X-Factor bullying accusations – would it be acceptable in the workplace?

Fans of X-Factor’s contestant Misha B will have been outraged at Louis Walsh and Tulisa’s accusations of backstage bullying, and whilst the contestants are not employees, it does raise questions about dealing with bullying in the workplace.

The claims were made live on air following Misha B’s performance on last weekend’s show. The two judges accused her of being mean to fellow contestants and said she needed to ‘put aside the attitude.’ Louis added that one of his contestants had complained of being bullied.

The other two judges, Gary Barlow and Kelly Rowland, defended the singer, and Louis was later forced to apologise for using the word ‘bully.’

The confrontation made for uncomfortable viewing, but highlighted the importance of dealing correctly with such issues in the workplace. We would urge businesses to think carefully about tackling bullying among employees and about the consequences of failing to deal with such issues.

Tribunal?
Being subject to bullying at work is not enough to raise a tribunal claim on its own, but employees can place a claim where an employer has failed to deal with it properly. Most commonly, the bullying will fall within the scope of discrimination laws. Bullying is also very similar to harassment, which is covered by separate legislation. Ultimately, an employee who is subjected to bullying may resign and claim constructive dismissal.

Our CEO, Steve Cook (pictured), said: “When you consider the negative impact a bully can have on a team in terms of low morale, high staff turnover, and loss of productivity, it makes good businesses sense to prevent bullying and deal with it effectively if it does occur.

“Unless a formal complaint or a serious incident has occurred, the issue may be tackled informally in the first instance. Perhaps the bully is unaware of how their behaviour is perceived by others, and doesn’t realise their behaviour amounts to bullying; therefore, a confidential discussion can help nip the problem in the bud before it escalates.”

However, where there is a pattern of worrying behaviour, a formal complaint is raised, or there is a serious incident, it will be more appropriate to instigate the formal disciplinary procedure. The allegation should be investigated in full, which will normally mean obtaining statements from witnesses and victims of bullying before taking formal action.

Following a disciplinary meeting, the employee accused of bullying can be issued with a written warning, final written warning, or even be dismissed depending on the nature of the allegation and the circumstances of the case. Where there is insufficient evidence to justify a formal sanction, or where parties are keen to resolve the issue informally, mediation between the bully and victim may be beneficial.

Duty of care
It is important to remember that all employers have a duty to take care of their employees, and action may need to be taken even when a victim is reluctant or refuses to participate in proceedings.”

The HR and health and safety firm says that those who believe bullying is not a serious issue should take note of a recent case where BT was forced to pay out £290,000 to an employee due to the behaviour of a manager who was openly homophobic, racist and sexist. The tribunal criticised BT for not dealing with the manager properly, and allowing his behaviour to continue unchecked.

Ultimately, in any case of workplace bullying it would be unacceptable to follow X-Factor Tulisa and Louis Walsh’s example by broaching the subject in front of an audience!

Do you agree with how the bullying accusations were dealt with by Louis and Tulisa? Has your organisation had to deal with bullying accusations in the past? We welcome any questions or comments and encourage you to get in touch if you are unsure or have any comments to make regarding this matter. Please follow us on Facebook where we often have discussions about topics involving issues relating to Human Resources.

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How will your business be affected?

CAP ON DISCRIMINATION PARLIAMENTARY DEBATE
A Private Members Bill that proposes to introduce a cap on the amount of compensation awarded to successful discrimination claimants had its second reading recently in Parliament. Compensation awards in discrimination claims are currently uncapped, which many business leaders feel has led to a ‘have a go’ compensation culture.

There is no qualifying period of service for employees who place a discrimination claim, which often leaves a discrimination claim the only possible option for those who feel they have been unfairly dismissed. Compensation for unfair dismissal is currently capped at £68,400 and employees need 1 year’s continuous service with an employers before they can place a claim, which leaves a discrimination claim not only an attractive option, but also the only option for many.

The chances of the Bill actually surviving the Parliamentary process are slim since it is likely to clash with the UK Directive on Equal Treatment. However, this is an indication that MPs are recognising that the fear of a discrimination claim is having a very real and negative effect on businesses in the UK.

STRIKES ARE IMMINENT
Unions have confirmed a national ‘day of action’ on 30th November, to be held in protest against Government proposals to increase the pension contributions of those working in the public sector. Unison, Unite, the Fire Brigades Union, and the GMB are balloting members with a view to taking co-ordinated action. Expected to be the biggest co-ordinated trade union action in a generation, the ‘day of action’ is expected to include strike action, rallies, and other similar events.

Has or will your business be affected by these issues? Empire welcome all feedback and comments. Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.

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TEENAGER LOSES FINGERS

An eighteen year old machinist, who worked with lathes, grinding and milling machines, lost half his index finger, most of his middle finger, and both his ring and little finger of his left hand while he was was changing a cutter on a milling machine. He accidentally switched the machine on while the cutter was still in his hand but despite attempts, surgery failed to re-attach the fingers.

The HSE told the court the system of work for changing cutters was not safe and risks from operating the mill- ing machine and changing cutters had not been adequately assessed. Their investigation also concluded that there was insufficient guarding around the machine to protect body parts during its operation and also found interlocks and the start buttons were not covered which would have prevented inadvertent activation during setting up and maintenance.

The HSE Inspector said: “For a young man to lose four fingers in an incident like this at the start of his career is serious and severely affects his future employment prospects.“If safe systems of work, sufficient guards on the machinery and adequate supervision had been in place, this would not have happened.” The company has been fined £10,000 and ordered to pay costs of £7,376.40.

What are your thoughts on this? We welcome all feedback and comments. Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.

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Increase in qualifying period for unfair dismissal claims

There have been recent changes and announcements regarding the increase in qualifying period for unfair dismissal claims. Empire HR can inform you that the main announcements are:

Employees will require 2 continuous service with their employees before they can claim unfair dismissal in an employment tribunal. This is an increase of 1 year.  Only those who are claiming discrimination will be able to place claims without 2 years’ service.

There will be fees charged for placing claims. It is currently free for employees/ex employees to place a claim. The fees are likely to include an upfront fee of £250 - £1000, plus additional fees if the claim is high. The fee will be waived for those on a low income or refunded if the claim is won.  The fee will be forfeited if the claim is lost.  This is likely to deter those making ground-breaking claims as well as vexatious claimants.

What are your thoughts on this? Do you think this will help or hinder your business? Or do you think it's too little too late? We welcome all feedback and comments.

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THE “SEX” X- FACTOR?

With series 8 of the X-Factor drawing to a close, fans will be eager to find out who this year’s winner will be. Statistically, the winner is likely to be male. Of 7 previous winners, 5 were male so chances are that it will be this time round too. However, despite the audience’s penchant for male X-Factor winners, record companies seem to prefer females.

The international success of both Leona Lewis and Alexandra Burke is in stark contrast to the relatively paltry singing careers of their male counterparts. Does this highlight a sex discrimination issue in the record industry? Are record labels reluctant to sign up and invest in males? Steve Brookstein (series 1), Leon Jackson (series 4) and Joe McElderry (series 5) have all been dropped from their record labels, leading to speculation that male artists are simply not attracting the same level of investment. There is currently speculation that Matt Cardle, last years winner, will follow suit later this year.

Of course, if X-Factor winners were employees they would be protected by employment legislation which prohibits discrimination on the basis of gender. A policy of investing less in males, together with having a workforce that is indicative of a recruitment bias towards females would lead to the risk of a very expensive sex discrimination claim.

What are your thoughts on this? Do you agree with us at Empire HR? We welcome all feedback and comments. Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.

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Case Law Update and 'The Hidden Killer'

In this post Empire highlight two cases involving employees dismissals and their outcome in court. We also discuss HSE's  pledge to tackle Scotland’s share of 4,000 asbestos death toll.

Oudahar v Esporta Group Limited UKEAT/0566/10
The EAT has clarified that there is a two stage test to be satisfied when considering a claim for automatic unfair dismissal based on a health and safety reason. These are:

1. Were there circumstances of danger which the employee reasonably deemed to be serious and imminent?  Did the employee take or propose to take appropriate steps to protect himself or other persons from danger; or did he take steps to communicate these circumstances to his employer by appropriate means?
2. If these criteria are met, was the employer’s sole or principle reason for dismissal that the employee took or proposed to take such steps?

This was an interesting case because there is very little case law on this area. Dismissals on the grounds of health and safety are automatically unfair, which means those with less than 1 years’ service are also able to raise a claim on this basis.

Hughes v Corps of Commissionaires Management Ltd (2011) EWCA Civ 1061
The Court of Appeal has confirmed that the requirement to remain on call during a rest break does not contravene the Working Time Regulations. In this case, a security guard argued that because he could be interrupted during a rest break, the compensatory rest allocated to make up for this should be taken outside working time (ie he should not be on call during compensatory rest periods). The appeal was dismissed, on the basis that being on call does not necessary mean that the Regulations have not been complied with.

THE 'HIDDEN KILLER'
The HSE in partnership with the training industry has pledged to tackle Scotland’s share of 4,000 asbestos death toll. They are calling for businesses to pledge free training courses in an attempt to hit the target of 4,000 hours in September which would reflect the approximate number of deaths each year in Britain from asbestos- related diseases.

The free asbestos awareness training is being provided to help tradesmen in Scotland and across Britain protect themselves from the deadly dust. Sessions will be available throughout October and November and is aimed at joiners, electricians and plumbers who as part of their activities are likely to disturb asbestos fibres as they work. Figures quoted by HSE state between 1982 and 2008, there were 3,456 deaths from asbestos- related cancer mesothelioma in Scotland.

A weekly update of free places at the various locations in Scotland are being made available on the HSE web- site www.hse.gov.uk

Have you been affected by any of the issues raised in this post? Do you have have any experience in dealing with asbestos? Maybe you know of an organisation or individual who has dealt with dismissal based on a health and safety reason? Do you agree with the ruling of the courts in the case of Hughes Vs Corps of Commissionaires Management Ltd? We would like to hear your comments and feedback, please visit our facebook page where we often hold discussions regarding topics covered here.

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London Riots, First Aid and Empire HR

There have been many current affairs that have been featured in the press recently, where Empire have identified issues concerning HR, including the News of the World Scandal. In addition the recent events in London and the riots that took place, also raise issues relating to HR. 

In this blog we explore issues from the riots as well as guidance on First Aid in the workplace.

RIOTING AND HR

The riots that hit London last month have highlighted the crucial role of HR in a crisis. The spontaneity and unpredictability of the riots meant that those affected had to react swiftly in circumstances that they had probably never encountered before.

Having a good HR manager or department within a business would undoubtedly have been an invaluable asset during the crisis, providing immediate and commercially viable solutions to the problems faced.

For example, many affected businesses had to consider what to do with employees who no longer had a viable place of work. Larger business could rely on their HR departments to organise the redeployment of employees to alternative stores or offices. Smaller businesses could temporarily lay off employees, or perhaps enforce a period of annual leave. Some may even be forced to make employees redundant if the business is no longer operating and will not be viable for the foreseeable future.

Unfortunately those with no HR support may now face the additional burden of potential tribunal claims if they simply sent employees home with no pay for an indefinite period of time.

The basic starting point for business owners and managers is that where an employee opts not to come into work, there will normally be no obligation to pay them. However, where the decision is taken out of their hands and they are willing to come into work, they must be paid. The uniqueness of the circumstances means that there is no hard and fast rule – all absences should be investigated in full before any pay is withheld.

It is essential that business owners seek legal advice on the options available to them before assuming that they can dismiss employees. The ability to temporarily lay off employees is largely dependent on the inclusion of a ‘lay off’ clause in their contract. Redundancy is also dependent on the circumstances facing each particular business, and a consultation process must be followed prior to any redundancy dismissal.

Some HR Managers will need to deal with employees who have been convicted of an offence related to the rioting. In general, a criminal conviction is not sufficient justification for a dismissal unless the employee works with vulnerable service users or is in a sensitive role.

A lot would depend on whether the conviction has affected the reputation of the business (perhaps the media named and shamed the employee), and whether the conviction has undermined the trust and confidence in the employee. For example, an employee convicted of looting in the area in which they work may lead to their retail employer losing trust in them.

Each case must be considered on its own merits, with the full ACAS Code on Discipline and Grievance being followed at each stage of the process. Given the current wave of public anger, it does seem likely that tribunals will be sympathetic to businesses but they will still consider whether a dismissal falls within the ‘range of reasonable responses of a reasonable employer’.

FIRST AID IN THE WORKPLACE GUIDANCE 

Guidance has been issued by the Health and Safety Executive in relation to the qualifications first-aiders in the workplace need and the responsibilities employers have when appointing them. The guidance defines a ‘first-aider’ as somebody who has undertaken training and has a qualification that The HSE approves;

Either a valid certificate of competence in either:

First aid at work, issued by a training organisation approved by HSE;
Emergency First Aid at Work, (issued by either a training organisation approved by The HSE or a recognised Awarding Body of Ofqual/Scottish Qualifications Authority.

Employers must undertake a first-aid needs assessment and should use the findings to determine which training in first aid and what number of trained personnel will be suitable and sufficient after taking account of all the relevant circumstances of their particular workplace.

A question often arises about liability of first-aiders, and while the HSE seeks to reassure that it is very unlikely that action would be taken against a first-aider who was using the first-aid training they have received (and in any case not by HSE as it is outside their jurisdiction), it is recommended that Employer’s should seek advice from their insurance brokers on whether their policies cover first-aiders’ liability.

What are your thought on this? Have you been affected by any of the issues raised in this blog? We would really like to hear your views and comments. Visit our facebook or twitter page to share your comments.

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