A bullied employee has resigned and informed management as to the reasons for the resignation. Can the employer then dismiss the bully on the grounds of gross misconduct? Esther Smith and Matthew Whelan advise.

The question:

If one staff is constantly bullying another one and the bullied staff resigns suddenly, but advises the management about this almost immediately in writing after the resignation, can management, if they have all the written evidence and third party testimonials, dismiss the bully on the grounds of gross misconduct? Does the notice period required for leaving the job on the above basis go out of the window completely?

Legal advice:

Matthew Whelan, solicitor, Speechly Bircham

You may be able to treat the bullying as an act of gross misconduct, although you should conduct your own investigation to determine if this is appropriate. I would caution against assuming the bullying was serious enough to constitute gross misconduct because the employee has resigned. It sounds like you may have done this as you mention you have written evidence and third party testimonials.

If the bullying does constitute an act of gross misconduct then you should be able to dismiss the employee without notice. It would be helpful to have made it clear that you consider acts of bullying to constitute gross misconduct, for example in the contract of employment or in any disciplinary rules.

When you are considering dismissing an employee for misconduct (whether gross misconduct or misconduct) you need to be able to show that you believed the employee was guilty of misconduct and you had reasonable grounds for holding that belief. You also need to have carried out as much investigation as was reasonable in the circumstances to justify that belief. If you were able to convince an employment tribunal that this is the case then this will help you to defend an unfair dismissal claim by the employee.

You will also need to follow a fair procedure to reach the decision to dismiss, taking into account the applicable statutory procedures. You should follow any internal procedures you may have.

Other factors you should take into account in deciding what sanction, if any, to impose, includes how you dealt with similar incidents in the past. If you have imposed a more lenient penalty on someone in the same or similar circumstances the person could rely on this to show that their dismissal was unfair. Check whether the victim’s line manager was aware of the bullying and, if so, why no action was taken previously as this may give the employee grounds to argue against dismissal. Also look at the seriousness of the bullying.

Whilst it may be legitimate to take steps to prevent any kind of bullying, that does not mean that you will be able to dismiss for every act of bullying. It may be that a written warning is more appropriate.

You should also be careful not to discriminate. I referred above to past treatment and ensuring consistency of approach. An employee could rely on any difference in treatment to argue discrimination.

You should therefore consider the evidence that you have to see if you need to undertake any further investigation before you make your decision.

Matthew Whelan can be contacted at Matthew.Whelan@speechlys.com. For further information, please visit Speechly Bircham

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Esther Smith, partner, Thomas Eggar

On the face of it this situation could give rise to a gross misconduct situation, and if this were the case then a resultant dismissal would be without notice. However, as is always the case, you should not pre-judge matters, and it would only be at the conclusion of a fair and proper disciplinary hearing that you would be able to make a decision as to whether you had sufficient evidence to support the assertion that the employee was in fundamental breach of contract by their actions.

In this situation, you would have to have pretty good evidence that the employee deliberately intended to cause bullying, or that they should have reasonably known their actions would have this effect, in order to justify a gross misconduct dismissal.

In addition, if the employer had any prior knowledge, even if only information, of the employee’s alleged actions and hadn’t take action on them, then it may be difficult to justify doing so now, and certainly harder to justify that a summary dismissal was an appropriate and proportionate response.

I am a little confused by your final question, as I am not sure whether you are referring to the employee accused of gross misconduct or the employee who has resigned as a result of the alleged bullying. As mentioned above, if the employee accused is found to be guilty of gross misconduct, on the balance of a reasonable belief, then the dismissal will be without notice or payment in lieu.

The employee who has resigned has the contractual obligation to give you notice of termination, and would only be able to get away from this obligation if they were able to show that the employer was itself in fundamental breach of contract, thus releasing the employee from their contractual obligations. They may rely on the behaviour of the other employee as evidence of a breach of contract, and this may be a precursor for a constructive dismissal claim, although they would also have to raise a formal statutory grievance.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar

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