Company mergers produce tensions and care needs to be taken to ensure the
gains they bring are not outweighed by increases in claims of harassment and
bullying. By Elaine Aarons and Robbie
Gilbert
Our kaleidoscope culture of merger, acquisition and rationalisation is a
perfect breeding ground for harassment. People who worked well under the old
structures are dislocated and unsure whether they can cope. New jobs can
involve inconvenient hours and duties. Line managers lacking guidance become
more stressed. Managers who feel their jobs are under scrutiny within the new
structure may become over aggressive in their eagerness to prove themselves.
To ensure harassment and bullying does not frustrate the gains merger should
bring, the following points may be useful.
Legal issues
– Potential liability can arise from acts pre-merger as well as post-merger.
If the merger is a "transfer of an undertaking" and falls within the
Tupe regulations, the "new" employer will inherit any liability of
the "old" employer
– Pre-merger, assess the risk. Is there a history of cases or complaints?
Due diligence should identify any potential claims of which the "old"
employer is aware, in addition to any current or past litigation
– Identify employees with a past history of stress or mental illness as soon
as possible. These individuals are at higher risk of bringing successful
personal injury claims if overworked or harassed. Exposure to disability
discrimination claims should also be considered
– Interim managers who are not employed directly by the employer are often
retained in merger and change scenarios. Employees bullied or harassed by them
could have claims against their employer for this. Similarly, agency workers
could themselves make claims if harassed
– Employers may find themselves vicariously liable for the acts of
harassment or bullying by their employees, unless they have taken all
reasonably practicable steps to prevent the conduct, (see HR recommendations
below)
– Even if the harassment or bullying is not by reason of sex, race or
disability, employers may still be liable for personal injury claims and/or
claims for breach of contract of employment by virtue of having breached their
duty of trust and confidence owed to the employee
– Individuals guilty of harassment and bullying are unlikely to be able to
hide behind the Human Rights Act by claiming the defence of freedom of speech
– Statutory protection for employees is expanding. Under the Framework Directive
on Equal Treatment in Employment and the Directive on Race and Ethnic Origin
the Government must introduce new laws by 2003 expressly defining harassment
for the first time in UK discrimination law
HR and OH issues
– Ensure job restructuring observes diversity principles through proper
consultation. Consider trial periods and reviews
– Clarity is always in the business interest, but particularly at a time of
change. Define the new roles and their objectives, plus to whom people should
go when problems emerge. The removal of needless uncertainty sharply reduces
stress. Stressed managers can become harassers and bullies
– In the midst of change, revisit the organisation’s commitment to dignity
at work. A strong diversity/equal opportunities policy is not a "we’ll do
it when we have time" option. It needs to be central to the change
strategy, with highly visible, top-level, buy in
– Provide an environment which is not psychologically damaging to the
welfare of employees
– Have a developed harassment policy. Consider your target population and
their vulnerabilities. Define harassment and give examples. Distinguish between
unacceptable behaviour and what is needed to deliver effective management or
good team performance. Assess the policy’s effectiveness through your regular
attitude surveys
– Appropriate, confidential procedures for raising harassment complaints are
essential, usually as an add-on to standard grievance procedures. These enable
issues to be raised with somebody outside the relevant line reporting
structures – to a member of the HR team, or even via a confidential phone line,
for example
– Roll out the policy to staff with documents and briefing. Include training
in dignity at work and diversity policies, with due emphasis on harassment, to
prepare managers for the new structure
– Harassment can take place outside strict "office hours". If
there is a history or culture of work-related socialising, ensure employees are
aware how far the policy extends
Elaine Aarons and Robbie Gilbert are employment law specialists with law firm
Eversheds
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