| Can a grievance about bullying be a protected disclosure? |
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| Written by Adrian Melia | |||||||||||||
| Saturday, 12 April 2008 | |||||||||||||
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Readers should note that the legal arguments proposed here have not been tested in a court of record (i.e. the EAT or Court of Appeal) and are therefore not authoritative interpretations of the legislation. What is a "protected disclosure"? A Protected Disclosure is defined under section 43B-J of the Employment Rights Act 1996. This article considers only disclosures defined under sections 43B-C, i.e. of information by workers to their employers, made in good faith and with reasonable belief that they are true, that tend to show that one or more of six types of event has occurred. These events are called "relevant failures" and include:- - that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
One myth about workplace bullying is that it is not illegal. This is a problem for bullied employees, particularly those whose experiences fall outside the protection of anti-discrimination legislation, which apply only to discrimination on six specific grounds. Beyond these, there isn't an obvious course for legal redress open to people bullied for reasons other than their race, gender, age, religious belief, sexual orientation or disability. Personal injury claims require proof of a personal injury, and they cannot be pursued in the employment tribunal, which can make them more complex and expensive to bring. In recent times, while it has been determined that employers can be held vicariously liable for employee's breaches of the Protection from Harassment Act 1997, a recent judgment has set a precedent where the harassment in civil cases has to have been sufficiently serious as to warrant a criminal prosecution. I don’t understand why, but this judgment has led to many ongoing civil claims to be dropped, even though there is only one definition of “harassment” under the Act. Perhaps now the civil courts are apparently less inclined to entertain claims under the Protection from Harassment Act, bullied workers may take their cases to the police instead. In July 1999 the Employment Rights Act 1996 was amended to protect "whistle-blowers" from victimisation. This law can be used to protect employees who complain of bullying at work: Not from the bullying originally complained of, but from retaliation on the ground that they complained, subject to certain conditions to be met, and counter-arguments being overcome. Put another way, so long as a complaint meets the conditions, it is a form of "whistle-blowing" covered by this law. The Public Interest Disclosure Act, as it was called when it was passed in 1998, offers legal redress for victimisation that results from reporting certain types of malpractice. Since it is part of Employment legislation, it is accessed through the employment tribunal system. Employment Tribunals have jurisdiction to award compensation, in appropriate cases, for injured feelings and psychiatric injury arising from bullying done on the ground that the person complained. If the claimant has been dismissed (or had to resign) because they complained, there is no cap on the compensation for unfair dismissal, although it should be borne in mind that compensation for dismissal is limited to financial loss arising from the dismissal. Why claim that a grievance is a protected disclosure? Genuine grievances about bullying are always sincere, usually a last resort and they usually give the employer information that tends to show one or more of the ‘relevant failures’ listed in the first paragraph. That can make the grievance fit the definition of a protected disclosure. From my experience and observations of others’ situations, genuine grievances about bullying tend to evoke retaliation by employers. That can fit the definition of “detriment” on the ground of having made a protected disclosure. The right not to suffer “detriment” or be dismissed for making a protected disclosure is set out at sections 47B and 103A of the Employment Rights Act 1996. Thus, by making the protected disclosure, an employee gains the right not to be victimised.
If the complaint is well founded then, by definition, the employer is knowingly or unknowingly allowing the bullying that is being complained of, to occur. I do not doubt that some employers, upon hearing that bullying is happening under their noses, will take steps to genuinely eradicate it. Regrettably, the employers that I get to hear about do not do this. Because bullying is illegal, and no employer wants to be seen to be behaving illegally, some will respond to a complaint by attempting to make it seem as the alleged bullying never happened. This effort, paradoxically, involves further bullying, usually involving at least the HR department, possibly a solicitor and possibly other colleagues of the complainant. It also costs the employer more than a proper resolution. My experience is that unscrupulous, bully-tolerant employers prefer to portray complainants as embittered, paranoid troublemakers whose intention is to disrupt their employer's business and the alleged bully’s career. After a lengthy stalemate, the end result is often that the grievance is not upheld and the employment relationship ends. Where the employee’s complaint about bullying is a "protected disclosure", the bully-tolerant employer's punitive response to such a complaint breaches the right not to suffer detriment (or be dismissed) and thus gives the employee a cause for legal action. That legal action is possibly the only means by which the bullied employee can be compensated for the experience.
When faced with a legitimate grievance about bullying, bully tolerant employers are apparently motivated by two objectives. The first is based on the belief that the complainant is a liability that needs to be eliminated. The second is a perceived need to be seen to be behaving reasonably, in case they ever have to account for their actions before a tribunal or court. The objectives contrive to create an unsavoury but predictable pattern of events. Typically, and in summary, the employer engages in a charade that involves apparent observance of proper procedure. The grievance is responded to with an investigation and a hearing, where it is revealed that the employer has found no evidence of bullying. Some employers leave it at that, offering the employee limited options, none of which are desirable. Redeployment, ill health retirement and compromise agreements figure highly, but sometimes the employee is expected to accept the result and return to work. I say "return to work" because in almost many cases the employee has been absent for the duration of the process suffering from stress induced ill health. The return to work option is sometimes followed by resignation. If not, the return to work is unsatisfactory and the process repeats. Sometimes, during the time the employer claims to be investigating the complaint, they discover purported evidence of misconduct by the complainant. It might be the complaint itself, but is more likely to be alleged misconduct that is completely unrelated to the bullying. WHere the employee has been absent from work, the alleged misconduct will pre-date the complaint. The employer’s aim here is to concoct a reason for dismissing the employee which is superficially unrelated to the complaint. I faced this situation myself, and I know of one person who was initially fired for disclosing information about his manager's malpractice, only to be reinstated and then fired for another supposedly unrelated reason. The bottom line is that if an employer tolerates or relies on bullying, then a person who complains about bullying has no chance of returning to the role as it was described to them during their recruitment. They become 'persona non grata', and the bully-tolerant employer's actions from that point on are designed to eliminate the complainant. Any apparently reasonable conduct is deliberate and motivated not though a desire to behave reasonably, but for the purpose of creating a defence when held to account, and to divert attention away from the actions being complained of.
If the employee has had the will and the energy to make a claim in the employment tribunal, the employer's legal team will tend to focus on how patiently and benevolently it treated the employee, in spite of the dreadful things it discovered about the employee during their sick leave. A defending employer will claim that its (disciplinary) actions against the employee were unconnected with the report of bullying, and that they were all reasonable and justifiable. Alternatively the employer may have manipulated its occupational health procedures to assert that the employee has become - or always was - unfit for work on mental health grounds. This is especially so where an employee claims to be suffering from anxiety / depression or another stress induced condition arising from the bullying, and the employer wants to explain it away. Tribunals are obliged to listen to these arguments, so it is important for the employee to show that, and how, the allegation of misconduct has been prompted by the fact that the employee has complained of bullying. It is not usually very difficult to do this, bearing in mind the similarities between most bullying cases. (One way of seeing HOW similar they are is to join an Internet forum discussing workplace bullying.) It is preferable, but not absolutely essential to show the motive for the employer's actions. If the employee has been dismissed, and on the face of it, this was because of whistleblowing, the employer is required to prove that the dismissal was for a legitimate reason. If they cannot, the tribunal is entitled to infer that the real reason for the dismissal was the prima facie whistleblowing reason put forward by the employee. (see Kuzel v Roche Products) The Legal Argument Chambers Dictionary defines "grievance" as: "a cause or source of grief, a ground of complaint, a condition felt to be oppressive or wrongful, distress, burden, hardship" Chambers defines "whistle-blowing" as: "Giving information (usually to the authorities) about illegal or underhand practices" The long title of the Public Interest Disclosure Act reads: "An Act to protect individuals who make certain disclosures in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes. A superficial interpretation of these distinct definitions and the Act's title suggests that an employee's grievance is unlikely to gain him the same protection as a whistle-blower's disclosure of illegal or underhand practices. Some grievances may relate to an acute perceived "wrong", but where the matter causing the grief is neither illegal nor underhand. I would never suggest that such grievances qualify for protection. But what if the employee is suffering because he is subjected to an illegal practice, and he raises this with his employer as a grievance? Subject to the requirements of reasonable belief and good faith, a grievance disclosing endangerment of health or another illegal practice is arguably a disclosure qualifying for protection. The question of whether the grievance was a protected disclosure can only be determined by an employment tribunal, where the claimant has asserting suffering detriment or dismissal in response to the claimed protected disclosure. Present case law on the topic is likely to lead to counter arguments that say a grievance, complaining of bullying of self by his employer, is not a protected disclosure because it does not constitute a qualifying disclosure, is not in the "public interest", and does not satisfy the requirement of "good faith". The next section discusses these points and aims to show that the relevant criteria can be satisfied. "Qualifying Disclosure" A qualifying disclosure is a disclosure of information that tends to show a relevant failure, to one's employer, where the information is disclosed in good faith and with reasonable belief that the information is true. A grievance stating that the employee is the subject of workplace bullying and that he is consequently suffering from stress which, in turn, has caused him to be ill could be protected. If the bullying has been behind closed doors, or if the bully has explained his actions away or blamed them on the employee, it could also be argued that the information is being deliberately concealed. A reasonable HR professional in receipt of such a grievance should know, or be able to quickly establish, that:- - Bullying means potential breaches of the implied contractual duty of trust and confidence, either by bully against the employer, by the employer against the affected employee, or both; Therefore, the information in the grievance would tend to show the HR professional:- - that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, Each of these things is identified in the Act as a "relevant failure". Naturally the specific situation, and the content and detail of the disclosure would affect its tendency to show the relevant failure(s). The wording of the statute unambiguously and explicitly protects disclosures of failures & malpractice directly affecting the person making the disclosure:- - Reference to "any legal obligation" [43B(1)(b)] includes the obligation to perform the employment contract of the person making the disclosure (Parkins v Sodexho) and would doubtless protect a report of e.g theft of one's own property. (It is difficult to imagine how an employee could disclose information that another person felt his health was in danger unless the other person had first disclosed it themselves.)
A defending barrister will probably argue that a grievance about bullying is not information that is disclosed in "the public interest". This is no defence. The term "public interest" appears in the title and preamble of the Public Interest Disclosure Act, but not the wording of the statute, i.e. the paragraphs which updated the Employment Rights Act. The statutory wording alone (and not the title or subheadings) shows what Parliament intended. If more were needed, then the Act does not define "the public interest". However, one can infer what "the Public Interest" is from the failures listed in s43B(1)(a) to (f). One can determine, for example, that:- - "The public" does not want one of its members to be injured or ill as a result of his work, nor does the public want such things to be concealed. Anyone who argued that these things were not in the public interest would embarrass themselves in front of a judge
This only arises in the light of Court of Appeal's comments made in Street v Derbyshire. It cannot reasonably be argued that an employee's grievance is an indicator of bad faith. Nor can one say that such is not a protected disclosure simply because it concerns a matter whose effect is superficially limited to the employee disclosing the information. - Neither the Act nor any precedent say that "personal grievances" are excluded from the legislation. I would submit that a "grudge" is "persistent resentment" of the person(s) responsible for an alleged failure, possibly pre-existing and unconnected with the matter being disclosed; A "grievance" on the other hand is "reactive resentment" in response to the alleged failure. A grievance will likely include an expression of disapproval of the responsible person and/or their alleged actions. To do otherwise might negate the validity of the disclosure, but a written grievance that was simply a rant or a "tirade of abuse" about the person whose conduct was being reported might be interpreted as an indicator of bad faith. Grievance letters should be measured and objective if at all possible. Having said this, some impression of resentment is understandable and to be expected, according to Court of Appeal guidance from Street v Derbyshire para 55: "...The Tribunal would also have to keep in mind what is common-place in such a context, that a failure or refusal by an employer to remedy a perceived failure of duty and/or injustice to a worker is often likely to engender in him an understandable resentment or antagonism that may grow if the matter is not remedied quickly. That, in itself, should not necessarily be regarded as negativing good faith if, when making the disclosure, the worker is still driven by his original concern to right or prevent a wrong. It could be argued that if one reasonably believes one is subject to the type of malpractice listed under in 43B(1)(a) to (f), one is - entitled (or possibly "obliged") to inform one's employer of that belief; and Where the predominant purpose of informing one's employer is to make the malpractice stop, the disclosure is made in good faith. “Any act or deliberate failure to act” It is relatively easy to show where an employer has done something which has subjected an employee to detriment. It is perhaps less easy to show where the detriment has been suffered as a result of the employer not doing something, and deliberately not doing it. While it could be very hard to prove that an employee has been denied a promotion on the ground that they made a protected disclosure, there are some responsibilities which employers are required to conduct in certain circumstances, which are rarely carried out properly in the cases I hear about. Mainly, these are:- - Conducting a fair and impartial investigation into a grievance; (See also Hardman v Mallon ta Orchard Lodge Nursing Home [2002] IRLR 516 EAT. Although that concerned a pregnant woman (and not stress), failure to conduct a risk assessment was detriment.) The obligation to review the risk assessment remains until the risk assessment is reviewed. A "suitable and sufficient" assessment relating to stress would doubtless include a relevant discussion with the affected employee. An employer could argue that the failure to review the risk assessment is not “deliberate”, but where the only logical alternative explanation is negligence, an employer is not very likely to do this. One could argue that an employer's failure to do one or all these things properly, if at all, is a deliberate failure to act which continues until they are done, or the employment terminates, whichever is first. When these deliberate failures to act are combined with detrimental acts, such as a disciplinary process without a genuine basis, the case starts to build. Note that the topic of occupational health assessments is very sensitive, and while provision of OH facilities is among the things the House of Lords suggested was reasonable for an employer to do, it is open to abuse by bully-tolerant employers and requires careful consideration not dealt with in this article.
Constructive dismissal is where an employee terminates the contract on the ground of circumstances created by the employer’s conduct, which leave the employee no option but to terminate the contract. This is now well established in law, in terms which say the employer must have committed a fundamental (or “repudiatory”) breach of contract. The breach must be "ongoing" or "continuing" (i.e. not "waived") at the date of termination, even though it may have begun well before. In other words, the employee should not have continued working normally after becoming aware of the employer’s breach of contract. My proposition is that a fundamental breach of contract that qualifies constructive dismissal unfair by s103A ERA is, by definition, "detriment" under s47B ERA. There is no legal precedent that specifically sets out the proposition in these terms, but the Court of Appeal went some of the way in Melia v Magna Kansei Ltd [2005]- the writer's own case. The logic and basis of the proposition is consistent with all current legal thinking of which the writer is aware. One might approach it this way: Where a claimant claims dismissal under ERA s 95(1)(c). He must show that there were:- - circumstances in which he (was) entitled to terminate (the contract) without notice by reason of the employer's conduct. The claimant can say the repudiatory breaches he relies upon individually and together constituted a breach of the implied contractual term of trust and confidence (Lewis v Motorworld Garages [1985] IRLR 465) - (para 36). He would also say the sham grievance investigation breaches the implied term that employers would "reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have … the right to obtain redress against a grievance is fundamental for very obvious reasons" (WA Goold (Pearmak) Ltd v McConnell [1955] IRLR516) - para 11. The claimant would also say that the grievance was a protected disclosure, and thus establish that:- - He was dismissed under 95(1)(c) ERA; Thus the claimant is entitled to compensation from the date the detriment began until the date the employee resigns in response or is dismissed. Note the shortcoming here that the PIDA, used in this way, will not afford the employee protection from any bullying happening before the employee makes the protected - or "protectable" - disclosure. That might be a valid subject for a personal injury claim in the county court, but it is not covered in this article. This article only deals with a route to compensation for maltreatment in response to a report as outlined above. Authorities to reinforce the proposition:- - Breaches of contract in themselves do not constitute "dismissal". Where an employee relies on such breaches as reason to resign, he does not forfeit the right not to be subjected to them or to be compensated for them directly, see (Eastwood v Magnox Electric plc [2004] IRLR 733) para 27: "...If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal."; ...and Melia v. Magna Kansei Ltd [2006], ICR 410, CA, ([2005] EWCA Civ 1547), summary by Smith LJ at para 46: "It is common ground that if an employee suffers a detriment due to making a protected disclosure and is then dismissed by the employer, the employee will be entitled to compensation for the detriment under section 47B of the Employment Rights Act up to the date of dismissal. That compensation, may include compensation for personal injury and injury to feelings. He may also claim compensation for the consequences of unfair dismissal, including a compensatory award under section 123. But, say the respondents, the position is different with a case of constructive dismissal. There, the employee may only recover for the detriment he suffers until the time comes when the employer's conduct amounts to a repudiatory breach of the employment contract. If that were right, it would follow that an employee might suffer from gradually deteriorating and increasingly unlawful treatment by the employer, but if he does not resign immediately when the conduct has become bad enough to amount to a repudiatory breach, but waits some time before he accepts the breach, he will not be able to recover for the detriment he has suffered during that intervening period. I, for my part, cannot accept that Parliament should have intended so unjust a consequence." Finally, breach of contract puts the employee at a disadvantage; if it's in response to a protected disclosure the statutory definition of that disadvantage is "detriment". The advantage of claiming under the statute (rather than breach of contract) is that tribunals can make awards for injury to feelings and financial loss. They can only make awards for financial loss in breach of contract claims.
While the foregoing opinion has been formulated with every reasonable effort, it is not an authoritative statement of the law, and has not been tested in a Court of Record. The information is supplied on the basis that the writer and publishers bear no liability whatsoever for any inaccuracies, errors, omissions or other shortcomings the information may be said to have. Persons considering using the information are strongly recommended to obtain professional legal advice specific to their circumstances before considering or embarking on legal proceedings. Links Case Law Reporting breach of one's own employment Contract is protected by PIDA (current) Advancing a personal grudge is not "good faith" (current) Compensation for breach of contract is separate for compensation for unfair dismissal (current) Dismissal compensation can only include financial loss arising from the dismissal (current) Tribunal can infer “whistleblowing” as the reason for dismissal if employer fails to prove another reason In constructive dismissal cases, compensation for "detriment" continues until the date of dismissal (current) Employers should provide OH / counselling facilities to stressed employees (current) Requirement to conduct a risk assessment particularly when employer becomes aware of an instance of occupationally induced ill health: - Hardman v Mallon ta Orchard Lodge Nursing Home . UK legislation http://www.opsi.gov.uk Look for UK legislation and then search. eg: “Management of Health and Safety At Work Regulations” http://www.opsi.gov.uk/SI/si1999/19993242.htm Employment Rights Act 1996 is not up to date on OPSI, having been amended many times by subsequent acts including Public Interest Disclosure Act 1998. You can look up the individual amendments but for an up to date version of the Employment Rights Act as amended, see http://www.emplaw.co.uk . You will need to purchase a "pass" to access the file, which currently costs £20 and which gives access to a wealth of data on UK employment Law and case summaries. (the writer has no connection with emplaw.co.uk) Direct help with conducting Employment Tribunal proceedings Recommended essential book for anyone considering / conducting tribunal proceedings in person: "Employment Tribunals - Tactics and Precedents" by Naomi Cunningham, from Legal Action Group Tailored advice and support Humane Resources Ltd , sole sponsor of MyGrievance.co.uk Whistleblowing organisations
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fireball
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This really is a well argued legal argument and I am amazed that a test case using these arguments have not been used. It has direct relevance to a case I have at present where a woman (Mrs B) who had worked as a cleaning supervisor for more than 20 years and loved every minute of the job and was well liked and respected by those working under her, was suddenly faced with a new manager who took a dislike to her. For the next two years her life was made hell and she sought help from HR who merely took the managers side and made things even more her as the bullying manager used other people to bully and hara*s her too. Eventually Mrs B was forced to make a formal complaint using the employers Bullying and Hara*sment Procedure. The investigative process took over 9 months to complete and in the meantime Mrs B was moved her out of her job temporarily on the basis that because more than one individual was named in her complaint it was easier to move her than several other people. Needless to say all of her allegations were reported to be "unfounded" and as a result she was not allowed to return to her origianl position. Mrs B raised a grievance that the Investigating Officer failed to fully investigate the complaint and relied heavily on the evidence of the person complained of. A new Investigation Officer was appointed to investigate the complaint under the grievance procedure. Before the outcome of the grievance was concluded the managers in her new area of work complained that they could not work with her and that she had caused them too much stress related illness despite the fact that two of them went off with stress but only after they had submitted their complaint. As soon as the complaint was received the woman was moved again to yet another work area prior to any investigation being carried out. Mrs B went off with stress and was absent for 6 months before financial difficulties forced her to return to work. On her return to work her grievance had not been concluded although the Investigation had proved that the original complaint had never been properly investigated. In the meantime, the investigation into the complaints against her had been concluded without actually speaking with Mrs B. However, it was concluded that although there were several aspects of the complaint upheld, i.e. Mrs B was tearful and distrustful of everyone, no further action would be taken against her. Eventually, the HR Director heard the grievance and whilst accepting that it was unfortunate that the Bullying and Hara*sment Complaint was not properly investigated it "would serve no useful purpose in re-opening the case". In her new position she was asked to work alongside another supervisor who had come from another block because the women had refused to work with her because they found her bullying and intimidating. Despite this Mrs B thought that the two of them worked well together. However, another supervisor Mrs T was quite hostile towards her and Mrs B ignored it because she knew that she had taken up a post Mrs T was hoping would be offered to her sister who was looking for a permanent supervisor position as she was merely an acting supervisor in her current position. However, she found that Mrs T was giving her incorrect information and when Mrs B began to verify the information with documentation and/or with the manager a row developed. Mrs B broke down in tears and had to go home and has not worked for nearly 4 months. Legal advisers have said that she does not have a case for Constructive Dismissal but may have a Stress Case. |
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anne_m123
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Hi Adrian, When I wrote my grievance letter out I was advised by ACAS to put in everything I could think of as it may be relevant to any forthcoming tribunal claim. At the time I didnt even know what they were talking about but i did as I was advised and Im so glad i did. I reported 2 colleagues to my manager regarding the way they were treating a vulnerable disturbed adult. I was subsequently bullied by one of them and after 4 mths became ill and was signed off with depression. I had complained several times in the 4mths and the behaviour increased. When I was fit to return to work (after approx 4mths) my manager told me that my services were no longer required. My grievance centres around the events of the poor practice and my subsequent treatment. I am so glad I did what ACAS said and put everything in my letter. It seemed a bit petty at the time but my grievance is a kind of 2nd whistle blow because the first went uninvestigated and now its been drawn to the attention of the Director. I also contacted another organisation with responsibilty for registering voluntary service organisations and told them of my concerns. Unfortunately they have not upheld my complaints. My previuos place of employment has in fact ,overnight, become a model of excellence. Amazing isnt it? I am gutted about this but at least the relevant agencies have been alerted. |
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Quinonostante
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This is astounding information! Can I link to it on my website? |
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