Publication - Consultation paper

NHS 'Once for Scotland' workforce policies: consultation on core policies

Published: 17 Apr 2019

This consultation focuses on the policies for grievance, conduct, capability, bullying and harassment, attendance and the investigatory process for workforce policies.

NHS 'Once for Scotland' workforce policies: consultation on core policies
2. Bullying & Harassment

2. Bullying & Harassment

2.1 Aim
2.1.1 To provide:-

  • A supportive environment to seek early resolution to bullying and/or harassment concerns.
  • A formal mechanism to address unresolved or significant and/or persistent bullying and/or harassment.

2.2 Scope
2.2.1 This policy applies to all employees and workers such as bank, agency and sessional workers.

2.2.2 It covers bullying and/or harassing behaviours< Link to the descriptions of bullying and harassing behaviours > from other employees and from patients, relatives, carers and employees of other organisations where these relate to the working environment. The behaviour can be by an individual or a group (mobbing). It can be face to face, written or via electronic methods(cyber-bullying/cyber-harassment)

2.3 Definitions
2.3.1 Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.

2.3.2 Harassment is unwanted conduct related to a relevant protected characteristic (age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation), 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. It may also relate to other personal characteristics such as trans identities including non-binary.

2.3.3 Mediation is a voluntary confidential method in which the parties are brought together in a neutral setting for up to a day, to try to achieve a mutually acceptable outcome, with the help of trained mediators, who are independent and have no involvement in a case, either before or after the mediation. <Link to more detailed information>

2.3.4 Significant and/or persistent bullying and/or harassment – the Conduct supporting documents give examples of what is gross misconduct i.e. has the potential for dismissal. This includes "significant and/or persistent bullying and/or harassment". This means a single, serious incident and/or an ongoing pattern of bullying can be considered gross misconduct.

2.3.5 Supported Conversation is an informal discussion between two or more employees facilitated by a manager or other third party. This is conducted in a fair and consistent manner to facilitate equal participation with the view of seeking resolution. < Link to more detailed information >

2.4 Roles and Responsibilities
2.4.1 Line Manager

  • Create an environment where employees are clear that bullying and/or harassment is unacceptable.
  • Respond constructively and supportively where an employee raises a concern regarding bullying and/or harassing behaviours or is accused of such behaviours.
  • Assess the seriousness of the complaint and determine whether the matter can be addressed under early resolution.
  • Assess the risk of the parties continuing to work together while the concern is being addressed and consider alterations that would support this<Link to Guide to Maintaining Relationships>.
  • Identify suitable alternative placement(s) and appropriate support mechanisms to prevent isolation where it is not possible to keep the parties together.

2.4.2 Employee

  • Contribute to a dignified working environment in which bullying and/or harassment is considered unacceptable and consider personal behaviours that might be seen as such.
  • Take time to consider whether the behaviours demonstrated are bullying and/or harassing in nature<Link to Self-reflection tools> and if so, what their expectations are of any process.
  • Raise the issue with a manager where personally unable to manage such behaviours as the employee subject to the behaviours, as a witness or as the employee demonstrating such behaviours.
  • Actively participate in the process in an attempt to manage the issue without delay.
  • Consider accessing any support mechanisms to maintain health and wellbeing during the process.

2.4.3 Anyone involved in the process is required to maintain confidentiality throughout the process.

2.4.4 There are a range of standard expectations on all parties and on HR, Trade Union representatives and Occupational Health which underpin all policies<Link to standard roles and responsibilities>.

2.5 Procedure
2.5.1 Procedure in cases Involving other employees

2.5.1.1 The procedure for bullying and/or harassment cases involving other employees is shown in the flowchart. < Link to flowchart >. Other resources are also available to support employees consider whether their experiences fall within these categories < Link to Self-reflection Tools> and what support is available to assist< Link to standard Sources of Support>.

2.5.2 Early Resolution
2.5.2.1 Addressing bullying and/or harassing behaviours is challenging. The best way to resolve the issue at the earliest opportunity is by ensuring the other party is aware of the impact of their behaviour. The following approaches are recognised ways of achieving early resolution:-

  • Speaking to the other party direct - the complainant approaches the other party to tell them that they find their behaviour offensive, why this is the case, and to ask them to stop.
  • Writing to the other party - the complainant can write directly detailing the offensive behaviour and advising the requirement to stop any further bullying or harassing behaviours.
  • Supported approach - If the complainant finds speaking to the other party too difficult, but still wishes to seek early resolution, they can ask their manager to relay their concerns to the individual.
  • Supported conversation - If the individuals involved agree that early resolution is possible this can be supported through a structured informal discussion. Such meetings can be offered by a third party, e.g. a manager or HR representative, and involve supporting the employees to have a face to face conversation to start rebuilding relationships. During this process employees can be supported by their Trade Union representative or a work colleague. A record of the agreed outcomes will be provided by the third party to all participants.
  • Mediation - The manager may recommend this to the parties involved to actively support early resolution. Mediation is a more formal type of resolution which involves impartial, qualified individuals helping employees reach a solution that's acceptable to everyone. What is said in mediation is privileged and cannot be disclosed or used in any subsequent procedure.

2.5.2.2 Where the employee has attempted early resolution without support from their manager, they should keep a record of the behaviours causing concern, action taken, along with a note of the date and what was said by those involved. This will help if the bullying or harassment continues or happens again.

2.5.3 Formal Procedure
2.5.3.1 If early resolution is unsuccessful or significant or persistent in nature, the employee may initiate the formal procedure. In such cases the manager will assess the risk to determine what supports can be put in place to maintain continued working together during this period <Link to the Guide to maintaining relationships>. Where this is deemed inappropriate the employee alleged to have demonstrated bullying and/or harassing behaviours will be moved to an alternate placement unless the complainant requests a move or there is a legitimate service need which dictates the other employee cannot be moved.

2.5.3.2 If the employee has chosen to go straight to the formal stage of the procedure, a manager will discuss with the employee their reasons why early resolution is not appropriate and offer every support to allow this to take place.

2.5.3.3 To initiate the formal procedure the employee should be write to their manager or the manager of the employee demonstrating bullying and/or harassing behaviours. This should detail the employee(s) alleged to be demonstrating these behaviours and the nature of these <Link to Guide for Employees>. The employee may access a confidential contact < Link to Guide to confidential contacts>or HR for advice, or a Trade Union representative for support and assistance.

2.5.3.4 The manager must acknowledge the complaint in writing within 7 calendar days outlining the process for either revisiting the scope for early resolution <Link to standard acknowledgement letter inviting for further discussion> or the process of investigation to be undertaken in line with the NHSScotland Workforce Policy Investigation Process <Link to Investigation Process document> <Link to standard acknowledgement letter outlining first step in investigation>.

2.5.4 Outcomes from Investigation Process
2.5.4.1 There are three potential outcomes following the investigation:-

  • The complaint is not upheld.
  • The complaint is upheld and justifies learning outcomes.
  • The complaint is upheld and justifies referral to a formal conduct Hearing <Link to conduct policy>.

2.5.4.2 In serious circumstances, if relocation proves necessary, every effort will be made to relocate the employee alleged to have demonstrated bullying and/or harassing behaviours and not the complainant, unless the complainant specifically asks to be moved or legitimate service needs dictate the other employee cannot be moved.

2.5.5 Feedback
2.5.5.1 To the Complainant
2.5.5.2 The manager and/or the investigation team will meet with the employee who raised the concern to feed back the findings of the investigation. This will be undertaken with a view to clarifying the reasons for their decisions but with all due regard for the confidentiality of the employee alleged to have demonstrated the bullying and/or harassing behaviours and any witnesses <Link to information sharing document>. Where the complaint is not upheld, the employee should be reassured of the appropriateness of raising concerns and a recognition that notwithstanding the findings it is acknowledged that is how the employee feels unless there has been clear evidence to show the complaint has been raised in bad faith.

2.5.5.3 The outcome will be confirmed in writing <Link to standard outcome letter> to the employee within 7 calendar days of the feedback meeting. The letter will confirm the scope and process to request a Review.

2.5.5.4 To the employee under investigation
The manager and/or the investigation team will meet with the employee to feedback the findings of the investigation and any proposed action. This will be undertaken with a view to clarifying the reasons for their decisions but with all due regard for the confidentiality of the employee who raised the concerns and any witnesses <Link to information sharing document>. Where the complaint is not upheld, the employee should be reassured that their behaviour has not been deemed inappropriate. They should be supported to recognise that the complainant may still perceive behaviours were inappropriate and therefore they were not acting unreasonably in raising a concern unless there is evidence to suggest it was raised in bad faith. Where the complaint is upheld, the employee should be advised of any learning outcomes and whether these will be managed under the NHSScotland Capability Policy <Link to capability policy>. If it is determined that the behaviours constituted misconduct, the employee should be advised that a hearing will be arranged in line with the NHSScotland Conduct Policy <Link to conduct policy>.

2.5.5.5 The outcome will be confirmed in writing <Link to standard outcome letter>to the employee within 7 calendar days of the feedback meeting.

2.5.6 Review
2.5.6.1 If the complainant remains dissatisfied following the feedback from the formal investigation, they may request a review of the process. The request should be in writing within 14 calendar days to the designated manager indicated in the feedback confirmation letter.

2.5.6.2 A Hearing will be held <Link to Hearing format guidance> to consider the process undertaken by the Investigation Team and the employee's case that the process was flawed.

2.5.6.3 The Chair will write to all parties giving at least 14 calendar days' notice of the review hearing, requesting written statements to be shared 7 calendar days before.

2.5.6.4 Statements of case should have sufficient information to demonstrate the process issues to be considered but with due regard for the confidentiality of the employee subject to the investigation and witnesses. Witnesses would not normally be called to the Hearing unless they have specific evidence regarding flaws in the process.

2.5.6.5 The outcome of the review will be communicated to the complainant in writing within 7 calendar days. There is no further right of review.

2.5.7 Maintaining Relationships
2.5.7.1 In a large number of cases where bullying and/or harassing behaviours have been alleged, there is an ongoing need for the parties to work together whether that is as a result of successful early resolution or the outcome of the formal procedure does not require a move of the employee. It is important to recognise the potential impact on both parties of working together against this backdrop. On that basis, the manager needs to take an active role to support both parties including the following:-

  • Individual meetings with both parties to discuss how they feel about the outcome and how they envisage working with the other employee going forward.
  • How the employees can feel safe, e.g. agreed process for raising future concerns direct with each other or with a manager where this is not possible.
  • A joint meeting to ease first contact on return where one of the parties has been working out of the department.
  • Consider the impact on witnesses particularly where they have given evidence and offer them support and details of any return date of the employees involved.
  • Review any follow up action to ensure this has been completed to ensure learning is embedded to minimise the potential for further conflict.
  • Agree a timescale for check-ins to ensure employees feel supported.

2.5.8 Bullying and Harassment by Contractors and Staff from other Organisations
2.5.8.1 The procedure for bullying and/or harassment cases by contractors or staff from other organisations is shown in a flowchart. < Link to 2nd flowchart >. Support is available to employees who are subject to such behaviours <Link to standard Sources of support section>.

2.5.9 Early Resolution
2.5.9.1 In cases where the bullying or harassment involves contractors or staff from other organisations and the working relationship between the parties needs to be maintained, the employee should consider the same early resolution options as described under the section for other employees. However, due to the specific nature of the relationship between the employer and these individuals/organisations, the following additional steps may be considered at the early resolution stage:-

  • The manager will contact the appropriate senior person within that company/organisation 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.

2.5.10 Formal Procedure
2.5.10.1 If early resolution is unsuccessful, the behaviours start again or the behaviours are of a serious nature, the manager should initiate the formal procedure. This 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 continued contact with staff of the organisation. Where the individual has already been advised that any repetition of such behaviour may lead to such action, the company/organisation should be advised that the individual's access to the premises/working with NHS staff has been removed.

2.6 Supporting Documentation

  • Flowcharts – there will be two/three flowcharts which show visually the key steps in the process when raising a concern regarding bullying and/or harassing behaviours. The flowcharts will relate to: concerns regarding another employee's behaviours; concerns regarding a contractor or employee of another organisation; and concerns regarding patients, relatives, carers, visitors and advocates.
  • Standard letters – standard letters will be developed to ensure all the required content is included in letters for each stage of the process including invite/ review/outcome and appeal letters.
  • Guide for Managers – more detailed guidance to support managers through the process with good practice highlighted.
  • Guide for Employees – more detailed guidance for staff to support them through the process whether as the complainant or as the person who has been complained about.
  • Self-reflection Tools – tools such as questionnaires which support staff to assess whether the behaviours they are experiencing or displaying may be considered bullying or harassment. Also examples of what would reasonably be assumed to be firm and fair management.
  • Examples of what might be considered bullying and harassing behaviours with specific reference to behaviours related to protected (under the law) or personal characteristics
  • Guide to confidential contacts – detailed guidance to explain the role of confidential contacts and when it might be appropriate to contact someone
  • Guide to maintaining relationships throughout the process including issues to consider when assessing the risk for the need to separate the parties and alternatives that can be considered.
  • Guide to Supported Conversations and Mediation – more detailed guidance to support staff and managers in understanding the differences and benefits of early resolution mechanisms.

2.7 Consultation Questions

Bullying & Harassment: Section 2
(6 Questions)

Question 1:
Is the policy easy to read and clear to all parties?

Yes
No

Question 2:
Is the policy fit for purpose?

Yes
No

Question 3:
Does the language reflect our vision for policies to be user-friendly and supportive reflecting NHSScotland core values?

Yes
No

Question 4:
Are there any additions required to the supporting documents listed?

Yes
No

If yes, please specify

Question 5:
Does the greater emphasis on early resolution, feedback and maintaining relationships offer the scope to encourage employees to raise concerns and respond constructively?

Yes
No

If no, please specify

Question 6:
Please provide any other comments you have in relation to the policy.


Contact

Email: Lynn.Hunter@gov.scot