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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 74373
Experience:  Qualified Employment Solicitor
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My sister is being disciplined at work about a post she

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My sister is being disciplined at work about a post she added to facebook about being bullied. Her boss, one of four directors of a private company, has been bullying her for over 18 months She has spoken to her union, company dr etc and also to other directors about this. She added to her facebook page a post about looking for advice about being bullied. Her profile does not say where she works nor did she mention anyone by name but various people responded to her post. Some I believe were meant in a jokey way etc and some supportive. She had been gathering evidence about the bullying and was talking to her union about putting in a grievance or going to mediation, The main point she and her partner (who also works at the same place) have asked me to check with you is that they believe that part of the statement from the boss may constitute slander. He has blatantly lied saying he felt threatened because of some of the comments other people had posted on her page, both personally and for his property and car. He accused her partner of say he knew of though guys who would come round to sort him etc and that he believed that graffiti around the area he lives may related to him. They don't know where he lives and her partner has never said those things they are just not his words and would never think of using any violence to sort any problem out. They asked me to find out if you though his words constitute slander? (PS they would not let her back to work so she has not been able to retrieve her notes for grievance and she believes they have found them as a lot of the comments relate to incidents she was going to use. She is physically and mentally shattered by this, has undergone two separate cancer scare investigative operations along with problems with her legs etc, both of them have been concentrating on keeping going and are absolutely shocked, frightened and angry at the lies he has told)
JA: Was the disciplinary action discussed with a manager or HR? Or with a lawyer?
Customer: She was sent home to work just a few weeks prior to covid and then suspended with a pending disciplinary. The only info given at the time was that it was due to posts on the internet. Eventually someone from an HR company spoke with her over the telephone but it was weeks before she had an investigation interview and her boss had already told people she wasn't coming back.
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: She is a unionised employee. She has been liaising with her union man who is lovely but very weak. She has tried to speak with her district union but he says she has to go through the union man on the ground.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: May I just check on the cost of my connection with the lawyer please?

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

How long has she worked for this employer?

Customer: replied 1 year ago.
about 2 and a half years
Customer: replied 1 year ago.
No I am sorry I cannot afford to speak on the phone.

OK and what is she ideally hoping for in the circumstances?

Customer: replied 1 year ago.
She is desperate to keep her job as they have a large mortgage. She was advised to run her grievance alongside her disciplinary but physically and mentally she is at the lowest ebb. I've just been asked if I can find out if the comments her boss have made which are totally untrue or unsubstantiated would count as slander. Although disciplinaries are supposed to be confidential these lies have been released and everyone is aware of them.

Thank you. Leave it with me for now, although please note it is extremely busy at present due to the ongoing situation so there may be a delay in replying, but I will get back to you at some point today. Please do not reply in the meantime. Many thanks

Many thanks for your patience. Whilst this may appear to be a potential case of defamation (this includes libel if it is in written form, or slander if it is in oral form), such claims are rather difficult to pursue. Many people are keen on suing for defamation without having full appreciation of the law or practicalities in doing so. I will try and clarify the position below.

First of all, certain conditions must be met for the statement to be classified as defamatory. These are:

1. There has to be a defamatory statement - the assessment that is often used to establish this is whether the statement tends to lower the claimant in the estimation of right-thinking members of society generally

2. Its publication has caused or is likely to cause serious harm to the reputation of the claimant – this will vary based on what effect it will have but it really has to be something sufficiently serious

3. The statement has been published by the defendant to a third party

4. The claimant must prove that the words complained of were published about him - this should not be an issue if the claimant is named or clearly identified.

Whilst it may be easy to prove that defamation has taken place, the legal process of pursuing such a claim is often complex and prohibitively expensive. A claim must be made in the High Court and will likely require the help of professional defamation lawyers, so the costs will often be high right from the outset, usually in the thousands. There is also no legal aid available for such claims so the complainant must fund these personally.

You must also consider whether the publisher of the statement can potentially defend the claim. For example, this can happen by proving the statement was true or an honest opinion which could have been made based on the available facts.

In terms if the bullying, although there is no legal definition of bullying, the Advisory, Conciliation and Arbitration Service (ACAS) defines it as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.” Examples given are: spreading malicious rumours, or insulting someone by word or behaviour; exclusion or victimisation; unfair treatment; overbearing supervision or other misuse of power or position; making threats or comments about job security without foundation; deliberately undermining a competent worker by overloading and constant criticism; preventing individuals progressing by intentionally blocking promotion or training opportunities.

Under law, specifically the Health and Safety at Work 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 victim should try and calmly and professionally 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 victim should consider raising a formal grievance with the employer by following the company's own grievance policy, or sending a complaint in writing to their line manager. 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 adequately deal with the bullying issues, the victim would need to seriously consider their next steps. Unfortunately, employment law does not allow employees to make a direct claim for bullying. As such, the most common way of claiming is by resigning and making a claim for constructive dismissal in an employment tribunal. 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.

As a final pointer, the victim should try and gather as much evidence as possible before considering making a formal complaint and certainly before going down the resignation route. As bullying is often verbal or through actions, the best way is to keep a detailed diary of all bullying occasions so that there is at least some reference in written form that the employer and/or the tribunal can refer to.

Does this answer your query?

Customer: replied 1 year ago.
Many thanks for your response which I will forward to my sister's partner. He is at present trying to form a response to the disciplinary allegations and part of this are the lies this boss has put forward. He has no proof and will not find any as they are a total pack of lies unfortunately the whole of the company has been made party to the disciplinary proceedings and their content. Other people within the company have had their wrists slapped for adding things on social media about the company, being linked to it by their profile page and also by mentioning other employees. Our understanding of the investigations which need to take place prior to proceeding to disciplinary is that the employer must look at similar cases, of which there have been two, but this does not seem to have been done or if it has the addition of the allegations of 'fear of the boss from supposed comments made directly to him, or the responses to her post, of which she was not responsible for, nor commented on, but because in one or two replies she had added a 'kiss' she is deemed to have confirmed these posts by the company. Unfortunately she has not been able to gain access to her evidence and it seems as though they have found it because the content of the disciplinary papers far exceeds the 'one social media posting' first mentioned to her prior to the investigation meeting.

Thank you and do let me know if you have any follow up questions please

Customer: replied 1 year ago.
Thank you for your earlier response. My sister's partner had earlier this morning arranged a 45 minute telephone consultation with a solicitor which I wasn't aware of. Just one more thing if you wouldn't mind answering. Her boss is a very religious man and sent her a whatsapp direct to her alone with a religious message regarding covid19. He later said this wasn't intended for her and apologised but he knows she doesn't share his religious beliefs and he has never before or after contacted her on whatsapp. Does this create any argument we could use?

I don’t see how it would be relevant to be honest , especially if it was genuinely sent in error. They key is that he does not deliberately discriminate against her because of her religious views (or lack thereof).

Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
thank you

All the best