Bujon - Employment Tribunal Help Please

[Bujon]

Re: Assistance advice required on an unusal set of circumstances

OK great thanks, didn't want to go barking down the wrong avenue. I'll merely present the 'duty of care' breach. I was hopeful that by presenting the employment status of X, would insinuate a 'beyond control', and therefore a knock on effect of little 'duty of care' to me.

[Amethyst]

Re: Assistance advice required on an unusal set of circumstances

That sounds about right, the company may have been poorly advised throughout. Can't pass any comment on the rest of your case (but sounds like you have covered everything) however the question was about the line manager and the answer is his employment status is irrelevant.

[Bujon]

Re: Assistance advice required on an unusal set of circumstances

I had previously resigned in late 2014 due to a final straw situation, and this was the 1 of 5 incidents. My employers held a meeting and X was present and off the back of that I retracted the resignation based on opportunity. Since then the further 4 incidents have all been documented, with responses from employer at each occasion that I should speak with X as they were my direct line manager!!! The fact they use an outsourced HR company, means responses like that were wholly inadequate, and funnily enough the same HR company are providing litigation services in this case.

[judgemental24]

Re: Assistance advice required on an unusal set of circumstances

Amethyst is correct

Line managers are also employees of the company

The statutory duty is always on the employer, never the employee, no matter what the position of the manager is within the company

[stevemLS]

Re: Assistance advice required on an unusal set of circumstances

Just as any financial involvement between companies A&B is immaterial, so is X's employment status, in my view.

Your claim arises out of your treatment by X and [MENTION=52714]Tea[/MENTION]yboy2 correctly analyzed what flows from that in post #10.

That is what you need to focus on rather than allow yourself to be diverted by non-issues.

[Amethyst]

Re: Assistance advice required on an unusal set of circumstances

If he acted as your line manager it doesn't matter who he was employed by - your employer is responsible for a duty of care to you, they put you in the situation where X acted as your line manager, therefore it is their responsibility.

Presumably btw the other 4 occasions were reported / dealt with ( or not as the case may be ) as you went along before last straw ?

[Bujon]

Re: Assistance advice required on an unusal set of circumstances

Is there anyway in which my ex employer could argue that X was my line manager regardless of which company they are an employee of?Also could I insist on receiving the employment status of X in relation to company B, I did request this during grievance proceedings but it was denied as a matter of confidentiality.

[teaboy2]

Re: Assistance advice required on an unusal set of circumstances

Don;t forget that duty of care is also an implied contractual term of all employment contracts - So is mutual trust and confidentiality. You could claim in your constructive dismissal case that the employers failure to protect you from bullying and harassment not only put them in breach of their contract duty of care (as supported by section 2 of the Health and Safety at Work act 1974) but as a result of said breach they also breached the contractual terms of mutual trust, as you had placed your trust in the employer that you would be protected from any bullying or harassment, and clearly that was not the case and therefore your trust was broken and in doing so the employer breached the implied term of mutual trust leading to a serious break down in relations as well as being a serious breach of contract!

[Bujon]

Re: Assistance advice required on an unusal set of circumstances

X is the FD for Company A & Company B, although only an employee of company A (I worked for company B). The owners of company A have heavily invested in company B, and with that, X has involvement in both. I think in an ideal world and with hindsight, company B would have preferred me to be employed by company A and then that whole financial department could be treated as outsourced, however my contract was with company B.Company A is notorious for bad man management, to which X is one of the main perpetrators. That aside, I still feel that company B in this instance couldn't 'really' protect me in these circumstances.....My claim is for breach of contract due to implied terms for the initial bullying and a final straw scenario, and then a further breach of trust and confidence based on the investigations of the grievance procedure coupled with the 'duty of care' angle as possible explanation for this.

[judgemental24]

Re: Assistance advice required on an unusal set of circumstances

Section 2(1) Health and Safety at Work Act 1974 can be used in your case

(1)It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees

You then use Regulation 3 Management of Health and Safety at Work Regulations 1999 in identifying the failings of the employer.
Risk assessment

3.—(1) every employer shall make a suitable and sufficient assessment of—
(a) The risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) The risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

[judgemental24]

Re: Assistance advice required on an unusal set of circumstances

Just shooting from the hip on this one as to duty of care.
Did you state any Statutory duty in your complaint/ Grievance when identifying the failings of the employer??

[teaboy2]

Re: Assistance advice required on an unusal set of circumstances

Your argument was that the employer breached their duty of care towards you by not protecting you from being bullied and harassed. The fact the person responsible was an FD of another company is irrelevant as he was clearly on your employer premises, clearly operating under your employers control (i.e. like if on a secondment from his employer to work for your employer) therefore the employer has overall liability of any person representing their interests on the shop floor, regardless as to in what capacity. Your employer should have taken the matter up with the perpetrators employer also, and made reasonable adjustments to limit the contact you had with the person bullying and harassing you!

Can you be a bit more precise as to the connection between his employer and yours, and why he was working as your manager if he was not on a secondment?

[Bujon]

Re: Assistance advice required on an unusal set of circumstances

....and the go advance option doesn't work for some reason, apologies on the poor/complete lack of paragraphing!

[Bujon]

Re: Assistance advice required on an unusal set of circumstances

I went the whole internal grievance route, and was signed off on sick with WRS immediately after the final straw incident.

1 of 5 incidents to which I have good evidence based on balance of probabilities, plus a witness statement from an ex employee who also left due to bullying by the perpetrator (a witness happy to testify at the hearing).

The grievance was not upheld, so I appealed, which was also not upheld, leaving me no choice but to constructively dismiss myself.

The company have followed procedures in the sense of A to B to C to D etc (and feel this is enough) but clearly had no intention of ever upholding my grievance which is evident in the language and correspondence issued to me at each stage of the process, along with off point investigations and responses.

[Amethyst]

Re: Assistance advice required on an unusal set of circumstances

Your claim is for constructive dismissal, due to the failure of your employer to operate a duty of care towards you over bullying/harassment against you by a third party who acted as your manager.

Could you give a bit more background on steps you took prior to your resignation to bring this to your employers attention and any steps they took to assist you?