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?
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.