24 July 2015
24 July 2015, Comments: Comments Off on BULLIES BEWARE – CONSTRUCTIVE DISMISSAL

Those of us who work full time probably spend more time with our work colleagues than our nearest and dearest.  In fact if you’re not careful the edges can blur.  Take my secretary – tough, incredibly competent and probably knows more about the law than most lawyers.  Sometimes I will walk into her office and begin to ask for something to be done – I will start “Is there any chance you could…” but inevitably before getting to finish the request I get “Well – I could – yes” – the emphasis being on the ‘could’.  At times if a mistake has been made by either me (incredibly rare!) or her we will make the most of it – taking the mick and scoring points.  Sometimes I think I have just forgotten the day when she and I walked down the aisle – her in a big white frock.  At  times we sound like an old married couple and as there is no sex and plenty of squabbling for all intents and purposes – it’s a marriage.

The point is that we are familiar with each other – we are comfortable in our mutual nagging, leg pulling and occasionally bad language and insults.  I will walk into the office sometimes at 9:30 a.m. after seeing a client first thing at home to a curt “good afternoon” from her shortly followed by a long list of calls to return which she has competently (but illegibly to anyone else) written on her messages pad (there is a system for everything!).

Ultimately though – and this is rather uncomfortable territory –my secretary ‘has my back’.  Without her support and loyalty it would be impossible to manage the firm’s civil litigation case load.  She will answer all enquiries that she can without referral to me to free up my time.  Similarly at times some clients have scant regard for secretaries and are prepared to be far ruder to them than they would be to a lawyer (this I find unforgivable) and I will invariably put people right if they are in any way abusive or inappropriate when dealing with her.

I have had to examine a few other working relationships this week – ones that have been the source of a great deal of distress to at least one of the parties involved.  When potential employment clients come to us they invariably fall into one of two categories – they are either incredibly angry or utterly destroyed.  None more so than those who feel they have been forced out of their job by colleagues.

Pete Brockbank (he has given his permission to use his real name) had suffered difficulties at work.  He felt victimised by his boss at Povoas Packaging Ltd as a result of being on the end of what he claimed was an abusive tirade from his boss who had walked onto the warehouse floor and been abusive after he had raised a formal grievance.  To be fair Pete’s boss, Mr Povoas, insisted the exchange was somewhat different to Pete’s version of events. You can read the judgment here for the employment judge’s findings  on the point.

Constructive dismissal involves the resignation of the employee due to a fundamental breakdown of the trust and confidence that is necessary in the employer/employee relationship.  It is always a high risk strategy on the part of an employee and if a tribunal is required to adjudicate it will look very closely at the circumstances surrounding the employee’s decision.  It is very difficult to give advice as to what will and will not constitute sufficient grounds for constructive dismissal as the circumstances of each potential claim are very specific.  Much is to do with context – for example if I were to resign  on the basis that I was being singled out by my secretary for sarcasm and abuse – there would be evidence of the jovial manner in which we communicate and the claim would probably fail as the conduct I would be complaining of would be conduct I would be guilty of too.

I had an appointment with another potential client this week.  His case was somewhat different.  He felt – possibly justifiably – that one of the managers at his place of work was singling him out for less advantageous treatment to the point that he handed his notice in.  On reflection and after having had time to think about his resignation, he approached his employer to withdraw his notice and his employer had refused to let his do so.  Unfortunately for this gentleman the fact that he had sought to withdraw his resignation was demonstration on his part that he maintained a degree to trust and confidence in his employer to the extent that he felt he could continue his employment.  As such – together with additional considerations – I formed the view that his claim would ultimately fail.

In terms of practical advice there are a few things that you MUST do if you are to give yourself the best chance of coming through a claim for unfair or constructive dismissal successfully:

1   KEEP RECORDS  – you should write everything down – keep a note of emails, telephone calls, conversations and any events about which you are not happy or you find unacceptable.  Wherever possible you should communicate in writing with HR or whoever is dealing with the problem.

2  EXHAUST INTERNAL GRIEVANCE PROCEDURES – though not absolutely necessary – if you can attempt to address any problem using the firm’s internal grievance procedure – you will have a better chance of presenting yourself as having acted at all times appropriately and with a willingness to try and resolve the problem.  As I say – this is not always possible if the behaviour of others is such that you feel you cannot continue your employment.

3  FAMILIARISE YOURSELF WITH COMPANY POLICY – firms should have policies and procedures governing your employment.  It may help to measure the conduct of others and your own conduct against such policies and procedures.

Remember you are entitled to your dignity in the workplace.  No one has the right to bully you or belittle you just because they pay your wages.

Peter Brockbank maintains that he was told by his boss that the firm would “ rip him apart if he took him to ACAS”.  It takes courage to stand up for yourself in a tribunal against those who you believe to have had it in for you.  It’s not easy.  But it is easier with help – the right sort of help.

At Law For Life we have a team of employment specialists – lawyers and barristers who can see your claim from completing the initial paperwork to representing you at the hearing.  As Pete said – “It wasn’t about the money – though that will help with the practical side of things – it was about putting the record straight and being believed – and I can’t thank you all enough – at my first meeting with Adam I was a different person to how I am today and Miss Williams who represented me at the hearing was the best person I could have had in my corner – Thank you – I feel as though I have my life back”.

Note to secretary – Shona – if you are reading this – white coffee, one sugar, soon as poss please…(runs and hides).




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