Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
How long have you worked there?
OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.
thanks for your patience. I will discuss the general law on bullying and what your options are – I appreciate you may have already followed some of the recommended steps but it is best to cover it all anyway.
Bullying is unfortunately something that happens all too often in the workplace. The Advisory, Conciliation and Arbitration Service (ACAS) defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.” Whatever form it takes, it is unwarranted and unwelcome to the individual subjected to it.
Under law, specifically the Health and Safety at Work etc Act 1974, an employer has a duty to ensure the health, safety and welfare of its employees. In addition, they have the implied contractual duty to provide a safe and suitable working environment. That includes preventing, or at least effectively dealing with bullying behaviour occurring in the workplace.
In terms of what the victim of bullying can do to try and deal with such problems, the following steps are recommended:
1. First of all, and if appropriate, the employee should try and resolve the issue informally with the person responsible for the bullying.
2. If the above does not work or is not a viable option, the employee should consider raising a formal grievance with the employer by following the company's grievance policy. This formally brings the bullying issue to the attention of the employer and they will have a duty to investigate and deal with it.
3. If, following a grievance, the employer fails to take any action or the action they take is inappropriate, the employee would need to seriously consider their next steps. Unfortunately, employment law does not allow employees to make a direct claim about bullying. As such, the most common way of claiming for bullying is by resigning first and then submitting a claim for constructive dismissal in an employment tribunal (subject to having at least 2 years' continuous service with the employer). The reason for resigning would be to claim that by failing to act appropriately, the employer has breached the implied terms of mutual trust and confidence and failed to provide a safe working environment and that there was no other option but to resign. However, this step should only be used as a last resort as it can be risky, after all it will result in the employment being terminated.
So as far as legal options are concerned in terms of getting them to act, you cannot do this until your employment has actually terminated. Whilst employed by them you can only go down the grievance route. Only once you have resigned and claimed constructive dismissal can you get a formal resolution and force them to act in a way that a tribunal may order them.
This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how you can apply it here, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. As you have already correctly identified this could potentially amount to constructive dismissal, which occurs when the following two elements are present:
· Serious breach of contract by the employer; and
· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.
You are welcome, best of luck!
Hi there if you could please upload the letter then i can give you a better idea, thanks
Thank you. Offer proposed.
Thank you, ***** ***** with me please and I will reply fully by tomorrow.
Many thanks for your patience. A lot of the comments on the grievance outcome are a case of ‘he said/she said’. Whilst I have read the whole response, it is very difficult for me to say that what they have mentioned in there is wrong or incorrect. I was not witness to any of this and I have no way of saying whether their response is factually correct or not. A number of times the people who are alleged to have done (or not done) something have directly disputed this so if it is your word against theirs and there is no other evidence to back your story up, then it could be rather difficult to take this to tribunal and prove otherwise, especially in a constructive dismissal claim. This is because in such a claim it is entirely down to you to prove that the allegations you are relying on to show there was constructive dismissal had occurred and were serious enough to justify your resignation. I think in this case you will be taking a risk by paying the money to issue a claim (over £1k). However, I would still recommend that you negotiate with them internally and after you leave – engage ACAS for some further mediation using a third party as you have nothing to lose by ding all of this. Just think carefully before you actually go as far as issuing a formal claim in the tribunal.