever an employee complains formally.  Training is aimed at; HR professionals, senior managers and line managers in fact anyone who is responsible for managing people!  These seminars and training sessions are customised, developed and delivered in accordance with the client's needs.

 

The Employment Act 2008

The Employment Act 2008 received royal assent on 13th November 2008 and becomes operational as from 6th April 2009.

In summary, the Act deals with changes dealing with workplace dispute resolution, the national minimum wage, employment agencies and trade union membership law.

Workplace Dispute Resolution

The Act:

  • repeals the statutory dispute resolution procedures and related provisions

    As a result:

    • There will be no more automatic unfairness for an employer's failure to comply with the requirements of a relevant statutory procedure.
    • There will be a return to reliance on the pre-2004 Polkey v AE Dayton Services Ltd cases which mean that, if an employer fails to comply with a procedure, the dismissal will be found to be unfair, even if the failure would not have affected the outcome. Where a dismissal is found to be unfair in these circumstances however, any compensatory award will be reduced to reflect the likelihood that the dismissal would have gone ahead if the correct procedure had been followed. Currently, where an employer has complied with the statutory dismissal and disciplinary procedure but has failed to follow a requirement of an additional procedure, the dismissal may be fair if the tribunal considers that following that step would have made no difference to the outcome of the case.
  • Empowers employment tribunals to adjust awards of compensation by up to 25% for an unreasonable failure to comply with any provision of the recently published revised AVAS Code of Practice on Disciplinar and Grievance
  • Introduces a new fast-track procedure under which cases can be determined without a hearing provided both parties agree
  • Makes changes to the law relating to conciliation by ACAS, thereby allowing ACAS to prioritise cases where demand for conciliation exceeds resources available for consiliation
  • Provides for tribunals to award compensation for financial loss, for example bank charges incurred by the employee, followin gcertain types of monetary claim, such as unlawful deduction from wages or non-payment of redundancy pay.

For further information on the Employment Act 2008 please call HR & Diversity Management Ltd on 01793 338888 or email us on admin@hrdiversity.co.uk.

 

PROTECTION FROM HARASSMENT ACT 1997 ss.1 and 3

There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying at work. This does not mean they have no legal protection. It does mean, however, that to ensure legal protection or redress they must consider existing related employment law and the Acts detailed below.

OTHER LAWS

(i) The Sex Discrimination Act 1975;
(ii) the Race Relations Act 1976 (see RACIAL DISCRIMINATION );
(iii) Employment Rights Act 1996 (especially the parts dealing with unfair dismissal , constructive dismissal and victimisation );
(iv) the www.emplaw.co.uk/free/i40.htm Health & Safety at Work etc Act 1974 and related personal injury aspects (see e.g. Health & Safety at work/stress );
(v) Trade Union & Labour Relations (Consolidation) Act 1992 (see CRIMINAL LAW ASPECTS/offences under employment legislation/intimidation );
(vi) www.emplaw.co.uk/free/data/dup1147.htm Public Interest Disclosure Act 1998;
(vii) contract law (see e.g. www.emplaw.co.uk/free/i87.htm wrongful dismissal and www.emplaw.co.uk/free/data/047003.htm implied terms in employment contracts/duties of employer ).

GENERAL LAW

(i) Criminal Justice and Public Order Act 1994; and
(ii) Public Order Act 1986;
(iii) Protection from Harassment Act 1997 s.1 and Protection from Harassment Act 1997 s.3.
(iv) www.emplaw.co.uk/free/h42.htm Human Rights/Human Rights Act 1998.

There is an implied term in employment contracts that "the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers" (Arnold J. in Wigan Borough Council v Davies 1979 ICR 411, quoted with approval by the House of Lords in Waters v Commissioner of Metropolitan Police 2000 ICR 1064, HL

In the Waters case the House of Lords also quoted Spring v Guardian Assurance plc 1994 ICR 596 and Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200 as authority for the proposition that the Courts recognise a common law duty on an employer to take care of his employees, including a duty to prevent ill treatment or bullying, quite apart from statutory requirements.

As always, the position in any particular case will depend on the facts and the House of Lords was careful to point out that "it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it".

ACAS (see ACAS ) publish two advisory leaflets titled "Bullying and harassment at work", one being "Guidance for employees" and the other "A guide for managers and employers".

For FREE monthly newsletters advising you of Case Law and change in employment legislation OR for an ongoing legal update, call us on 01793 338888 or email admin@hrdiversity.co.uk

 

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