While Priti Patel may have avoided trouble for now over bullying accusations against her, the law remains clear. Where someone resigns because of bullying or harassment, they may be able to bring a claim for constructive unfair dismissal.
In November 2020, a formal report into Home Secretary Priti Patel’s behaviour in the workplace was released. It found evidence that she had bullied civil servants and conducted herself in a way that ‘amounted to behaviour that can be described as bullying’.
Home Office Permanent Secretary Sir Philip Rutnam had previously resigned, accusing Patel of a ‘vicious and orchestrated briefing campaign’ against him.
Despite the report’s findings, the Prime Minister declined to sack Patel. The author of the report, Sir Alex Allan, Whitehall’s independent adviser on ministerial standards, resigned.
Sir Philip Rutnam has submitted a claim to the employment tribunal for unfair (constructive) dismissal and whistleblowing against the Home Secretary.
What does the law say?
Employers have a duty to protect staff against bullying and harassment and provide a working environment free from hostility.
Bullying is conduct that is offensive, intimidating, malicious or insulting or that humiliates or denigrates someone. The Health and Safety Executive says that it is a pattern of repeated and persistent behaviour, not just isolated instances.
Examples include constant criticism, being overworked, being excluded from meetings or emails, the spreading of false rumours about someone or overbearing supervision.
Harassment is similarly unwanted conduct, but relating to a protected characteristic, creating a hostile, intimidating, humiliating, derogatory or offensive working environment or violation of someone’s dignity. Under the Equality Act 2010, the protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief and sex.
Dealing with bullying and harassment
It is important for employers to have up to date policies in place detailing how bullying is to be handled. Employees will be able to follow the procedure in raising any bullying or harassment problems and it gives employers the best chance of dealing with the matter without it escalating further.
This would usually be by speaking to a manager or HR official or trade union representative in the first instance. If the matter cannot be dealt with informally, the next step will be to raise a formal grievance and follow the official procedure for investigation and hearing of the concerns.
It is advisable for all parties to keep a diary of any incidents and copies of communication which takes place.
An employee may feel unable to come into work because of the stress associated with bullying. If they are signed off from work, they will be entitled to pay in accordance with their contract of employment, which should set out their rights in this regard.
ACAS has put together a guide for managers and employers entitled Bullying and harassment at work providing practical information on setting up good working practices. The guide notes that it is in employers’ interests to promote a safe, healthy and fair working environment. Failure to do this often results in poor performance, absences, poor morale, lost productivity and damage to the reputation of a business.
If bullying or harassment allegations are not dealt with effectively and an employee resigns because of this, then they may be able to bring a claim for constructive dismissal if they have been continuously employed for a period of two years.
The employee will need to show that the employer has behaved unreasonably and fundamentally breached the trust and confidence placed in them, or breached a term of the contract of employment. The claim will refer to all of the events, and not just the most recent, which could potentially be fairly minor taken by itself. As part of a sequence, it will be more persuasive.
The employee may also consider bring a claim for personal injury and compensation for the harm caused.
The resignation should refer to the fact that the employee feels they have been constructively dismissed.
Defending an employment tribunal claim
If an employee brings a case against their employer at an employment tribunal, it is essential that the employer has proper representation in place. There is a risk to the reputation of a business as well as the possibility of a substantial award being made to the employee. This would normally include a basic award calculated on the basis of length of continuous service and rate of pay along with a compensatory award.
A compensatory award is an amount considered just and equitable in respect of the loss that is attributable to action taken by the employer. It is often considerably larger than the basic award and is based on lost wages, to include benefits, future wages, statutory rights and pension.
Legal representation by an employment law expert will ensure that a robust defence is made and that any mitigating circumstances are raised. Preparing a case will be time-consuming and often involve a large amount of documentation. There are time limits which must not be missed.
It is often preferable to come to an agreement with an employee without going to an employment tribunal. This is likely to be a more cost-effective option and will allow employers to put the matter behind them with a clean break. There is also the opportunity to protect their rights by specifying in the settlement agreement document what restrictions the employee is bound by. This would normally include confidentiality clauses.
A lump-sum payment would be made to the employee in return for their agreement to drop all future claims against an employer. The employee would leave the employment straight away, with no notice period to be worked out, allowing both parties to move on.
The agreement is usually negotiated to ensure that both parties are happy with the terms. At RSW Law we are experienced in the drafting of robust settlement agreements, protecting employer interests, and in negotiating strongly.
Once a settlement agreement has been drawn up, it is a legal requirement that the employee takes legal advice before signing as it is a waiver of their rights. The employer would usually contribute towards the costs of this advice.
At RSW Law, we have wide experience of dealing with employment law disputes and settlement agreements. Our advice is practical and we always focus on our clients’ business interests and success.
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