Policies & Procedures

GUIDANCE FOR USING THE DIGNITY AT WORK POLICY

This is an example of an employment policy designed for a council adhering to statutory minimum requirements and does not constitute legal advice. As with all policies it should be consistent with your terms and conditions of employment.  

This guidance is provided to support understanding of the policy, and its application, as well as where local adaptions may be required.  The guidance is not part of the policy and should be removed from the policy adopted and shared with council employees.

The Dignity at Work Policy will replace a previous ‘Bullying and Harassment’ Policy, to create a policy that is focussed on encompassing behaviours beyond simply bullying and harassment, and zero tolerance with the aim of dealing with concerns before they escalate.  It is important that any commitment made in the policy is applied in practice. 

Wording has been suggested to demonstrate a council’s commitment to promoting dignity and respect where they have signed up to the NALC, SLCC and OVW Civility and Respect Pledge.  Council’s that have not signed up to this are requested to consider making this pledge which is based on basic behaviours and expectations of all council representatives to create workplaces that allow people to maintain their dignity at all times.  If your council has not agreed to the pledge this wording should be removed.

The policy is drafted with consideration of employment language and terminology that is reflective of a modern working environment, setting a tone that is engaging, collaborative and inclusive.  A council may want to update references where relevant to reflect local terminology and structure, yet should be considerate of equality, diversity and inclusion. 

The examples of bullying and harassment are just that – examples. This should not be considered an exhaustive list. 

Notes: 

Protected Characteristics 

A ‘protected characteristic’ is defined in the Equality Act 2010 as age, disability, sex, gender reassignment, pregnancy and maternity, race, sexual orientation, religion or belief, and marriage and civil partnership.  It is unlawful to discriminate against an individual because of any of the protected characteristics.

Discrimination includes treating people differently because of a protected characteristic.  Employees can complain of harassment even if the behaviour in question is not directed at them.  This is because the complainant does not actually need to possess the relevant protected characteristic. An employee can complain of unlawful harassment if they are related to someone with a protected characteristic, or because a colleague believes they have a protected characteristic.

Examples of harassment related to a protected characteristic could include:

• Making assumptions about someone’s ability due to their age, or denying development opportunities to someone based on their age.  This could also include assumptions about their lifestyle or making inappropriate jokes related to age.
• Making fun or mimicking impairments related to a health condition, or using inappropriate language about disabilities.  Constantly selecting social activities that make it impossible for a colleague with a disability to participate in.
• Refusing to treat a person as their new gender, or disclosing information about their gender identity could be harassment on the grounds of gender reassignment.
• Pregnancy/Maternity harassment could include refusing opportunities due to pregnancy or maternity leave, or inappropriate touching and invasion of personal space such as unwanted touching of a pregnant persons stomach.
• Harassment based on race could include derogatory nicknames, or stereotyping based on ethnicity.  It could include racist comments or jokes, or assumptions about someone’s lifestyle based on their ethnicity.
• Gender harassment could include not considering people for a job based on gender stereotyping roles, or implementing practices that disadvantage one gender over another.  Rude, explicit jokes, even if not directed at an individual, or comments on individuals dress or appearance.
• Regularly arranging team meals over periods of fasting or religious occasions or failing to adjust a dress code to accommodate religious dress could be examples of harassment based on religion/belief.
• Excluding same sex partners from social events could be both sexual orientation and marriage/civil partnership discrimination, as could not offering the same work-related benefits. 

A person does not need to be employed or have 2 years qualifying service to make a discrimination claim at a tribunal.   

• Job applicants who believe they have not been appointed because of a ‘protected characteristic’ can make a claim.   
• New or established employees who are dismissed, or treated unreasonably because of a health condition can make a discrimination claim.
• An employee subjected to harassment can make a discrimination claim at a tribunal.   
  • An employee asked to retire can make a discrimination claim at a tribunal.

Legal risks 

Successful unfair dismissal claims are limited to a compensation cap, whereas those for unlawful discrimination have no cap. 

A positive employment culture, and swift action if conduct falls beneath acceptable standards will help mitigate the risks.  An unhealthy culture will make it difficult to defend claims.

The time to defend and the cost of defending tribunal claims can be significant, irrespective of the outcome. 

Culture and behaviour 

We work in eclectic communities and working environments, and a positive culture within the council enables employees with different backgrounds and beliefs to share ideas and shape how the council achieves its objectives for their community.   

It is important to recognise that different individuals may find different behaviours bullying or harassing so while there is not always intent to offend or cause harm, that does not mean that the effect of the behaviour has not caused harm or offence. 

It can take people a period of time to decide to raise their concerns, as they worry about consequences (perhaps from peers by complaining about a colleague who is popular, or they fear victimisation from the perpetrator or others). The council should consider whether there are opportunities (such as One to One’s to offer opportunity to reflect on relationships/morale) to identify issues earlier and address negative behaviours.  Individuals can often mention concerns they are experiencing but not want to take it further.  The council should remind the complainant that it has a zero tolerance to bullying and harassment and remind them of the policy in place to address concerns.  If the allegations mentioned are significant, the council may want to suggest that it will need to investigate further, even if a ‘grievance’ is not raised, so as to ensure that any concerns and risks are managed, and the council is meeting its responsibilities and duty of care as an employer.

Whilst both staff and councillors jointly determine the working culture, councillors are key in demonstrating what is and isn’t acceptable behaviour.  This is apparent from how councillors behave with each other in council meetings and also in how standards of behaviour are applied through the use of informal discussion and formal policies.  

Scope

All council representatives are expected to uphold the values of the Dignity at Work Policy, however this policy sets out how allegations from employees will be managed.  As indicated in the policy, concerns from a contractor, agency worker etc. should be raised to the identified person, and an appropriate approach will be considered based on the situation and relationship of the complainant with the council.

Likewise, concerns raised about the behaviour of a contractor or agency worker would not generally be managed via the full process (such as the disciplinary process) but appropriate action would be considered based on the situation.  To treat people (such as contractors, or a casual worker) engaged by the council the same as an employee could blur the status of the employment relationship, so consider seeking professional advice if needed.

Managers

Recognising that councils are of varying sizes, where the term manager/nominated manager is used it is recognised this could be the clerk/chief officer, another employee of the council, or a councillor depending on the situation.  It is good practice to have a clearly identified person who is the responsible ‘line manager’ or equivalent contact for an employee so that there is clarity on how the employee should report concerns to, who they notify if they are sick or to request leave etc.  More often for council employees this may be the clerk/chief officer, and for the clerk/chief officer this could be the chair/deputy Chair, or possibly chair of a staffing/personnel committee.

Bullying and harassment & performance management

The policy sets out that bullying and harassment does not include appropriate criticism of an employee’s behaviour or effective, robust performance management.  It is not uncommon for an employee, when receiving critical feedback, to claim that this is bullying and/or harassing.  It is the role of the nominated manager to provide effective and constructive feedback to encourage performance at the required standard. 

Even when the feedback is not positive it should be fair, communicated in a professional and reasonable manner and shared with the objective of aiding understanding and achieving an improvement to overcome the shortfalls.  There is no absolute definition of when the feedback may not be appropriate. Often it will be for the person/panel hearing the dignity at work complaint/grievance to determine whether the performance management has upheld the standards expected in terms of respect and civility and any feedback has been shared in a fair and professional way.

Responsibilities

All staff and representatives of the council are responsible for their own behaviour in the workplace and for taking steps to revise unacceptable behaviour and appropriately challenge that of others.

Leaders – councillors, clerks, chief officers, managers - are responsible for ensuring that these standards of treating people with civility, respect and courtesy are upheld, both through their own example, and by communicating and promoting these expectations to all employees.  They are also responsible for ensuring that concerns raised are treated seriously and addressed in line with this policy in a timely manner.

During the investigation  

Employers have a duty of care to provide a safe place of work.  If a complaint is made, discuss how to manage working relationships whilst the allegation is being investigated and until the outcome is disclosed.    This is as much for the protection of the alleged perpetrator as for the aggrieved.    

Consider whether a neutral person should be offered as a ‘listening ear’ for both parties in the investigation.  This could be a councillor or nominated manager who is not involved in the investigation or allegations and can be a point of check in as raising, or being subject to allegations can be stressful.     

Offer other support that may be appropriate to the situation such as signposting to support groups, time off for counselling etc.  If you have suspended a staff member, your duty of care continues and it is important to consider their wellbeing and mental health. 

Ensure that you communicate regularly with both parties.  

The investigation and any subsequent hearing should be completed in accordance with the grievance policy which sets out a process for dealing with concerns.  You should ensure that the grievance policy adopted adheres to any local policies and procedures, with consideration of any timescales and escalation routes in your locally adopted policy.

Confidentiality

It may be possible for concerns to be raised with the perpetrator without disclosing the name of the complainant however in a small council it is likely that it will be clear that the accused will know where the accusation has come from.  The council representative (clerk/chief officer/councillor) speaking to the alleged perpetrator must be clear that the discussion is confidential and the individual would be at risk of formal disciplinary action if there is any sort of victimisation or retaliation for the individual raising their concern.

During any formal investigation it may be necessary to disclose the nature of the allegations and where they came from to ensure a fair and balanced investigation and process.  This should be discussed with the person raising the concerns to understand any issues and how they may be mitigated.  In some situations it may be appropriate to provide anonymised witness statements however this would be a last resort, and could compromise the fairness of the process.  Where there is a genuine fear of consequences and this may need to be considered, it is recommended that professional advice is sought.  For the same reason it can be difficult for a council to consider an anonymous complaint, however if the concerns are significant and compromise the council in their duty of care to employees, then consideration of how the deal with the matter may be required.

Victimisation  

All employees have the right to raise genuine concerns without the fear of reprisals.  If the aggrieved (or a witness) is treated differently / less favourably because they have raised a complaint, then this is victimisation.   This would include isolating someone because they have made a complaint, cancelling a planned training event, or giving them a heavier or more difficult workload.  Victimisation can lead to a claim to an employment tribunal. 

False allegations 

If an employee makes an allegation that they know to be untrue, or gives evidence that they know to be untrue, the council should consider the matter under the disciplinary procedure.  Such an allegation would, potentially, be gross misconduct. 

Complaints against Councillors  

Following the Ledbury case {see Notes 1 & 2}, the law is clear that any formal complaint about a councillor regarding a breach of the code of conduct must be referred to the Monitoring Officer for investigation (either by the complainant, or the Council with agreement of the complainant).   During the investigation, it is critical to ensure that where an employee of the council has made the complaint, that the council agrees reasonable measures with the employee to protect their health and safety.  Such measures may include a temporary change in duties, change of work location, not attending meetings with the person about whom the complaint has been made etc.   

Careful consideration is required where a grievance is raised against the council as a whole due to lack of support related to councillor behaviours.  The specific allegations will need to be considered to determine whether the allegations can be addressed by the council, or require exploration of the councillors behaviour in order to respond, in which case the Monitoring Officer may be required to investigate the alleged behaviours of any councillor(s) where this may relate to the code of conduct.  It is a matter of whether the complaint is against the council and can therefore be dealt with by the council’s grievance procedure or against a councillor and can only be dealt with by the Monitoring Officer.

Notes

1. The case of R (Harvey) v Ledbury Town Council [2018] EWHC 1151 (Admin) concerned the Town Council's decision to impose sanctions on a councillor under its grievance procedures, banning her from serving on any committees and from communicating with any staff, following complaints of bullying and harassment. The councillor contended that any such complaints had to be dealt with under the Localism Act procedures; the council said that the 2011 Act did not prohibit parish councils from instigating proceedings under their grievance procedure where what was in issue was a matter involving internal relations between its employees and staff.

2. The Monitoring Officer of Herefordshire Council (the Unitary Council above Ledbury Town Council) wrote to the Town Council advising that although these allegations were made under the grievance procedure, they were in fact that a member had failed to comply with the authority's Code of Conduct and so had to be dealt with in accordance with the arrangements made under s.28(6) of the Localism Act 2011.