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`Dignity at work` bill could obstruct fair examination of grievances – expert view

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This feature is contributed by Lawzone’s employment law expert, Daniel Barnett.

The Dignity at Work Bill 2001 has been introduced in the House of Lords. It provides that all employees “shall have a right to dignity at work”, and that a dignity clause shall be implied into all contracts of employment. It prohibits harassment, bullying and any conduct which causes the employee “to be alarmed or distressed”, including:

– behaviour on more than one occasion which is offensive or abusive
– unjustified criticism on more than one occasion
– punishment imposed without reasonable justification
– changes in the duties or responsibilities of the employee to the employee’s detriment without reasonable justification.
The right applies to contract workers as well as employees.

The Bill provides for complaints to be brought before an employment tribunal. The tribunal can make a declaration, a recommendation or order compensation (including damages for injury to feelings).

There is a statutory defence that can be made out if:
– the employer has in force a ‘Dignity at Work Policy’ and has taken reasonable steps to enforce it
– the acts complained of are repudiated by the person in charge of the policy within 3 days of complaint (‘repudiated’ is not defined, but it is stated to include a repudiation in writing to the employee and to any other employees who witnessed or knew of the act complained of)
– the employer takes all steps reasonably necessary to remedy any loss suffered by the complainant.
The Bill will also amend section 95(1)(c) of the Employment Rights Act 1996 (the section defining constructive dismissal), to provide that breach of the implied dignity clause can amount to constructive dismissal.

I am offering odds on the Bill failing to be enacted due to lack of parliamentary time!

Comments from Daniel:

The new Bill, if enacted, provides that the employer can be held responsible if a person is bullied by fellow employees, rather than just management. The bullying can be on any grounds: it is not limited to sex, race or disability.

The defence will be very hard to establish: ie that the employer had full policies in place to prevent such breaches of dignity and took active steps to enforce the policies. The defence also requires employes to ‘repudiate’ the offending actions – presumably meaning apologise – and copy all other workers in on the repudiation within 3 days.

This creates a ‘catch-22’ situation for employers who need time to investigate whether the offending actions actually occurred – if they fail to apologise within 3 days, they lose the defence; but if they do apologise, they may have difficulty challenging it in front of an employment tribunal.

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