All different, all equal - review

Fairness at Work is a trade union issue

Fairness at Work is a human rights issue. It is about treating others with respect.
The FBU has a clear policy on Fairness at Work (FAW) which has been agreed by
FBU delegates over several years at Conference, the policy making body of our
union.

The FBU is opposed to discrimination on the grounds of religion, race, sex, sexual
orientation, gender reassignment, marital status, disability, age and trade union
activity. In Northern Ireland, it is also unlawful to discriminate on the grounds of
political opinion. The FBU is opposed to this unlawful discrimination.

The FBU rule book makes it an offence if any member “discriminates against,
harasses or bullies another whether on the grounds of race, creed, sex or sexual
orientation or otherwise.”

Also,

“It shall be the duty of every member to treat others with dignity and respect and
to challenge offensive behaviour of any kind”.

Our Fairness at Work structure

How we work

Brigade level

To ensure that effective strategies are developed in regard to FAW, Brigade
Committees shall appoint a Brigade FAW official and establish a FAW sub-committee.
This sub-committee will include the Brigade FAW official, a Brigade official and
representatives from the Brigade Committee. This sub-committee shall report to the
Brigade Committee.

Regional level

The Regional Committee shall appoint a FAW Officer to be responsible for the
development of strategies designed to ensure Fairness at Work. The FAW officer will,
if he/she is not already so, become a member of the Regional Committee upon
appointment, and where possible should not have other responsibilities e.g. Regional
Official, Health and Safety Representative, Education Officer.

The Regional FAW Officer will have the full support of the Regional Officials and the
Regional Committee, to enable him/her to carry out their duties, which will include:

● Acting as the main point of contact in the Region for Brigade FAW
representatives and members of the equality committees who are dealing
with specific cases and implementing regional plans.
● Working with Brigade and Regional representatives of the Fairness at Work
committees.
● Having access to a designated person from the union’s solicitors for quick
legal assistance as and when necessary, as part of a support system which
will include regular information from Head Office. This must be carried out in
accordance with the union’s usual procedures and guidance for members
accessing legal services.
● Liaising with and assisting Brigade FAW officers and attending Brigade FAW
Committees.
● Developing contacts with appropriate outside organisations, e.g. TUC
Regional Committees, community relations councils, trades councils, antiracist
groups etc.
● Being responsible for ensuring that an FBU representative speaks to all new
trainees about FAW.
● Work with the Education Officer to develop training on stations and in
branches on FAW policies and practices.
The names of the Regional, Brigade and Branch FAW officials, and members of
the equality committees should be publicised widely and given to all new
members. This will be done in conjunction with information about the union’s
Fairness at Work policy.

Nationally

The FBU has a National Women’s Committee (NWC), a National Black and Ethnic
Minority Members Committee (B&EMM) and a National Lesbian, Gay, Bi-Sexual and

Trans Committee (LGBT). These committees are made up of a Chair, a Secretary and
respective delegates from each of the 13 regions of the FBU.

The FBU has a National Officer who holds the remit and responsibility of FAW and
who is the Secretary to the Fairness at Work Advisory Committee. This Committee is
made up of Regional Fairness at Work officers and representatives of the Black and
Ethnic Minority Members Committee (B&EMM), Control Staff National Committee
(CSNC), Lesbian, Gay, Bi-Sexual and Trans Committee (LGBT), Officers National
Committee (ONC), National Retained Committee (NRC), the National Women's
Committee (NWC) and the Vice-President.

The FAW Committee has the responsibility for assisting the Executive Council in
monitoring activity and progress on FAW in the FBU as well as in Fire and Rescue
Authorities. For example this could take the form of working on initiatives with
management and progressing matters with the Government, the National Joint
Council and other relevant forums. 

When necessary and appropriate the Executive Council or Conference shall instruct
the Committee to elect from within themselves a strategy group of four people. The
FAW strategy group will be chaired by the Vice-President and the National Officer with
responsibility for FAW will act as Secretary to the group. This group will work with the
LGBT, NWC and B&EMM to ensure that work on equality issues is monitored and
developed.

All FAW committees will participate fully in all the structures and issues affecting all
members of the FBU.

Equality education

The FBU will ensure that all courses provided at regional or national level will follow
our educational aim of deepening an understanding, and the practical implications, of
the equality agenda.

National provision

Appropriate FAW courses must be organised and provided nationally.
An annual school for women members, an annual school for Black and Ethnic
Minority members and an annual school for Lesbian, Gay, Bi-Sexual and Trans
members will be provided nationally.

The FBU will continue to produce FAW material to assist in education.
FBU officials will be given the training necessary to enable them to carry out
investigations under the representation policy.

The wider trade union and labour movement

TUC Congress

The FBU remains committed to ensuring any delegations representing the union
reflect as widely as possible the diversity of not only those we represent but also
those who we seek to represent. The Executive Council will give consideration to the
makeup of all future delegations at internal and external events.
TUC Women’s, Black Workers’ and LGBT Conferences:
A delegation will attend these conferences.

The appropriate national committee should recommend the names of the delegates to
conferences. The Executive Council, as with all other FBU delegations to any
conference, will make the final decision.

The national committees will recommend to the Executive Council for approval a
nominee to the relevant TUC committee.

Upon their election they will assist in the effective prosecution and communication of
work between the TUC and the FBU on behalf of our women, black and ethnic
minority members and our gay, lesbian, bi-sexual and trans members.

The national committees should submit the requisite number of motions, which
should be on issues primarily affecting their constituent group, to the Executive
Council for submission by the FBU to the TUC Women’s, Black Workers’ and LGBT
conferences.

It is important to emphasise that the Executive Council will always be guided by the
recommendations of the equality committees.

The composition of the delegations will be as follows:
The Chair, Secretary and nominations from the appropriate national committees.
The delegation for the WTUC will be made up entirely of women and should include at
least one black woman and one lesbian woman.

The delegation for the TUC Black Workers’ Conference will be made up entirely of
B&EMM members and should include at least one woman member and one
gay/lesbian member.The delegation for the TUC LGBT Conference will be made up of
LGBT members and should include at least one B&EMM member and one woman
member.

Delegations to the Scottish, Welsh and Irish trade union conferences should be based
on the same inclusive criteria for representation.

Others matter

The Executive Council appreciates that it might not be possible to meet these criteria
for delegations on every occasion, BUT, equally, every effort should be made to do so.
The composition of delegations must be monitored by the appropriate National Officer
to assess progress towards these targets.

Similarly, the aim should be to include a balance of experienced and new delegates to
encourage participation and develop activists.

Every delegation will submit a report of their conference to the Executive Council, for
circulation throughout the union.

Regions should participate in their regional TUC's and trades councils.
Where there are committees for women, black and ethnic minority members or LGBT
members the region should nominate members to attend.

Guidance

Discrimination, harassment and bullying are all constituent parts of the same monster
– abuse. They are a perverted way of exercising power over others and have serious
implications for the health and well-being of the recipient. Such behaviour also
undermines the effectiveness of teamwork which is so essential to the Fire Service
and is founded on trust and professionalism.
This guidance applies to discrimination, harassment and bullying. It is not difficult to
identify discrimination, harassment or bullying. It is behaviour which is unwanted and
which offends and undermines the dignity of men and women at work.

Definitions

● Discrimination: Unfair treatment of a person, racial group or minority based
on prejudice.
● Harassment: Unwanted conduct affecting the dignity of women and men at
work. It may be related to age, sex, sexual orientation, gender reassignment,
race, disability, religion, nationality or any personal characteristic of the
individual and may be persistent or an isolated incident. The key is that the
actions or comments are viewed as demeaning and unacceptable to the
recipient. (Harassment on the grounds of political opinion in Northern Ireland
is unlawful and therefore included).
● Bullying: Offensive, intimidating, malicious or insulting behaviour, an abuse or
misuse of power through means intended to undermine, humiliate, denigrate
or injure the recipient.

Discriminating against individuals, harassing or bullying them because of their disability,
age, race or sex, because they are gay or lesbian, because you think they are attractive
or unattractive, because they have an accent, or a different religion, political opinion in
Northern Ireland or because you simply just do not like them, is not acceptable
behaviour. It is the politics of the playground, which have no place in a modern,
professional Fire Service and no place in the Fire Brigades Union. Employers are also
legally responsible for preventing discrimination, harassment and bullying behaviour. It
is in their interest to make it clear to everyone that such behaviour will not be tolerated.

The union rules are clear and state;
It shall be the duty of every member to treat others with dignity and respect and
to challenge offensive behaviour of any kind.

A member commits an offence under the union rules if that member;
● discriminates against, harasses or bullies another whether on the
grounds of race, creed, sex or sexual orientation or otherwise.
● acts contrary to or fails to carry out or comply with the policies and/or
Rules of the Union;
● acts in a way prejudicial to the interests of the Union.
There is a world of a difference between having a laugh with colleagues and
subjecting people to ridicule, which hurts physically, mentally or emotionally. Bullying
can lead to illness and absenteeism.
It frequently forces people to leave their job because they cannot face the daily
feelings of demoralisation, isolation and powerlessness, which results from not
knowing where to turn for help. In some cases this can lead to suicide.

YOU SHOULD BE ABLE TO TURN TO ANY FBU OFFICIAL OR ANY FBU MEMBER.

It is the policy of the union to ensure all members are treated with dignity and respect
and every action possible will be taken to ensure that this is the type of environment in
which our members will work. The following guidance is designed to help members
and FBU officials through what is often a very stressful time.
You may wish on the first instance to turn to someone you trust.
Steps to follow if you are enduring discrimination, harassment or bullying:

1. Don’t doubt yourself.

2. Contact your union representative or a trusted colleague immediately for
support.

If you are unable to contact your local or Brigade FBU representative,
immediately contact a Regional or Sectional official.
Contact details for officials are available on the union’s web site
www.fbu.org.uk and a list of Regional and Sectional contact information is
included within this guidance.

3. Collect evidence – the best way to do this would be to, discretely, keep
written records of incidents in a diary or notebook and if you feel able ask
other colleagues to do the same, so that they can later act as witnesses.
Make sure that you have a written record wherever possible, stating:
WHEN – the date of an incident
WHERE – where the incident took place
WHAT – the type of incident and what happened.

4. Make sure that you let the harasser know that their actions and/or remarks
are unwelcome and unwanted.
If you feel unable to do this, get a colleague, a friend or union official to
do it for you or with you.

5. Take avoiding action wherever possible e.g. try to ensure that someone is
with you when the harasser is present.

6. Speak to other people in the workplace and find out if they have been
subjected to such discrimination, harassment or bullying. Seek support from
colleagues in countering the harassment. Hopefully this will make you feel
less isolated and you may discover that other colleagues have also been
abused. This is important because other people in the workplace can be
called as witnesses if the harasser is disciplined.

7. Always make sure you make a note of any witnesses and also any work that
you were given and whether you completed it satisfactorily. Keep a record of
favourable comments about your work. This can help in ensuring that your
credibility cannot be attacked on the basis of your ability to carry out the job.

8. You should also visit your doctor as soon as possible and copies of any
certificates given by the doctor for time off as a result of what is happening at
work should be retained.

9. Ask the FBU representative to tell the harasser that formal steps of complaint
will be taken if they will not cease the conduct. Make sure that a note is kept
of subsequent conversations with the harasser, where they took place, the
date and time and what was said. If the above doesn’t work, then on your
behalf, your FBU representative or Regional Official should make a
formal complaint, with your agreement, as quickly as possible to the
appropriate manager.

WHAT SUPPORT CAN YOU EXPECT?

The FBU aims to equip all its officials with the necessary skills to support all members
to ensure that they are treated with dignity and respect.

Complaints will be treated in confidence and officials will discuss with you how you
would like it to be dealt with. Your wishes will be paramount.

Officials dealing with your complaint will have access to legal advice, if appropriate
and with your agreement then the union can appoint solicitors to assist with your
complaint to management and possibly to an employment tribunal. This will normally
be done if the approach as described fails to bring a satisfactory end to the complaint.
Should you feel unable to approach Brigade, Regional or Sectional officials you
should contact your Executive Council member or write to the National Officer
responsible for FAW at FBU Head Office for advice.

Guidance for members who are or believe that they may be the subject of
allegation/s of discrimination, harassment or bullying

The union agreed at its Annual Conference in 2004 that given the experience of
vexatious allegations against FBU members by others, including management, that
members accused of discrimination, harassment or bullying would be afforded an
interim period of representation between the time the allegation is made and the time
it takes for an investigation to be carried out and a decision to be taken by a Regional
Committee (the Representation Appeals Committee in the case of union officials). The
only objective of the investigating officials is to ‘locate’ an arguable defence.
Therefore any member who considers or is informed that he or she may be party to
any proceedings in which it is or may be alleged that he or she has committed any act
of discrimination, harassment or bullying, will not automatically qualify for union or
legal assistance. Any such member who wishes to apply for any assistance (“the
applicant”) should do so as soon as practicably possible to the Regional Secretary
outlining the reason for the application. Failure to apply as soon as he or she is aware
of any allegation is likely to be seen as a breach of rule.

Following receipt of your application the Regional Secretary shall cause an
investigation to be carried out as soon as reasonably practicable thereafter
and shall require a written report to be provided by the investigators. The
investigators shall be officials of the union and shall be appointed by the Regional
Secretary. Representation will be granted until the Regional Committee have
considered the report from the investigators and determined if an arguable defence
exists or not.

Note for officials: If an official is approached to represent a member on an issue
which would require the member to make such an application then they should
inform the Regional Secretary immediately. If the Regional Secretary has not
received such an application he/she should write to the member advising them
of the procedure.

Guidance for members who believe they are witness to any act of discrimination,
harassment or bullying.

Members who believe they have witnessed an act of discrimination, harassment or
bullying are reminded of the responsibility of all members under the unions rules i.e.
It shall be the duty of every member to treat others with dignity and respect and
to challenge offensive behaviour of any kind.

If you witness such an act it is possible that by acting immediately you may prevent
the situation developing and stamp out such behaviour most effectively. Please
remember it is likely that the ‘recipient’ will already feel isolated!

As previously outlined discrimination, harassment and bullying are all constituent parts
of the same monster – abuse. By early action we can stamp it out. You should if
possible challenge the harasser or bully and let them know you do not find their
behaviour acceptable and advise them that if it does not stop you will report the
matter to management. You should inform an FBU official immediately, they will
provide you with support, advice and assistance.

It is often difficult for some people to take this approach as they may also feel
threatened. If this is the case you should make it known to the individual on receipt of
the unacceptable behaviour that you witnessed the behaviour and offer whatever
support you can.

It is also important to keep a note, including as much detail as possible about the
event i.e. time, place, who was involved and who said or did what. This may be useful
at a later date.

Guidance for officials on dealing with complaints of discrimination, harassment
or bullying

Complaints of discrimination and harassment may provoke strong reactions.
It is important, primarily, for the member who has plucked up the courage to approach
you, as a fellow member or as an official, but also for the credibility of our union, that
all complaints are dealt with as quickly as possible and treated:
● Swiftly
● Sensitively
● Seriously

As with union issues which relate to personal matters or individual grievances,
remember that confidentiality and tact are essential at all times.
It is a sign of the union's strength that most members of the Fire Service are members
of the FBU.

This can, however, cause difficulties when pursuing a complaint whether this is
against someone in their managerial role, as a colleague in the workplace, or against
another member for their behaviour during trade union activities.

It is the union's duty to try and educate all members to be alert to the problems of
discrimination, harassment and bullying and to be prepared to confront the
perpetrators.

Too often members who are not comfortable with the behaviour of a colleague stay
silent out of fear of becoming another victim.

It takes real courage to speak out.

The FBU is committed to creating a climate of confidence so that members do not
feel they have to suffer in silence or isolation but that their complaint will be treated
seriously.

The informal approach

Try to deal with a problem informally first.
(You should include an ‘informal’ stage in your agreed procedure for dealing with
discrimination, harassment and bullying). An informal approach is usually the preferred
option for someone on the receiving end of ill treatment.
THE MOST EFFECTIVE WAY OF DEALING WITH DISCRIMINATION,
HARASSMENT AND BULLYING IN THE WORKPLACE IS TO NIP IT IN THE BUD
STRAIGHT AWAY.

If you feel someone is getting a rough ride then speak out.
It usually only takes one person to give voice to what others are probably thinking -
the situation is getting out of control or that the ‘joke’ has gone too far, to put a stop to
bullying.
Explain clearly that such behaviour is unwelcome, embarrassing and is interfering with
work.
Hopefully the discrimination, harassment or bullying will stop, it may however
continue when there is no-one around to witness it.
It is therefore very important that you, again as a fellow member or as an official, let
the person on the receiving end know they have an ally.
As we have suggested in the previous section, advise the harassed person to keep a
record of when, where and what took place and names of any potential witnesses.
This is vital if the complaint is to be pursued.
Let the person or people who are responsible for the offence know privately or
publicly (whichever you judge to be the most effective) that you think they are out of
order and that their behaviour is contrary to union rules.
If the discrimination, harassment or bullying continues, discuss with the person on the
receiving end how they want to deal with it.
Their wishes must be paramount.
Make it clear they have your support and the support of the FBU.
That for everyone's sake, both personally and professionally, unacceptable behaviour
cannot be tolerated in the Fire Service and will not be tolerated in the FBU.
Reassure them that they do not have to put up with it and that they do not have to
deal with it on their own.

The Formal Approach

If informal approach has not been effective and if the member who is suffering from
discrimination, harassment or bullying consents, then the case should be pursued
with management and union discipline.

You must involve your Brigade and Regional officials before you take any further
steps. Where appropriate it may be useful to speak to a FAW official or an official of
the NWC, B&EMM or the LGBT for support and advice.
Brigade, Regional and Sectional officials have access to the union's legal advisers
who will provide specialist advice and if the member agrees, they will assist with a
complaint to management and possibly an employment tribunal.
If you do not feel able to do this then speak to your Executive Council member or
contact the National Officer with responsibility for FAW matters at FBU Head Office.

As previously stated, you should advise the member to keep a note of the details of
each incident of discrimination, bullying or harassment.
This is important as such behaviour often occurs when there are no witnesses or
where colleagues close ranks.
Monitor any changes in the work patterns of the person being bullied or the attitude of
the harasser, to try and avoid or minimise accusations of poor work performance or
victimisation.
Again make sure that you methodically gather together:-
● The facts
● The evidence
Make sure you get legal advice regarding any time-limits which may exist.
In cases of sex discrimination or harassment our solicitors will, as far as is possible
and if preferred by the complainant, provide the services of a solicitor of the same
gender as the complainant.
Guidance for Regional Secretaries
On receipt of an application for union representation from a member who is or
believes they may be the subject of allegation/s of discrimination, bullying or
harassment the Regional Secretary shall;
1. Cause an investigation to be carried out as soon as reasonably practicable.
2. Within 5 working days appoint two officials of the union as investigators
(Investigators do not need to be Regional officials.).
3. Receive a written report from the investigators of their findings within 20
working days. The report will conclude with a recommendation as to whether
representation should be granted, or not, based solely on the existence, or
not, of an arguable defence to the allegation(s).
Note : An extension to this time limit may be granted only by the majority
agreement of the Regional Executive, following application to the Regional
Secretary with stated reason(s).
4. The Regional Executive should consider the investigators report and
recommendation prior to the Regional Committee meeting. The Regional
Executive should ensure the investigation has been carried out in the appropriate
manner and make comment on the recommendation. The Regional Executive
may request further investigation takes place if they deem it necessary.
5. Following consideration by the Regional Executive, the Regional Secretary
will supply a copy of the written report to the applicant and the complainant,
together with an invitation to make any comments in writing upon the said
report. The invitation for comments will also make clear the date set for the
Regional Committee meeting that shall hear the report. If either party make
any written comments it shall be their duty to provide them to the Regional
Secretary in good time prior to the Regional Committee meeting.
6. Convene a meeting of the Regional Committee as soon as possible but
certainly within 15 working days of receiving the final report except in special
circumstances.
7. Supply a copy of the written report to each member of the Regional
Committee.
8. Ensure that copies of any written comments from the applicant or
complainant are made available to members of the Regional Committee at
the meeting scheduled to deal with the report.
9. Following the Regional Committee’s decision inform in writing:
a. The applicant(s) and the complainant of the decision and their right to
appeal.
b. The General Secretary, forwarding all relevant documentation as soon as
possible.
Both parties, complainant and applicant, should be given the same documentation
with the same rights to comment, prior to the Regional Committee meeting and the
same documentation and rights to appeal against the decision reached by the
Regional Committee. The Regional Secretary will normally be the official identified as
the contact point for all members involved on both sides of a discrimination,
harassment or bullying complaint/investigation.

The role of the Regional Executive

a) The Regional Executive may grant, by majority agreement, an extension to
the 20 working day time limit for the provision of the investigation report. This
shall only be considered following receipt of an application for an extension
to the time limit which must state the reason(s).
b) The Regional Executive should consider the investigators report and
recommendation prior to the Regional Committee meeting. The Regional
Executive should ensure the investigation has been carried out in the
appropriate manner and make comment on the recommendation including
requesting further investigation to be carried out if deemed necessary.
The role of the Regional Committee
a) Only members of the Regional Committee should attend the meeting called
to decide on an application for representation under this policy.
b) Any representative from the complainants or applicants branch should not be
party to the discussions or decisions of the meeting.
c) Every member of the Regional Committee should receive a copy of the
investigators report.
d) Every member of the Regional Committee should be supplied at the meeting
with any written comments on the report submitted by either the complainant
or the applicant. These shall be provided by the Regional Secretary.
e) The Regional Committee shall consider the report, any additional comments
submitted by the complainant or the applicant and the recommendation as to
whether the investigators concluded that an arguable defence exists or not.
f) The Regional Committee may:
i) Make such decisions as it considers appropriate in all the circumstances.
ii) Require the investigators to carry out such further investigations, as are
considered necessary.
The applicant will be granted FBU representation if the Regional Committee
is satisfied that the applicant has an arguable defence to the allegations
made.
g) The Regional Committee may reconsider any decision in light of any
substantial and or compelling new evidence which may become apparent
following the Regional Committee meeting.
Appeals
1) From the date the Regional Committee decision is sent to the parties i.e.
complainant and applicant, either have 7 working days to forward an appeal
in writing against that decision to the General Secretary. Notice of appeal
must be accompanied by full written reasons for the appeal. Upon receipt of
an appeal against a Regional Committee decision the General Secretary shall
cause a meeting of the Representation Appeals Committee to be held to
consider the appeal. The applicant shall continue to receive representation
whilst awaiting the decision of the Representation Appeals Committee.
2) Meetings of the Representation Appeals Committee shall be convened within
10 working days of receipt of the appeal by the General Secretary.
3) The Committee shall not be required to hear the application again but must
decide whether or not the Regional Committee could reasonably have
reached its decision in the light of all the evidence put before it. The
Committee may consider any evidence which was not put before the
Regional Committee and in that event can require the Regional Committee to
re-convene to reconsider all new evidence should it consider the new
evidence could have materially affected the Regional Committee’s decision.
Alternatively the Committee may make any decision it considers just, in the
light of all the evidence.
4) If, upon the basis of all the evidence before it, the Representation Appeals
Committee considers that the Regional Committee should not have refused
or granted representation, it may reverse or amend the decision as it
considers appropriate, in its absolute discretion. The decision of the
Representation Appeals Committee will be final and shall be conveyed in
writing to the parties, the General Secretary and the Regional Secretary.
The decision of the Representation Appeals Committee will be final and shall be
conveyed in writing to the parties, the General Secretary and the Regional
Secretary

Request for representation from officials of the FBU

On receipt of a request for representation from an official, as defined in the rule book,
who is or believes they may be the subject of allegation(s) of discrimination, bullying
or harassment the Regional Secretary shall inform the Executive Council member
within 2 working days. The Executive Council member shall act as the investigator
with the assistance of a Regional official. The Executive Council member shall inform
the National Officer who has been appointed to act as the Secretary to the
Representation Appeals Committee. The National Officer will then take the role of
Regional Secretary and the Representation Appeals Committee will take the role of
the Regional Committee.

Appeals under this procedure will be made in writing to the General Secretary and will
be heard by the Final Appeals Committee.

If an Executive Council member, National Officer, Assistant General Secretary,
President or Vice President request representation they should write to the General
Secretary who will appoint an investigator. The request will be heard by the
Representation Appeals Committee and any appeal will be heard by the Final Appeals
Committee. In the case of the General Secretary requesting representation he/she
should write to the President, who will appoint an investigator. The procedure will then
be as that outlined for Executive Council members.

Representation Appeals Committee

This Committee will be established by the Executive Council and comprise of a
National Officer (who will act as Secretary), the Vice President as Chair and four
Executive Council members appointed as and when required. Executive Council
members representing the Region or Section which an appellant is a member will not
act as members of the Representation Appeal Committee.

Guidance notes for officials investigating claims of discrimination, harassment
or bullying.

When carrying out an investigation you must keep careful notes of everything
that takes place so that you can produce a full report. You should ask the person
who is alleging discrimination, harassment or bullying (who from now on we will call
the complainant) to provide you with all details necessary to support their complaint,
INCLUDING advising them to seek legal advice BEFORE providing you with any
evidence.

If they are legally represented then you must make your enquiries through their
solicitor.

You should ask them to provide written comments on any evidence and a copy
should be given to the person against whom the complaint has been made (who from
now on we will call the applicant).
These must be attached to your report.
The Investigator(s) should:

1. Start the investigation AS SOON AS POSSIBLE. Remember that a written
report with the findings should be supplied to the Regional Secretary within
20 working days of being appointed to carry out the investigation. If you
require further time to carry out the investigation you must make an
application to the Regional Secretary stating the reasons for the extension.
You should also keep in mind that time limits may arise or may have already
arisen with regards to procedures external to the FBU i.e. employment
tribunals, grievance/disciplinary procedures etc.
2. Carry out the investigation with the sole objective of locating an arguable
defence.
3. Contact the complainant or the complainants’ solicitor at the earliest
opportunity and seek details of the allegations from or approved by the
complainant.
You may want to ask the complainant further questions via their solicitor.
The complainant might want to answer further questions through their
solicitor or meet you in person. Make sure you write down any further
questions and answers, which result from any meetings held with the
complainant and give a copy of these written records to the complainant or
complainants’ solicitor for them to approve the contents. Make sure you
retain any correspondence received from their solicitor.
When this has been agreed between the complainant and/or their solicitor
you should then send this with any statement from the complainant to the
person against whom the complaint has been made (the applicant).
4. Ask the complainant or their solicitor if there are any witnesses who should
be approached. If there are, then you should approach them for statements.
This should be done swiftly and you should see each witness individually.
5. Witnesses should be given a verbal outline of the complainant’s allegations
and then be invited to comment on them.
You should write down a detailed account of the meeting date, time,
questions and answers etc., and ask them to approve the contents.
6. When you have carried out steps 1 – 5 you should meet the applicant and
ask him/her to comment on what is said about him/her. Write down their
response and give him/her a copy and ask them to approve the contents.
The applicant may wish to make a written statement in support of their
application and to name any witnesses to support their case. You should
contact any witnesses as soon as possible and meet with them individually.
7. All the witnesses which the applicant names, should be given a verbal outline
of what the allegations are and be asked for their comments. Again – as in
point 5 you must make a written record of the meeting with the witnesses.
Date the record, which should detail questions and answers and ask them to
approve the contents.
8. When you have been through all the steps listed above you must then
prepare a written report. If it is necessary for clarification or further
information you may wish to meet with any of the parties concerned more
than once. If so you should always record the meetings in writing and ask
them to approve the contents.
9. The written report should set out:-
WHO has been interviewed?
WHEN they were interviewed,
WHAT they said – referring to all the documents attached to your report.
Your report should cover any matters which you, as the investigator, feel are
relevant.
The report must contain the investigator’s conclusion as to whether or not an
arguable defence has been located.
The investigator must date and deliver the report to the Regional Secretary
AS SOON AS POSSIBLE but certainly within 20 working days of being
appointed to carry out the investigation, unless an extension has been
granted. The report must be signed by the investigator/s and make a clear
recommendation.
IF REPRESENTATION IS GRANTED THE FBU RESERVES THE RIGHT TO
WITHDRAW THIS IF THE ACCUSED SUBSEQUENTLY ADMITS GUILT OR IF
EVIDENCE OF GUILT COMES TO LIGHT.
Points to consider when conducting investigations
● What is important is that the investigations are thorough, the procedure is fair
and that the decision is taken objectively on the basis of the available
evidence.
● The Executive Council recommends that if applicants for representation are
obstructive to any investigation, then the Regional Committee must place
considerable weight on this when considering the granting of representation.
● The Executive Council recommends that when dealt with, copies of the
papers relating to representation matters be sent for information and collation
to Head Office.
● The Executive Council recommends that, with the agreement of the
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complainant(s), in cases where representation is withheld then consideration
should be given to implementing the disciplinary procedure under rule to
ascertain whether the rules and/or policies of the union have been breached.
● The Executive Council position regarding scope of the Regional Committee
decision on the granting of representation is that it applies to all members of
the union without exception.
● Note. After any request for representation has been concluded a
representation request can be re-heard should any substantial and/or
compelling new evidence come to light. This applies at any stage of the
process i.e. even after the appeal stage. Both the complainant and the
applicant can invoke this process by writing to the Regional Secretary.

Determining an arguable defence

When determining the presence, or not, of an arguable defence investigators initially
and Regional Committees subsequently must give due weight to the cogency,
consistency and eligibility of all the available testimonial and documentary evidence.
When balancing the weight of available evidence, the following should be considered:
1. A bare denial (i.e. a denial without evidence in support) does not constitute an
arguable defence in the face of substantial evidence to the contrary.
2. A plea of ‘mitigating circumstances’ to excuse a confirmed act of
discrimination, harassment or bullying does not by itself constitute an arguable
defence – it amounts to mitigation of penalty rather than a defence to the
charge.
3. Spurious and yet hypothetically possible speculation on theoretical scenarios
do not constitute an arguable defence which requires a realistic consideration
of the available evidence.
In coming to a decision, investigators and Regional Committees must weigh up the
cogency, consistency and reliability of the evidence in support of the allegations
against the cogency, consistency and reliability of the evidence in defence of the
applicant. This balance will determine the presence, or not, of an arguable defence.
Evidence must not include hearsay, but may include eye witnesses, witnesses present
in the immediate aftermath of any incident and any non-witness evidence such as
documents, property, photographs, recordings etc.

Locate an arguable defence

With regard to the complainant’s evidence, there should be a thorough investigation
although we accept that in many cases, the complainant may be advised to provide
no more than the information already detailed in any grievance lodged, employment
tribunal application or other similar document.

Having completed the investigation it is for the investigators initially and the Regional
Committee subsequently, to consider the weight, cogency and consistency of all
available evidence and then decide whether the applicant has an arguable defence.

Undoubtedly, at one extreme, there will be cases in which a bare denial with no
supporting evidence in the face of overwhelming evidence to the contrary will not
amount to an arguable defence.

As lawyers always say, “each case will turn on its own facts”. It would not be
appropriate to place a gloss on the words arguable defence or suggest the informal
approach.

It may be that management has still a vicarious liability and so a formal complaint may
be possible.

Regional Committees and investigators should concern themselves solely with the
substance of this definition.
An arguable defence is as it is defined here. Any attempt to redefine it will only cloud
rather than clarify any investigation.

A series of acts which in themselves appear to be acceptable as one-offs may be so
offensive when taken as a whole that an arguable defence cannot be said to exist.
A single act can also be so offensive that an arguable defence cannot be said to exist.
The applicant ought to know that an act (single or as part of a campaign) amounts to
bullying/harassment if a reasonable person who had the same information would think
that it amounted to bullying/harassment.

As the intent of the applicant (to follow a course of action which they know or should
know will cause offence) increases so the ability to locate an arguable defence
decreases.

The intent of the applicant has no bearing on the effect of the act(s) on the target. The
greater this effect (emotionally, physically etc.) the more incumbent it becomes on the
applicant to modify his/her behaviour. Likelihood of locating an arguable defence
decreases as known/perceived effect increases.
1. Representation by the FBU on other matters
It is possible that a member(s) who has been refused representation on a harassment
matter may have totally unrelated matters ongoing with which they are receiving
assistance from the FBU. These will not be affected by the decision on representation
in the case dealt with under this policy.
2. Counter-complaints
The FBU notes the potential complexity and amount of work that counter-complaints
may generate, however the union has no option but to conduct each complaint as per
the procedures outlined in this document. It is recognised that Regional Secretaries
may have to co-opt the assistance of officials from other regions or national sections.
3. Involvement of non FBU members
If the complaint is against someone from outside of the union this procedure will not
be applicable and assistance should be given to the complainant. If however an
allegation is made regarding an FBU member by someone outside of the union this
policy will apply.
4. Non co-operation of complainant
In the event that a complainant is obstructive to the FBU investigation by not
submitting a statement to the FBU investigation team or not partaking in an interview
to enable the investigation team to ascertain the facts, then representation will
automatically be afforded to the applicant.
5. Third party complaint
The FBU believe that the wishes of the victim must remain paramount. If possible
every effort and support should be offered in order to secure the willingness of the
recipient to be involved with the complaint, this of course may not always be possible.
Initially cases should be dealt with, where possible, informally and if at that stage,
despite the wishes of the third party complainant the recipient wishes no further
action (e.g. in the case of a gay member who may fear ‘outing at work’) then the
Regional Secretary may decide no action under rule will occur. It should be
emphasised that in such circumstances, it is difficult to completely safeguard
confidentiality and the wishes of a recipient, but the FBU believe it is the right
decision.
6. Multiple allegations
In the event that multiple allegations of discrimination, harassment and/or bullying are
brought under discipline or an employment tribunal (ET) case, the investigation team
must carry out their investigation methodically. Upon an arguable defence not being
located for any of the allegations the investigation will cease and the recommendation
to the Regional Committee shall be that representation is withdrawn from that
member. In the event that multiple allegations are made under separate discipline or
ET cases, then each case must be taken separately in terms of the investigation and
the affording or not of representation to that member.