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
This recent decision is particularly important for Channel
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
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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