Senior Associate tarr & Partners LLP.
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Layla's on the case: The bullying line manager

20th May 2010

Layla investigates real-life cases and brings the conclusions to HRzone.co.uk, shedding light on important employment law issues. This month: is a company under an obligation to take disciplinary action against a line manager for bullying when the complainant was intially happy with an apology but has now changed her mind?

The case:
An employee has raised a grievance against her line manager, alleging that he has been bullying her for a number of months. In accordance with the company's dignity at work policy, an investigation is carried out, and the findings are that the line manager has in fact been bullying and intimidating the employee. The outcome report also states that the belief is that there was no malice intended. HR arranges a meeting with the employee to discuss the outcome of the investigation. At the meeting, she indicates to HR that as long as her line manager apologises, and promises to change his ways, she is happy to continue working with him. 

The dignity at work policy states that if a complaint is substantiated, the disciplinary procedure will be invoked.

The line manager apologises. The company therefore considers that the matter has been resolved and does not take any action against the line manager.

One week later however, HR receives a letter from the employee stating that she has changed her mind and does not want to work with the line manager any longer. She also wants to know what action the company has taken against him.

How should this be handled?  Is the company under an obligation to take disciplinary action against the line manager?

The employee's change of mind
On the basis that the employee is now informing HR that she no longer feels that she can work with her line manager, this should be addressed with her. The company will therefore need to look to try and move her from his management. If the company ignores the employee's concerns, and decides not to address the situation, she is likely to have a valid claim for constructive unfair dismissal. Such a claim would arise if she chose to resign as a result of the way that the company handled the outcome of her complaint and failed to address her concerns. 

Disclosure of action taken against line manager
The company is not under any obligation to disclose to the employee details of the action taken against her line manager following the findings of the investigation report. She should simply be advised that the company is taking the necessary steps to try to ensure that such treatment does not happen again, and that the company is following the dignity at work policy (which should be followed in any event – see below).
 
Disciplinary action against line manager
The company should reconsider its decision not to initiate disciplinary proceedings against the line manager as a result of the findings of the investigation. If the company chooses not to take action against him, not only is the company not following its own dignity at work policy, but it is effectively condoning his behaviour. Whilst the findings of the investigation were that no malice was intended by the line manager in relation to his treatment towards the employee, the fact remains that he acted in a manner that was not acceptable. 

The company's dignity at work policy states that such behaviour will not be permitted or condoned, but if the company does not take action against the line manager, the company is permitting this behaviour to occur in the workplace. In such circumstances, the offender does not face any punishment whatsoever as a result of his wrongdoing. Additionally, if in the future, another situation arises where there is a finding of bullying and harassment treatment against a fellow employee, and the decision is taken to invoke the disciplinary procedure against that offender, the company is taking a inconsistent approach to dealing with bullying and harassment offenders.  This may allow the offender at that time to claim discrimination as a result of the inconsistent treatment.

Invoking the disciplinary procedure against the line manager does not necessarily mean that he should be dismissed. The fact that the findings were that he meant no malice in the way he treated the employee can certainly be taken into account.  However, at the very least, he should be provided with a written warning and he should also be placed on some sort of management training course. This will also protect the company in the future in the event that he continues to behave in an unacceptable way against other members of his team.

Layla Bunni is a senior associate, specialising in employment law at Starr & Partners LLP. She advises on a wide range of both contentious and non-contentious employment issues.

Replies (7)

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By J Harris
20th May 2010 15:06

Sound advice.

I would raise one question about the decision not to take disciplinary action against the line manager in the first place, despite what the employee said.  I am not sure that it should be a decision for the employee to take.  Surely that should be a decision for the line manager's superior; the person supervising the investigation into the bullying.  Presumably they received a report, which confirmed the employee's grievance.  If the employer's policy was to take disciplinary action, then, as you rightly point out, that is what should happen.

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In the same way that any investigation into bullying activity should be independent, any subsequent disciplinary hearing arising to decide on the seriousness, or any punishment should also be independent, although the victim would presumably be called, as a witness by the employer's representative presenting the case to any internal hearing.

If the employee had been accused of a misdemeanour by the management, then it is probably the case that this would have been taken to a disciplinary or other competency hearing by her line manager.  The failure to treat employees and managers in an equal way in these circumstances; through HR procedures and processes goes to the heart of some of the imbalance, if not abuse of power, which is at the root of some aspects of workplace bullying and needs to be stamped out.  Even powerful managers might think twice about their behaviour after being invited to a disciplinary hearing, where the outcome could lead to their instant dismissal for gross misconduct.

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By CMBillington
20th May 2010 15:07

HR has got itself into mess and all because it didn't check the employee's resolve when she said she would be happy. Had it done so the employee can hardly complain of constructive dismissal, detriment or other disadvantage when the company has done what she had asked for.
Additionally HR could have protected the company's position by initiating the disciplinary procedure on the basis of the complaint and report, but by setting the sanction at a rebuke with a performance monitoring plan to ensure the line manager did make the improvements. This would have been taking action beyond the expressed wish of the employee, but one that maintained consistency, demonstrated a willingness to act and didn't set precedence, other than a willingness to be lenient at the request of the complainant. Having done so the company would have had greater protection against a change of mind.
This should have been an automatic process followed by a HR team with the best interests of employee, company and line manager in minid. Instead you have HR ducking the issue which leads to further problems.
If HR sought to act on the change of mind as suggested in this advice, the line manager would have genuine grounds for a grievance based on the previous decision to treat this as an informal matter which suddenly, once the issue has been otherwise resolved in accordance with the employees initial wishes, the company has sought to re-open, i.e. the line manager is being tried twice on the same issue.
It's imperative HR checks the resolve of any complainant and that they follow through on a proper procedure.

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By J Harris
20th May 2010 16:00

The depths of the psychological effects of the bully and bullied are at work here.

The testing of resolve of the employee is likely to be counter productive.  Employees have to pluck up a lot of courage to raise a grievance in the first place, especially if the person bullying them is their line manager.  If this "resolve" is tested to destruction before any investigation has taken place, then the employee will expect the investigation to find against them, rather than be independent and potentially uphold their complaint.

Generally, victims of bullying want the harasser's behaviour to stop most of all.  This seems to be the case in this example.  It is not at all surprising therefore that once they feel they have been listened to that their desire not to appear vindictive to their harasser comes to the fore.  If the victim was vindictive, they are  less likely to have been the victim of bullying in the first place.  The expressed desire not to see the bully punished heavily is the bullied adopting the submissive position again in their relationship with the bully.  This is wrong from a psychological point of view as well as a procedural one.  You are absolutely correct, this is where HR needs to adopt a proactive approach in the style that you outline above.

I do not think that keeping the complaint informal arises here.  Once HR have undertaken an investigation then it has already become formal.  The informal way to resolve it would be for the victim to advise HR of what had been happening, and advise HR that they proposed to tackle it themselves, informally.  Then take steps to set this inappropriate behaviour out to the bully, face to face and then probably document it, copying in HR.  At the same time they could state how they expected the bully to change their behaviour and warn them that if things did not improve, then they would formalise the complaint to HR.  It sounds from the above example that either the employee did not have the confidence to do this, or that this approach had already been tried and failed.  Once a grievance has been raised it is formal.

 

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By jr
21st May 2010 15:18

Is it right to go back and address an individual for a second time? Is this not a case of 'double jeopardy?
HR have spoken with the complainant and Line manager in the first instance to determine the facts of the case and these have clearly shown that the behaviour was unacceptable. As such the line manager has apologised - which the complainant has quite happily accepted. Surely the fact that the Line Manager has been advised in the first instance that their behaviour was unacceptable presented the opportunity to discuss the fact that their behaviour clearly breached the standards which are expected. Given that the Line Manager has agreed this is the case and offered recompense, which has been accepted - surely this encompases the disciplinary process?
How does this next set of actions meet the Line Managers protection under the dignity at work policy?
As a Line Manager admitting you have 'failings or short comings with regard to the treatment of your employees' is a huge step and from this one would expect they would be offered refresher awareness/training. To then be called into a disciplinary meeting to answer for your behaviour for a second time - at what point do you (HR) as Decision Maker or the individual believe the matter to be closed?

Surely it is the remit of the 'Decision Maker', HR in this instance, to determine if a penalty is apporpriate and not the complainant. I agree that all complaints have to be taken seriously and throughly investigated, however the process is there to protect both individuals, and the fact that HR accepted the offer of apology and presented it to the complainant - does this not breach ACAS guidance about mixing investigatory meetings and disciplinary meetings? So who is due for a disciplinary now?

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By Yuvarajah
24th May 2010 04:13

There are many perspective to this case that stretches beyond the legal and disciplinary dimensions. 

The managers has been bullying for months and the investigation has been able to prove it was without "malice". Did this, to a large extend cloud the judgment and decision on the type of punishment. 

How "serious" is the offense of bullying regarded. Is there some scale of intensity for it to be arbitrated at the appropriate jurisdiction. Is bullying considered a "minor offense", covered under the company's dignity policy or is it a major offence covered under the laws governing employment acts. 

Whatever it be, all forms of misconduct must observe the principles of natural justice to both the offender and aggrieved party. And, upon investigating the charges, the punishment meted out must be done with just cause and reason. Remember, justice must be seen to prevail, meaning it must be done without biase and prejudice. When a case has become "formal", then it should be properly treated under the purview legal structure and procedures, more so if the case could cost the company for forced resignation or contructive dismissals. Don't forget the entire process of progressive discipline is to both correct and prevent misbehaviours. I am a bit puzzled as why was it necessary to get "agreement" from the complainant in deciding the punishment. How does the disciplinary procedures work in this company ?. 

It seems like the case resorted to a moving forward "quid pro co" style of settlement but failed to secure a conclusive end that is mutually agreeable and binding to both parties. The main reason, I suspect, why the  complainant reversed the earlier decision to accept the apology, has to do with "trust" and future work relationship with the manager. This is something that cannot be underestimated or unrealistically adjudged in administering remedial actions in vertical relationships.        

There must be more to this case than just the legal or disciplinary angle. We just can't dehumanise and downplay the many variables and undercurrents in cases involving bullying. Why did this staff put-up with the bullying for months? These are questions that should thought provoke HR and Line Leaders in creating a more healthy workplace. Just because people do not lodge complaints, does not mean there is no "bullying" or narciscist behaviour occuring at work.        

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By Yuvarajah
24th May 2010 04:14

There are many perspective to this case that stretches beyond the legal and disciplinary dimensions. 

The managers has been bullying for months and the investigation has been able to prove it was without "malice". Did this, to a large extend cloud the judgment and decision on the type of punishment. 

How "serious" is the offense of bullying regarded. Is there some scale of intensity for it to be arbitrated at the appropriate jurisdiction. Is bullying considered a "minor offense", covered under the company's dignity policy or is it a major offence covered under the laws governing employment acts. 

Whatever it be, all forms of misconduct must observe the principles of natural justice to both the offender and aggrieved party. And, upon investigating the charges, the punishment meted out must be done with just cause and reason. Remember, justice must be seen to prevail, meaning it must be done without biase and prejudice. When a case has become "formal", then it should be properly treated under the purview legal structure and procedures, more so if the case could cost the company for forced resignation or contructive dismissals. Don't forget the entire process of progressive discipline is to both correct and prevent misbehaviours. I am a bit puzzled as why was it necessary to get "agreement" from the complainant in deciding the punishment. How does the disciplinary procedures work in this company ?. 

It seems like the case resorted to a moving forward "quid pro quo" style of settlement but failed to secure a conclusive end that is mutually agreeable and binding to both parties. The main reason, I suspect, why the  complainant reversed the earlier decision to accept the apology, has to do with "trust" and future work relationship with the manager. This is something that cannot be underestimated or unrealistically adjudged in administering remedial actions in vertical relationships.        

There must be more to this case than just the legal or disciplinary angle. We just can't dehumanise and downplay the many variables and undercurrents in cases involving bullying. Why did this staff put-up with the bullying for months? These are questions that should thought provoke HR and Line Leaders in creating a more healthy workplace. Just because people do not lodge complaints, does not mean there is no "bullying" or narciscist behaviour occuring at work.        

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By J Harris
25th May 2010 14:02

JR. This is not double jeopardy.

The HR team should have undertaken steps to ensure that the manager did not repeat the offending behaviour again, after the investigation.  A training course is a cop out and unlikley to suffice.  The individual affronted in the case cited, as well as other employees need to be protected.  Presumably, another employee had to come in to fill the gap of the bullied employee that was transferred elsewhere through no fault of their own and therefore could be at risk of future offending behaviour.

The victim of the offending behaviour has effectively lost their job as a result of being bullied.  It may not be possible for them to be found another role internally so easily.  They may not like or be qualified or able to do the type of work offered.  However, the line manager has given an apology and apparently carries on in his job, as before, almost as if nothing has happened.

Who has really been punished here?  Twice punished.

 

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