Prosecuting Employer for Damages (Bullying)

[obiter dictum]

Not going to say too much for obvious reasons but throwing out for general comments. That is instigating a criminal action against the employer.

 

Employee has been off now for three months caused by Management Bullying with performance management. Trade Union? Do not even go there

 

Occupational health has confirmed this with severe depression and anxeity and currently unfit for work.

Contractual sick pay stopped by this manager for not agreeing to a management face to face even though no contractual obligation within the attendance procedure.

 

Full Grievance procedure now exhausted with usual manager covering manager whitewash and corporate sensitivity. Saying a lot but in reality saying nothing.

 

Tribunal claim submitted under section 13 Employment Rights Act.

Employer settled so claim withdrawn as no cause of action.

Management insisted on another face to face which the employer stated not well enough to attend.

Management yet again stopped contractual sick pay entitlement with no contractual right.

Employee now on Statutory Sick Pay

 

Management are continuing bullying with impunity with demands to attend a face to face, so the question to be asked, can the Crown Prosecution Service be contacted direct to consider a prosecution if a full case file is sent?

 

That is Protection from Harassment Act or psychological damage under offence against the person Act etc?

 

 

 

[unclebulgaria67]

You would need to describe incidents of such bullying and/or harassment and whether there is any witness or other evidence. Unless there was evidence of sufficient merit, then i doubt it would even be investigated.

 

How long have they been employed by this company ?

 

How big is the company and would they have a head office HR department that would look into such complaints properly ?

[ericsbrother]

it would have to be serious enough to be considered assault. Assault doesnt have to be physical but the threshold for what a verbal assault is will be quite high. being sworn at, called useless, shouted at etc not good enough. Something like a threat to cause immediate harm would be.

[obiter dictum]

Like i said, in possesion full case file with letters going back and forth.

 

The bullying is stopping sick pay when no contractual agreement permits such an action and constant letters demanding a face to face. This is the same manager who has caused the severe depression and anxeity.

 

Contractual procedures are in place to take such issues out of management hands when conflict between manager and/or GP/Occupational health. Constant requests in writing have been ignored

[ericsbrother]

it would be viewed as a breach of contract/employment issue so CPS wont be wanting to get involved. Harassment can be a criminal act but again, the threshold is very high.

[obiter dictum]

The problem you have in taking it to an employment tribunal is cause of action under statute.

 

The obvious question what statute to reference in any trinunal action besides yet again in section 13 ERA?

 

They will simply settle that so no further cause of action and the merrygoround continues with the bullying

[sangie5952]

Hmmm. You are not exactly giving a lot to go on here! So this is somewhat rough and ready-

 

It is not bullying to put someone on capability procedures due to performance. It would take a HUGE burden of proof to establish this as bullying, and on this one I am not even slightly surprised that the union can't do anything about it. Taking a broad brush position, but this is pretty accurate, the law presumes that employers are the arbiters of what is poor performance. People often, and wrongly, think that performance is a matter of opinion. It isn't. It's a matter of perspective, and broadly sspeaking the only perspective that matters is the employers. The fault position is that employers do not dispense with good workers. I know that is a long way off reality, but don't take it up with me - this is the way the law thinks!

 

You are going to like this one even less - your contract is subject to reasonableness. On that basis it is not unreasonable to ask an employee to attend a sickness review / meeting. It is therefore cause for consideration as to whether the employee, in refusing a reasonable request, is entitled to continue to receive benefits under their contract. And certainly not a matter for the CPS. The employer can reasonably point out that their duty of care insists on their acting in a responsible manner when someone is off long term sick - they cannot simply ignore that fact. To construe that as bullying is highly unlikely to fly in legal terms in any court. Cooperating with sickness absence processes does not need to be contractual, and policies do not have to specify in detail what process the employer should follow, because such things will change on an individual basis.

 

What people generally fail to understand is that unions cannot easily take action when the employer operates within the law - even if they are sliding around the edges of it, or exploiting it. The law is generally on the side of the employer, and so is power. What makes the difference is when employers actually want to enter into a reasonable dialogue. If they won't, there is often very little, if anything, that we can do.

 

Let's cut to the chase. This is a situation going nowhere. The grievance procedure had been lost. The performance management process is not going to be withdrawn - all that this period of sickness had done is put it on hold. Your friend will be running out of sick pay. At best, what, a couple more months full pay, and maybe 6 months half pay? If the terms are that generous. And the employer can afford to simply sit back and wait - when the sick pay runs out, your friend is on the sideline and never getting back into the game.

 

So.... Public sector or private sector? Large or small? Any possibility of redeployment? Has that been explored? Settlement agreement - has anyone discussed it yet? How long have they worked there? Why are they being bullied (i don't need to know the detail, just the reason - for the reason I explained, the detail isn't relevant if we are talking performance, but the reason might be)? What does your friend want to happen now?

 

Oh, and one other question, which you won't like either - objectively speaking, on what basis are your assuming that your friend is right and management are wrong??? Being brutally honest, every person on performance management is the greatest worker alive and it is always bullying by management, not their performance being at fault. Like every prisoner is innocent! I can't recall many cases of " I hold my hands up, I'm rubbish at the job" - ever! Sometimes the right thing to do is to point out that someone's skills lie elsewhere.... And it's always hardest to see that if the person is a friend or relative.

[Emmzzi]

the employee was sick before sick pay was suspended so suspending sick pay cannot have caused the illness

 

the employer can't settle before ET unless the employee agrees. so the employee has at some stage agreed

 

the employee seems vague on timeline and their own role in this.

[obiter dictum]

Being deliberately evasive

Paid sick pay at salary rate, not SSP is a contractual obligation

Management suspended contractual sick pay for declining a face to face outside of occupational health

No contractual obligation for a face to face, only reasonable contact

Employee on sick for severe depression and anxeity

Edited April 23, 2017 by obiter dictum

[unclebulgaria67]

Sounds like a standard contract.

 

The only case i dealt with that was similar in terms of sickness absence, the company had standard letters which complied with HR rules etc. The employee failed to remain contact for several months and sick notes received late. So reference was made to HR who advised to send a letter just warning about lack of contact and that contractural pay might be affected. The employment contract contained full details of the companies sickness terms.

 

I certainly would never have requested a face to face or continued to phone or write constantly to the employee. From memory, i think i spoke to the employees partner with the employees permission and it was suggested that they provide more information from their GP about their current health. It was a case of working sensitively with the employee to ensure as speedy return to work as possible, with Doctors recommendation i.e a phased return to work.

[Emmzzi]

reasonable is subjective.

[obiter dictum]

I certainly would never have requested a face to face or continued to phone or write constantly to the employee. From memory, i think i spoke to the employees partner with the employees permission and it was suggested that they provide more information from their GP about their current health. It was a case of working sensitively with the employee to ensure as speedy return to work as possible, with Doctors recommendation i.e a phased return to work.

 

The above unclebulgaria67 is exactly the situation.

This continued management action has resulted in self harm

[Emmzzi]

define "constantly". On the hour? Half hour? Once a month?

[obiter dictum]

Phone calls everyday

Two letters a week for a management interview with less than 48 hours notice

[Emmzzi]

lots of places have a daily contact requirement for absence

 

does the doctors line say contact should be avoided?

 

can it be proven the mental health issues are work realted and only work related?

[obiter dictum]

Occupational health and GP have confirmed work place stress due to management performance management

 

GP fit note states no work place activity

Employee maintains weekly contact with update by email to this manager. Attendance agreements only states reasonable contact to be maintained.

[sangie5952]

I'm sorry but I agree with Emmzzi - if he is point blank refusing to cooperate then it is hardly surprising that the employer won't stop contActing them. Reasonable is exceptionally subjective, but put the boot on the other foot, and if the employer did nothing they would be being criticised for not caring and doing nothing. There months is a very long time to be off without any discussion with management. This cannot go on indefinitely. Unlike Unclebulgaria I deal with these sorts of cars on a regular basis, and "sending a letter after several months of no contact" is nowhere near the norm. Several months of no contact and sending in sick note late would, at best, result in suspension of sick pay - in some circumstances, in dismissal.

 

I'm sorry that your friends health has deteriorated, but unless they wish to resign, then they need to find some form of compromise. What about a manager visiting them at home? Or a neutral place? Continuing to refuse to engage with the employer is damaging their own position, and that is really not in their own interests.

 

I'll ask again - what is the outcome they want here? Obviously, with the grievance failed, a "win " is not going to happen. Do they have any idea where they want this to go now? Or is this simply a case of sitting it out and waiting? Because if they do that, they may end up dismissed - or more likely, allowed to sit there forever. But either way, it isn't going to go forward anywhere, and in my experience that is not going to help your friends mental health.

Edited April 24, 2017 by sangie5952
Typo corrected, mentioned in Bazza's post further down.

[obiter dictum]

Who said anything about point blank refusing??

 

Reasonable contact is being maintained via occuaptional health and email

 

Request for a designated person to mediate as to the attendance agreement requested is being ignored by management

Edited April 23, 2017 by obiter dictum

[sangie5952]

Occupational health is not the employer, and the employer has stated what they wish - they want to meet them. Occupational health are nothing but advisers. The employer needs to listen to them, but that does not mean they must agree with them. And workplace stress is really not something that either the GP or occupational health can confirm. It's an opinion based on one side of the story. Nor does it mean that someone should not be performance managed.

 

I think that you are expecting that the employer simply back off and pay up. Now some employers would. This one obviously isn't going to. But that is not, in itself, evidence that they are right or wrong. This is just going to continue and continue until someone brokers a compromise.

[Emmzzi]

"No work place activity"- that is not what I asked. Does the doctors note say they should be no workplace contact? That is not the same as activity.

 

Your friend is also in danger of being unable to be employed because, frankly, performance anagement is a regular workplace activity and if they cannot cope with it, what good are they?

 

What else is heppening here which is fueling your seemingly stubborn determination?

[obiter dictum]

As you have guessed there is more to this which will give clarity but for obvious reasons cannot release those details.

 

Thanks for the debate anyway

Edited April 23, 2017 by obiter dictum

[sangie5952]

To be clear - I am not sure we are treating this as a "debate"! Whatever is going on, this is having a serious effect on someone's health. When things are at this stage, it actually stops mattering who is right and who is wrong - what needs to matter is how that person is extricated from this position. This has gone too far, for too long, and there will never be a winner now.

[obiter dictum]

Fully agree with the above. Whatever the result the employer needs to be held accountable for their actions with employee welfare. Keeping it in house is not the answer as another employee will be subject to the same management action with impunity

[unclebulgaria67]

If the employer has full information about the severe mental health of their employee and that communication might be detrimental to health, then i would question whether the employer has shown an appropriate level of duty of care. If it has led to an incident of self harm, then i think you need to contact a Solicitor that deals with employment health issues. Perhaps the charity Mind can help.

 

The conduct of the employer might be actionable, if there is sufficient evidence.

[BazzaS]

they need to find some form of compromise. What about a manager fisting them at home? Or a neutral place?

 

I can't add to the well argued and expert advice already offered here, but have to wonder if Sangie was just checking who was reading in detail, or 'Best autocorrect. Evah'

 

Is the neutral place:

a) an alternative geographical location to 'home', or

b) an alternative anatomical site, or is it that that should instead read "manager _visiting_ them at home"?