1 Handling Complaints of Unfair Discrimination, Harassment, Bullying and Victimisation Chapter 3 - Section 12
2 Complaints of Discrimination, Harassment, Bullying and Victimisation 1 Introduction 1.1 The Governing Body is committed to promoting dignity and respect at work and will continue to develop and maintain a culture in which unfair discrimination, harassment, victimisation and bullying are unacceptable and where employees are confident enough to raise grievances. 1.2 The Governing Body has adopted an equal opportunities policy statement which expresses its commitment to equality principles and practices in employment and delivery of educational services. 1.3 This policy is complementary to the equal opportunities policy statement. It aims to make clear what is considered appropriate and inappropriate behaviour and conduct at work. It provides guidance for headteachers and senior staff and other employees on the procedures to be used to deal with inappropriate behaviour and conduct and to prevent its recurrence. 2. The Code of Practice 2.1 Discrimination, harassment, victimisation and bullying may not only be unlawful but is morally wrong and bad practice. Discrimination, harassment, victimisation and bullying can have a devastating effect on the health, confidence, morale and motivation of those subjected to it. 2.2 The anxiety and stress caused by such treatment can lead to increased absenteeism, reduced efficiency and productivity, higher rates of staff turnover, costly and time-consuming litigation, a hostile working environment, poor relations with users of the service and recruitment difficulties resulting from a poor public image. 2.3 The Governing Body undertakes to treat all complaints of discrimination, harassment and bullying seriously and without victimisation. Following a formal investigation: conduct or behavior amounting to intentional direct or indirect unfair treatment as defined in this policy will be treated as serious disciplinary matters (i.e. will be treated as gross misconduct in accordance with the disciplinary procedure adopted by the Governing Body and may lead to dismissal). conduct or behaviour amounting to unintentional direct unfair treatment will be treated as an issue of "capability" in accordance with the procedures adopted by the Governing Body.
3 conduct or behaviour involving unintentional indirect unfair treatment will result in a thorough review of, and, any necessary changes to the policies, practices and procedures concerned. 3. Definitions of Unfair Treatment 3.1 Direct Discrimination Direct discrimination occurs when someone is treated less favourably than another person because they have a protected characteristic as in the Equality Act Associative Discrimination Associative discrimination is direct discrimination against someone because they associate with another person who possesses a protected characteristic. Perceptive Discrimination Perceptive discrimination is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic. Indirect Discrimination Indirect discrimination may occur if certain rules, conditions or practices apply to everyone, but place a particular disadvantage to those with a protected characteristic, unless these are objectively justified (i.e. if it can be shown that it is a proportionate means of achieving a legitimate aim. Being proportionate means being fair and reasonable, including showing that less discriminatory alternatives have been considered as part of the decision making process). 3.2 Discrimination can be either intentional or unintentional. Unjustified refusal to interview, appoint or offer training or promotion, differential terms of employment, benefits or access to facilities, the unfair allocation of work and unfair disciplinary action, dismissal or unfair selection for redundancy are examples of what would constitute unfair discrimination. 3.3 Harassment Harassment is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. The word unwanted means essentially the same as unwelcome or uninvited. Unwanted does not mean that express objection must be made to the conduct before it is deemed to be unwanted. Unwanted conduct related to a protected characteristic (as in the Equality Act 2010), has a broad meaning in that the conduct does not have to be because of the protected characteristic. It includes the following situations: Where conduct is related to the worker s own protected characteristic. Where there is any connection with a protected characteristic.
4 Examples of different types of harassment (this list is not exhaustive) can include: Sexual Harassment Unwelcome sexual advances/ provocative looks, remarks or jokes, comments on appearance, displaying offensive images in posters or screensavers, inappropriate texting or ing, touching and other forms of assault. Racial Harassment Derogatory name-calling, insults, reference to someones colour of skin, racist jokes or remarks, ridiculing cultural differences, verbal abuse and assault. Disability Harassment Not recognising competencies, drawing attention to disability or personal appearance, jokes, ignoring or focussing on a person because of their disability. Ageist Harassment Denigrating competencies, patronising, jokes and ridiculing, not including someone in social activities. Sexual Orientation Harassment Homophobic jokes or remarks, threats to/ or disclosing sexual orientation, ridiculing civil partnerships. Religion or Belief Harassment Not supporting religious requirements such as prayer, offering inappropriate catering to minority groups, offensive remarks and jokes, ridiculing religious requirements in dress. Gender Reassignment Harassment Ridiculing dress and personal appearance, offensive jokes and remarks. Status Harassment Patronising, ostracising or marginalising someone with different job roles or showing favouritism Harassment can also include jokes, offensive language, gossip, slander text messages or letters. 3.4 Bullying and harassment may be persistent or an isolated incident. 3.5 Employers may be held to be vicariously liable for acts in the workplace such as bullying and harassment, violence or discrimination. Accordingly, the Governing Body, by adopting this policy, intends to take a clear stance on this matter.
5 3.6 Bullying Bullying is defined as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient. Bullying behaviour may come from any individual, even work colleagues and this can humiliate or undermine an individual's skills and ability to such an extent that they become fearful, their confidence crumbles and they lose belief in themselves. 3.7 Open bullying may take the form of shouting at staff/colleagues in public (or private) often over relatively trivial matters, personal insults, name calling, persistent criticism and humiliation. It may be more subtle than this and may be conducted through setting objectives which cannot be met within a reasonable time-frame, the removal of responsibility without good reason, constantly shifting and changing work guidelines or ignoring and excluding the individual from relevant discussions. 3.8 A victim of bullying may suffer physical and/or emotional symptoms for example: disturbed sleep, loss of appetite, panic attacks, nausea, sweating, lack of confidence, tearfulness, irritability, detachment, depression and lack of motivation. 3.9 Victimisation Victimisation occurs when someone is treated badly because they have made or supported a complaint, or raised a grievance under the Equality Act; or because they are suspected of doing so. The Act also includes a new and additional protection relating to disability. For example, bringing a complaint of discrimination, giving evidence or information on behalf of another employee who has brought proceedings for discrimination Victimisation may present in many ways. It may be that individuals are refused requests for time off, denied promotion or training, ignored by their manager or colleagues, criticised continually for their work, messed around with respect to their working arrangements. 4. Responsibility 4.1 Responsibility for the prevention and elimination of unfair treatment rests with all employees. Management, including headteachers and senior managers do have a particular duty to ensure that discrimination, harassment, victimisation and bullying does not occur in the workplace. This can be supported by: explaining and positively promoting the policy to employees responding to and supporting any employee, pupil or job applicant complaining about unfair treatment providing full and clear advice on the procedure to be followed maintaining confidentiality ensuring that no repetition or victimisation occurs after the complaint has been resolved
6 4.2 Employees have a role to play in helping to eliminate discrimination, harassment, victimisation and bullying and in developing an equality culture. Employees can do this by preventing this type of treatment through an awareness of and sensitivity to equality issues and by ensuring appropriate standards of conduct for themselves and others. Discrimination, harassment, victimisation and bullying can be discouraged by:- employees being sensitive to the potential impact of their own behaviour on colleagues and job applicants making it clear to colleagues that they find such behaviour unacceptable supporting colleagues and job applicants who suffer such treatment and are considering making a complaint 5. Trade Unions and Professional Associations 5.1 Discrimination, harassment, victimisation and bullying treatment is clearly an issue for trade unions and professional associations as well as an issue for headteachers and senior management. Trade unions can assist in the elimination of discrimination, harassment, victimisation and bullying treatment and in developing an equality culture by:- clearly stating their commitment to equal opportunities supporting, advising and offering representation to members of staff who are the recipients of discrimination, harassment, victimisation and bullying treatment co-operating with management on initiatives and action to prevent and eliminate discrimination, harassment, victimisation and bullying 6. Conclusion 6.1 The procedures for dealing with complaints from employees and job applicants are set out at appendix 1 of this policy. Chapter 3 - Section 12 - Page 6
7 Appendix 1 Code of Practice for Dealing with Unfair Treatment (Discrimination, Harassment, Bullying and Victimisation) Complaints from Employees 1. Informal Procedure 1.1 Victims of unfair treatment may not always wish to raise a complaint formally particularly in cases of harassment or bullying. This may be because: they are unsure whether they have actually been treated unfairly; they may lack confidence or be too embarrassed to complain; they do not want the perpetrator to get into serious trouble; they may fear reprisals for making a complaint 1.2 For these reasons, victims of discrimination, harassment, victimisation and bullying should have access to an informal procedure for resolving such problems. The existence of an informal procedure, however, should not preclude management from using formal procedures where appropriate. There may be serious cases which require direct recourse to formal procedures or, possibly criminal proceedings, where informal procedures would be inappropriate. 1.3 Employees who are the recipients of discrimination, harassment, victimisation and bullying treatment should, where appropriate, inform the perpetrator that the behaviour is unwanted and unacceptable. This discussion may take place with facilitation from a manager. This may be enough to resolve the problem. Nevertheless, employees should keep a record of any incidents of discrimination, harassment, victimisation and bullying including a note of any witnesses. This will assist in bringing any complaints to a more effective conclusion should there be the need to resolve the matter through formal procedures. 2. Advice and Assistance 2.1 Where an employee feels unable to directly approach the perpetrator
8 they may wish to seek support from an impartial work colleague or, where appropriate, the relevant representative of a trade union or professional association, to obtain confidential advice, support or assistance. 2.2 Where the employee approaches their work colleague it is important to respect the fact that this person may not wish to become involved. In such circumstances the employee may consider contacting either the schools Human Resources provider or their counselling service to seek advice and informal assistance. If none of the options for resolving the problem informally are appropriate then the employee must give consideration to raising the matter formally with the Headteacher under the Grievance procedure. 3. Counselling 3.1 Complaints of discrimination, harassment, victimisation and bullying treatment can arouse emotions in both victims and perpetrators including anxiety, stress, anger, resentment and frustration. Regardless of the outcome of the complaint these emotions will need to be dealt with so that working relationships can be restored. 3.2 Headteachers and governors should offer the opportunity of an Employee Support service to both parties. 3.3 The aim of Employee Support will be to provide a private and confidential opportunity for the victim and/or perpetrator to explore, discover and clarify feelings of anxiety, stress, anger, resentment and frustration arising from the complaint of discrimination, harassment, victimisation and bullying treatment, thereby helping to dissolve them with the intention of making it easier to understand and reduce the pain caused. This may help both parties to resume normal working relationships. 4. Monitoring 4.1 Where a complaint has been upheld, management within the school will need to ensure that discrimination, harassment, victimisation and bullying treatment has ceased and that any necessary changes to policies, practices and procedures are made and no victimisation occurs. Where a complaint has not been upheld, it will still be necessary for headteachers and governors to ensure that no victimisation of the complainant is taking place. 5. Malicious Complaints 5.1 The purpose of this policy is to express the Governing Body's commitment to the elimination of discrimination, harassment, victimisation and bullying treatment and to the development of an equality culture. Nevertheless, it should be recognised that allegations of unfair treatment are sometimes falsely made. 5.2 The rights of alleged perpetrators need to be recognised. Malicious or Chapter 3 - Section 12 - Page 9
9 unfounded complaints of discrimination, harassment, victimisation and bullying treatment can also have a devastating effect upon the health, confidence, morale and motivation of those falsely accused. It would not serve the interests of the school for any policy or procedure to be abused and for victims of malicious or unfounded allegations to have no redress. 5.3 A grievance is malicious when through investigation it has been established that the grievance is unfounded and there are clear grounds for a belief that the grievance was made in bad faith i.e. where the complainant knew at the outset that the grievance was not founded. 5.4 Disciplinary action will be taken against an employee who makes a malicious grievance, or if they make allegations against somebody with the intention of causing that person harm or to more generally create disharmony or unrest in the workplace Chapter 3 - Section 12 - Page 12