What’s the answer? E-bullying

Annie Hayes

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What’s the answer? E-bullying

By Annie Hayes

Lucy Hibbert gets legal guidance this week from Stephanie Wootton, employment law expert at Browne Jacobson and Ceri Durham a solicitor at Clarkslegal LLP on how to deal with the content of a threatening email.

The question:
An employee has approached me in confidence and asked to speak to me “off the record”. They showed me a copy of an email sent to him by their manager. I was very shocked at the content.

It basically said that unless the employee could justify his role and prove that it added value to the business, saved money & added to profit, then they would be looking into if the role was needed anymore. The tone was abrupt and rude but ultimately threatening. It finished up by saying that the employee had to respond today (Wednesday) with facts and figures proving that his job was still needed – if he couldn’t provide this info then tasks would be set. And that’s how it finished; with an ominous ending.

The employee asked me if he would have a case for constructive dismissal – I explained that the question put me in an awkward position and wasn’t my place to say. I suggested that he speak to his Manager’s boss and explained how upset/angry he was at the content and tone and see if he could get some answers etc before jumping the gun.

I am very concerned about the content of the email – if the management team are considering making a redundancy (which by the sounds of it they are) i certainly haven’t been informed.

So what do I do next? How do I have support the employee and protect the business without betraying his trust? Plus I feel exasperated that this manager felt it was “ok” to send such an email?

Lucy Hibbert

The answers:
Stephanie Wootton, employment law expert, Browne Jacobson

An employee can claim that they have been constructively dismissed if they can show that the employer committed a fundamental breach of contract. The employee must be able to identify the fundamental breach and show that they promptly resigned in response to that breach.

Determining what constitutes a ‘fundamental breach of contract’ is not always straightforward. It could be one serious incident, or it could be a combination of a number of smaller incidents which when taken together amount to a fundamental breach. The content of the email, if threatening, could be serious enough to undermine the implied term of trust and confidence. Even if this is not the case, if there is additional evidence of similar or unreasonable behaviour, the employee may be able to argue that this incident is the ‘last straw’ in a series of incidents. Entitling them to resign and claim constructive dismissal.

The Employment Tribunal, however, will not register a constructive dismissal claim unless the individual has complied with the minimum statutory grievance procedures, i.e. raised the nature of their grievance in writing and allowed 28 days for the employer to deal with the complaint. If a formal grievance is received and the company do not deal with it properly this could be a further example of a breach of trust and confidence, which could entitle the employee to resign and claim constructive dismissal.

The purpose of these statutory minimum procedures is to enable complaints to be identified and addressed internally before they snowball and end up in an Employment Tribunal, without the employer having the opportunity to try and remedy the situation.

In these circumstances, the employee should be advised that any grievance raised will be treated seriously by the company. Once the formal complaint is received the company should investigate and hold a meeting with the employee.

Depending on all the facts and circumstances it may be appropriate to initiate disciplinary proceedings against the manager who sent the email, or ensure his future conduct is monitored and/or they undergo management training. If the employee feels that his complaint is being taken seriously and his grievance has been resolved satisfactorily then he is less likely to seek to pursue any complaint in the Employment Tribunal.

Stephanie can be contacted at: swootton@brownejacobson.com

Ceri Durham, is a solicitor in the London employment team of Clarkslegal LLP

The senior manager concerned has certainly put you in a difficult situation and it seems a stroke of luck that the employee had not already submitted his grievance or worse resigned! Your role is going to be one of damage limitation.

It seems that you diffused the case very well in the first instance by suggesting the individual speaks to his boss’s manager and I hope that went well.

You have highlighted one of the difficulties of life in HR – stuck in the middle! However, you are also quite correct that your predominant duty is to the company.

Now, what next?

Immediately
Even if the senior manager has managed to pacify the individual in the immediate term, you need to take action:

Speak to the manager concerned and find out about the potential redundancy situation and why he sent the email. Find out, for example, if anyone else was sent a similar email. Once you have the full facts from both sides you will be in a much better position to explore your options.

Short-term
You may find yourself facing one of the following scenarios:

If there isn’t a redundancy situation, you will need to liaise with the individual to explain that a mistake had been made. I suggest you confirm (in writing) that there are no current plans for his role to be made redundant and there is no need for him to provide the information as requested. There will be a lot of ‘feather smoothing’ in the weeks ahead as you work with the manager and individual to diffuse the situation.

If there is a redundancy situation, this is potentially much more tricky as you cannot try and ‘sweep away’ the problems your manager has caused. If others were sent similarly threatening emails, you will have the advantage that you can demonstrate that the individual was not singled out and, provided a fair redundancy process is followed, you are probably ok. Feelings are obviously running high so I would suggest you make particular effort to follow a genuine and fair redundancy process.

I have a hunch that the manager may have performance issues with the particular individual and was trying to get him out as quickly as possible without following a proper procedure, probably in the hope that he would resign.

If I am correct, you will need to explain to the manager and his boss that there will now be a danger that any performance process or redundancy that ends up in dismissal of the individual may be considered a sham and discuss with them the needs of the business and how desperately they need the individual to leave.

Once you know which route you will be following, if the individual remains unhappy about the email and any ensuing process, you should invite the individual to submit a formal grievance in accordance with your grievance procedure. Provided this is dealt with properly, this should go a long way to getting the company back on track.

Longer-term
This is where you need to decide what to do with the manager who gave you the problems in the first place. Should he have known better? You email makes it sound like he certainly should have. Would disciplinary action be appropriate? This is probably something to discuss with your boss and his.

For the future, I suggest that training is the key and is something that you definitely need to look at for all your managers to prevent a similar situation arising again. This example (suitably anonymised, of course!) would make an excellent case study to explain what the problem is and why it potentially put the company in a difficult situation. Good luck!

Ceri Durham, can be contacted at cdurham@clarkslegal.com

HRZone highly recommends that any answers are taken as a starting point for guidance only.

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