Workplace Retaliation

What workplace retaliation is

Workplace retaliation (الانتقام الوظيفي) is a negative action or treatment that a person experiences at work because the person made a grievance, a complaint or a report, gave evidence in an investigation, or objected to a practice in the establishment. Its forms include dismissal, demotion, being denied an increase, a transfer to a less acceptable location, a poor appraisal and exclusion from meetings after a complaint. The test that links the action to the complaint is that the action was taken because of the complaint, and not merely that it came after the complaint in time.

Retaliation is a management description of a pattern of treatment. What follows is an explanation of the concept and of how to examine it. It is not a judgement on any particular incident or on the lawfulness of any particular decision.

How retaliation differs from a legitimate action

Making a complaint does not give the person who made it immunity from every action afterwards, because reasons for an action can exist before the complaint and have no connection to it. The difference lies in the reason and not in the timing.

An action that was already planned before the complaint, for a documented reason, and that is applied in the same way to others in the same position does not become retaliation merely because the complaint came a week earlier. An action with no earlier documented reason, taken right after the complaint and differently from how others are treated, may merit a question.

How retaliation differs from neighbouring concepts

Four neighbouring concepts have separate glossary terms:

• The objection channel. The channel through which an employee submits an objection is described in grievance, and an element that prevents retaliation forms part of its procedure. Retaliation is the negative treatment that the person who made the grievance receives after submitting it.
• The reporting channel. The channel through which an employee informs the establishment of a violation that affects the establishment or others is described in corporate whistleblowing, and protection of the reporter forms part of its design.
• The abuse complaint route. The route of complaint and investigation for abuse is set out in workplace harassment. Retaliation is the negative treatment that the person who made such a complaint, or a witness, receives after it.
• The tolerated environment. A management description of an environment that tolerates harmful practices appears in toxic workplace, and an establishment’s tolerance of retaliation may be one signal of such an environment.

How retaliation shows at work

Retaliation is not always an announced dismissal. These are our own examples of possible forms, and an example does not count as retaliation if it has an independent reason:

• Formal actions. Termination of service, a demotion, a suspended increase, or a warning that was not on the table before the complaint.
• Changes in working conditions. A transfer to a more distant location, a change to the shift schedule, heavier burdens than those of peers, or withdrawal of tasks that belonged to the person who complained.
• Informal treatment. Exclusion from meetings and correspondence, being ignored, or excessive checking of small details that were not checked before.
• Conduct by colleagues. Colleagues treat the person who complained in a harmful way with the manager’s tolerance, or that person’s name is circulated where the establishment promised confidentiality.

Retaliation is not limited to the person who made the complaint. It can also reach someone who testified alongside, supported that person or answered the investigators’ questions. Those who see this may learn that speaking is costly and fall silent, a point that bears on psychological safety.

What evidence is considered

No single indicator proves or disproves retaliation. The whole picture is what is considered. We suggest looking at these indicators:

• Timing. Did the action come close to the complaint? Closeness in time calls for a question and does not answer it.
• Change in treatment. Has the employee’s treatment changed from what it was before the complaint, with no apparent reason?
• Comparison. Are people in the same position treated in the same way?
• Knowledge of the decision maker. Did the person who took the action know of the complaint?
• Earlier reason. Was the reason documented before the complaint in a record, an appraisal or a plan?
• The procedure followed. Were the steps that the establishment follows in similar cases applied, or were they shortened?

A hypothetical worked example

Take a hypothetical establishment of 150 employees, of whom 12 submitted grievances during the year. Six months after each grievance, five of those 12 had experienced a negative change, such as a transfer, a suspended increase or a warning, which is 5 ÷ 12 = 41.7%. The other employees number 138 (150 minus 12), and a similar negative change affected 18 of them, which is 18 ÷ 138 = 13.0%. The rate for the 12 who complained is about 41.7 ÷ 13.0 = 3.2 times the rate for the other 138.

This difference is a question and not a judgement. The numbers are small, and some of the 12 cases may have an independent reason. The establishment reviewed the five cases and found that three of them had a documented reason before the grievance, which is 3 ÷ 5 = 60%. Two had no earlier documented reason, and those two were examined more deeply.

The figures are hypothetical and set to illustrate. They do not represent an establishment or a study, and they do not mean that a difference like this occurs in any establishment or that it proves retaliation.

How an establishment limits retaliation

These measures are options for an establishment to adopt according to its situation, and they are not a prescription:

• Announcing the prohibition. The establishment announces that a grievance or a report made in good faith is not taken as a reason for action against the person who made it, and it tells managers before employees.
• Reviewing decisions a second time. Someone to whom the employee does not report reviews any negative action against an employee who recently complained, and the establishment sets the length of that period.
• Monitoring after closure. After the complaint is closed, the establishment asks the complainant at intervals whether treatment has changed, since the complainant may not report it.
• Separating the person complained against from the decision. The person against whom the complaint is made does not decide on the complainant’s affairs.
• Treating a retaliation complaint as separate. The establishment investigates it like any other report and does not merge it into the original complaint.
• Providing a route outside the line. An establishment can adopt an arrangement such as an ombudsman, so that the employee has a body that is not under the team manager.

What to do when a report of retaliation is made

We suggest the order below, which is not a prescribed procedure:

1. The report is logged as a separate matter, even if the original complaint is still open.
2. The establishment considers suspending the contested action temporarily, if that is possible without harm to the establishment, so that its effects do not accumulate during the examination.
3. Someone with no connection to the decision carries out the examination, and gathers the timeline, the reason for the decision as it was written before the complaint, and how others in the same position were treated.
4. The decision maker and the complainant are heard, and what each says is written down.
5. The reporter is told the outcome. If the action is found to have been taken because of the complaint, its effect is addressed. If it is not, the reason is explained to the reporter.

One caution applies. Separating the complainant from the person complained against by moving the complainant to another location without consent may be understood as punishment, even if protection was intended. It is better to ask the complainant’s wishes before deciding.

Retaliation in Saudi regulation

Paragraph 1 of Article 71 of the model work regulation (النموذج الموحد), which is Annex 1 of the Implementing Regulation (اللائحة التنفيذية) of the Saudi Labor Law (نظام العمل), provides that a worker may submit a grievance against any act, measure or penalty taken against the worker by the establishment. The worker submits it in writing to the competent body in the establishment within thirty days, excluding official holidays, from the date of being notified of the decision, measure or penalty.

The same paragraph provides that the worker is not to be harmed for submitting a grievance, and that the worker is notified of the outcome within fifteen days from the date of submission, excluding official holidays. That text binds as content that the work regulations of establishments prepared on the model must carry. It is not a guarantee stated by the Labor Law, and that provision is wider than Article 72 of the Labor Law, which concerns a grievance against a decision imposing a penalty.

Article 56 of the model work regulation deals with the committee formed under Article 55 of the model work regulation to investigate complaints of abuse in the workplace. The committee hears the parties and the witnesses while observing confidentiality, and it may recommend separating the complainant from the person complained against during the investigation. If the incident is not established and the committee finds that the complaint or report was malicious, it recommends a disciplinary penalty on the reporter. The conduct schedule in the model work regulation also contains an item on a malicious report or complaint. For the rest of the committee’s route, see workplace harassment.

These provisions do not give a complaint absolute immunity. A penalty on the reporter is tied to the committee’s finding that the complaint was malicious, and not merely to the incident not being established.

Termination decisions remain subject to the provisions of the Labor Law on termination. Article 75 of the Labor Law permits termination of a contract of unspecified duration for a legitimate reason by written notice. Article 77 of the Labor Law sets compensation for the party harmed by termination for an illegitimate reason, unless the contract specifies compensation. Article 80 of the Labor Law limits the cases in which the employer may terminate without award, notice or compensation, on condition that the employer allows the worker the opportunity to state the reasons for objecting to the termination.

The compensation under Articles 77 and 80 of the Labor Law is described in unlawful termination compensation, and the steps that precede a penalty are described in internal investigation.

Does the Labor Law expressly prohibit retaliation?

In the text of the Labor Law we found no article that names retaliation in these terms, or that makes the filing of a complaint, by its wording, an unlawful ground for termination, and we draw no ruling from that. What we did find is the text of Article 71 of the model work regulation on not harming a person who submits a grievance. Whether a particular termination is lawful is decided by the competent body.

Workplace retaliation is a question of whether a person who spoke has paid for speaking. It points the establishment to a place that merits examination, and what is decided afterwards rests on the facts of each case and on the provisions on termination and discipline that govern it.

This is an explanation of the concept and of the statutory provisions cited, not legal advice.