Bullying & Racism at Work (Major Airline)

[julian1968]

Bit of a long one but I wonder if you guys can help me out a little please. I'm writing on behalf of my wife.

 

NB: My wife is Spanish and works in a call center for a major airline here in the UK with people from other countries.

 

In Nov 2015 an incident happened at work in which she was racially abused and intimidated by an Italian male co worker. A meeting took place with my wife and HR and she trusted them to resolve. She asked that they be moved away from each other. The company supervisors immediately sat the man right behind my wife which made her feel under pressure and then further intimidation and bullying began from this man. The intimidation was not always directed to her face but it would include shouting negative comments right behind here about her home country and talking about sex.

 

Maybe 6 months later and after my wife spoke to her supervisors several times and emailed explaining her issues and asking for the situation to be resolved she became ill.

 

Next, Her Dr, Company occupational health and now counselor have written reports to the company stating that my wives illness is a direct result of the issues at work.

 

Company HR and Supervisors have promised on several occasions to move the man to another area and then done nothing. This has had an additional negative effect on my wives stress. She is on medication.

 

My wife is working with the union official and union solicitor to resolve this and the solicitor has advised (rightly I think) that a process must be followed before further action against the company.

 

We have documented everything in case we needed to take further action. We have copies of emails, incidents etc.

 

In my wives last meeting with company HR it was agreed that the man would be moved permanently to another area of the business and as they have promised and changed their minds several times my wife asked for this in writing. The company agreed. Within 24 hours the company took back this offer and told my wife the man would probably be back in her group. This has added to her stress levels and she panics.

 

 

This has all taken a little over 12 months now and we feel the company should be pressured into resolving the matter.

 

My wife is now off work sick on SSP and worried about going back into the same situation.

 

Should we continue with the union or maybe seek outside legal help which could be expensive.

 

Any view would be good please

 

Thanks

[julian1968]

Hi

 

I have posted a thread about my wives issues at work (link below)

 

I wonder if we can make a SARS request to her employer?

 

Would this show any paperwork from HR, Supervisors etc in relation to an ongoing employment issue?

 

Thanks

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?473083-Bullying-amp-Racism-at-Work-(Major-Airline)(10-Viewing)-nbsp

[becky2585]

A data subject access request should give you an documentation about your wife or from which she could be identified, so yes.

 

I would request specific documents in your letter and ask that in their reply, if the documents aren't provided, to explain why.

 

She'll need to send a £10 cheque and proof of ID.

 

(Also, its generally best to keep it all on one thread).

[obiter dictum]

If this has been going on now for 12 months and you have a paper trail with the Trade Union, HR etc and nothing has changed, i would consider a formal letter before action and then going to ACAS.

 

Might i ask how long she has been employed??

[Old Cogger]

she is in a Union ? they should take the case to Tribunal etc?

 

We had a similar case but different subject i.e. a member was off in Hospital ill, company sent Admin around to state due to his illness and absence they fired him there and then, I got the convener onto the case and at court the Company Representative stated the companies view that he would be unable to work in a job again - The response from the Tribunal was = Strange he is a Court Usher in the County Court here, think they lost

[julian1968]

Thanks for the quick reply Becky

 

Is there a required format for the SARS request?

 

A data subject access request should give you an documentation about your wife or from which she could be identified, so yes.

 

I would request specific documents in your letter and ask that in their reply, if the documents aren't provided, to explain why.

 

She'll need to send a £10 cheque and proof of ID.

 

(Also, its generally best to keep it all on one thread).

[julian1968]

Hi Thanks for the reply. She has been working for the company just short of 2 years

 

If this has been going on now for 12 months and you have a paper trail with the Trade Union, HR etc and nothing has changed, i would consider a formal letter before action and then going to ACAS.

 

Might i ask how long she has been employed??

[julian1968]

Thanks

[king12345]

"Her Dr, Company occupational health and now counselor have written reports to the company stating that my wives illness is a direct result of the issues at work."

This is the most important piece of evidence that you have to keep because their own biased doctors said that your wife illness is caused directly by this situation.

The company has a duty of care towards all employees and in this case they clearly failed.

I'm surprised that the union hasn't started ww3 about this, I would.

Unless the Italian harasser is in the same union and better known than your wife, in which case, you will have to go above the local rep and contact the functional rep or even union head office.

Have you got direct evidence of this behaviour?

Witnesses, recordings, emails, written admission?

I ask because if the company is not taking actions is because all of his comments cannot be proved and are considered hearsay.

[obiter dictum]

How long short of 2 years has she been employed, this is important

[julian1968]

Thanks King

 

Recordings no as phones not allowed into the office (company policy) and although my wife made notes of the times the Italian was talking in a sexually explicit way while my wife was talking to customers (the customers heard and commented) the company call recording system was not working.. every time !!

 

"Her Dr, Company occupational health and now counselor have written reports to the company stating that my wives illness is a direct result of the issues at work."

This is the most important piece of evidence that you have to keep because their own biased doctors said that your wife illness is caused directly by this situation.

The company has a duty of care towards all employees and in this case they clearly failed.

I'm surprised that the union hasn't started ww3 about this, I would.

Unless the Italian harasser is in the same union and better known than your wife, in which case, you will have to go above the local rep and contact the functional rep or even union head office.

Have you got direct evidence of this behaviour?

Witnesses, recordings, emails, written admission?

I ask because if the company is not taking actions is because all of his comments cannot be proved and are considered hearsay.

[julian1968]

Think the two years is in March. I looked at this as a possible case of constructive dismissal.

 

How long short of 2 years has she been employed, this is important

[obiter dictum]

In your position before you do anything i would phone the Trade Union Branch and ask for any update

[julian1968]

Thanks

 

We have emailed the union Rep to clarify the company change of mind in last HR meeting. Have asked also that he update the union solicitor on this and asked if we fulfilled the steps needed before taking action against the company

 

 

In your position before you do anything i would phone the Trade Union Branch and ask for any update

[king12345]

Thanks for the quick reply Becky

 

Is there a required format for the SARS request?

 

Some companies have a form to be filled, however the law doesn't require it.

A letter addressed to the data controller is enough.

You have to point out the most important things that you require.

For example: Emails related to (your wife's name)

 

Don't expect anything damning from a SAR, companies are very good at hiding and tampering with hot files, I speak for direct experience.

[becky2585]

As king says, a letter which specifically outlines your request should be enough. Mention it's a DSAR and that the fee and ID is enclosed. Ask for the specific documents you need. Make sure your name and address is on there too. Finish the letter by asking for a response within 40 days.

[sangie5952]

Think the two years is in March. I looked at this as a possible case of constructive dismissal.

 

The purpose of the question was to ascertain her legal protections - short of two years service, she will struggle to claim unfair dismissal (or constructive unfair dismissal) unless she can prove that the dismissal was directly connected to an act of discrimination. To be clear - neither bullying nor harassment per se are unlawful activities, so any possible claim would have to fall within the grounds of discrimination by the employer. I suspect that this may well account for the union "dithering" despite having a solicitor involved. Having a union solicitor is a positive - that makes it clear that the union are taking this very seriously and are prepared to commit to a legal case if they have one.

 

And that is the rub. Whilst previous posters are right in that the employer has a duty of care, that duty is relatively meaningless - which is why these sorts of situations are very difficult. In terms of the duty of care, it relates to their responsibility to look after your wife's health and wellbeing in the workplace. That is a civil action for damages - not a matter for an employment tribunal. Such cases, even when straightforward, often take many years to conclude. I have been dealing with a case where a man had a serious leg injury, the company were at fault and have admitted it - and that case is still going on four years later. When one is dealing with mental health issues, that is never straightforward, and nor is it "nice" - they will question the veracity of the mental illness and the possibilities of other matters being responsible; they will make out that she was already "mentally weak"; and even that she is making it all up. It will end up a long drawn out and nasty case that may never resolve and may make her worse.

 

To get to a case of unfair dismissal, constructive or not, she ideally needs two years service. It won't mean that makes it an easy case to argue; it just means that she does not need to prove that the employers actions are discriminatory. I believe you are right to trust your union - the process does need to be followed, and part of that "process" needs to be lining up the ducks, such as getting her to the magic two year mark. What verifiable evidence does she have of these actions? I note that the customer comments got "lost", but have other employees heard the remarks and gone on record? Are there other victims - people like this rarely have one target of their activities? Is your wife in work, or is she off sick?

 

I really do sympathise, because I have seen plenty of these sorts of cases. Unfortunately they are seldom easy, and many victims simply decide to walk away. I can't blame them for that either. The "fight" is never pleasant, and it takes a particular kind of strength to get into it - or, unfortunately, a particular kind of naivity. I am not suggesting that she should walk away either, or that doing so is a weakness. Simply giving you the truth. You also have to remember that, in the end, if this comes to a tribunal, and even supposing she were to win that, the award is never anywhere near what so many people think it is. And it is never compensation for the c**p you have to go through to get there.

[sangie5952]

Don't expect anything damning from a SAR, companies are very good at hiding and tampering with hot files, I speak for direct experience.

 

Depending on what you are trying to access,

you also need to remember that information can lawfully be refused or redacted.

 

 

In particular,

any information which is personal data but which contains information about an identifiable third party can be refused unless that person consents to its release.

 

 

Given the circumstances, I suspect that a lot of the information you are digging for will fall into this category.

A subject access request is for the purpose of obtaining copies of the personal information held about your wife

- not about accessing records generally (even if they involve your wife) or a third party.

 

 

So, for example, an HR officers notes on what they have done about a specific complaint may contain personal data about your wife, but would almost certainly also contain personal data about the man she alleges has made these comments, and may also include personal data about others who have been involved.

 

 

In such a case, the employer is able to either redact parts of the file that are not specifically personal data about your wife; or they might refuse to release the file altogether because it is deemed impossible to release it in such a form that does not include personal data about other identifiable people.

[king12345]

Redacting is fine if it means blanking out identifiable data about third parties.

 

I was referring to tampering with the content of such records which are often changed to cover up discrimination, victimisation and targeting.

 

Trouble with that is that even if you have a copy of the original, it would be impossible to prove that they have tampered with the records and not you.

 

Once the disclosure has been issued, the company will not back down and admit tampering with official documents, but they will inevitably accuse you of doing so.

 

This was suggested to me by the ICO a few years ago and it is very much true.

[sangie5952]

I agree. That is why I said "also".

[julian1968]

Thanks for the in depth reply.

 

Yes I agree that in the event a case against the company did not stack up, or as you say, could look to take a long period to resolve then we would consider our next action.

 

We are aware that taking action could well lead to extra stress for my wife and to be honest I'm not sure I would want her to face that.

 

Sometimes life is unfair and a clean break can be the better route.

 

The purpose of the question was to ascertain her legal protections - short of two years service, she will struggle to claim unfair dismissal (or constructive unfair dismissal) unless she can prove that the dismissal was directly connected to an act of discrimination. To be clear - neither bullying nor harassment per se are unlawful activities, so any possible claim would have to fall within the grounds of discrimination by the employer. I suspect that this may well account for the union "dithering" despite having a solicitor involved. Having a union solicitor is a positive - that makes it clear that the union are taking this very seriously and are prepared to commit to a legal case if they have one.

 

And that is the rub. Whilst previous posters are right in that the employer has a duty of care, that duty is relatively meaningless - which is why these sorts of situations are very difficult. In terms of the duty of care, it relates to their responsibility to look after your wife's health and wellbeing in the workplace. That is a civil action for damages - not a matter for an employment tribunal. Such cases, even when straightforward, often take many years to conclude. I have been dealing with a case where a man had a serious leg injury, the company were at fault and have admitted it - and that case is still going on four years later. When one is dealing with mental health issues, that is never straightforward, and nor is it "nice" - they will question the veracity of the mental illness and the possibilities of other matters being responsible; they will make out that she was already "mentally weak"; and even that she is making it all up. It will end up a long drawn out and nasty case that may never resolve and may make her worse.

 

To get to a case of unfair dismissal, constructive or not, she ideally needs two years service. It won't mean that makes it an easy case to argue; it just means that she does not need to prove that the employers actions are discriminatory. I believe you are right to trust your union - the process does need to be followed, and part of that "process" needs to be lining up the ducks, such as getting her to the magic two year mark. What verifiable evidence does she have of these actions? I note that the customer comments got "lost", but have other employees heard the remarks and gone on record? Are there other victims - people like this rarely have one target of their activities? Is your wife in work, or is she off sick?

 

I really do sympathise, because I have seen plenty of these sorts of cases. Unfortunately they are seldom easy, and many victims simply decide to walk away. I can't blame them for that either. The "fight" is never pleasant, and it takes a particular kind of strength to get into it - or, unfortunately, a particular kind of naivity. I am not suggesting that she should walk away either, or that doing so is a weakness. Simply giving you the truth. You also have to remember that, in the end, if this comes to a tribunal, and even supposing she were to win that, the award is never anywhere near what so many people think it is. And it is never compensation for the c**p you have to go through to get there.

[sangie5952]

I can understand your concern for her. In the end, what she does must be her decision. In my experience, no matter what you decide to do there will be some regrets at some point later on. If she walks away, sometime in the future she will wish she hadn't. If she doesn't walk away, the same! There is no winning position on that one. So it is important people decide for themselves what is best for them, preferably with a balanced and neutral view of all the options and possibilities. Because otherwise there will always be an underlying element of wondering whether that other person was right or not - perhaps things would be different if they hadn't pushed you in one direction or another. You see what I mean? The best thing you can do for her is to not advise her in any direction, even if she asks - just support her in making that decision. It is a truly horrible position to be in for you both. But as long as she knows she has your support whatever she decides, then she will get past this. It will just take a bit of time.