Employer’s Policies & Procedures
Written Statement of Particulars
The employer is legally obligated to provide the employee with a written statement of particulars (employment contract) within two months of the employees’ start date. A failure to do so can make the employer liable to pay between two and four weeks wages, at the Employment Tribunals discretion.
Employers Policies and Procedures
The first bit of investigative work you need to do, is to get your hands on your contract of employment, and establish which of your employer’s policies are ‘contractually binding’. The policies which are likely to be contractually binding, are your employer’s policies on: (i) Health and Safety (ii) Grievance Handling Policy.
The employers policies on (i) Bullying & Harassment (ii) Disability Discrimination and (iii) Sex Discrimination (iv) Equalities will not likely be contractually binding. Read through your employer’s policies with a fine tooth comb PRIOR to lodging your written formal grievance letter. You will then know which procedures your employer should follow during the grievance procedure.
I have mentioned throughout this site, that you need to “establish facts” from which the Employment Tribunal could conclude that “on the balance of probabilities” your employer has committed some “act” which amounts to a contravention of a Statutory Act, or Regulation. This makes the employer potentially liable to pay damages. No matter how badly your employer may have treated you, unless it has contravened a Statutory Act or Regulation, your employer will not likely be held liable to pay you compensation.
Employers “breach” of its own policies and procedures:
Your employer’s failure to observe its own policies and procedures, which are contractualy binding, may give rise to a breach of the contract of employment. If you have one years service with your employer, you could lodge a claim with the Employment Tribunal for “constructive dismissal“. However, as previously stated, the average payout for constructive dismissal is just under £8,000.00. In truth, unless you earn mega bucks, you are better off NOT to resign, and where possible, keep your job. Given the current economic climate, I would strongly suggest you attempt to work things out with your employer as amicably as possible.
Employers “breach” of a Statutory Act or Regulation:
Should your employer have failed to observe its policies and procedures where your grievance pertains to either discrimination or harassment, then you have a much stronger case to claim for, and do not need one years service. However, you still have to place the “burden of proof” firmly upon your employer. This means establishing facts from which the Employment Tribunal could conclude that discrimination, harassment, less favourable treatment or victimisation have occured. The Employment Tribunal will look at the steps your employer failed to undertake, and what it could and should have done. These are important points, as outlined in the case precedents below.
Employment Case Law:
In the case of Beadles Group Ltd v Angelica Graham 2003, Ms Angelica Graham was awarded £178,000 by the Employment Tribunal due to the conduct (sex harassment) of her line manager, during her first week at work. The Employer, Beadles Group Ltd., had no written policy on sex discrimination, harassment or equal opportunities, and had failed to provide training, guidance or advice to “ordinary employees” about sex harassment. The Employer was therefore liable. It had failed to take “reasonable and practical steps” to “protect” its employees. Further, it had failed to “prevent” harassment from occurring in the workplace.
In another case, Caniffe v East Riding of Yorkshire Council (2000, IRLR 555, EAT) the Employment Appeal Tribunal (EAT) overruled the Employment Tribunals findings. The EAT held the employer failed to take “reasonable and practicable steps” to “protect” the employee, who had been subjected to sex harassment. The EAT held that the proper approach Tribunals should take when deciding on liability was firstly, to “identify” whether any “preventative steps” had been taken by the employer. Secondly, to consider what “further steps” the employer could have taken, which were “reasonably practicable”.
By reading through your employer’s policies, you will have an understanding as to what steps the employer ought to undertake in following its own procedures. However, your employer’s policies are not a law unto themselves, but will likely take into account statutory law. The above two precedents, demonstrate that an employer who has inadequate policies, or who fails to take reasonable and practicable steps, can be held liable to pay substantial damages.
Employer’s Bullying & Harassment Policy:
Your employer may have a blanket policy for harassment, which covers all aspects of “harasment”, viz: disability, sex, religious, age, religion, race etc,. Should this be the case with your employer, then its “Harassment Policy” is likely to be inadequate, especially if your grievance relates to sex discrimination or sexual harassment. The European Commission Code of Practice 1991 on “Sex Harassment” stipulates that employers ought to have a seperate policy for “Sex Harassment”.
Look at the wording of your employer’s “Harassment Policy”. You are looking for phrases along the following lines:
“We are committed to maintaining a working environment free from bullying and harassment and one where individuals are treated with dignity and respect.”
“Wherever possible, we will ensure that you and the alleged harasser are not required to work together whilst your complaint is under investigation. The alleged harasser may be suspended whilst any investigation and disciplinary proceedings are underway.”
“It is the impact of the behaviour on the recipient that is important and not the motive or intent behind it.”
In truth, most employers policies read well, but act poorly. Employers talk of a committment to maintaining a working environment free from harassment, where the employee is treated with dignity and respect. In all three cases where I have lodged grievance letters, each employer had failed to maintain its own policies. Further, I was treated with anything but ‘dignity’ or ‘respect’. Instead, I was “victimised” and further “harassed” for having lodged a letter of grievance!
You need to use the wording of your employer’s own policies against it. You want to draw inference against your employer’s failure to follow its own procedures. So, having lodged a letter of grievance, you will have to run the gauntlet of the grievance procedure to see what skullduggery your employer gets up to. No doubt, given the fact five thousand Employment Tribunal claims are lodged each week, you only need give your employer enough rope to eventually hang itself in the Employment Tribunal!
Employers Health and Safety Policy – The Health & safety At Work Act 1974
Look for the procedures within your employer’s Health and Safety Policy on: “Occupational Health” – “Risk Assessments” – “Management Standards” – “Stress Management”. These policies should be in line with the wording encompassed within the Health and Safety At Work Act 1974. You want to use the statements contained within your employer’s policies, against it. Look for the following:
“We recognise our ‘duty of care’ to all staff and aim to ‘protect’ them from ‘any risks’ to their ‘health’ and ‘safety’ as far as is reasonably practicable. We will achieve this by ‘identifying’ and ‘assessing the risks’ to which staff are likely to be exposed”.
“We recognise the importance of protecting and promoting the physical and mental health of all our employees, and will establish and maintain arrangements to fulfil this in practice”.
“We will identify and assess the risks to which our staff are likely to be exposed”
In the above statements, the employer has included the minimum statutory legal requirements into its own policies and procedures. It has taken parts of the Health and Safety At Work Act 1974and almalgamated them into its own policies to make them readable to the layperson.
Notwithstanding, the employer must “maintain” its policies and procedures. “Maintaining” the employer’s policies means more than just paying them mere lip service. It means ’embedding’ them into the workforce, by actively ‘promoting’ and ‘implementing’ them downwards through the chain of command to “ordinary employees”. The directorship are responsible for ‘championing’ the employer’s policies and procedures. This is outlined in the Health and Safety Executives guidance notes for directors (HSE INDG 417) which states:
“Strong and ‘active leadership’ from the ‘top’ establishing ‘effective’ downward communication to ‘engage the workforce’ in the ‘promotion’ and achievement of ‘safe and healthy’ working conditions; provide high quality ‘training‘, ‘identify’ and manage ‘health and safety risks’, accessing competent advice, ‘monitoring’ reporting and reviewing performance.”
NB: I have written an example of a grievance letter, which will aid you in establishing your own letter of grievance, due to work-related stress, work harassment or discrimination in the workplace.