HARASSMENT AND BULLYING AT WORK POLICY AND PROCEDURE

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1 ESSEX RIVERS HEALTHCARE NHS TRUST AGENDA ITEM: 9(b) Trust Board 12 June 2006 HARASSMENT AND BULLYING AT WORK POLICY AND PROCEDURE The Board is asked to approve and note the revised Harassment and Bullying at Work Policy and Procedure. Associate Director of HR 1 25 May 2006 c:\board\bullyingpolicyjun06 Page 1 of 19

2 HARASSMENT AND BULLYING AT WORK POLICY & PROCEDURE 1. Background to the Policy Employees of Essex Rivers NHS have a right to be treated with dignity and respect, as set out in the Trust s Staff Charter. As an employer the Essex Rivers NHS has both a legal and moral duty to protect their employees against harassment and bullying. Any such behaviour will be dealt with under the Disciplinary Procedure as a disciplinary offence that could lead to dismissal. Essex Rivers NHS whilst wishing to ensure that any such occurrences of harassment or bullying will be treated with due gravity, it is not intended that having such a Harassment and Bullying at Work Policy should restrict personal expression within accepted norms, or stifle social interaction in the workplace. All employees are asked to treat this issue seriously, to read this document carefully and consider whether their actions and behaviour are always appropriate in the workplace. Managers responsibilities are clearly defined in this policy in terms of how they respond when they become aware of potential harassment and bullying issues. Managers in particular must ensure that their actions and inactions could not be misconstrued to be bullying or harassment when dealing with an employee for example, capability or poor performance Harassment and bullying in the workplace can lead to illness for the employee being harassed, causing anxiety and tension, preventing an effective working environment. They can lead to stress at work or illness, increased absenteeism, resignation and denial of opportunities limiting future prospects. All employees should be given the opportunity to perform to their best abilities and therefore harassment or bullying at work will not be tolerated. Throughout this policy the term harassment is taken to mean an all encompassing term, which includes harassment and bullying. 2. What is Harassment? People may face harassment both in the workplace and outside because of some aspect about themselves such as their gender, race, skin colour, ethnic origin, disability, sexual orientation, religion or age. People who are particularly vulnerable are those with less influence within the organisation or in society as a whole. Harassment (and bullying) may take place between two individuals or several people (e.g. one person may harass a number of others or a group of people may harass one individual). Where the procedures refer to one perpetrator and one complainant, it should be interpreted to cover all other combinations. Harassment can be defined as any action based on gender, race, skin colour, ethnic origin, disability, sexual orientation, religion or age, by a person (or group of people) that is unwanted and unreciprocated, is found objectionable and causes humiliation, offence and distress. In addition to deliberate harassment, someone s behaviour may unintentionally give offence to another. However, the Page 2 of 19

3 law does not take into account the motive or intention of the harasser. The law takes into account only the impact the behaviour has on the recipient; ignorance of the law is no defence. Harassment may be an isolated incident or a series of events and can include gestures, verbal (spoken or written) or physical acts or other conduct making the recipient feel uncomfortable or upset and/or humiliated. 3. Types of Harassment 3.1 What Is Racial Harassment? Racial harassment covers race, colour, nationality or ethnic or national origins and can be seen as a deliberate or calculated act directed by members of one distinct racial group against those of a different racial group. Harassment in this context may be defined as any action by a person (or a group of people) that is unwanted, found objectionable, and causes humiliation, offence and distress. Harassment may be an isolated incident or a series of events. The following examples identify some types of behaviour that could constitute racial harassment. The list is illustrative only, and should not be regarded as exhaustive: Physical: Verbal: Physical threats or assault; Derogatory comments; racist jokes; persistent name-calling or abusive language; Non-verbal: Wearing of offensive badges or insignia; offensive publications; racist posters or graffiti; insulting gestures or behaviour; Intimidation: Deliberate exclusion of a person(s) from conversations or particular types of work; rejection or isolation of an employee by refusing to talk or work with them; unfair pressure regarding the speed and; quality of work or unfair work allocations; unjustified supervision; the frequent invitation of comments on racial issues from a member of a minority racial group. Similarly, harassment on religious grounds may arise in the form of verbal or other abuse in relation to the prayer, dress, dietary or other observances of the religion concerned. Where there are few people from visible ethnic groups in the workplace, the harassment may be perceived as worse, because of the recipients feeling of isolation. Some apparently trivial incidents, repeated over time, can create an unpleasant, intimidating or frightening atmosphere. Someone experiencing such incidents is often far more deeply affected by them than the perpetrator thinks. What is important is the perception and feelings of the recipient. Page 3 of 19

4 3.2 What is Sexual Harassment? The European Commission defines sexual harassment as unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work. It is the creation of an offensive working environment where individuals feel uneasy because of their gender. Sexual harassment is direct, and personal, and causes humiliation, offence and distress to the recipient. Sexual harassment in the workplace can lead to illness for the employee being harassed, causing anxiety and tension; it may also prevent an effective working environment. Perceptions of what constitutes sexual harassment may vary from person to person, and sometimes what is perceived as friendliness by one person may well be interpreted as unwelcome attention by another, but the following examples identify some types of unwelcome or unwanted behaviour of a sexual nature. The list is illustrative only, and should not be regarded as exhaustive: a) Physical: Touching, patting, pinching or brushing against another employee s body, assault. b) Verbal/Written: Sexual advances, demands for sexual favours, lewd comments, sexual innuendo or other suggestive comments, offensive e- mails, notes or messages, flirtation. c) Non-verbal: The display of pornographic or sexually-suggestive pictures, objects or written materials, leering, whistling or making sexually-suggestive gestures. d) Intimidation: Conduct that ridicules or offends or is physically abusive, based on the gender, dress or appearance. e) Sexual extortion: Suggestions that sexual favours may further someone s career, or that refusal may damage it. 3.3 Sexuality Harassment Lesbian, gay, bi-sexual and transgender people are disproportionately at risk of such harassment, which can include written, verbal, physical assault, comments and jokes that imply alternative lifestyles are inferior and should not be talked about, exclusion from social groups, or denial of job opportunities or certain types of work. In this context harassment may take place between two individuals, or a group of people may harass one individual. 3.4 Disability Harassment Harassment directed at employees with disabilities, specific health conditions or persistent ill-health may include offensive or patronising remarks, ridicule, exclusion from certain types of work, ignoring or devaluing ability, physical assault, lack of job opportunities and excluding the employee from conversations or full participation at work. Page 4 of 19

5 3.5 Age Harassment Unjustified assumptions made about a person s value and abilities because of their age are examples of age harassment. It also includes ageist jokes and comments, physical threats or abuse or stereotyping about commitment to the job leading to the denial of development opportunities. There is sometimes a belief that older employees have outdated ideas and are inflexible with regard to change. Younger people are sometimes treated as though their views are unimportant because it is thought they lack experience, maturity or commitment. 4. Bullying 4.1 What is Bullying? Bullying can be defined as offensive or vindictive or manipulative behaviour that humiliates and undermines individuals or groups of people. Bullying at work is not an isolated expression of anger, but regular and persistent intimidation by one or more persons against an individual, which undermines the confidence, self-esteem and integrity of the target. Bullying is often, but not exclusively, the misuse of position or power, the persistent exertion of pressure on subordinate staff by those in authority, to coerce by fear and persecution or to oppress them by force or threat. Bullying is a sustained form of psychological abuse but it can manifest itself as attacks on individuals that are sudden, irrational, unpredictable and unfair. However, occasionally the reverse happens and it could be carried out by a subordinate on a manager. Occasionally, bullying may arise in a peer-group context, where an individual is targeted by colleagues. Bullying must be distinguished from the right of, and obligation placed on managers, to exercise proper supervision of staff in the course of their duties. Whilst recognising individual personality traits and attributes of the staff they supervise, managers will exercise this supervision in a fair, constructive, consistent and reasonable manner which does not compromise the employee s dignity. 4.2 Examples of Bullying The following list is not exhaustive but gives examples of the type of inappropriate behaviour which may be used: a) Repeatedly shouting at an individual b) Persistent and sometimes violent criticism c) Personal insults or name-calling d) Conduct which denigrates, ridicules, or humiliates an individual in front of their colleagues e) Picking on one person where there is a common problem f) Overruling, ignoring, or marginalising an individual g) Increasing responsibility whilst decreasing authority h) Removing responsibility and imposing menial tasks i) Withholding work related information Page 5 of 19

6 j) The frequent setting of unrealistic deadlines k) Constantly undervaluing effort l) Constantly changing targets or work guidelines m) Consistently undermining an individual s professional ability until their confidence crumbles n) Blocking applications for leave, training or promotion o) Isolation at work, ignoring p) Non co-operation or communication q) Offensive language, gossip, spreading malicious rumours, slander, personal insults, name-calling r) Comments, looks, whispering 4.3 The Effects of Bullying Behaviour The effects of bullying can be significant and broad ranging, signs of which may be physical or psychological. The following list is illustrative only, and should not be regarded as exhaustive: Physical: Psychological: nausea, sweating/shaking, palpitations/trembling, panic attacks, sleeplessness, stomach/bowel problems, backache, headaches, skin complaints; acute anxiety, loss of confidence, feeling isolated, loss of self-esteem and motivation, depression, tearfulness. As with other forms of harassment, bullying is essentially experiential and depends upon how the person subjected to the inappropriate behaviour feels, rather than the intentions of the perpetrator. Page 6 of 19

7 5. Courses of Action (Refer to flowcharts) An employee who feels that they are being harassed or bullied has more than one course of action available to them. Employees have a right to: a) Access to a Contact Officer (see 6.2) for advice on the options available b) Access to an informal process to resolve issues c) Make a formal complaint about harassment or bullying at work d) Expect that every complaint will be fully investigated and dealt with appropriately. The Essex Rivers NHS is striving to provide a good working environment for all staff in its employment and, indeed, the people it serves. This includes ensuring that everyone is treated equally and with respect. Incidents of discrimination, bullying and/or harassment need to be brought to the attention of the Trust to ensure that unacceptable behaviour is eliminated, and that a good environment can be maintained for the benefit of everyone. If such incidents are not reported they cannot be dealt with, and the alleged perpetrator may continue to subject others to similar treatment. Some people are unaware that their behaviour in some circumstances is harassing or bullying. If it is clearly pointed out to them that their behaviour is unacceptable, the problem can sometimes be resolved. With this in mind, this policy includes informal as well as formal action to deal with complaints of harassment or bullying. The informal process will be appropriate for many cases of harassment or bullying, although that may not always be the case and therefore the formal process might be better. Formal cases are rare within Essex Rivers NHS, and it is hoped that the majority could be resolved satisfactorily at an informal and early stage. 5.1 Responsibilities of Employees Each employee has a responsibility for his/her own behaviour. Employees must ensure that their behaviour does not constitute harassment or bullying, and they should co-operate in complying with the procedure. In particular employees are expected to consider the impact of their behaviour on others. Employees should offer support to a known target of harassment or bullying and not support the behaviour directly or indirectly by ignoring it. Employees have a responsibility to challenge and/or report harassment and bullying, where they see it, to the appropriate manager or use Form B. Employees have a responsibility to read and understand this policy. Page 7 of 19

8 5.2 Responsibilities of Managers Managers are responsible for communicating this policy and procedure to all employees and new recruits. All managers (e.g. Section Leaders, Service Managers, Heads of Service and supervisors) have additional responsibilities in this procedure. They have a responsibility to role model acceptable behaviour, are responsible for addressing workplace harassment or bullying and for taking appropriate decisions and actions as befits the nature of the situation. Managers have a responsibility to respond swiftly to information received or official complaints and work actively towards eliminating harassment and bullying behaviour. Managers should be sensitive to personal feelings and perceptions. Managers also have a role in ensuring that formal investigations are completed within the specified timescales and in strict confidence. 5.3 Harassment by Contractors, Agency Staff, Service Users or other groups Employees have a duty to report incidents of harassment by people who are not Essex Rivers NHS employees. This should be done by advising their line manager of what happened and by completing an Incident Report Form C (See attached forms). The Essex Rivers NHS has a duty to provide a safe working environment for its employees and will take what action it can to protect employees from harassment or bullying by third parties. Management undertakes to investigate reported incidents and take appropriate action, which could include e.g. a formal letter from the Essex Rivers NHS Solicitor setting out reasonable behaviour, loss of the contract, termination of agency agreement, withdrawal of service. 5.4 Management Action Options Essex Rivers NHS has a range of options it may use to resolve harassment and bullying issues. These may be initiated on the advice of the HR Department, dependent on the situation. a) Counselling for the complainant and any other individuals involved in the incident b) Discussing behaviour and requirements in a team meeting (without breaching confidentiality) c) Counselling interviews with the alleged perpetrator to inform them of the effect of their behaviour and setting out expectations for the future. It may be appropriate to set targets with appropriate mechanisms to monitor progress and identify training needs. d) Skills training e) Interpersonal skills training (communication skills, assertiveness) f) Mediation use of a qualified individuals explore their differences, settle them and find new constructive ways of working together. Page 8 of 19

9 g) Arbitration this is the determination or settlement of the issue by an Independent third party which is in the best interest of the parties. h) Mentoring for the complainant or the alleged perpetrator The above list is not exhaustive, and other supportive interventions may be agreed upon, dependent on the specific case. A person involved in a case may be offered such opportunities and will be expected to co-operate fully in such measures. It should also be noted that disciplinary action and sanction may be taken against perpetrators of harassment and bullying. Disciplinary action (verbal warning, written warning, final written warning or dismissal) may be taken only after a formal investigation has been conducted. Please see the disciplinary procedure for further information. 6. Actively implementing the Policy In order that this policy is actively implemented and is effective in eliminating harassment and bullying, the policy will be publicised in the following ways: a) Every employee will be issued with a copy of this Policy; b) A briefing on the content of this document will form part of the Induction process; c) Awareness raising workshop sessions will be organised, that are open to any and all staff to attend. These sessions will be actively promoted to ensure that a majority, if not all staff attend over a period of time; d) Training will be provided in awareness, skills and knowledge in support of this policy. Such training will form a standard part of the management development programme; e) Staff notice boards will be used for a poster campaign to ensure that all staff are aware of how to contact the Contact Officers. 6.1 Support The Essex Rivers NHS recognises that an employee who has been the target of harassment or bullying may require counselling to enable her/him to deal with what has happened to them. Equally, employees accused of harassment or bullying may also require someone to talk to in confidence, or counselling to assist in coping with being accused. Individuals or their Managers should ask the Human Resources Department who will refer them to an appropriate source (which may be Occupational Health and/or an external counsellor). Support Services may include: a) Contact Officers, who may be consulted by an employee at any stage; b) Occupational Health Services; c) Trade Union Representatives; d) Counselling via external agency by independent, trained counsellors accessed by Occupational Health Services by employee self referral or via the Human Resources Department. Page 9 of 19

10 If external counselling is necessary Occupational Health Services will make the necessary arrangements. Any counselling provided will be strictly confidential between the counsellor and employee; no details or records will be disclosed without the express written permission of the employee. In the event that an employee pursues counselling support independently of the Essex Rivers NHS service, paid time off work will be facilitated, where possible, to ensure the employee can attend counselling appointments. 6.2 Contact Officers Contact Officers will be selected from staff volunteers and by manager and staffside nominations. The skills required of a Contact Officer are as follows: a) Someone well trusted and respected in the organisation; b) Someone who is easy to talk to and actively listens; c) Someone who is able to keep confidentiality and is known for this ability; d) Someone who is objective and empathetic; e) Someone who understands and knows the organisation well; f) Someone who is accessible and approachable; g) Someone who is sensitive to cultural, gender and minority group needs; h) Someone who is assertive and able to challenge discrimination; i) Someone who has the ability to recognise and manage stress in themselves and others. All Contact Officers will receive training and awareness raising specific to the role. In order to ensure that best practice is maintained, network meetings of Contact Officers will be facilitated, in liaison with the Human Resources department. The role of the network will be to assist and support Contact Officers in their role, provide update training contact with other Contact Officers. The purpose of the Contact Officers role is to provide: a) Information in context; b) Support within the guidelines; c) Advice and information on options; d) Guidance on the process and procedure; e) A facility for people who believe they are the subject of harassment/bullying or an alleged perpetrator of such behaviour to talk confidentially to an independent and impartial person who can act as a 'sounding board'. Details of how to contact Contact Officers will be publicised via posters on staff notice boards, and via the Essex Rivers NHS intranet. A complete list will also be maintained by the Human Resources Department. 6.3 Investigators All formal complaints will be thoroughly investigated. To ensure this takes place consistently across the organisation, a number of people will be selected by management and staffside and trained as investigators. When a complaint is received, the Human Resources Department will allocate investigators. An investigation team will usually consist of two investigators. It is important that the Investigating Officers have the necessary skills and are competent to make Page 10 of 19

11 an informed, thorough and objective investigation, and that the time required for a full investigation is accorded during this process this means they will be released from their duties to dedicate their time to the investigation. The skills required of an investigator are as follows: a) Able to recognise what harassment and bullying is and what it is not; b) Knowledgeable about the legal aspects of harassment and the conflicting rights and responsibilities of all those involved; c) Experienced in handling general employee complaints and grievances; d) Familiar with the organisations structure, policies, practices and management procedures; e) Outside the involved parties immediate chain of command - ideally in a non-operational or service role; f) Credible to employees. The designated individuals should have a corporate reputation for independence, honesty, professionalism, sensitivity and directness; g) A trained facilitator, or someone who others find it easy to confide in; h) A neutral party, who is neither a friend or a colleague of either party; i) Able to recognise when their involvement might lead to issues of neutrality, impartiality and objectivity; j) Trained and experienced in dealing with the emotional aspects of an investigation. The purpose of specifically trained investigators is to ensure that a consistent process is followed by each investigation team. The role of the investigation team will be to: a) To interview and use questioning and active listening skills to obtain information from all parties involved in a complaint; b) To consider the information obtained objectively and to reach a conclusion about the complaint; c) To write a report showing evidence gathered, and explaining conclusions reached, and including any information on contributory factors; d) To make recommendations for resolution of the complaint (which may include recommendations on pursuing disciplinary action). In acknowledgement of the requirements of the role of the Investigation team, all Heads of Service are required to nominate at least two officers, who fulfil the skills criteria above, to receive special training, and who will form part of a list of officers who may be called on to undertake an Investigation. The list is to be held and maintained by the Human Resources Department. In exceptional circumstances, it may be more appropriate for an external investigation team to be commissioned. This would normally be for the following reasons: a) If the allegations are against a Head of Service or member of the Senior Management Team; b) If the nature of the case is potentially a criminal act of harassment; c) If at any stage of a case the matter becomes larger or more complex than foreseen; d) In the case of internal resource shortages. Page 11 of 19

12 7. Procedure for dealing with Complaints of Harassment or Bullying at Work There may be occasions or circumstances arising where minor variations or amendments are required in the operation of this procedure to accommodate particular circumstances will be subject to agreement with Trust and staffside. Where the Procedure refers to one perpetrator and one complainant, it should be interpreted to cover all other combinations. 7.1 Record of Incidents It is important that employees who feel that they are being harassed or bullied keep a diary and written record of all incidents of harassment/bullying. This should include dates, time, details of what happened and how they felt, and the names of witnesses, if any. A hard copy should be kept of any offensive s or other communications. This is helpful to the investigators in looking into the complaint. 7.2 Malicious Complaints Malicious complaints are exceptionally rare. However, if it is felt that this policy is being abused with a malicious complaint, this will be treated as a disciplinary offence and pursued via the disciplinary procedure. 7.3 Confidentiality In order to protect all parties involved in any investigation and/or disciplinary process, it is essential that everyone concerned adheres strictly to the rules of total confidentiality and are required to sign a letter of confidentiality (this is shown as Form D). Any breaches of confidentiality will normally be treated as misconduct under the disciplinary procedure. Page 12 of 19

13 INFORMAL PROCESS Individual perceives problem Seek advice Trade Union Representative Contact Officer Occupational Health Read Policy & Procedure Can take up employers option of counselling Decide options within informal process Contact Officer or Individual completes Form A/C & send to Human Resources Speak to alleged perpetrator (can be accompanied) Write to alleged perpetrator Decide to take formal action Keep a record of conversation or letter Matter resolves Matter raised with appropriate Line Manager & lodge formal complaint Page 13 of 19

14 FORMAL PROCESS Complaint received or Issue of Concern comes to light Appropriate Line Manager meets with complainant to establish facts. Completion of Form B/C & send to Human Resources Formal written complaint lodged Arranged for complainant & alleged perpetrator if required Counselling commences HR advised & allocate investigation team Confidential Investigation proceeds and concludes (should take no more than 42 days) Written report produced, decisions taken. Form D issued to ensure confidentiality Decisions taken on Disciplinary action YES NO Progress complaint through Disciplinary Procedure (refer to Disciplinary Policy) No action taken Complainant appeals via Grievance procedure NO Disciplinary Hearing & opportunity to respond Is Disciplinary action taken? YES Appeal Hearing Appropriate Line Manager facilitates repair of relationship YES NO Is grievance upheld? Sanction issued No sanction issued YES NO Appeal process Appropriate Line Manager facilitates repair of relationship Review decision Page 14 of 19

15 7.4 Informal Action by Employees In many cases of harassment or bullying at work, it may be sufficient to ensure that the unwanted attention or action stops. An employee who feels that they are the target of bullying or harassment may prefer to use an informal approach because, for example, the prospect of using the formal mechanism is out of proportion to their problem, or they may wish to resolve the matter personally, etc. Contact Officers will be able to advise on how this might be undertaken. To take informal action they should raise the matter informally with the person who is creating the problem, stating which aspect of their behaviour is offensive and unacceptable, the effect it is having on them, and making it clear that they want it to cease. This can be done either verbally or by means of a letter, a copy of which should be retained. The employee may seek the support of a friend, colleague, trade union representative or Contact Officer to accompany them at this discussion. The aim of this meeting, or action, is to ascertain whether the alleged harasser agrees that the behaviour occurred, irrespective of intention, and to obtain an agreement to cease the behaviour. The confidentiality of all parties must be maintained at all times. If agreement cannot be reached, the person subject to the alleged harassment or bullying may feel it necessary to move to the formal procedure. A record of the complaint and informal action taken should be made on the Confidential Monitoring Form attached, by the target of the harassment or bullying, or the Contact Officer and delivered to the Human Resources Department for monitoring purposes. 7.5 Informal Action by Managers As good management practice, the Essex Rivers NHS would always seek to resolve employment issues, where possible, on an informal basis. As part of this philosophy the day-to-day supervision of employees is regarded as being outside the scope of formal procedures. An occasion may arise where a manager notices unacceptable behaviour, and considers (s)he should instigate informal action; an informal supervisory discussion may be sufficient to prevent a harassment situation arising or recurring; in such situations, the matter may be resolved without recourse to the formal procedures. By the very nature of these situations employees will normally be unaccompanied. The manager should record the details of the unacceptable behaviour on the Confidential Monitoring Form attached (Form A), and deliver it to the Human Resources Department for monitoring purposes. 7.6 Formal Action The formal procedure will apply where: a) The informal procedure has proved ineffective and the complainant wishes to make a formal complaint; b) An employee prefers the formal procedure from the outset; c) An allegation has been made by a third party who witnessed an incident; d) Management is initiating formal action. Page 15 of 19

16 e) Where the allegations are so serious that gross misconduct is indicated. For formal investigation to be initiated it is necessary for one of the above bullet points to apply. Anonymous complaints will not be investigated. Throughout this procedure, both parties have the right to be represented or accompanied by a full-time officer employed by a trade union, a lay trade union officer or workplace representative; a friend or colleague. An employee may not be accompanied by someone acting in a paid and/or professional capacity, other than the explicit trade union role. An employee who believes that he or she has been the subject of harassment or bullying should formally report the alleged act(s) to their Section Leader, Service Manager or Head of Service, or, if one of these individuals is the alleged perpetrator, an Executive Director. Or, in cases where the above manager is the alleged perpetrator, the Line Manager of this person. Whichever manager receives the formal complaint, they will notify the Human Resources Department immediately. The Human Resources Department will allocate an investigation team. The investigators allocated to the complaint, will be from outside of the department where the complainant and alleged perpetrator regularly work. Consideration will be given to the nature of the case; it may be appropriate for a case to be investigated by someone of the same sex, race or ethnicity etc. as the complainant. An investigation is conducted in order to establish the truth of the situation, uncover evidence and determine whether there is a case to answer. Strict confidentiality must be maintained by, and for, everyone involved in the investigation and all parties will be treated with respect and fairness at all times. The investigation process to be followed is attached at appendix two. In cases where the allegations are so serious that gross misconduct is indicated, the Disciplinary Procedure rules on suspension will apply immediately. Similarly, in certain cases (e.g. where evidence may be destroyed before a full investigation can take place), it may be necessary to suspend an alleged perpetrator. The Procedure for Suspension of an Employee should be followed. The alleged perpetrator may be suspended, or moved to a different location or office. Under no circumstances will the complainant be removed unless they specifically request this. The investigation consists of the Investigating team interviewing and taking statements from the complainant and the person against whom the complaint has been made. Any witnesses will also be interviewed. It may be necessary to interview an individual more than once, in order to ensure that a complete understanding of the circumstances has been achieved. The questions asked during these interviews should be designed to ascertain all relevant facts, and should be consistent and fair to all parties. After interviewing each individual the Investigating team will draw up a statement, which the individual concerned will be asked to sign as a fair and true record for the interview. If relevant, this statement may form part of the Page 16 of 19

17 Management Case presented at a subsequent disciplinary hearing. However in some rare cases, where complainants or witnesses may be sufficiently fearful of giving evidence or of being known to be interviewed as part of the investigation, the interview notes may remain confidential to the investigation team and not be disclosed, in order to protect the individuals from potential victimisation. In addition to interviews, information and evidence will be sought by examination of site visits, statistical records e.g., sickness, turnover etc., and include wider investigation into staff morale, behavioural changes and management style. In addition to formal questions, as part of the investigation it may be appropriate to ask an individual to complete a written statement in his/her own words presenting the situation from their perspective. Investigative interviews will be conducted promptly, and investigations should normally be completed within 42 days of the receipt of the formal complaint. If this is not possible, the reason should be recorded and both parties informed, in order to be transparent about the process. Formal records should be kept at all stages of the proceedings by the investigators. As soon as the investigation team have been allocated, the person against whom the complaint has been made will be informed by their line manager and the Human Resources Department that a complaint has been made about them. The person complained of will be given sufficient details of the complaint in order that they can respond to the allegations. They will be informed of the process to be followed and given the name of the Investigating Officers, of the procedure to be followed and of their right to be accompanied at any stage; however the names of potential witnesses and the nature of evidence gathered from them should not be revealed at this stage. After the investigation has been completed the Investigating team will submit a formal written report of the findings and recommendations to the appropriate Head of Service and the Human Resources Department who will decide upon the appropriate course of action to be taken, including any action under the Disciplinary Procedure. The written report will be disclosed to the complainant and the alleged perpetrator for information. The Head of Service will liaise with the Human Resources Department and the Head of Service of the alleged perpetrator over this decision. Any action will be initiated within 14 working days. In the event of disagreement on a course of action, the advice of the Human Resources Department will be followed. Where the complaint cannot be upheld, both the complainant and the alleged perpetrator will be informed of this; a decision will then be taken as to whether the allegation was malicious. Where this was not the case no further action will be taken, though discussions and monitoring should be undertaken to ensure that both parties are working productively and the working relationship has been repaired. An employee complaining of harassment does not have the right of appeal against the outcome of a disciplinary decision, but if s/he feels that the complaint was not taken seriously or investigated properly, a grievance may be lodged within 28 working days of receipt of notification of the outcome. Page 17 of 19

18 If the investigation reveals that the complaint is upheld, prompt action will be taken to stop the harassment or bullying immediately and prevent its recurrence. A disciplinary hearing will be conducted in accordance with the Essex Rivers NHS Disciplinary Procedure. If the case is found, a range of steps may be pursued following the disciplinary hearing. These may range from a verbal warning, written warning, final written warning or dismissal. However in addition to these sanctions, written instructions may be given to the alleged perpetrator setting out required behavioural standards which must be complied with and additional training provided to ensure a raised level of awareness. A Head of Service or Director will hear the disciplinary case and act as the Presiding Officer. The Presiding Officer must be impartial and as far as possible have had no previous role in the investigation. Prior to a disciplinary hearing the alleged perpetrator will be given the appropriate notification in writing of: the date, time and place of the hearing, and the officer hearing the case; details of the misconduct; the right to produce supportive written statements or documents, which must be circulated to all parties before the hearing; the right to state the case, to produce witnesses and to be represented. These rights and timescales are all contained within the Disciplinary Policy and Procedure. At this stage, the alleged perpetrator or their representative will be entitled to speak to potential defence witnesses and appropriate arrangements for this will be made. Any questions from the alleged perpetrator to the complainant or other management witnesses will be catered for during the disciplinary hearing; prior to this hearing, the alleged perpetrator must not approach the parties to the Management Case. In most cases and where the complainant feels able to, the complainant should be asked to attend the disciplinary hearing as a management witness. The alleged perpetrator or their representative will not be allowed to ask questions of the complainant directly. The Presiding Officer will be responsible for asking any questions felt to be appropriate, of the complainant, that arise from the case put by the alleged perpetrator. Because of the nature of harassment complaints, a complainant should be informed in writing of the outcome of the hearing, but the information is confidential and must not be divulged to any other party by the complainant. An employee disciplined as a result of a harassment or bullying complaint will have the usual appeal rights contained within the disciplinary procedure. The range of sanctions that are within the power of the Trust are as follows:- a) Verbal Warning b) Written Warning c) Final Written Warning d) Dismissal e) Summary Dismissal In addition to these sanctions the Trust may redeploy, relocate and consider alternative ways and places of working to ensure further incidents could not occur. Page 18 of 19

19 Once a particular complaint has been dealt with, it will be important for all concerned to restore normal, professional, working relations, whatever the outcome. Management will consider whether any special arrangements are required, such as mediation or personal development training, and all parties will be expected to co-operate with this process. 7.7 Victimisation Intimidation and/or victimisation of employees who have filed a complaint or been party to an investigation is itself regarded as a disciplinary offence and management will take necessary action to prevent this and protect staff. In the absence of corroborative evidence, conclusions may be drawn on the balance of probability e.g. what probably happened as opposed to being certain it happened. 7.8 Monitoring following a formal Harassment/Bullying Complaint The line manager of the complainant will monitor the working situation to ensure that no victimisation or recurrence takes place. The Line Manager will be expected to report back to the Human Resources Department on the situation. 7.9 Review and Monitoring This procedure will be monitored and reviewed on a regular basis. All complaints will be recorded for monitoring purposes although personal files will not contain details of informal complaints which have been satisfactorily resolved. Statistical monitoring results will be given to members of the Joint negotiating committee, who will be responsible for initiating reviews of the procedure and its implementation. Page 19 of 19

20 7.10 Completion of Forms Use of the attached forms aids monitoring and is essential to ensure that the Human Resources Department is aware of the situations as they happen. Always keep a copy for yourself of any form filled in Informal Action by an Employee The employee should: a) Complete Form A and forward this to the Human Resources Department. This records the complaint and allows for monitoring Informal Action by a Manager The manager should: a) Complete Form A, (modifying the form statements as necessary) and send it to the Human Resources Department Formal Action by an Employee Upon lodging the formal complaint: a) Complete Form B and hand this to the manager concerned Formal Action by a Manager A manager raising formal action without a complainant should: a) Complete Form B, (modifying the form statements as necessary) and send it to the Human Resources Department Report of Incident of Harassment An employee who believes they are the subject of harassment in the course of their work by a person or persons not employed by Essex Rivers NHS should: a) Complete Form C; b) Make a second copy (as well as keeping a copy for yourself) hand one copy to the manager concerned and forward one copy to the Human Resources Department (for monitoring) Confidentiality Proforma It is essential that all parties involved in any investigation and/or disciplinary process adhere strictly to the rules of total confidentiality and are required to sign a letter of confidentiality: a) Each individual involved should complete Form D and return it as instructed. Page 20 of 19

21 Confidential monitoring of Harassment/Bullying Issues dealt with Informally Form A NOTE: The details on this page are strictly confidential and will only be used for overall monitoring purposes; details will not be divulged during any proceedings, and individuals will not be identified. Completion of this form allows the Essex Rivers NHS to monitor the effectiveness of the informal process and to assess if any particular group is subject to harassment or bullying. Monitoring of these statistics will help us to be more effective in targeting awareness of the policy and so prevention of harassment and bullying. NB If you are a manager or Contact Officer return this under a compliment slip with your name on. Details of the person informally raising the issue Division/Service Area.. Section Complainant s grade Type of job.. Sex: Male/Female Disabled: Yes/No Age. Working relationship with alleged harasser:. (e.g., the harasser is my colleague/line manager/supervisor/subordinate) The nature of the alleged behaviour you are complaining about Please tick which one of the following seems to apply: Sexual Racial Disability Sexuality Religion Age Bullying Other If Other please specify 1

22 Form A Continued Please provide details of the incidents you have found unwelcome Details about the alleged harasser(s) Division/Service Area Section... Harasser s Job/role.. Sex: Male/Female Disabled: Yes/No Age (approximately).. Was the harassment dealt with: informally by you? informally by management? This form should be completed when an issue is raised. The Manager forwards it to the Human Resources Department for monitoring purposes. In cases that have been dealt with informally, the complainant should forward the completed form directly to the Human Resources Department. 2

23 Form B Confidential Formal Complaint Report Harassment/Bullying This form should be completed when a formal complaint is made or by a Manager raising formal action without a complainant. Name of person making complaint Workplace.. Telephone contact number. Name(s) of alleged harasser(s) Date or period of incident(s) Place(s) Please give an outline of what took place (continue on a separate sheet if necessary)

24 Form B Continued Names of anyone else who witnessed the behaviour complained of: Have you discussed this matter with a Contact Officer (or equivalent)? Yes/No Please state how you would like the issue resolved: I have been informed about the Essex Rivers NHS s Harassment and Bullying at Work Policy and Procedure. Signed: Date.. Signature of person receiving the complaint. Please ensure a copy of this form is sent promptly to the Human Resources Department. The receipt of the form in the Human Resources Department will initiate the formal procedure.

25 Form C Incident Report Form This form should be completed by employees who believe they have experienced harassment or bullying in the course of their work by people who are not employees of Essex Rivers NHS (e.g., by service users, contractors, agency staff, other groups of people). Name of person making complaint Workplace. Telephone. Division/Service Area.Job Name of the alleged harasser Name of the organisation for whom they work (if any) Date of the incident(s).. Place(s).. Please give an outline of what took place (continue on a separate sheet if necessary)

26 Form C Continued Nature of the Harassment: Please tick which one of the following seems to apply: Sexual Racial Age Sexuality Religion Disability Bullying Other (Please specify).. Signed Date. Signature of person receiving the complaint.

27 Confidentiality Proforma Please ask for: Direct line: Fax number: CONFIDENTIAL BY HAND Your ref: Our ref: Form D Dear Independent Investigation An investigation into a Bullying and Harassment complaint is underway. You may have specific information or be generally aware of the situation and the investigation team would like to interview you as part of the investigation. Whatever your level of knowledge of the situation and your involvement in its resolution, it is vital that you maintain confidentiality, in fairness to the individuals concerned and so as not to prejudice the outcome of the investigation. will be conducting the investigation and will explain the process to you. A meeting has been arranged for. at. You are welcome to take a work colleague or trade union representative with you although it will need to be someone who is not themselves likely to be interviewed as part of the investigation. If you do wish to take someone with you, it would be helpful if you could ask someone from a different department. While I trust your discretion I must instruct you to observe the following: You must not discuss anything about the case with other employees, or external third parties, whether they are also witnesses or not. If you have concerns about your involvement you may discuss them with the Human Resources Department or your Union representative. This confidentiality requirement will remain during and after the investigation and any disciplinary or appeal hearings, whatever the outcome of these. I remind you that breach of confidentiality is in itself a disciplinary offence. Please sign and return the enclosed copy of this letter in acknowledgement of the above. Yours sincerely In acknowledgement of receipt and understanding Signed Date.

28 Harassment and Bullying in the Workplace: The Legal Position Appendix One Discrimination, Victimisation and Dismissal As an employer, Essex Rivers NHS has a Duty of Care towards its employees. Failure to deal with allegations of harassment and bullying at work may expose the Essex Rivers NHS to a range of costly legal consequences. Harassment and bullying at work may lead to discrimination claims. In addition harassment and bullying may lead to criminal claims for assault or civil claims for negligence and or breach of contract, for example, claims of constructive dismissal. Harassment and bullying within the workplace may also result in health and safety claims for failure to provide a safe and healthy workplace. Employees should be aware, that whilst the Essex Rivers NHS may be pursued through legal action, individual employees could also be pursued and named in legal proceedings. In considering the implications of harassment and bullying within the workplace, the following terms can provide a practical guide to managers and employees: Direct discrimination This occurs when one person is treated less favourably than others in the same circumstances on the grounds of race, sex or disability, e.g. the refusal to recruit someone who has the required skills because they belong to a particular gender. Indirect Discrimination This consists of applying a condition or requirement of employment which, whether intended or not, adversely affects, or favours, one particular group more than another, and which cannot be (strictly) justified in terms of the requirements for performing the job. For example, an unnecessary physical requirement might discriminate against women or people with a disability. Victimisation This occurs when an employee is treated differently because he or she has previously complained of discrimination, or they have given evidence on behalf of another employee in a discrimination case. For example, an employer sacks an employee because he or she complained of racial discrimination. Constructive dismissal Failure to respond to and deal with alleged harassment or bullying or permitting such behaviour may be held to have breached the contractual terms relating to mutual trust and confidence. Failure to treat harassment and bullying or a complaint alleging harassment and bullying seriously may be a

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