A former NHS worker has been awarded £933,115 by an Employment Tribunal that found he had been subject to racial discrmination and unfair dismissal.

The Tribunal found that Elliot Browne had suffered “systematic discrimination” and “an intimidating environment” while employed by Central Manchester University NHS Foundation Trust. The Tribunal also found that the Trust had failed to investigate Mr Browne’s grievance sufficiently.

A level of investigation that could stand up to scrutiny may have gone some way to reducing the costly impact on the Trust. Not only in terms of the level of compensation awarded, but the Trust’s reputation as a fair employer with a genuine commitment to an anti-discriminatory workplace.

The Trust is appealing the Employment Tribunal’s decision. In the meantime, however, it remains open to allegations that it endorses a culture of institutionalised racism.

“The objective is to encourage people who are afraid of having conversations that they ought to be having, to have them.

The objective is not to protect employers from saying discriminatory comments.”

Poor performance and retirement were cited as examples of when a protected conversation could be necessary.

The pros and cons of protected conversations in the workplace will no doubt continue to be debated throughout the consultation period. However, a simple question appears to be central to this debate:

The implementation of protective conversations without fear of a tribunal

OR

fundamental management development training and transparent policies and procedures?

If managers have the skills to deal with sensitive issues within the context of statutory requirements, alongside transparent company policies and procedures is there a need for the government to introduce protected conversations’ legislation? Indeed there are numerous workplace scenarios where it can prove costly if the manager does not have the conversation they ought to be having and these don’t necessarily result in claims of unfair dismissal. For example, poor working relationships and sickness absence can be unnecessarily disruptive and costly if a manager doesn’t have the training to deal with them at an early stage.

Managers trained in open and constructive communication will be confident and able to conduct all types of workplace discussion in a timely manner and without fear of exacerbating a sensitive situation.

Transparent policies and procedures

Relevant knowledge of statutory requirements and company policies and procedures

An open and constructive approach

“Never in my whole life have I been so stressed. I don’t really know what the word is. That I’m made to feel like that by these people. How it feels like you’re doing something wrong, why can’t I get a grip on it? In the midst of all of this you have got to do this incredibly important job that is stressful in itself.”

“After he had finished shouting at me I was shaking, felt really terrible, weak, got a doctor’s appointment and was signed off with work related stress for three weeks.”

“This individual is now claiming unfair dismissal on the grounds they were suffering work related stress as a result of the ongoing issues.”

“I became short fused. I had been a mega patient person at work and began taking my frustration out on my loved ones.”

The CIPD Annual absence management survey (2011) reports that 31% of respondents cited relationships at work in their top three causes of work related stress. Other factors cited include: workloads / volume of work (48%); management style (40%) and non-work factors – relationships / family (37%).  While the overarching aim of a healthy workplace is central to organisational objectives, it should also be remembered that all employers have a legal duty of care to minimise the risk of stress related illness or injury to employees.

‘How to respect colleagues?’ was an interesting keyword search on www.optforlearning.co.uk this month and perhaps a question senior managers, line managers, supervisors and employees can pose in the context of their own organisation to minimise the risk of stress related illness.

The distinction between a grievance and whistleblowing is important in this context and it is helpful if employers clearly outline this in their procedures. A grievance is a matter of personal interest and does not impact on the wider public, whilst a whistleblowing procedure provides the framework for dealing with serious concerns, including:

• A criminal offence has been, is being, or is likely to be committed
• Suspected fraud
• Malpractice or ill treatment of a client
• Repeated ill treatment of a client despite a complaint being made

A whistleblowing policy and procedure should also provide guidance for individual workers who believe they have no option than to raise their concern with an external body. In order to be protected under the Public Information Disclosure Act they must meet at least one of the following criteria:

• Reasonably believe they would be victimised if they raised the matter internally
• Reasonably believe that a cover up is likely
• They had raised the matter internally and no action had been taken

Preventing malicious allegations

There are occasions when individuals may raise concerns in bad faith with an ulterior motive, for example a poor relationship with a colleague. A clear approach otulined in the Whistleblowing procedure as follows can help to prevent this:

• Where it is determined that there is no case to answer, but the whistleblowing staff member had a genuine concern and was not acting in bad faith, the employer will ensure that the staff member suffers no reprisals or victimisation
• Where it is established that false allegations have been made in bad faith, it may be considered appropriate to refer to the disciplinary procedure

Future Opt blogs will consider the impact of anonymous allegations.

A letter from Harbottle and Lewis, the legal firm comissioned by News International to carry out an investigation into allegations raised during an Appeal against dismissal, expresses the firm’s concerns that, so much weight has been given to a piece of work of such “limited and narrow nature”.

Harbottle and Lewis are clear that a retainer was received to cover one particular dismissal case, within the confines of emails made available by News International, and not a wider investigation “to find out what the hell was going on” as reported by Rupert Murdoch at a Parliamentary Committee.

Workplace investigations conducted under the HR umbrella, e.g. disciplinary and grievance, are most effective with a clear, systematic plan of action that includes arrangements to review progress and revise the terms of reference if it becomes appropriate.

A clear statement at the beginning of any report, outlining the scope, purpose and role of investigators can help to minimise potential misrepresentation of the investigation at a later stage.

• Adopt a systematic plan of action at the outset
• Identify mechanisms for reviewing progress
• Revise the plan and terms of reference only if appropriate
• Trained investigators
• Comprehensive record keeping throughout the process
• Clear statement of purpose included in report

The News International media coverage has reinforced the importance of impartiality, together with a level of investigation that matches the particular circumstances and these elements are fundamental to any efficient internal investigation.

A former Metropolitan police assistant commissioner’s decision to accept hospitality from News International while leading the first police investigation in 2006 was, this week, queried by a Parliamentary select committee and criticised by the President of the Association of Chief of Police Officers who said “in those precise circumstances it seems an unwise decision”.  The question marks around impartiality have generated concerns regarding the integrity of the individual and the decisions taken at the time.

The thoroughness of the investigations into the News of the World allegations, including internal, police and the press complaints commission, have also come under scrutiny, with dramatic results: Murdoch’s withdrawal of his bid for BSkyB; News International’s reputation globally; the closure of the News of the World; individual reputations; and a planned Public Inquiry.

Workplace investigations have the potential to go before an Employment Tribunal and examined under the Employment Rights Act 1996.  Whether a reasonable investigation has been carried out can be a vital factor and the terms of reference should be considered carefully at the outset of any investigation, with reviews throughout the process.

What is a reasonable workplace investigation?

The particular circumstances of the case determine the depth of the investigation

Carried out in line with relevant organisational policies and procedures

The objective is to establish the facts of the matter, not to prove someone’s guilt

Employment law cases – useful reading

British Home Stores Ltd v Burchell (1978)

Gateshead Council v Hope (April 2011)

The newspaper’s vast advertising revenue is under threat as major multi-national advertisers consider their positions pending the completion of a formal investigation.

In his Channel 4 interview with Simon Greenberg of News International Jon Snow calls into question the integrity of this highly sensitive internal investigation and hits on some fundamental weaknesses. Such basic weaknesses leave an organisation wide open to criticism and scepticism of its commitment to establishing the facts of a case, and can have a far-reaching impact on reputation and credibility.

Jon Snow asks whether the impartiality of the News of the World investigation has been compromised because the lead investigator is the person who was in charge at a time when phone hacking allegedly took place, therefore clearly involved in the matter.

An impartial investigator is crucial to promote and protect the integrity of the process and the outcome, as well as the organisation and the individual. An investigation led by a person who is involved in the case is open to claims that it is a sham, that the individual has a vested interest in the case that has the potential to impact on the outcome, as well as raising concerns about whether the process is thorough enough.

During the interview, Simon Greenberg provided a sketchy outline of their way forward, stating News International’s intention to deal with facts as they emerge and “She is leading the investigation, if it is necessary to ask her certain questions as part of the investigation that is what we will do”, raising questions not only about the suitability of the lead investigator but also the organisation’s commitment to a structured investigative approach.

The clear presentation of a transparent, planned and systematic approach to an internal investigation from the outset serves to reinforce the integrity of the investigation and credibility of the organisation, while ensuring the process is efficient and effective.  It also adds credence to the findings and outcome.

While the News of the World phone hacking scandal is clearly on a much larger scale than our everyday workplace issues, the basic principles remain the same for all organisations committed to carrying out transparent and efficient internal investigations.

Clear channel of accountability … Independent investigators … Report facts based on evidence

Clear remit for investigators … Witnesses understand their rights and responsibilities

Thorough and systematic analysis

The impact on already stretched organisational resources, in terms of cost and additional work to individuals, has been obvious throughout.  In addition, there is often a lack of clarity around what is expected from an employer when carrying out a workplace investigation.

When may a workplace investigation be necessary?

Alleged misconduct
Allegations of bullying, harassment, discrimination
Protected disclosures
Capability
Complaints from customers or clients

What are the key attributes of a successful workplace investigator?

Suitably trained and clear of their role
Impartial and independent of the case
Always has an open mind
Ability to go behind the information and not take statements at face value

Why do employers need a transparent and efficient approach to workplace investigations?

In disciplinary, misconduct and potential dismissal cases employers may find their workplace investigations scrutinised in an Employment Tribunal and British Homes Stores Ltd v Burchell UKEAT/108/78 is a significant and informative employment law test case in this regard.

In this context

The employer must genuinely believe that the individual is guilty (of the misconduct)
There are reasonable grounds to sustain that belief
As much investigation into the matter as was reasonable in the circumstances should have informed that decision

Allegations of discrimination, harassment and protected disclosures also have the potential to come under scrutiny in this context.

It is important to recognise that employers are not required to conduct an investigation in the same way as a criminal investigation and future Opt blogs will explore what is a reasonable investigation.

Workplace Investigations – Objective, Impartial, Thorough

A policy on appropriate workplace behaviour and a procedure for dealing with breaches of this are, of course, essential.  Unfortunately, such policies and procedures don’t automatically give managers and workers the skills to deal with inapropriate workplace behaviour and prevent poor working relationships.

Bullying and harassment policies and procedures need to be more than part of the regular review cycle.  They should be developed and reviewed with meaningful staff involvement and their effectiveness measured against the number of complaints, together with feedback and analysis of how incidents have been handled.

Also vital to the effectiveness of bullying and harassment policies and procedures is training for managers to:

• recognise and resolve unhealthy conflict
• create a clear understanding of personal and professional boundaries
• deal with unecessary conflict quickly and effectively
• handle formal procedrues confidently and efficiently

Managers feel pressurised to produce results, meet targets and deliver quality services.  Motivating staff, responsible management and developing a healthy workplace can easily fall off the action plan. However, investing time to create a working environment where concerns can be raised as early as possible is vital to a healthy working environment, crucial in today’s economic climate and totally achievable in any organisation.

How to minimise allegations of bullying in your workplace

• create a common understanding of the behaviour that is acceptable in your workplace
• create an environment were issues can be raised as early as possible
• train workers on how to raise issues, receive and give constructive feedback and work together to solve problems
• managers are able to spot unnecessary conflict in their teams and have the skills to deal with interpersonal issues early and effectively