Retaliation for bringing a sexual harassment grievance

[30stm]

Hello All

 

I'm new to the forum but hoping some of you might be kind enough to read comment on my post.

 

Below is just a run down of events so far, for a bit of background;

 

I'm a female receptionist at the company 5 years, never any grievances/disciplinarys, appraisals all good etc

 

Senior manager over the years making increasingly innapropriate remarks, always regarding my chest/cleavage, increasingly embarassing and harassing.

Afraid to make a complaint about him as I knew (first hand, not rumour or hearsay) that a young male colleague made a formal complaint against this manager(let's call him IC) for bullying & harassment in which he involved his union and labour relations to come into work to try to sort out (IC) and the following year an ET1 arrivied in from a young female who left on the grounds of Bullying + sexual harassment by IC.

 

My views then, as now, is that the company are aware of IC's behaviour but haven't seen to be doing anything about it, so what's the point in complaining. It would also be my word against his.

 

On a work night out before Xmas, IC made his usual sexist remarks but not just to me but to my sister! I wanted to go home right away but she thought we shouldn't let the oul pervert ruin our night. So we stayed til the end of the game and I tried not to think about it but it led to an exchange of words later in the evening. Initially I had planned to bring my bro, wish I had as IC would never have made his sexist/leering comments if I had my bro instead of sis.

 

First thing Monday I put in a written grievance, giving details of the incident and saying that is it wasn't a first occurance but a continuation of the way he speaks to me in work and because it also envolved a third party (family member) he had totally crossed the line this time. I told them his remarks to me were often accompanied by winking and/or calling me darlin' - which I am sure he doesn't do to male colleagues.

 

Investigation got under way, Summary of Findings agreed that he calls a few females darlin, and winks at a further few and while they agree this was innapropriate, it wasn't enough to warrant disciplinary proceedings. No mention that they upheld (or not) the on going sexist comments. For this and a few other points I appealed.

 

The appeal for my grievance against IC was held with less than 24 hrs notice. No effort was made to obtain statements from outside (key)witnesses! No minutes were provided. No witness statements were given for me to review/refute. The director who chaired the appeal seemed to be reading from the Summary of Findings and said a Letter of Concern being put on IC's file wasn't just a slap on the wrist - there was no mention of this LOC on my summary so this (and a few other things) make me think that information has been selectively shared or purposefuly omited. The appeal outcome will de given to me next week but I doubt they will discipline him.

 

Obviously the above is only a very limited description and as I plan to send an ET1 shortly, no doubt I will come on here pestering you folks for some more advice. BTW, I have already served an SD74 Questionnaire to which I've no response (but it's still withing the time frame requested)

 

The reason for todays post concerns a counter greivance raised by IC about my reaction to the incident outside of work (a Sat nite in December). I felt this was in retaliation for my complaint against him and made this point. Still work insisted and so to co-operate (and get it over with because it was the week in between my grievance and subsequent appeal) I went in to the investigation meeting with the same lady who conducted mine against him and gave further details.

 

The exchange of words that I mentioned earlier was in the last 10 mins of the game, when IC and his wife started berating my sis (ok, she was a little drunk but I was not as all in attendance agreed on). I couldn't believe that he had a cheek to do this, after the earlier remark to us both and ofcourse his ongoing treatment of me. It was all too much and it really got to me! From the very first meeting I had stated that when IC and his wife started on my sis, I sat facing forward, not opening my mouth. At this meeting I gave further detail as in, the reason I sat saying nothing was because I physically couldn't. I could feel a panic attack coming on because I was stressed to hell. Usually they come on without warning but I know the signs. All my focus then is internal, trying to concentrate on breathing.

 

I was barely aware of anything go on around me but anything being said was between my sis, IC and his wife. The game ended, I was still trying to get control of myself when I stood up, put my coat over my arm and walked over the far side of the room. My sis was still talking with IC, his wife was beside him but staring at me. It must have looked so cowardly that I let them talk down to my sis without defending her and this was just something else for me to feel bad about but I thought I couldn't walk away without having said anything at all so I went over and told her she had no business talking to my sister in the way that she had. IC didn't like that I was speaking with her and so he said (in his usual threatening manner) that "all this" would be brought up with HR on Monday to which I replied "Good because I will have a lot more to say about you then and I know that I'll not be the only female to have complained about you".

 

His grievance about me was 1. how was I able to know about that et1 directed at him - 2. that I was shouting and behaving in an unbecoming manner. 3. that someone said, her friend said, that I said ... ( a swear word when talking about his wife). My replies 1.my job involves opening post adressed to the company with no idividual name, such as an ET1 and I saw it with my own eyes. I have never broadcast about this or anything else in all my time at the company and confidentiality has never been an issue. My remarks were directed to IC and about IC. - 2. at the very end yes my voice might have been raised but it was due to the stressful situation, brought on by IC himself! 3. this (hearsay) lie was by the same person who works under IC and who was found to have been spreading rumours that my sis and I were frogmarched out out by security = again lies which was confirmed by the venue.

 

Today I got the Summary of Findings for his grievance against me, detailed in 2 parts. It did not uphold the breach of confidentially as they reasonably found that anyone can make a slip under extreme pressure and that in usual circumstances I would never have mentioned knowing about his prior harassment. However, it upheld that the raised voiced and the alleged swear word (which I flatly deny!) in ref to the wife were unbecoming and warranted disciplinary for gross misconduct. Iwas neither told I could appeal not did it state this on the written summary.

 

How can they say on one hand, my words concerning the et1 etc are excusable because of the extreme circumstances and yet my raised voice etc were not? It's a complete contradiction as it was all the same incident. Up until those last few minutes, everyone can confirm I was neither drunk, rude, abusive etc. Yes, under duress I said something I wouldn't have ordinarily but why excuse what I say not not the way it's said? I wasn't being nasty, just distressed.

 

I think they are trying to bully me because I served the SD74 and am about to lodge an ET1. There is no way a raised voice (I wasn't screaming or anything like that) constitutes gross misconduct? The swearing things is just nonsense and hopefully I can prove that this heresay came from a malicious source.

 

Please help

[rebel11]

Hi 30

 

Welcome to CAG

 

The guys will advise as soon as they are available.

[30stm]

Thanks for the welcome, Rebel.

[SarEl]

I assume that you are in NI - you mentioned labour relations which is not part of British law. Given that there may be cultural or langiage differnces her - my family are from the Republic and I know that we may all speak "English" but the words are a lot differnt - can you please explan what the"game" is, because it really sounds odd to our ears!

[30stm]

Hello SarEl - you're right, I do indeed live in NI and the game (work related event) was Ice Hockey.

 

My post above was all over the place, a vent - I'm usually a lot more structured and coherent and less emotional, at least when writing, lol.

[elche]

Hi 30STM

 

So sorry to hear about what I would call 'a protracted campaign' of potentially sex discrim at work.

 

AS I understand the Stat Grievance Procedure (SGP) has still not been repealed in NI (happy to corrected on this) so you are following the correct procedure - it has been so long and my memory isn't what it was but I'm not sure if there used to be min time limits for notifying employees (EE) for meetings - was this not 48 hours from receipt of letter by EE or was this only for disc proceedings - (SW, or anyone else can we check this) ??? - thus being given 24 hours advance notice of a appeal meeting hardly alows much prep time!

 

Anyway, having been based in England in my career I never called them but:

 

The Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues for residents of Northern Ireland. You can contact the LRA on 028 9032 1442 from 9.00 am to 5.00 pm Monday to Friday.

 

• Labour Relations Agency
  

 

The Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues for residents of Northern Ireland. You can contact the LRA on 028 9032 1442 from 9.00 am to 5.00 pm Monday to Friday.

 

• Labour Relations Agency
  

http://www.nidirect.gov.uk/index/information-and-services/employment/resolving-workplace-disputes/grievances/grievance-procedures-introduction.htm

 

Do keep us posted on progress.

 

Any union, legal expense insurance?

 

Keep smiling, Che

[30stm]

Hiya Che

 

Thanks for the links for LRA, I had a brief phone call with them a few weeks back, giving more detail than is listed above and right away they refered me to the Equality Commission for NI as they deal specifically with sexual harassment etc and they advised me to log on and fill in an ET1. I explained to them that although I didn't hold out much hope that this manager would be disciplined, I would still prefer to go through with the internal grievance proceedure, in line with company policy.

 

As for my appeal notice, the letter was couriered to my home last Wednesday afternoon, which I had booked off on annual leave. I saw it when I got home later that night after visiting with my sick mum and only scanned it, thinking the date was set for the following Thursday. It was only when I got into work next day and confirmed my attendance that I was told, no it's this Thursday as in, that same day) - in half an hour no less. One good thing to come out of that meeting was that I finally got to see the witness statements - the day after the appeal was heard. Found one very interesting, another male manager (been there 18 years) said in his statement that IC was "well known for this kind of behaviour" and that he rarely brought his wife to work events because he always tries to pick up girls. Yet still no serious sanction for him, even with an established pattern of behaviour.

[30stm]

Ooops, almost forgot to answer your questions.

 

I did join an Union but haven't been with them long enough to qualify for help and no insurance or solicitor.

[SarEl]

You are in something of a fortunate position because N Ireland has significanatly more teeth to it's equalities legislation than the mainland. But one thing that you do have to do is separate what you wanted from the grievance and what you got. You aren't entitled to the outcome you want from a grievance, so if the employer decided not to discipline somone for something, that is their perogative. They are, of course, taking on some potential level of liability if they know about and do not stop an unlawful activity (such as sex discrimination) - but how they stop it is up to them.

 

I am a little unclear here. There has been an investigation into the alleged swearing / raised voice incident - and that has decided that you should face a disciplinary? Is that correct? You have not actually been disciplined yet? Or have you actually been dismissed? Is that (a dismissal) what the appeal is about - or something else? It sounds that you are still at work, so I am confused.

[30stm]

SarlEl, thanks for the clarification given in your first paragraph. You're right, it isn't for me to "tell" them what to do (even though I think they are being foolish by closing ranks and possibly leaving themselves open to litagation)

 

I am still in work and yesterday I was given a Summary of Findings from IC's greivance against me. This followed an investigation meeting with the same lady who heard my greivance against him, so she felt that we didn't need to cover all things again, just the 3 specific points that he raised, listed somewhere in my rant above.

 

During the investigation, the main focus was on the first point (heated exchange at end of the night). When it came to the second point, I questioned that the behaviour preceeding the above as it was all aimed at my sister (she's a loud & lively sort even without drink being taken). She consulted her notes and witness statements. I asked the lady what it was in this section "I" had been alleged to have done as I could only speak for my self and my own actions. She confirmed that no one had actually complained of my behaviour (even IC) and that it was my sis only. I told her that I wasn't sure what I had to answer for/to then and she agreed and said we could move on. The 3rd point was a lie but I can go into this further later if you like.

 

The Summary given did not uphold his complaint on the first point (probably due to the very obvious mitagating circumstances) but on the second it was upheld and recommeded a disciplinary be started for my unbecoming behaviour. Bear in mind that the investigator herself in the meeting had said (as all but one witness statement from the malicious source agreed) that it wasn't MY behaviour in question. I am no more responsible for my sis actions than IC is for his wife.

 

I feel I am being victimised for "starting all this"

Edited January 29, 2011 by 30stm

[SarEl]

Not necessarily - although I can see why you may feel that way. Recommending that there is a case to answer, and being found guilty of it, are two different things. Technically it isn't up to the investigating officer to decide on your mitigation - it is up to the disciplinary panel to decide on that. Detrmining that there is a case to answer is not the same thing as assuming guilt. Nor is it up to her to decide that the witness statement is a lie - if the "witness" says it happened and refuses to retract the statement, then it must be taken at face value by the investigating officer. But the panel may indeed decide that they do not believe it.

 

I would suggest garnering all your arguments and evidence, and seeing this through. I cannot tell you that you may not be correct to suspect that it will go against you, but on the other hand, you cannot say that it will - people do get found "not guilty", but they tend not to be complaining about it on forums like this very often! You are assuming that the "system" doesn't work (in that what you have to say may not be accepted), but you can't do anuything based on an assumption - you have to let it play out and see what happens.

 

One rather obvious point that I suspect someone will question given that there were no complaints (from you) about his behaviour prior to this night, which you may need to address (so think about what you would say) - if he is this bad, and has been a problem for all this time previously (to you), why were you within 10 feet of him and his wife? This was your own time, and I assume that the "game" was being watched by a lot of people and took place in a venure where being close to him wasn't the only place to be. So regardless of what happened in the exchange - how did you get into it, when logic would dictate that you find a way of never being close enough to someone you dislike to actually speak? I'm not criticising you for it - just suggesting that it's a point that you may need to address.

 

And just as a possible precaution - you may want to think about whether anything you have put in your post might identify you - because NI isn't that big a place, and you might have made some disparaging remark about something! I'll PM you if that is ok?

[papasmurf1cx]

Sounds very much like your employer has no intention of getting rid of the manager and will defend allegations. I would seriously consider getting a solicitor on to this as Sex discrimination legislation can get messy (as can the ET procedure). have you any legal protection insurance (home contents sometimes have it) that could protect you against this type of dispute? Union?

[30stm]

Hi SarEl

 

Thanks again for your feedback and to answer the question about why I went knowing he would be there. This has been asked at work and the simple answer is that I didn't know. A certain amount of tickets were given to the manager to a private box, which only holds a small number of people. As per rule, anything over a certain nominal amount cannot be kept and must be raffled off. I won a set of tickets. Nowhere on the email list of attendees was his name. First I knew he was there when we walked in to this small box with limited seating. During the meetings I asked if it had been questioned why he, plus his 3 guests, were not listed a ticket winners, was he suddenly exempt from the £ rule? haven't got an answer to that yet ;-)

 

Hi Papa, I've none of that unfortunately.

[SarEl]

So - just bad luck. It goes to show that you should always look gift horses in the mouth. If there is a next time - take your mum, not your sister! Alcohol and problems don't mix!!! But now we have to wait and see...

[30stm]

Hiya - welll I certainly won't invite my sis to another work do, after they way she was treated. Taking my mum isn't an option, she is terminally ill, which is another part of the reason that I will no longer tolerate any nonsense from this manager in work.

It's been great to have impartial feedback, am glad I found this forum.

Thanks All and I'll keep you posted

[30stm]

I have just recieved a letter (placed into my hand by HR at 11:45) inviting me to attend a disciplinary hearing tomorrow at 10 am.

 

I haven't yet confirmed my attendance. I feel I have enough info/evidence to negate the complaints (hopefully) and can prbably do enough prep tonight to be ready for the morning. I expressed in writing before that I thought this complaint was in retaliation for me bringing a greivance but HR haven't adressed this concern.

 

Do I ask them to state in writing that they don't believe it is retaliatory and why?

 

Do I go into the meeting at all, even though ACAS guidlines say a reasonable amount of time to prepare is at least 48 hours? As I said, I think I can get the prep done alright but will it look bad when it comes to the ET1 that they didn't follow these guidelines?

 

Any input will be appreaciated.

[SarEl]

Well - it really is down to you. You can ask for a postponement because you haven't been given enough notice - but it won't look bad at a tribunal if you accept that the notice is ok by going, and it won't look bad if they postpone when asked!

 

I think you should raise the issue of the retaliation as part of the disciplinary, but to be honest, it isn't the worlds strongest point (but do raise it even so). The problem is that at least in part (ok, not the swearing) the grievance was true and accurate. There may be "history" and that may be mitigation - but in one sense you walked into this. So in technical terms it isn't really "retaliation". It is almost certainly tit-for-tat - but had this incident at the game happened without any of the history, submiting a grievance would still have been justified. I know that isn't what you want to hear, and I am certainly on your side on this one - but that is the objective view! Your colleague alleges that you swore at his wife, that you shouted at him, and that you disclosed confiential information about him - and you agree that you did at least two of those things! As a result he submitted a grievance against you. So retaliation or not, he hasn't technically done anything he wasn't entitled to do. That does not mean that you will be found guilty, nor that the mitigation of the history may not count for something. But being utterly fair and objective - it isn't retaliation in the way that you are thinking. Sorry about that!!!

[30stm]

Hi SarEl, thanks again, more food for thought, it's good to read an objective point of view.

 

Just to clarify though, "Your colleague alleges that you swore at his wife" neither the manager or his wife can say I swore (as I most certainly didn't) it was one of the other attendees who said, that her friend said, that I said ... a swear word referring to his wife. My sis uses bad language but not even she said this word.

 

No sense presurring myself to get all this done tonight so I'll ask them to postpone since they are breaching the guidlelines.

 

I think your input helps keep me more grounded and not permanently on my high horse ;-)

[SarEl]

Thank you for the kind words - I usually get less constructive comments when being truthful!

 

But yes, the same still applies. A witness says that you swore - but you cannot prove the witness is lying (again, being objective, maybe they misheard, maybe someone else said it and they were confused in the melee...). The fact is that SOMETHING happened that shouldn't have done, and no matter how understandable the ensuing chaos may have been, it is hard to exactly describe this a proveable retaliation. Tit-for-tat, yes - but hell, that happens half the time! So I would play greater emphasis on the facts of mitigation (except for denying the swearing), since "it never 'appened sir" won't wash! To be honest, I am sort of surprised that the "confidential information" portion of the allegation was dropped, and although I didn't say so at the time (because it is pure surmise), I think your investigator was very definitely taking sides. To be perfectly honest, that part is the worst part of the whole story, and I would have great difficult in defending you in atribunal for that because, understandable it may be, but wholly and totally wrong it was. A dismissal on that basis would probably be found fair. I am not convinced that a dismissal on the rest would be.

[30stm]

For other readers of this thread, I replied in PM to SarEl - with thanks

It's possible the investigator wasn't overy thrilled to have found he lied to her numerous times and over one of the smaller issues.

 

My disciplinary hearing is set for Tuesday morning and I came across an interesting article online and I am interested in knowing how valid it might be before preparing my statement.

 

Not sure if I'm allowed to post links to other websites, so will print an excerpt from the page instead.

 

Every sexual harassment policy must have an anti-retaliation section. It is illegal for a company or employees to retaliate against an employee for reporting instances of harassment. Failing to include a section on retaliatory measures may open your firm up to possible legal action. Witnesses who cooperate during an investigate are also protected against retaliation. Anyone who takes revenge on the accused or witnesses who support the allegations are also subject to discipline up to and including termination. Including this into your policy protects the company from legal action.

It's from a co.uk site but I've a feeling it refers to American law. From TSSA (UK) website it says something similar

contain an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimisation or retaliation for bringing a complaint of sexual harassment;

I have to hand a current copy of our company policy which was sent to me when I first raised my grievance. Victimisation is mentioned once only at the very end of the document, in the paragraph about follow up meetings ie; follow up meetings will continue as long as necessary to ensure harassment/bullying has stopped and no victimisation occurs. That's it. Nothing to say that victimisation is as illegal as the harassment itself and that it can also be classed as gross misconduct.

So my question is - it it a legal requirement or even Best Practice here in the UK? If I bring this up, should it be at the hearing or on the ET1? Any thoughts?

[30stm]

I should have pointed out, whether or not IC's greivance is retaliatory or not, it is my employers decision to instigate a disciplinary against me while taking none against him, that I feel is victimisation because they know I am considering ET.

ACAS and the company's own policy state that they should act fairly and consistently.

IC has had a Letter of Concern placed on his file, it was also stated that his language and gestures towards me (and some un named other females) is unprofessional. This doesn't warrant at least a disciplinary hearing?

In contrast, the complaint upheld about me is actually for the behaviour of my sister, plus one hearsay allegation which I flatly deny.

It was not upheld (lack of evidence) that IC made the pom pom remark (even though it was also made to my sis who was not approached for a witness statement) and yet my so called swear word comment may be upheld. Remove my sis from the equation for the moment and both these things boil down to one word against the other with no evidence either way, yet there is a double standard as I am recieving less favourable treatment.

Where is the deterrent for IC if he is not disciplined?

Employer failed to implement sexual harassment policyIn Yamaguchi v (1) Orlean Invest Services Ltd (2) Kotronius

the company's "reasonable steps" defence (that is, that it had taken such steps as were reasonably practicable to prevent the harassment) was rejected. The company failed to take any disciplinary measures against Mr Kotronius under its anti-harassment policy, despite knowledge of his behaviour towards female staff.

[jackieandwayne]

30stm - I shall keep everything crossed for you. Don;t give in, whatever you do. I didn't over bullying at work making me very ill, I can;t post too much on here as I am worried about it being picked up, but let me tell you - I have managed to get a pension out of the devils, just for starters, and now about to go in for the kill.

 

And many times SarEl has helped me unknowingly, just by reading his threads and making notes here and there on his advice. Never mind a tipped scale, he needs a big kiss from us all - assuming its a he not a she!

 

Good luck.

[30stm]

I'm impressed - seriously good for you! I'm quite terrier like and I won't let go. These days I am more annoyed at the company than the manager.

 

As for SarEl's advice, I've found it invaluable and am very appreciative.

 

Grateful for this site and the regular posters who give their time and share knowledge

[SarEl]

It's a she - I know, people always assume that like doctors we are all men. And it doesn't help that I am also a Dr (not of medicine!) so lots of people assume...

 

The laws in NI on discrimination are different than here, so I cannot just now confirm whether what you have read about the anyi-retaliation rules are correct - but they certainly do not apply in the mainland. It isn't even best practice here. Your rules are derived from religious discrimination laws and have considerably more teeth than ours.

 

But whilst I see your point entirely - and I do not necessarily disagree with you - being objective I cannot entirely agree with you either. This is a about the shades of grey in terms of tribunal decisions, and second guessing what they will agree with isn't easy. A letter of concern is a disciplinary action - not much of one I agree, but what I cannot say is that it isn't appropriate to the complaint, because I don't know for a fact that a tribunal wouldn't agree it was. Do you see? You think he should be disciplined; I think he should be hung, drawn and quartered (you know from our PM's that my tolerance levels for this are lower than yours ) - but neither of us have a right to our preferred option.

 

The case law you quote isn't case law! Employment Tribunals cannot make case law, and this was an ET case. However, this still hinges on the crux of the above question. It is about interpretation. The employer did investigate (they didn't in the ET case) and they did take action (they didn't in the ET case) - they just didn't take the action you wanted them to. Forget about "deterrants" - this is law and not nuclear arms. The employers responsibility is to stop the bahavious, not to "deter" it (they are different).

 

But these things are all going to have to be "fall out in the wash" - your case is weak in any case unless or until they find you guilty. So you have to let it play out. Thn if you are found guilty you should get lega advice - again you are in a better position that the UK because your commission has greater powers to assist.

[30stm]

The voice of reason - which will take me much futher than just me own righteous indignation ;-)

 

Thanks SarEl, your view will help my preparation ~ hope you have a nice relaxing Sunday.