Bullying and harassment: NHSScotland PIN policy

Appendix 3 Model policy and procedure

1 Introduction

This model policy and procedure has been developed as a distinct procedure to deal with alleged bullying and harassment incidents that arise in the workplace.

The policy and procedure must be used in conjunction with the Board's local policy developed in line with the Management of Employee Conduct PIN Policy where it has been determined that an allegation of bullying and harassment has been founded following a thorough investigation.

The policy and procedure provides for an informal, formal and review stage which takes cognisance of the current legislative framework for dealing with employee grievances. Therefore, this procedure may be used and there is no requirement to use the Board's local policy developed in line with the Dealing with NHSScotland PIN Policy to deal with incidents of bullying and harassment.

2 Impact of bullying and harassment

It is crucial that organisations treat seriously any form of intimidating behaviour. Failure to do so may encourage a working environment which is unpleasant to work in, since staff are unable to perform to the best of their ability if in fear of bullying or harassment.

The health and morale of staff may suffer and levels of stress, anxiety and sickness may increase. It makes sense that a working environment free from bullying and harassment enables staff to contribute more effectively and achieve higher levels of job satisfaction, and it will also help to reduce staff turnover and retain staff with valuable skills and experience.

3 Definitions

Whilst there may be no universally agreed definitions of workplace bullying and harassment, you can click here for some useful definitions and insights for inclusion in a policy and procedure document, to help staff identify bullying and harassment at work.

4 Legal framework

UK's legal framework as it relates to bullying and harassment is the cornerstone for setting policies and procedures to tackle them in the workplace.

Therefore, click here to review a list of relevant statutes/regulations.

5 Procedure

Where a complainant believes that they have been bullied or harassed, there are a number of options available to them dependant upon the circumstances of their own particular situation. These options are listed below:

5.1 Accessing a Confidential Contact

The organisation has identified and trained individuals who are fully knowledgeable about the bullying and harassment policy and procedure. They are available for staff to contact independently in order to discuss their situation and to seek support in making a decision about how they would like an incident to be handled.

These trained individuals are also able to provide the complainant with support and assistance during a potentially stressful period before and during an informal complaint being made to line management.

It may be helpful for a complainant who believes he or she is being bullied or harassed to talk to someone who is familiar with the issues surrounding bullying and harassment and also understands the philosophy behind the organisation's policy.

A Confidential Contact may also be asked to provide support and advice to an alleged bully/harasser, but this would not be appropriate in a situation where they were already providing support to the complainant who is alleging that bullying or harassment has taken place.

Note: It is also important to emphasise that a Confidential Contact should have no formal role within the organisation's disciplinary process and is not expected or trained to fulfil a professional counselling role. It is not the role of the Confidential Contact to make the decision for the complainant, but merely to provide them with the information they need so that they can decide how to proceed.

Complainants may access a Confidential Contact from a different area of the organisation from that in which they are employed if they would find this more helpful.

There are three possible outcomes from this contact:

• Use of the informal stages of this procedure;
• Use of the formal stages of this procedure; or
• Take no further action.

A complainant does not have to access a Confidential Contact as part of the procedure. If they prefer, they may access the informal or formal stages of the procedure to begin with.

5.2 Informal stage

This involves the complainant approaching the alleged bully/harasser in order to tell them that their behaviour is found to be offensive, why this is the case, and to ask them to stop. The complainant may ask a colleague or a staff-side representative to be present for moral support.

If the complainant would find confronting the alleged bully/ harasser too difficult, but still wishes to pursue the matter informally, they can ask their line manager/ HR for support in speaking to the person concerned. Alternatively, the complainant can write directly to the alleged bully/harasser detailing the offensive behaviour and confirming the requirement to stop any further bullying or harassment.

The complainant should keep a record of any informal action taken, along with a note of the date and what was said by those involved. This is necessary should evidence be required at a later date if the bullying or harassment continues or subsequently recurs.

It has to be emphasised that in order to maintain working relationships, matters should be dealt with by informal intervention wherever possible. The ACAS Code actively encourages all organisations to utilise dialogue as the main tool in dispute resolution. This may involve facilitated discussion between the parties involved. Even so, this does not remove the right of the complainant to pursue the matter under the formal procedure.

Should the informal approach prove unsuccessful, or the complainant has chosen to go straight to the formal stage of the procedure, the following arrangements will apply.

5.3 Formal stage

A formal complaint should be made to the complainant's line manager or supervisor, HR, or with the line manager of the alleged bully/harasser. Any formal complaint should be made in writing detailing the basis upon which the alleged bullying or harassment has taken place. As stated above, a complainant may access a Confidential Contact for support and assistance prior to lodging a formal complaint.

5.3.1 Investigation

It is the responsibility of fully trained internal investigators, with no previous knowledge of the complaint, to investigate the allegation and to come to a conclusion regarding the action to be taken. This process should be discussed in partnership with the complainant and their trade union/professional organisation representative if they have chosen to be represented.

All parties involved will be guaranteed a fair and impartial hearing. Strictest confidentiality should be pursued throughout the investigation process and, as formal disciplinary action is a possible outcome following an investigation, it should be conducted with reference to the provisions within the Board's local policy developed in line with the Management of Employee Conduct PIN Policy. This will prevent the need for a further disciplinary investigation if the matter goes to a formal hearing and the decision is that disciplinary action is required.

All parties must make every effort to proceed with and complete the investigation as swiftly as possible, recognising that lengthy and drawn-out processes only add stress and make a satisfactory outcome less likely. Although it is not practical to stipulate, within this procedure, timescales to suit every situation, the complainant, their representative and the alleged bully/harasser must be advised of the estimated timescale in writing by the investigating manager before the investigation begins. Any significant changes to the timescale must also be advised in writing, citing reasons for these changes. In the event of suspensions/relocations of individuals, these will be carried out taking account of all circumstances.

At each stage of the process, the complainant and the alleged bully/harasser will have the opportunity to be accompanied by a colleague or trade union/professional organisation representative. Again, it is crucial that at all stages confidentiality is assured.

Those involved in carrying out the investigation must recognise the difficulty which some complainants will have talking to a third party about the incidents involved and that they may become distressed at some point in the process. They may harbour feelings of embarrassment, a fear of being disbelieved or not being taken seriously, a fear of further damaging the working environment or a fear of management being biased against them.

Whilst recognising that talking and being questioned about the incident(s) may serve to add considerably to the stress already suffered as a result of the alleged bullying or harassment itself, we must also recognise that dialogue is the best way to resolve the problem.

It is important that a complainant is not questioned in a way which implies that they have either consciously or unconsciously invited the alleged bullying or harassment. This in itself may be a form of bullying or harassment, which may add to the stress being experienced by the complainant.

It should not be necessary for any complainant or alleged bully/harasser to have to repeat their statements to different managers at different times, thereby potentially increasing the stress they may suffer. Therefore, full, written and signed statements from all involved should be taken at an early stage, and a written and dated record of all investigatory interviews should be made.

5.3.2 Formal hearing

Any formal hearing should be conducted according to the provisions of this policy, which is in line with the Preventing and Dealing with Bullying and Harassment in NHSScotland PIN Policy.

Note: It will be for the organisation to determine the panel composition in line with existing policies and the provisions outlined herein. After consulting both parties, it will be for the panel's chairperson to determine how the hearing will be structured, taking into account the sensitivity of the issues involved and the need to protect the rights of all concerned.

5.3.3 Decision

There are four potential outcomes following the investigation and any formal hearing:

• The complaint is not founded;
• There is insufficient evidence;
• The evidence and/or nature of the complaint justifies counselling/advice only; or
• The evidence justifies formal disciplinary action.

5.3.4 No formal action

If no formal action is taken following the investigation and hearing, the alleged bully/harasser will be notified of the outcome in writing (with due regard for the confidentiality of both parties). If a claim is found to be malicious or vexatious in nature, then the complainant may find themselves subject to formal disciplinary action.

It may be the case that whilst no formal action is taken, some informal action may be appropriate, such as counselling of the alleged bully/harasser, mediation, or a facilitated discussion that attempts to bring resolution. In these situations, both the complainant and alleged bully/harasser will be notified of the outcome in writing, again with due regard for the confidentiality of both parties.

5.3.5 Formal action

If a complaint is upheld following an investigation and formal hearing, appropriate formal action will be taken. Where this involves potential disciplinary action, which in serious cases may lead to dismissal, a disciplinary hearing will be convened. For the avoidance of doubt, the investigation conducted when the complaint was submitted can be used as the basis of a disciplinary hearing.

In serious circumstances, if relocation proves necessary, every effort will be made to relocate the bully/harasser and not the complainant, unless the complainant specifically asks to be moved.

Additionally, in all cases where a bullying or harassment complaint is upheld, the organisation will seek to prevent the behaviour recurring.

Both the complainant and the alleged bully/harasser will be notified of the outcome in writing, with due regard for confidentiality of both parties.

5.3.6 Reviews

If the complainant remains aggrieved following the outcome of the formal hearing, they or their representative may request a review. The designated senior manager to whom a request for a review should be addressed will be identified within the letter confirming the formal panel's decision.

A hearing will be held to consider the grounds for review and the formal panel's views. To protect those involved, attendance of witnesses will be kept to a minimum. The complainant has the right to be accompanied by a colleague or trade union/professional organisation representative.

It will be for the review panel to decide how the review hearing will be structured, following consultation with the parties, taking into account the sensitivity of the issues involved and the need to protect the rights of all concerned. The outcome of the review will be communicated to the complainant in writing as soon as possible following the review hearing. This will be the final stage of the procedure and there is no further right of review.

5.3.7 Confidential counselling

Given the potential sensitivity of the issues involved and the stress present when dealing with bullying or harassment situations, the organisation may consider providing confidential counselling for the complainant and the alleged bully/harasser at any stage during this procedure.

6 Policy monitoring and review

Responsibility for monitoring the application of this policy will rest with senior management. This policy will be reviewed on an annual basis, with amendments being made as appropriate following consideration by staff, staff-side representatives and management.

7 Bullying and harassment by patients, carers, relatives, visitors or advocates

7.1 Background

Staff have the same rights as patients and other service users - that is, to be treated with respect and dignity at all times - and have the right to complain if bullied or harassed by a patient, service user, carer, relative, visitor or advocate.

It is inappropriate to swap the bullied or harassed employee with another employee without explaining to the complainant the reasons for this action. In all cases an Incident Report Form should be completed.

If a member of staff is bullied or harassed in the course of carrying out their duties, the following procedure should be adopted. It is a priority of the organisation to ensure that no staff are put in a situation of potential risk and the following procedures are put in place to protect staff whilst carrying out their duties.

7.2 Informal stage

Wherever possible, any incident should initially be dealt with informally. If the employee feels able to do so they should inform the alleged bully/harasser, at the time if possible, that they find their actions/remarks and behaviour to be unacceptable. They should state that they wish the unwelcome behaviour to stop.

If the situation warrants the need for a witness, the complainant is advised to approach a colleague to accompany them when approaching the alleged bully/harasser. The employee should then report the matter to their manager as soon as possible.

If the employee does not feel able to speak to the alleged bully/harasser personally, they can ask their manager to do so on their behalf. It will be the responsibility of the manager involved to discuss the action taken to date and what should be done if any further incidents occur.

At any stage, if the employee who made the complaint is dissatisfied with the action taken by management, he or she may lodge a grievance.

If the harasser is a patient or service user, it may be appropriate to discuss the matter with a carer or relative at the earliest opportunity. It may be that a carer or relative could be more successful in addressing the unwanted behaviour with the patient or service user.

If the alleged bully/harasser is a carer, relative, member of the public or advocate, it may be appropriate to discuss the matter with the patient/service user. In these circumstances, care and consideration should be taken regarding the duty of confidentiality to the patient or service user.

The manager must inform the alleged bully/harasser of the consequences of further incidents. Where it appears that the alleged bully/harasser is refusing services on potentially discriminatory grounds, they should be advised that this is the case and that in taking this action they may be deemed to be refusing services altogether which could result in either the withdrawal of a service or the loss of access to the organisation's premises.

A file note should be kept of the details of the incident, the action taken and by whom. If informal action proves insufficient to deal with persistent acts of bullying/harassment, then management reserves the right to take further formal action. In serious cases, it may be appropriate to move directly to this next stage.

7.3 Formal action

The manager must consider the following prior to making their decision and taking any action:

• The degree to which the incident undermines the relationship between parties;
• If any previous incidents have occurred and, if so, how severe they were;
• The health problem of the patient/service user; and
• The effects of the incident on the employee.

If the incident is serious, or a repetition of a previous incident(s) which resulted in informal action being taken, then the bully/harasser should be written to officially by the relevant senior manager informing them:

• That their comments/actions/behaviours are not acceptable (and, if appropriate, that it is potentially discriminatory);
• That further incidents will not be tolerated; and
• That further incidents may result in the withdrawal of services.

Where the incident is sufficiently serious, the senior manager will meet with the complainant prior to putting the matter in writing as above. A copy of any such letters should be sent to other relevant senior managers as appropriate.

In cases of physical violence or serious threats of violence, the senior manager should also involve the police as appropriate. Notwithstanding this, a member of staff may at any time involve the police as they wish.

If the employee who made the complaint is dissatisfied with management action taken, he or she may lodge a formal grievance in accordance with the organisation's Grievance procedure.

8 Bullying and harassment by contractors and staff from other agencies

In cases where the bullying or harassment involves contractors or staff from other agencies, the stages as detailed at Sections 4.2 and 4.3 should be applied. However, due to the specific nature of the relationship between the organisation and these individuals/organisations, the following additional steps should be included at the informal stage:

• If the harasser is a contractor or staff member from another agency, the manager will contact the appropriate senior person within the company/organisation concerned to advise them that this type of behaviour is unacceptable and that, if it is repeated, the individual concerned may be refused entry to the organisation's premises.

This action is predicated on the basis that all contractors are advised that the provisions of the policy apply to them before entering into the contract for services under which they are operate. It is also predicated on the basis that partnership organisations are aware that whilst their representatives are on NHS premises and/or dealing with staff employed by the NHS organisation, such individuals will be expected to behave acceptably at all times.

Should the matter not be resolved informally, the formal stage would require the appropriate senior manager to write to the appropriate senior person within the company/organisation concerned to advise them again that this type of behaviour is unacceptable and that if it is repeated then the individual concerned may be refused entry to the organisation's premises or refused continued contact with staff of the organisation.

If the employee who made the complaint is dissatisfied with management action taken, he or she may lodge a formal grievance in accordance with the organisation's Grievance Procedure.

9 Guidelines

It is considered to be of vital importance to the success of any bullying and harassment policy/procedure implemented that all those who have responsibilities within it, namely managers and individual employees, understand the philosophy that lies behind the formal documents.

It is therefore recommended that guidelines for both managers and employees are prepared. These should be prepared in an inclusive manner in conjunction with trade union/professional organisation representatives and management.