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Contrasting Tribunal decisions on constructive dismissal and victimisation demonstrate importance of responding to grievance in a professional manner
In two recent cases employees argued that they had been treated so poorly that they were entitled to resign because, they alleged, their employers had not taken their grievances seriously. In one case the employee was successful mainly because the employer had not dealt with the grievance. In the other case the employer successfully defended the claim due to the fact that they had dealt with the grievance.
In the first case, Miss E Wickerson v LCC Support Services Limited: 3329426/2017, the employee was engaged to carry out cleaning at a cement works. She alleged that a man who worked there was harassing her, referred to as Mr X. She complained in writing but her employer failed to initiate its grievance procedure or carry out any investigation. There was an informal agreement that she wouldn’t be left alone with Mr X but the employee complained that this agreement was not being followed.
In response to the employee’s complaint, the employer wrote to her and stated that she had not raised a formal grievance and that there was no evidence that she had been harassed. The employee replied stating that the employer had not listened to her complaints as it was clear that her complaint was about harassment. The employee also asserted that the written complaint that she had raised was a grievance.
The Tribunal made a number of findings but crucially they took the view that the employee’s written complaint was clearly a grievance and that a competent employer would have recognised it as such even though it did not state that it was a formal grievance. They also took the view that there was no basis to the employer’s suggestion that the employee was not complaining about harassment. Taken together with the employer’s failure to continue ensuring that the employee would not have to work alone with Mr X and other lapses the Tribunal took the view that this amounted to a fundamental breach of trust and confidence and thus that the employee was entitled to resign. As such the employee’s claim was successful.
The employee was also successful with a claim for victimisation. The Tribunal believed that the employer was concerned that the employee may bring an Employment Tribunal claim for harassment under the Equality Act. There was evidence that the employee had informed the employer that she was seeking ‘professional advice’. The Tribunal took the view that this was the main reason that the employer was ‘defensive’ about the employee’s claim that she was being harassed. The Tribunal decided that this was a detriment and that it amounted to victimisation. This is a very interesting decision as the employee had not actually brought a claim at this point but it was sufficient for the Tribunal that the employer believed that she might bring a claim.
In the case of Mr P Singh v Metroline West: 3324796/2017 an employee similarly made a complaint that they had been harassed by a colleague. The employer investigated the complaint and the alleged harasser was disciplined. The employee complained to the Tribunal that the way his complaint was dealt with undermined trust and confidence. The Tribunal rejected this complaint in large part because the Respondent had followed a fair and standard procedure in handling the complaint.
The employee in this case had also complained that disciplinary action taken against him in respect of an accident was a breach of trust and confidence. The Tribunal took the view that the warning given did reflect blameworthy conduct on the part of the employee and that the employer had sufficiently investigated the misconduct.
The employee had also triggered the sickness absence policy and again the employer followed its standard procedure. The employee complained that this was victimisation under the Equality Act 2010 due to the earlier complaint of harassment. The Tribunal again accepted that the complaint was a ‘protected act’ but could not find any evidence that the sickness absence policy had been triggered because of the complaint raised.
The above cases highlight the importance of having robust procedures in place for handling grievances and disciplinary processes. Failing to deal with an employee’s complaint could be deemed to undermine trust and confidence but simply listening to the employee and taking appropriate action in response is likely to be sufficient.
These are first instance decisions and thus are not binding on other Employment Tribunals but may be persuasive.
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