This concerns someone I know.

They have been subject to bullying and victimisation by supervisor and line manager over a period of months.

This was flagged up to department managers, who have recognised the issues. They have witnessed some of behaviours and others have reported incidents that have happened. Department Managers have now had half a dozen complaints about the behaviour of the supervisor and line manager concerned.

The departments managers have said that unless my friend makes a formal complaint using the grievance procedures that exist, that they can't do anything. My friend has health/vulnerability issues that make this difficult, as the process involved may cause additional stress they want to avoid.

The question is whether Department Managers with HR responsibilities can hide behind having a grievance procedure, to avoid taking actions, when they have enough evidence of a pattern of behaviour that should be sufficient to act upon.

My HR training as a Manager was that I did not need to receive a complaint under the grievance procedure to act. That I could commence disciplinary procedures based on information I had received or bevaviours I had witnessed.

What is the correct legal position in such situations ? What are the consequences for Managers that fail to act, once they are made aware of conduct that could be considered bullying or victimisation ?

The law isn't clear on this. Technically, they ought too do something about it. But it's a quandary because the only way to highlight that they have not done something is... to submit a grievance. Without going into whether the allegations are true, because what is described as bullying isn't always (and victimisation, in law, only relates to specific types of claims such as discrimination), on technical grounds it could be argued that they are failing to protect the well-being and health/ safety of employees. But SOMEBODY had to make that complaint. There's no watchdog, as such, that will swoop in and save the day. And if someone has to make a complaint, it may as well be about the accrual allegation, not about them not doing anything!

So you are correct on technical grounds - if you believe that something is wrong you do not have to have a formal complaint to act upon the situation. But there is no way of forcing someone to act. And given the part of the definition of bullying is that a person believes it to be bullying, if the victim doesn't report it, then it could be argued that they don't regard it as bullying. I'd have to be honest and say that I would be quite savage in defending a member who was accused of bullying without any evidence of it! And I have certainly come across situations where the "victim" hasn't perceived something as bullying when others have - erroneously in some cases. So it isn't anywhere near clear cut. And no investigation could possibly take place without involving the victim, who at some point must speak up.

The correct legal position is that there isn't one! If there's no complaint then it can't go to law! And I'd have to say that it is highly unlikely there would be any consequences for managers failing to respond to something that can be argued to not exist!

Someone needs to make a formal complaint. Preferably the victim because whether they complain or not, they will be interviewed and they must say what had happened if they allege bullying. If they won't say anything, then I'm afraid that there is no bullying - and whilst it may seem unfair at one level, it isn't. The alleged perpetrators also have rights, and that includes entitled to see and hear the evidence against them. If it's all third hand reports from people unwilling to go formal, and the alleged victim refuses to confirm the complaints, then that person is innocent! You can't "convict" someone based on hearsay and no complaints. Well you can, but it wouldn't hold up to scrutiny.

If your friend had problems, and these constitute a disability, it is possible that a reasonable adjustment could be to have some form of support put in place to enable them to complain. Some employers will allow this anyway for such allegations. But honestly, in the end, they have to stand up for themselves.

Sangie, thanks for the long considered response. Was hoping that you would reply.

The employer concerned is public sector, with clear policies on responsibilities to safegard health & wellbeing of staff, report bullying etc.

To my knowledge several instances have been documented already, meetings held about them. Complaints have also been been filed with managers by independent members of staff who happened to witness acts of bullying.

From what I understand managers won't act, unless the victim makes a complaint, which I have told them to do so. They are a member of a union, so could get advice if they required it.

If I were me as manager and I had witnessed some of the described bullying, I would have held disciplinary conduct meetings documenting everything, with assistance of HR. Then see where it led, after going through everything properly.

Nope, you couldn't have done that. YOU would have been the complainant, so you couldn't complain, investigate and hold a disciplinary meeting! I hate to say this, but I'd have to call it 50/50. If the alleged victim hasn't complained, then there is no victim. No victim, no bullying. Perception is a big factor in bullying - one person's bullying is another person's management. If I don't think I'm being bullied, then what you think isn't relevant. Let's suppose that the person gets sacked and at the tribunal the alleged victim says they weren't bullied? Whoops, now it's a conspiracy to bully that individual, false testimony, and unfair dismissal!

Bullying is one of the hardest situations to deal with. The variables are limitless, the definition all about feelings and not just facts. And it rarely ends well for anyone. But if they are in a union, that's the place to go. There are possible alternatives if they would prefer not to complain. But only the union would know how viable they are, and almost certainly it would mean the victim gets redeployed. It shouldn't be like that, but it's seldom the other way around. And in all honesty, it is often for the best, as starting often isn't practicable.

There are actions which are not a disciplinary which can happen with no complaint.

Department manager gets butt down to the coal face and observes

Gives feedback on acceptable behaviour

Provides coaching / training until that is achieved

Thanks for the replies. On reflection, yes I think for a complaint to be addressed, the victim needs to put up or shut up. Sounds a bit harsh, but if they are not going to pursue a complaint, they can't expect others to do it for them.

It is up to the managers to deal with the issues mentioned under standard performance management procedures.

Thanks for the replies. On reflection, yes I think for a complaint to be addressed, the victim needs to put up or shut up. Sounds a bit harsh, but if they are not going to pursue a complaint, they can't expect others to do it for them.

 

It is up to the managers to deal with the issues mentioned under standard performance management procedures.

Yes, and I would agree with Emmzzi. Albeit, given in this case it appears to be the immediate managers who are the problem, a manager can act short of disciplinary processes without much more than their own concerns, and try to intervene. Obviously, the problem is that if the alleged perpetrator isn't receptive to the allegation, then it simply goes back intro that circle of going back to the victim.

There is a lot of truth to the put up or shut up, I'm afraid. In the bad old days, when I was a girl, the standard response was that if a bully hit you, you hit them back but harder. It always worked! The moral of the story being that bullies pick their victims. Oddly, nobody has tried bullying me since, well, actually, ever. When I was a slip of a girl, Jimmy bullied my friend Sandra. So I hit him for her! Fists may not solve problems... but they solved that one! Often, just the bearing of a person marks them for bullying. And in the end, they will always be a victim, if not of bullying, of something, if they don't learn to stand up for themselves.