| Constructive dismissal (non QPR) 09:29 - May 16 with 3536 views | KevinPR |
I'm after a bit help/advice etc from anyone who may have a had experience of constructive dismissal in the workplace.
A friend of mine is experiencing a horrendous time at work at the hands of her boss - victimisation, bullying, threatened with disciplinary etc
Can anyone recommend the best course of action to take as most of this is just ones word against another, but my friend is concerned that the senior person will be believed regardless. |  | | |  |
| Constructive dismissal (non QPR) on 09:34 - May 16 with 3515 views | wombat |
not sure of your friends circumstances work wise but first thing they should do is go to the gp and get signed off from work with stress and make sure they inform there employer they are being treated for it . companys have to tread a very fine line when stress at work is mentioned.
if i think of anything else to help ill post it later |  |
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| Constructive dismissal (non QPR) on 09:42 - May 16 with 3486 views | TearsOfaClown |
She should check her home insurance policy - they usually have £30,000 that you can claim to fight a legal case. The company she works for will have their own legal team, so she should get hers.
I used it when I wanted to claim against a hotel for negligence. |  | | |
| Constructive dismissal (non QPR) on 09:43 - May 16 with 3488 views | danehoop |
Kevin,
Just some quick advice. Most important thing to get down is diary of incidents. Timeline, exactly what occurred, what was said, when and who else was present or could have witnessed it. Equally a timeline of what action was taken by your friend, when he complained, who to when and what happened. Get a copy of company's grievance procedures and policies and look to see what action can be taken internally.
Depends who they work for, but most places are very hot on this sort of thing and do have a clear process in place for escalation and internal remedy.
What tends to be looked for before you go down the bullying and harassment/constructive dismissal route is gather all the evidence showing what's happened and show that all internal routes have been followed without success.
Usually defence of firm tends to be that individual was poor performer and merely performance measures being applied. In practice that defence often fails because of failure to document by firm that such an issue existed or failure to follow agreed practice.
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| Never knowingly understood |
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| Constructive dismissal (non QPR) on 09:59 - May 16 with 3454 views | KevinPR |
Thanks guys.
I love this site - you can post about anything pretty much and get some good advice.
I think this has been going on for a while and while one incident may not be deemed bullying/harassment it is very much the case of the straw that broke the camel's back.
Most recently he is attempting to change her job profile without reason or following any procedures. | | | |
| Constructive dismissal (non QPR) on 10:10 - May 16 with 3421 views | danehoop |
| Constructive dismissal (non QPR) on 09:59 - May 16 by KevinPR |
Thanks guys.
I love this site - you can post about anything pretty much and get some good advice.
I think this has been going on for a while and while one incident may not be deemed bullying/harassment it is very much the case of the straw that broke the camel's back.
Most recently he is attempting to change her job profile without reason or following any procedures. |
Kevin,
Bullying and harassment is rarely a single incident, but a sustained and ongoing pattern of unreasonable actions or behaviours. If the individual concerned feels bullied then it is a very real and horrible experience. Whether the actions are with intent or not doesn't necessarily matter, it ultimately comes down to demonstrating that the activity occurred, that it was unreasonable and that there has been a consequential breakdown of trust between employer and employee.
Been a while since I was at a tribunal, but the usual issue which is assessed against is what would a reasonable employer be expected to do? | |
| Never knowingly understood |
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| Constructive dismissal (non QPR) on 10:26 - May 16 with 3392 views | EastR |
Before your friend takes off work sick, opening the opportunity for the organisation to get rid of her subsequently due to incapacity to do her job, she needs to take stock of the following :
- how long has she been in her present employment. She's much better placed if outside of her probabionary period for example, and will be to her advantage if she has been there for some time doing the job with no previous issues;
- has she had some kind of performance management review or appraisal during that time. If this has happened with no issues raised or documented from the management side then this is to her advantage.
- is the boss new or have any of her colleagues been having similar issues? Your friend needs to raise these formally with the HR dept to escalate her side of events.
As someone else mentioned the important thing is to keep a record of everything - a diary of events, copies of e mails etc
If things continue to deteriorate and become too much for her to deal with, she should advise her employer immediately that she is quitting her job as they are in breach of their contract by allowing another employee to bully and harass her - and and she will be taking a case against them for constructive dismissal (if she stayed longer they may argue that she accepted the conduct or treatment)
Final recommendation - get your friend to consult with someone with expertise in the field (Citizens Advice is a good start) and don't act only on advice given on football messagebaords! |  |
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| Constructive dismissal (non QPR) on 10:31 - May 16 with 3367 views | ingeminate |
| Constructive dismissal (non QPR) on 10:10 - May 16 by danehoop |
Kevin,
Bullying and harassment is rarely a single incident, but a sustained and ongoing pattern of unreasonable actions or behaviours. If the individual concerned feels bullied then it is a very real and horrible experience. Whether the actions are with intent or not doesn't necessarily matter, it ultimately comes down to demonstrating that the activity occurred, that it was unreasonable and that there has been a consequential breakdown of trust between employer and employee.
Been a while since I was at a tribunal, but the usual issue which is assessed against is what would a reasonable employer be expected to do? |
Completely agree with Dane, I went on a course on this recently and ultimately most things boiled down to reasonable common sense decisions. Typically people on a tribunal have relevant background experience and make based on the balance of probabilities - it is not like a normal court or anything where you need to be able to prove things beyond doubt - think Judge Judy.
I run a small business and so to be blunt see tribunals as massively unfairly structured, but no doubt a necessary evil. I say this because if I get a tribunal filed against me even if I successfully defend it I can still be out of pocket by 5k with no possibility of recompense. I think that is pretty outrageous, surely if you (or one of your employees) have been proven to have done nothing wrong you should not be expected to foot the legal bill. |  |
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| Constructive dismissal (non QPR) on 10:35 - May 16 with 3358 views | ozranger |
Just to add to Dane, I recently went to our Union about a set of situations I am having at work. I was told to follow the five steps when writing up incidents: When (did it happen), Where (did it happen), Who (was present), What (led to it) and the Impact (on yourself). I wish your friend the best. |  | | |
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| Constructive dismissal (non QPR) on 10:37 - May 16 with 3353 views | KevinPR |
| Constructive dismissal (non QPR) on 10:26 - May 16 by EastR |
Before your friend takes off work sick, opening the opportunity for the organisation to get rid of her subsequently due to incapacity to do her job, she needs to take stock of the following :
- how long has she been in her present employment. She's much better placed if outside of her probabionary period for example, and will be to her advantage if she has been there for some time doing the job with no previous issues;
- has she had some kind of performance management review or appraisal during that time. If this has happened with no issues raised or documented from the management side then this is to her advantage.
- is the boss new or have any of her colleagues been having similar issues? Your friend needs to raise these formally with the HR dept to escalate her side of events.
As someone else mentioned the important thing is to keep a record of everything - a diary of events, copies of e mails etc
If things continue to deteriorate and become too much for her to deal with, she should advise her employer immediately that she is quitting her job as they are in breach of their contract by allowing another employee to bully and harass her - and and she will be taking a case against them for constructive dismissal (if she stayed longer they may argue that she accepted the conduct or treatment)
Final recommendation - get your friend to consult with someone with expertise in the field (Citizens Advice is a good start) and don't act only on advice given on football messagebaords! |
Regarding : '(if she stayed longer they may argue that she accepted the conduct or treatment)'
If this treatment has been going on for many months (as Dane said, it often does), it seems quite difficult to balance how long one should stay/put up with it... | | | |
| Constructive dismissal (non QPR) on 10:42 - May 16 with 3344 views | EastR |
| Constructive dismissal (non QPR) on 10:37 - May 16 by KevinPR |
Regarding : '(if she stayed longer they may argue that she accepted the conduct or treatment)'
If this treatment has been going on for many months (as Dane said, it often does), it seems quite difficult to balance how long one should stay/put up with it... |
it's about timing - if she walks out tomorrow, would she have addressed the other steps advised? Maybe she has done some of those things already, if not, she should do as it will strenghten her position. Flag it to her employers and then leave. | |
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| Constructive dismissal (non QPR) on 12:51 - May 16 with 3242 views | Hunterhoop |
In the end it all comes down to evidence, which in turn shows due process was followed or it wasn't...on both parts.
I've come at a similar situation from the position of the manager/employee.
Had a manager I coached then performance managed for several months, issued an informal warning to and then was to progress to a formal warning when she went sick with work related stress, citing me as the cause.
I was lucky in that I had a boss who fully supported me and the process I had been through. And, to my credit, I had documented every single meeting we had had since the coaching stage and each meeting had set, clear, measurable objectives, which we then followed up on in the next meeting. Equally I had kept a log of every incident of poor performance from day 1.
As such, when our company's HR team got involved, within the space of a one hour meeting they were easily persuaded that all processes had been followed properly and her stress was caused by her inability to perform her job (after appropriate training and coaching) as opposed to unfair management. I had about 15,000 words worth of documentation. She had no written evidence of any "unfair" treatment at all
Therefore, my reccommendation of a demotion and fresh start at another another location was taken up and implemented.
So, evidence matters for both parties. Whilst it may not be the case in this situation, Kevin, this process can be very difficult for the manager too because stress doesn't always mean they've managed wrongly/badly. |  | | |
| Constructive dismissal (non QPR) on 13:06 - May 16 with 3208 views | Charlie1 |
| Constructive dismissal (non QPR) on 10:31 - May 16 by ingeminate |
Completely agree with Dane, I went on a course on this recently and ultimately most things boiled down to reasonable common sense decisions. Typically people on a tribunal have relevant background experience and make based on the balance of probabilities - it is not like a normal court or anything where you need to be able to prove things beyond doubt - think Judge Judy.
I run a small business and so to be blunt see tribunals as massively unfairly structured, but no doubt a necessary evil. I say this because if I get a tribunal filed against me even if I successfully defend it I can still be out of pocket by 5k with no possibility of recompense. I think that is pretty outrageous, surely if you (or one of your employees) have been proven to have done nothing wrong you should not be expected to foot the legal bill. |
Aye, and if she works for a reasonable sized company, they may have EPL insurance.
Also, if a reasonable size there should be some form of HR process and appraisal system. If she can document / articulate disagreements then she has a strong case.
Sounds like the boss should be a candidate for the apprentice! |  |
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| Constructive dismissal (non QPR) on 17:03 - May 16 with 3087 views | Mytch_QPR |
| Constructive dismissal (non QPR) on 09:59 - May 16 by KevinPR |
Thanks guys.
I love this site - you can post about anything pretty much and get some good advice.
I think this has been going on for a while and while one incident may not be deemed bullying/harassment it is very much the case of the straw that broke the camel's back.
Most recently he is attempting to change her job profile without reason or following any procedures. |
Hi Kevin,
Not an expert but I do know that a company cannot just change the job role / package etc unless the employee agrees. They could do so, as far as I know, as an alternative to redundancy, but again the employee has to agree so that a new contract of sorts can be drawn up. |  |
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| Constructive dismissal (non QPR) on 19:23 - May 16 with 3016 views | RangersAreBack |
The first thing to check is type and length of employment. Assuming she's permanent, up to one year rights are limited. After one year rights increase.
Before considering taking sick leave check her contract. Some employers have clauses that allow them to dismiss employees no questions asked if they take sick leave longer than a certain period of time.
If your friend takes off time for stress, the employer can request an examination to determine fitness to work and will more than likely ask your friend to provide consent to allow her GP to provide sensitive information.
My advice is to keep a chronology of events, engage witnesses, collate evidence and record events. If the matter goes to tribunal she will be expected to produce a bundle of evidence so best to start now.
I would also advise joining a trade union like GMB (subscription costs £11.70 per month for full time employees). The sooner she joins the better because they won't represent her for a few months. This is prevent people joining just to get immediate cheap representation. Once the probationary period has passed, the union will advise her and represent her at any meetings. If the union member can't attend then the employer must reschedule the meeting.
One thing to bear in mind is that constructive dismissal is usually more difficult to prove than unfair dismissal and the success rates are lower. I would advise hanging in there until the employer tries to sack her. They must follow the proper procedure in doing so as unfair dismissal can be awarded just for failure to follow protocol even if the evidence is weak. |  | | |
| Constructive dismissal (non QPR) on 20:23 - May 16 with 2948 views | thame_hoops |
They need a lawyer, will probably get 30mins free.
Not had experience in this but in other legal matters I've found a trip to my lawyer very worthwhile |  | | |
| Constructive dismissal (non QPR) on 20:28 - May 16 with 2940 views | johann28 |
| Constructive dismissal (non QPR) on 20:23 - May 16 by thame_hoops |
They need a lawyer, will probably get 30mins free.
Not had experience in this but in other legal matters I've found a trip to my lawyer very worthwhile |
Yes - as above - I'm afraid you need an experienced lawyer and (surprise!) they don't come cheap. I can recommend someone if you're stuck |  | | |
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