Constructive dismissal? - ** SETTLED **

[Pusillanimous]

That's clear now. If you can nail the PHR, the rest should be a formality.

[dmlferguson]

I don't want to be negative at all about anyones case....BUT....I really really would like to help you nail this because (and I'm not a legal eagle) I feel its not cemented.

 

Whats the date for the PHR?

[dj1971]

Not until the 30th January.

 

Can you clarify what you mean, not cemented?

 

DJ

[dmlferguson]

Going to PHR, as other have said, is much like going to the full hearing. But the onus is on you to prove that your case should even be heard.

 

I think you really need to get your head around your PCP. I think the information is there, but the connection isn't 100% there.

 

Discrimination is terribly hard to prove. I can see that you have been discriminated against but connecting it to your disability is incredibly hard to nail. If your boss had said..."there is no way I'm going to provide that information to you just because your a nutter"....then you'd be on to a winner. But just saying NO could be because he's a horrible git. You have to prove him/her being a horrible git was because you are disabled not just because they don't like you.

 

If they were lovely to you from day 1-100 then you told then you were disabled on day 101 and from day 102 onwards the treatment towards you began to deteriorate then, again, you'd be on to a winner.

 

Have you done a chronology??? This could help us pin point events that had to be linked to your disability.

[dj1971]

Thanks dml,

 

For the first 12 months of my employment my manager and I had a fantastic working relationship. This was my first time working in a full time finance role and he was so patient, such an excellent teacher, always had time for me. In actual fact another colleague was supposed to train me, but my former manager saw my former colleague was not adequate at training me so he took over the role.

 

Then I had a week off on sick leave in May 2011 and my sick note from the GP said I was suffering from depression. When I returned to work I had a return to work interview where my former manager said to me "I know a lot of managers do not believe depression is a real illness, but I am not one of them'".

 

I was gubsmacked and did not know what to say, but from this moment on our relationship gradually deteoriated. He would never praise my work no matter how well I had done and went out of his way to find fault in my work. I successfully recovered in excess of £145.000 in outstanding debt from one particular debtor that had been outstanding going back to February 2008. Not so much as a thank you or a well done.

 

Slowly but surely his nitt picking and fault finding was getting me down with absolutely no praise or recognition when I did well. Of course over a period of time this started to effect my health so I was taking more and more time off work and my GP was gradually increasing my medication as I struggled to cope. My colleagues had always treated me as an outcast, so there was not anyone I could turn to.

 

Eventually I could not take it anymore and had a semi breakdown in February this year and was off for a full month. When I went back to work nothing had changed and I decided to submit a formal grievance against him. From that point on things just went from bad to worse. I know he could see what he was doing to me and that only encouraged him to do it all the more.

 

On 24th May this year following a particularly abusive argument between the manager and me I decided enough was enough, so went to speak to the HR rep and told her I could not cope anymore and would be taking some time off. I was shaking like a leaf and in tears and the HR rep arranged for me to have 6 days special leave, which meant I would be due to return to work on 6th June which is the day I sent my resignation.

 

The formal grievance was heard by the same HR rep and the manager of my manager and they found my manager had done nothing wrong, so I submitted an appeal which was heard by the regional general manager. Unfortunately he could not do anything because he was on a disciplinary himself for having an affair with one of his staff and eventually he left.

 

DJ

[dmlferguson]

From the chronology I can see that discrimination took place...BUT...playing devils advocate....how do you plan to prove that the bad behaviour, on the part of your employer, wasn't just because they were horrible to everyone??

 

Do you have examples of times when you were treated badly and your colleagues, in the same situation, were treated better?

[dj1971]

Yes,

 

He would never speak to any of my colleagues the way he spoke to me.

 

One incident on xxth May 2012 I had received a request for a meeting via email with a representative from another airline with whom we were having issues with their invoices. My former manager liked to be kept abreast of things, so I let him know what was happening. He responded in a raised and aggressive tone of voice and caused a scene in front of my colleagues arguing with me about why he should agree to a meeting.

 

My colleague in a similar situation former manager told him to go ahead and arrange the meeting.

 

DJ

Edited November 18, 2012 by honeybee13
Removing the date just in case.

[dj1971]

I have been doing some research of case law and believe I have found a previous case from which the ruling can really help me.

 

Just to recap, I have claims against my former employer for:

 

1) Constructive unfair dismissal

2) Disability discrimination due to failure to make reasonable adjustments

3) Disability harassment

4) Racial harassment.

 

We had a cmd last Thursday and the respondent made a request for the failure to make reasonable adjustments claim to be thrown out on the grounds of no reasonable prospect of success. The EJ gave me a choice of either having the respondents request listed for a PHR or for the judge to make their ruling there and then and I opted for the PHR which has been listed for 30th January.

 

The claim for racial harassment is out of time and it will also be decided at the PHR whether this claim can be pleaded.

 

I have claimed that the PCP applied by the respondent that put me at a substantial disadvantage over non disabled persons is not to have carried out a risk assessment on my role despite having taken several periods of sick leave, including a period of one month in February 2012.

 

This put me at a significant disadvantage because the respondent failed to recognise my former managers style of management as a trigger for my depression.

 

A reasonable adjustment would have been to send my former manager on a training course on how to manage someone with a mental health condition.

 

The case law I have found is Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] in which:

 

The EAT has ruled that the employment tribunal was correct to hold that the respondent had failed to comply with the S6(1) duty as they did not carry out an assessment to enable them to decide what steps would be reasonable to prevent Miss Cambridge from being at a disadvantage. A proper assessment of what is required to eliminate the disabled persons disadvantage is a necessary part of the duty imposed by S6(1) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The making of the assessment cannot be separated from the S6(1) duty, because it is a necessary precondition of the fulfilment of that duty and therefore a part of it.

 

In their annual survey report 2011 called Absence Management the CIPD have found that among the most common causes of long term absence is stress and one of the top causes of stress at work is management style in fact 40% of all respondents in the survey identified management as a cause of work related stress.

 

To follow that up I have the case of Barber v Somerset Council House of Lords [2004] which found:

 

Employers have an active duty towards the mental health of their workforce. This means keeping reasonable up to date with developments in the field and applying them to the workplace.

 

Is this the way I should approach my preparation for the PHR?

 

DJ

[dj1971]

bump!

[dmlferguson]

Thats great info. Can I just check how you plan to prove that NO risk assessment was conducted upon your return? How many employees does your company employ?

[dj1971]

The respondent have already admitted that no risk assessment was carried out. In the UK they employ 120 people.

 

DJ

[dj1971]

For the disability harassment case and how it links to my disability, I am claiming that my former manager knew of my mental health condition and the symptoms of significant hand tremors, shaking & emotional in my tone of voice and panic attacks, but despite this he continued to create situations that were threatening, intimidating, aggressive & degrading for me.

 

Am I on the right lines there?

 

DJ

[dmlferguson]

How/when/where did they confirm they had not conducted a risk assessment?

[dmlferguson]

That shows that they knew that you were disabled and harrassed you but does not positively link the two.

 

What specifically happened?? That might help with pinning how to prove the harrassment was because you are disabled and not just harrassment of a disabled person.

[dj1971]

The respondent confirmed at the first cmd they had not carried out a risk assessment.

 

The chronology of events for disability harassment is as follows:

 

November 2011

 

Following a conversation about items of internal mail having gone missing my former manager stated that in 25 years of working for the respondent he had never known a single piece of internal mail to have gone missing prior to me taking over the role and he made this statement knowing it to be untrue.

 

8th March 2012

 

I asked my former manager why he had made a change to how one of my reconciliations was completed. He replied in a raised and aggressive tone of voice saying "this is not a change, it is the way it has always been done" but when I checked back over the previous months reconciliations they had been completed as I had been taught and without the changes my manager had introduced. I wanted clarification on whether the change he had introduced was something he would expect to see in this reconciliation going forward. So I pointed out my observation and again in a raised and aggressive tone of voice he stated "I am not just trying to prove a point, this is not a change, just get it done as I have requested." I felt intimidated and was physically shaking, but decided not to pursue my enquiry any further.

 

22nd March 2012

I received an email from the respondents financial controller following the submission of my former grievance against my former manager. The financial controller stated that she required me to attend a separate meeting to deal with my performance grade four guidelines only. I did not understand why she was requiring me to attend a separate meeting for the guidelines and replied stating I did not understand the need for a separate meeting and asking her in order to avoid confusion that the grade four guidelines be dealt with at the former grievance hearing, as the lack of guidelines did form part of my former grievance.

 

The financial controller responded in an email stating "If you believe it is acceptable to refuse my request I suggest you refer to the standards of conduct policy" I felt threatened, intimidated, and was physically shaking and still did not understand why the financial controller was insisting on holding a separate meeting for the guidelines, nor had I refused to attend the separate meeting. I decided to go outside for some air and subsequently had a full blown panic attack in the park and was assisted by a member of the public. I went home and saw my GP the next day who prescribed anti anxiety medication.

 

03 May 2012

Having submitted an appeal against the outcome of my formal grievance I received a telephone call from the respondents regional general manager during which he spoke to me in an aggressive and threatening tone of voice saying "this is not acceptable that you have declined my proposed date for the appeal hearing, I am trying to co-ordinate four peoples diary here. Why don't you change your support person and find another one." I declined to change my support person and he went on to say "I do not want this running on over an extended period of time, give me a date here and now that you can attend the appeal hearing." I stated that I could not set a date without first speaking with my support person to confirm their availability. He then became more aggressive saying "I want you to come back to me by tomorrow with a list of available dates for the appeal hearing." I felt threatened, bullied and intimidated and was physically shaking following the telephone conversation.

 

24th May 2012

 

I had been liaising with one of the respondents creditors about the difficulties we were experiencing with their invoices. On 24th May I received an email from the creditor requesting a meeting to resolve this matter. I replied to the email enquiring what type of meeting they had in mind and when it might happen. Then as was normal my former manager liked to be kept up to date so I told him about the email I received from the creditor. Before i could finish what I was saying my former manager interrupted in a raised and aggressive tone of voice saying "I am not willing to have any meeting with that creditor" I was shocked by his response and asked him why to which he responded again in a raised and aggressive tone of voice "I don't see why I should have any meeting with that creditor, tell me what would be the advantage of meeting with them."

 

I tried to explain that the advantage of meeting with this credit agent would be to resolve the issues we were experiencing with their invoices. Again my former manager interrupted me in a raised and aggressive tone of voice saying "well the advantage of not sorting this out is that we do not pay their invoices and the money remains in our bank account." I felt threatened and intimidated by his response and could see the conversation was not going anywhere so I suggested we drop it, but again he insisted "why should I have any meeting with the creditor?" By now I was physically shaking and my voice was trembling and could see he was intent on having an argument in full view of everyone in the office, so again I suggested we drop the matter.

 

When I did receive a response from the creditor I informed my former manager and asked him to deal with it personally.

 

Later that day I contacted the HR rep and we had a meeting during which I explained what had happened and that I could not continue to work in these circumstances and that I would be taking a number of days off to recover. I was physically shaking from the stress and almost in tears. The HR rep arranged for me to have 6 days compassionate leave and at the end of the six days I resigned.

 

Hope that makes things a bit clearer.

 

DJ

[Pusillanimous]

The case law I have found is Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] in which:

 

The EAT has ruled that the employment tribunal was correct to hold that the respondent had failed to comply with the S6(1) duty as they did not carry out an assessment to enable them to decide what steps would be reasonable to prevent Miss Cambridge from being at a disadvantage. A proper assessment of what is required to eliminate the disabled persons disadvantage is a necessary part of the duty imposed by S6(1) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The making of the assessment cannot be separated from the S6(1) duty, because it is a necessary precondition of the fulfilment of that duty and therefore a part of it.

 

In their annual survey report 2011 called Absence Management the CIPD have found that among the most common causes of long term absence is stress and one of the top causes of stress at work is management style in fact 40% of all respondents in the survey identified management as a cause of work related stress.

 

To follow that up I have the case of Barber v Somerset Council House of Lords [2004] which found:

 

Employers have an active duty towards the mental health of their workforce. This means keeping reasonable up to date with developments in the field and applying them to the workplace.

 

Is this the way I should approach my preparation for the PHR?

 

DJ

 

This looks on the right track. However, be aware that case law can be superseded quite quickly, so check you have the most up to date guidelines. Don't forget case law on constructive dismissal, too. They will argue you resigned of your own accord. So be ready with legal argument. (You might find the ET is not much interested in it.)

[Pusillanimous]

8th March 2012

 

I asked my former manager why he had made a change to how one of my reconciliations was completed. He replied in a raised and aggressive tone of voice saying "this is not a change, it is the way it has always been done" but when I checked back over the previous months reconciliations they had been completed as I had been taught and without the changes my manager had introduced. I wanted clarification on whether the change he had introduced was something he would expect to see in this reconciliation going forward.

 

DJ

 

You need to be aware that the tribunal view will be that these are normal operations and that you should be reasonably robust to take deeply unpleasant and aggressive people in your stride. You will need to demonstrate that your bosses could foresee the effect of their behaviour on you. They are bound to claim, "Stressed"; not you in mind at all when they screamed abuse at you. You need to be able to counter all these imaginary defences.

[dmlferguson]

I can see you were harrassed and you say that they knew you were disabled but you need to be careful. An employer is allowed to harass there employees (not ethical but not illegal) even if they are disabled. They are not however allowed to harass them because they are disabled.

 

If, for instance, you were dealing with a situation and spoke to a manager about it and he said "don't worry about it I'll sort it". Then you told him you were suffering with depression and would like to know the situation had been resolved, to ease your stress. If your employer then said "you deal with it its your job, I'm not here to do your dirty work". Then this type of attitude continued, that would be harrassment due to your disability.

 

You need to prove that the harrassment happened and that it happened BECAUSE you were disabled.

 

Hope that helps

[dj1971]

Thanks Pus/dml,

 

So I am on the right track for the PHR and reasonable adjustments claim, but am still struggling with the disability harassment and linking it to my disability. So wonder if I am on the right lines below:

 

"I believe that my former manager did harass me as a direct result of my mental health and having full knowledge of the detrimental effect his actions would have on my mental health. Furthermore he continued to harass me because of my mental health with the sole purpose of forcing me to resign."

 

Any feedback/suggestions welcome.

 

DJ

[Pusillanimous]

Problem is, he was your line manager so had authority to admonish you. I would suggest you bring along documents from your doctor cataloguing the effect on you. Do a simply chronology of key events and then try to find evidence to back each of them up. For example, treating you differently or less favourably than others. Identify the correct comparators. For example, those not disabled by anxiety (direct), and also how as a group (anxiety sufferers) were at a disadvantage to those not (indirect).

[dj1971]

Fair enough if it was admonishment, but this was calculated and abusive behaviour because he knew the effect it would have on me and continued with his campaign of abuse with the purpose of getting rid of me.

 

He never spoke to anyone else in the team the way he spoke to and treated me. Why? Because he knew it would not have the same effect on them as it would have on me.

 

DJ

[Pusillanimous]

You know that, I know that, they know that, we know that, he knows that. However, the tribunal are obliged to consider your boss innocent until you have tipped the weight of probability against him. The onus is on you to show a high enough standard of proof that he behaved like a complete and utter sh!t, and did so because of unlawful discrimination.

[dmlferguson]

Thats why its so hard to prove discimination....because your boss can do what they want UNTIL its against a protected characteristic. Keep looking at the chronology and you'll get there.

[dj1971]

So I take it I am not there yet?

 

This needs to be wrapped up and sent to the respondent and the court by next Thursday.

 

Any pointers on how I can get there?

 

DJ

[dmlferguson]

Sorry but I don't think that you are there yet. But I don't know enough about your case to confirm that or get you any further on. Have you completed a full chronology for the tribunal? Or anything that demostrates to full extent of the claim?