A lot of employment claims feature allegations of bullying and harassment. The terms “bullying” and “harassment” are often used interchangeably to describe behaviour which is intimidating, hostile or humiliating. Quite often with bullying, there will be an abuse of power; either because the bully is in a position of authority or because the bully has personal strength and power to coerce through fear.
Harassment under the Equality Act 2010
You can bring a claim under the Equality Act 2010 if your employer fails to protect you from harassment in the course of your employment. The harassment (by fellow employees, clients or suppliers) must be related to a protected characteristic e.g. age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. If the harassment is not related to one of these protected characteristics, you will need to think about what other employment claims you could bring instead.
Constructive unfair dismissal
There are other claims but the most common employment claim which you would normally bring in response to bullying or harassment is a claim for constructive unfair dismissal. Constructive unfair dismissal is where you allege that your employer’s actions or failure to act have fundamentally breached your contract of employment. You would usually claim that the bullying or harassment (or your employer’s failure to act on it) undermines the implied duty of trust and confidence between you and your employer.
As a result of the breach, you may choose to treat yourself as discharged from working under the contract which essentially means that you must resign from your employment.
To be eligible to bring a constructive unfair dismissal claim, you will need to have two years’ continuous employment prior to the date of termination of employment although there are some exceptions to this.
In addition, there are various matters which you need to establish to succeed in a constructive unfair dismissal claim and, as a result, success in bringing those claims is often not easy.
Raising a grievance
You can raise a grievance against the person who has been carrying out the bullying or harassment. This may resolve the problem so that you feel happy to continue in your job. However, quite often, employees are left unhappy with the outcome of grievances and still want to leave employment.
We find that where you are eligible to bring either a harassment claim under The Equality Act 2010 or a constructive unfair dismissal claim that we can often broker a Settlement Agreement with your employer. We have experience in writing to employers, setting out your claims and inviting your employer to offer a financial package to you. In return for accepting the financial package, your employment will end under a Settlement Agreement and you will give up your employment claims.
Settlement Agreements are legal binding agreements upon which you must receive independent legal advice. The Agreement usually includes a variety of clauses, such as the settlement of claims, confidentiality of the Agreement and the provision of an agreed reference for you.
Signing a Settlement Agreement is often the most satisfactory outcome for both parties as it avoids the need to be involved in Employment Tribunal proceedings which can be time consuming, costly, stressful and unpredictable. Settlement Agreements allow both sides to put matters behind them, with the least amount of angst.
The above is not intended to provide advice.
About the author
Julia Woodhouse is an employment solicitor at Brindley Twist Tafft & James in Coventry. She has specialised in Employment Law since 2000 and is a trusted advisor to both employers and employees.