Whether or not unreported bullying is tantamount to dismissal was the question recently faced by Guernsey's Employment Tribunal; the answer was a resounding "no".
This case is particularly relevant to Channel Island employers who, we find, are faced with increasing numbers of allegations of bullying and harassment.
The Tribunal was recently invited to consider whether unreported acts of bullying by a company director towards one of his fellow employees in the workplace was sufficient for that employee to resign and treat those actions as being a fundamental breach of his contract of employment.
At the hearing, it was presented to the Tribunal that the employee had faced regular criticism (occasionally in the presence of others), had often been subjected to rude and obscene language, had faced false allegations of feigning sickness and had been set unreasonable performance standards by one particular director, over a four year period. In evidence, the Tribunal was handed the employee's personal diary which recorded in detail the alleged acts of bullying and the effect those acts were having on his emotional well-being; none of which were ever communicated by the employee to his employer (or fellow work colleagues) during his employment. This proved to be his ultimate downfall.
On being questioned why he had not raised the issues previously, the employee responded that "he did not think it worth telling other directors of his concerns, as [the director] would be supported by the fellow directors" and believed his concerns would simply be ignored. Instead, matters came to a head following an unrelated incident which resulted in his hasty verbal resignation and a subsequent claim for constructive unfair dismissal. The employee argued that the director's actions amounted to a fundamental breach of the implied duty of trust and confidence inherent in all contracts of employment thus entitling him to resign.
The employer vigorously defended the claim on the basis that i) the allegations of bullying were untrue, and ii) even if they were true, at no time was it aware of the allegations in order to appropriately deal with the issues; the Tribunal concluded that this particular point was indeed fair and dismissed the employee's claim on that basis.
It acknowledged that while it is seldom easy to raise sensitive issues, such as bullying, with an employer, the Tribunal felt that a lack of disclosure or communication of the issues itself prevented a reasonable employer from having the opportunity to address the issues, whether real or imagined, and put matters right. If an employer does not know of the issues or the depth of concern experienced by an employee, how can it reasonably be held liable for any failings on its part? An employee cannot succeed in a claim for constructive unfair dismissal in circumstances where his / her employer is not even aware of the matters complained of.
This recent decision is particularly important for Channel Islanders.
With claims of alleged bullying and harassment in the workplace on the increase, employers need to be mindful of the issues and possible effect those issues are having on its employees.
While the applicant in this particular case was unsuccessful, it was only because he failed to communicate with his employer (the employer only became aware of the allegations once the Form ET1 was filed); the Tribunal made it clear that if such allegations are drawn to an employer's attention but it fails to heed those concerns, then this could indeed be tantamount to a dismissal.
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