Q A new member of one of the teams I manage has come to me complaining of being harassed. He says that other members of the team make fun of him, causing him feel uncomfortable and embarrassed. What is the difference between banter and bullying and what actions should my company take to prevent the latter?
Harassment is defined in the Equality Act 2010 as "unwanted conduct that has the purpose or effect of violating the dignity of people in the workplace or of creating an intimidating, hostile, degrading, humiliating or offensive environment".
Bullying has no specific legal definition, although ACAS refers to workplace bullying as "characterised by offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient".
The key factor in determining whether harassment and/or bullying have occurred is the impact on the recipient. What one party may consider banter might amount to bullying for the recipient.
An employee can bring a harassment claim under the Equality Act if they can show that any harassment they experienced is linked to a relevant protected characteristic: age, disability, gender, race, religion or belief, sex or sexual orientation. Where an employee is bullied, but not in relation to a protected characteristic, there are other potential legal claims they bring. This includes resigning and presenting a compliant of unfair constructive dismissal due to the employer's failure to ensure they could carry out their duties without harassment.
Although not a legal obligation, operating an effective anti-bullying policy not only helps to protect employers from legal liability, it has also been shown to reduce employee absence and increase overall workforce productivity. Such a policy should: make clear the types of behaviour that will not be tolerated explain how employees can make a complaint; have clear procedures for investigating allegations, and identify the potential disciplinary sanctions.
Q One of our employees is off on long term sick leave. I suspect that he is not really ill and is taking advantage of our trust in him, but can't prove it. What can I do to discover the truth without overstepping the mark legally?
An employee who is off work by reason of ill health for a period of longer than seven days can be required to present a GP fit note to cover any on-going absence. If you have received a fit note in relation to this employee's on-going absence what are your reasons for doubting its reliability? It is open to you however to seek your own independent medical assessment from a specialist/occupational health provider. This will be easier to do if your employees' contracts place an express obligation on them to attend for such assessment, if requested.
Are your suspicions due to your becoming aware of the employee acting inconsistently with the alleged reason for absence? For example, if his stated reason for absence is a back problem, has he been seen lifting heavy loads in his garden?
Before taking any disciplinary action in relation to such alleged deception, you must establish reasonable grounds for holding such a belief. Have you got reliable witness evidence/statements, or is it just rumour?
Some employers might be tempted to engage in a spot of covert surveillance by secretly filming the employee in order to 'catching him in the act.' However, covert surveillance of employees should only be undertaken in exceptional circumstances, where there is suspected criminal activity or equivalent malpractice. This might be the case here if the employee is claiming company sick pay when he is not really sick.
The Information Commissioner's 'employment practices data protection code' which accompanies the Data Protection Act 1998 states that in order to justify covert surveillance an employer should, prior to engaging in such activity, conduct an impact assessment and weigh up the purpose of such surveillance, the benefits it is likely to deliver and against any likely adverse impact.
60 second guide to TUPE
TUPE is an acronym for the Transfer of Undertakings (Protection of Employment) Regulations. TUPE is designed to protect employees if the business in which they are employed is sold or transferred to a new owner/operator. If applicable, TUPE operates to move employees with the business on their existing contractual terms.
When might TUPE apply?
The scope of TUPE is broad and it can apply in many business scenarios. For example it might apply when an employer sells or buys all or part of a business as a going concern, or when there is "service provision change". A service provision change can occur when a service is outsourced to a contractor, or where the provision of services is transferred from one external contractor to another. TUPE can also apply when an organization brings contracted out services back in-house.
What are an employer's obligations under TUPE?
The legal obligations on the 'outgoing' and the 'incoming' employers are myriad and different. Very broadly, the outgoing employer must consult with appropriate representatives of the employees affected by the transfer. It must also provide certain employee related information to the incoming employer. Such actions need to happen within specific timeframes.
There is a legal obligation on the incoming employer to employ those employee 'assigned' to entity being transferred, immediately before the transfer takes place. With limited exceptions, the transferring employees will be entitled to the same terms and conditions as they enjoyed prior to the transfer. There is little scope for the incoming employer to make changes to these.
What can employers do if TUPE applies?
TUPE is not something that can be watered down, or avoided and there are significant financial penalties for organisation's which breach TUPE. There is however some scope for 'balancing out' the impact of TUPE via contractual agreement. There is often much negotiation around TUPE related warranties and indemnities in commercial transactions.
