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Esther Smith

Thomas Eggar

Partner

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Ask the Expert: How can I stop being forced out after being bullied?

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The question

After a difficult start to 2012, I informed my managing director that I thought I was being bullied by three members of staff (I am the site manager).
 
After showing some initial concern, no action was taken against the three individuals. Since then, they have submitted repeated grievances and complaints against me, which are still under investigation or appeal.
 
I was called to a meeting with my MD last week, in which he told me that I was the problem and that I had lost the goodwill of all of the staff in my branch along with employees from other branches.
 
I was put under pressure at the meeting to resign on health grounds, which I declined to do. As a result, I was also told that a restructure would take place and that my job as manager would be downgraded along with my salary.
 
I feel totally isolated and very confused. This situation is taking place against a backdrop of poor trading within the company and industry – not just at my branch.
 
 
The legal verdict
 
Esther Smith, partner at Thomas Eggar
 
Without wishing to sound unsympathetic, if there is a desire to remove you from the business, there is probably nothing that you can do to stop this process from happening. If there is a backdrop of poor trading, it sounds as if it will be relatively easy for the company to justify a wish to restructure its operations and reduce its headcount.
 
If this does happen and you are selected for redundancy without good reason, and believe that this is due to the relationship issues between you and your colleagues, you may have grounds to challenge the fairness of the dismissal. 
 
Even if it doesn’t take place, you may have grounds to consider a constructive dismissal claim if the company has acted in fundamental breach of your contract by not addressing the grievance that you raised in relation to bullying by your colleagues, despite it taking their grievances seriously. 
 
This is a situation on which you really need to take specific advice, as the merits of any claim would turn entirely on the evidence of what has happened.
 
However, just as a note of caution, it should be added that it can be fair for an employer to terminate the employment of a staff member where there is a fundamental break-down of the relationship between them and colleagues.
 
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
 
 
Jules Quinn, partner at Jones Day

Assuming that you want to stay – and that is quite an assumption given everything that is happening to you – there are three things that you should do immediately:

  1. If you have not already done so, make notes of your recent conversation with your MD. From now on, also keep written notes and a diary entry of all follow-up conversations.
  2. If you have an HR department, write to them and get your allegations of bullying by the three members of staff – and potentially the MD – on the record. Ask for your allegations to be investigated; refer to the fact that you raised them previously and ask for confirmation that none of the grievances raised against you by the staff members concerned will be concluded prior to your own allegations having been thoroughly investigated. If the bullying is on grounds of a protected characteristic – such as sex or age – make sure that this is made clear.
  3. Write to your MD. Enclose your notes of the recent meeting. Tell him that you will not resign and that he has attempted to constructively and unfairly dismiss you. Be clear to reserve your rights. The decision as to whether to stay or go is now yours and you can take a short period of time to get some legal advice and decide what to do. 
 
Also reserve your rights to your existing package and role. Set out that the restructuring is a sham to get rid of you and there are no "health grounds" – assuming that there are none.
 
I would point out to your MD that labelling a dismissal as a redundancy or early retirement on health grounds (particularly where payments are triggered or proper notifications are not made) opens the company up to potential liability to third parties: HMRC, BIS, insurers and or company pension trustees.
 
In doing so, the MD may be in breach of his own obligations to the company.

Bear in mind that all of these activities may simply buy you time – which you could use wisely for self-reflection – do any of these allegations ring true? If there is a general downturn, you may be made redundant in any event – albeit that the procedure is hopelessly defunct from the outset.

 
Better now to consider an exit, on agreed terms, including a wiping clean of the slate, a reference and also a package to buy off your rights which, for starters, include unfair dismissal, your notice pay, damages for bullying if on grounds of a protected characteristic.
 
You might consider a second and separate letter to the MD, inviting him to make you a proposal on a "without prejudice" basis.
 

Jules Quinn is a partner at law firm, Jones Day.

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Esther Smith

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