Bullying boss - constructive dismissal? Debate???

[jojeba]

I'll keep this short and to the main points.

My boss has spent the past year undermining me and criticizing me, claiming I make mistakes but unable to give me examples when I ask for them. For the first year in this role I had no support network, no leader in my department - the manager role I should have been working under was unfilled for a long time. Hence reporting directly to my boss - a task he resented. His critical behaviour soon lead to anxiety in me and I actually had to see a therapist for a few months to learn how to cope with it.

At my last performance review 7 months ago, my boss told me I was terrible at my job. But the only example he had to back up this line of thought was a simple error I'd missed and not rectified - which yes, was my fault, but he missed it too and the buck was technically meant to stop with him. However, I accepted the responsibility for that mistake. But it was absolutely not enough to deem me incapable of doing my job and in fact I worked very hard in a stressful and unsupported role. In that performance review he even told me I should rethink my career. He made me cry - something I would never normally do in the workplace. I reminded him this meeting was to set objectives but instead he used it to attack me. I went to HR about it and they had a word to him but that was it.

Three months ago he filled the long-empty managerial role and that person took over as my line manager. They have been supportive and undone a lot of the damage my boss has done; they also pointed out to my boss that it was amazing how much I did, especially considering I had no support and how could he not see that? She has been great and was the reason I didn't quit my job. She saw I was about to walk out because of my boss and convinced me to stay.

This week we've received our performance bonuses. We're a very small team and we're all friends, so people talked, and I now know I got exactly half the bonus everyone else got. My colleagues said it didn't make any sense because I worked as hard as anybody! And, considering I had never been set any measurable objectives, how could anyone claim I had not met my targets? I had no targets! But I had done my job to the best of my ability and fulfilled my role.

Do I have any leg to stand on here if I quit because of the treatment of this boss? Or is there any other route I can take? I'd appreciate any advice.

[teaboy2]

Re: Bullying boss - constructive dismissal?

Quiting and then claiming constructive dismissal is not the correct way to go about this. Not only that constructive dismissal claims are very difficult to win and the majority fail.

Your first port of call, would be to issue a grievance regarding you only getting half the bonus that others had received. Pointing out that you believe this is connected to your boss past treatment of you and your complaint to HR about said treatment and therefore you believe you are being victimised and clearly treated less favorably when it came to the bonuses as a result of asserting your statutory right to not be bullied at work.

Then simply allow HR to follow their grievance procedure and see what the outcome is and get back to up date us either way.

[krypton]

Re: Bullying boss - constructive dismissal?

Unfortunately, your scenario is not that uncommon. It sounds like your relationship with your boss is not great and this can be difficult to resolve.

Over 90% of constructive dismissal claims are unsuccessful so this would not be the recommended course of action.

You can do a grievance via HR. It's something you may have to do but it's not something you would normally want to do. It may have the effect of antagonising the longer term relationship with your boss even further.

Speaking to colleagues to discuss your bonuses would also be called hearsay. Whilst they maybe speaking to you in confidence now, it is unlikely they will collaborate to provide anything considered as evidence.

It sounds like your boss doesn't get on with you for whatever reason. Unless this gets resolved the relationship will likely deteriorate and result in further anxiety and stress for you. It may well be because your boss wants to try get rid of you or just doesn't like you. I suspect your colleagues know what he is doing.

It can be a horrible and depressing situation when this happens at work. Unfortunately it just comes down to human behaviour where two people just don't get on for whatever reasons.

It maybe better that you grin and bear it for the time being, plan an exit strategy and start looking for another job.

[teaboy2]

Re: Bullying boss - constructive dismissal?

Speaking to colleagues to discuss your bonuses would also be called hearsay. Whilst they maybe speaking to you in confidence now, it is unlikely they will collaborate to provide anything considered as evidence.

Whilst your correct in it being hearsay at the moment, and spoken about in confidence. The burden of proof is mostly on the employer to prove they have not treated the OP less favorably, as the OP merely has to provide the facts they have at tribunal in discrimination cases, and then the burden passes to the employer to prove they had not discriminated against the OP (Victimisation is form of discrimination). Very hard to for them to prove otherwise when paye records would support the OP's claims. The OP already has supporting evidence in past formal or informal grievance raised against their boss with HR.

Plus you'd be surprised how many employee's are willing to help colleagues that are being treated wrongly by the employer. Not to mention the fact it would be unlawful for the employer to take any action against any employee that does give a statement or provide copies of their wage slips for use in formal grievance procedure by the employee that issued the grievance. As any action taken against them would also be victimisation, or if dismissed for it, unfair dismissal.

Its sounds to me in the OP first post, from the statement they made about going to the HR previously who subsequently had a word with the OP's boss, that HR are more that willing to stand up to the boss! Plus the Grievance procedure would have to be carried out fully, that means a full and unbiased investigation and that would mean comparing the OP's bonus pay to that what everyone else received along with the OP's performance and targets hit etc.

So its not a case of the OP having to prove what they claim, but merely give the facts, such as a simple written transcript of a verbal conversation with their colleagues about the issue. The burden then switches on the employer to prove they did not discriminate, and the employment tribunals will want to see their payee records and would be skeptical if they failed or refused to disclose them!

[Simon72]

Re: Bullying boss - constructive dismissal?

jojeba, I have encountered this twice and if the other person will not change their behaviour get out is my short answer.

My first experience was in a role over 3 years, the first 2 of which went really well. My boss was also the owner/MD and asked me to try to get money from our bank dishonestly. I won't go into details but I refused and we fell out, he was from that point on a very difficult person to deal with calling me a loser because I either couldn't or wouldn't get him the result he wanted from banks and insurance companies(we were a small business struggling to make ends meet) . He basically fabricated a case for dismissal against me, and as I knew I couldn't work with him any longer I took a compromise and left. He refused to pay me my notice up front despite me using a solicitor (who said he'd never encountered anybody so unreasonable), then stiffed me by deducting £500 from my final payment. This was all driven by his "winner" attitude that if he didn't get what he wanted then he'd lost, but it couldn't be his fault he had to have someone to blame.

My second experience was not my direct boss, but my boss' boss. I joined as a contractor because the previous employee had decided to move to another role in this very large and well known business, it later emerged that this guy was the reason and he had screamed in her face and called a f***ing idiot in the middle of the office. They did not get any other applicants internally because of the reputation of this man, I know this because when the role moved to the new site there were 3 employees travelling 30 miles to work but lived within 5 miles of the new site and having spoken to them they confirmed they did not apply because of the reputation of this man (I just asked why they didn't apply for the role as it was still being advertised as perm without prompting about my own experiences). He seemed ok at first, but alarm bells started ringing when he would sit us in meeting rooms and explain how he was a great manager not just a good manager...he was also very good at talking down to me, accused me of mistakes that he'd actually made in spreadsheets without apologising, said hello to everybody by name and deliberately walked past me...anyway long story short I left after 5 months after finding a new role. My immediate boss actually apologised for not stepping in and helping me deal with it when I left, I also spoke to the HR reps informally to discuss my experiences and made an informal complaint. I'm not sure how that went because I've not had any contact from them since leaving.

My point is you cannot change the other person, if someone in a more senior position than you has taken a dislike or formed an opinion of you and then using that to make your life miserable then consider walking. HR have an impossible task because they have to protect the rights of the accused as well as the accuser, and frankly most HR bods just want to do recruitment and workshops.

My road to happiness is to fight the battles I want to win, if the job is so wonderful you can't imagine your life without it then fight for it. If it's not find one that is and move on it will be cheaper and far less stressful.

You may well be feeling like a victim because of the situation you are in, that was the hardest part for me because I was itching to knock both of these idiots out, but that's not the answer and would have destroyed my career. I'm in a much better place now and though I occasionally think I should have fought harder I don't regret moving on, in fact I have moved on to better roles.

Not exactly legal advice but hopefully some reassurance you're not alone. All the best and be happy.

[krypton]

Re: Bullying boss - constructive dismissal?

Its sounds to me in the OP first post, from the statement they made about going to the HR previously who subsequently had a word with the OP's boss, that HR are more that willing to stand up to the boss! Plus the Grievance procedure would have to be carried out fully, that means a full and unbiased investigation and that would mean comparing the OP's bonus pay to that what everyone else received along with the OP's performance and targets hit etc.

It's a Utopian situation and belief that HR would side with the employee over their employer. In reality it would be even less likely to if his boss is in a senior position. HR will ultimately have to try protect the company position.

They would of course investigate the grievance in what would probably be a tick box exercise.

A grievance would antagonise the boss even more and they would likely use their power to make the OP's life hell. It's easily done in very subtle ways. these can be very hard to conclusively prove even though everyone knows what is going on.

Other employees also tend to listen and verbally sympathise. If push came to shove they tend never to risk their own jobs. It's made far more worse if its a small knit team as it's only human nature to stay out of it.

[krypton]

Re: Bullying boss - constructive dismissal?

My point is you cannot change the other person, if someone in a more senior position than you has taken a dislike or formed an opinion of you and then using that to make your life miserable then consider walking. HR have an impossible task because they have to protect the rights of the accused as well as the accuser, and frankly most HR bods just want to do recruitment and workshops.

Firstly sorry to hear you've had similar problems in the past. It's never nice bit unfortunately as you know from experience it's not all too uncommon.

Your advice is pretty much spot on. The relationship between the OP and the boss is not great. If it continues down this path it would soon become untenable.

They can file a grievance but unless it completely rectifies the situation (or remotely stands a chance) it will likely make the matter far worse in the long run. Most HR personnel simply do not want to get involved with this side of things as it makes their day job difficult. Anything removed from recording vacations, absences, payroll, recruitment and training workshops is more than uncomfortably challenging for HR.

In practical terms the OP should be considering cutting their losses and moving on from this job rather rapidly.

[teaboy2]

Re: Bullying boss - constructive dismissal?

It's a Utopian situation and belief that HR would side with the employee over their employer. In reality it would be even less likely to if his boss is in a senior position. HR will ultimately have to try protect the company position.

They would of course investigate the grievance in what would probably be a tick box exercise.

A grievance would antagonise the boss even more and they would likely use their power to make the OP's life hell. It's easily done in very subtle ways. these can be very hard to conclusively prove even though everyone knows what is going on.

Other employees also tend to listen and verbally sympathise. If push came to shove they tend never to risk their own jobs. It's made far more worse if its a small knit team as it's only human nature to stay out of it.

Opinions are one thing, but opinions and assumptions on what may be the outcome or not do not help people in need of advice. Yes its 50/50 how things will turn out, but ultimately if the OP has a case, the odds are vastly improved in their favor. Employees also hold grudges and some would very much like to get one back at a boss for whatever reason, so they'd gladly provide a wage slip to the OP. Plus, as stated, you can not dismiss an employee for providing evidence to another employee as part of a grievance as that would be victimisation and unfair dismissal. Anyway as i said, its for the employer to prove the OP's claims here are false, all the OP has to do is give the facts as to what she has been told by others and what they got paid, just like she has here - Should it go as far as tribunal, which i doubt it will.

HR job is to protect the company, true. But that means its their job to prevent the company being taken to tribunal in cases where they will likely loose, regardless as to how higher the position held by the person the grievance is made against! End of the day, vast majority of grievances are made against the company as a whole or against persons of higher positions than the employee issuing the grievance!

If we all just cut and ran instead of standing up for our rights and for fair treatment, we'd loose those rights!

[Kati]

Re: Bullying boss - constructive dismissal?

I think that we need more information from the OP in order to give any further advice ... without knowing all the facts, everything is based on speculation.
Keep it civil gents

[teaboy2]

Re: Bullying boss - constructive dismissal?

It is the actions of the employer that making the OP ill (if it has effected their mental well being). Issuing a formal grievance will put a stop to that, if not then is the time to think about leaving and making a claim at tribunal. Not for constructive dismissal, but for victimisation and bullying, plus breach of contract under implied term of duty of care, which itself actually does support grounds for a constructive dismissal claim, though its best to make such claim along with a claim under victimisation and bullying due to the high likeliness of success!

Where exactly does the OP state their health is suffering? All they stated is they were upset by the way the boss spoke and acted towards them, and that their position they worked in the company is a stressful one. Nothing about the OP actually suffering from stress or it making them feel ill. Lots of positions in employment carry certain levels of stress with them, everyone suffers stress at work at some point. So i think you have jumped the gun in your assertion that it may already have made the OP ill, when they have not actually stated that themselves and merely generalised about the stress that comes with the position in any case.

If it is making them ill, then the OP can be signed off by the doctor whilst the grievance procedure is dealt with, due to the risk of further stress being at work during the procedure may cause.

But as i said, its is ultimately the OP's decision, but its better to give her advised based on what rights or action she has and can take to try put a stop to her bosses actions and get his/her bonus that they should have been paid originally.

[krypton]

Re: Bullying boss - constructive dismissal?

His critical behaviour soon lead to anxiety in me and I actually had to see a therapist for a few months to learn how to cope with it.

teaboy2, I really think you need to read more carefully. Your assertions appear to be shooting from the hip and it clear the OP has been suffering as well as sought help.

The OP's post makes perfect sense and is not that uncommon a situation. The boss doesn't seem to like them and the relationship has fallen down.

If you're of the opinion that a grievance will sort it out, good for you. The OP has already approached HR who have had a word with the boss already. Nothing has come of it.

Why you think informing HR and them talking to the boss is anyway 'informal' does not comprehend let alone make sense.

The OP is ready to walk which common sense indicates an untenable relationship exists. They can therefore walk and file for constructive dismissal but that would be hard to win. They can file a grievance to follow up with HR but they have already seen it having little to no effect. They can continue to suffer anxiety at the risk of stress and clinical depression.

Indeed it's not that uncommon a situation and where many people can't see it going anywhere they can simply go sick on long term stress. The respite allows evaluation time for an exit strategy.

Its common sense and a far, far more productive approach to look for another job and work for a more appreciative boss rather than engage in a deteriorating relationship with someone who thinks very little of you.

[stevemLS]

Re: Bullying boss - constructive dismissal?

That seems a very measured approach to me Krypton.

I am sure teaboy won't mind me mentioning that he and I have had a few differences with my thinking he sees things as far too black and white.

For example, I don't believe there is an implied contractual duty of care. A duty of care is a far more common concept in tort in this context. For sure an employer does owe their employees a duty of care but it is not absolute. The remedy for breach, in my view, would be an action in negligence rather than breach of contract.

Victimisation as a form of discrimination is also new to me. I may well be wrong but my understanding was that discrimination was only a valid cause of action when pleaded in terms of a protected characteristic in the Equality Act 2010. Victimisation for assertion of a statutory right is a cause of action in its own right, not as a sub-set of discrimination.

[teaboy2]

Re: Bullying boss - constructive dismissal?

teaboy2, I really think you need to read more carefully. Your assertions appear to be shooting from the hip and it clear the OP has been suffering as well as sought help. I apologise, but i can not possibly remember every word stated that i last read earlier in the week. That a side, the issue that caused the anxiety has been dealt with informally via HR - As someone that has suffered anxiety issues for ten years, i certainly sympathise with the OP on that, but it doesn't prevent them from taking formal grievance action to get the bonus issue sorted out. The best way to beat anxiety is to face the it head on. So by following you advise, they are not going to beat their condition, anxiety is not caused by the actions of a person, its there deep down in a person already its much more deeper rooted and likely caused by previous childhood experiences such as bullying etc. All the bosses actions did was bring the anxiety to a point where they struggled to cope with it. Prior to that they probably put the symptoms down to nerves or feeling insecure, if they didn't know they were suffering anxiety! You also have the fact the OP stated the new line manager had undone a lot of the damage the boss had done as well!!

The OP's post makes perfect sense and is not that uncommon a situation. The boss doesn't seem to like them and the relationship has fallen down.

In that case you will have noted how the previous issues where dealt with informally via HR, and that the issue the OP was asking for help with was the Bonus issue, the rest was just the back story!

If you're of the opinion that a grievance will sort it out, good for you. The OP has already approached HR who have had a word with the boss already. Nothing has come of it. - The issue the OP wanted help with was the bonus not the previous incidents. not to mention that is clear that the OP only spoke to HR informally and had not made a formal grievance, if they had then the HR wouldn't have just simply had a work with the boss, their would have been a formal process that would have been followed the out come being documented in writing! There is no indication of that. You can not state that my adice to issue a formal grievenace will not be of any benefit on your own believe that nothing will come off it, just because you assume nothing came of the informal word with HR, when the op has not stated or mentioned any further incidence since then with the exception of the bonus issue! So how is quitting going to get the OP the rest of their share of the Bonus? In fact the OP made clear in that the new line manager has done a lot to undone the damage done by the OP's boss so on that basis the only issue is the bonus and your telling them to quit?!! They have no reason to quit!!

Why you think informing HR and them talking to the boss is anyway 'informal' does not comprehend let alone make sense.

Oh for gods sake, REALLY!!!! Because they said "spoke to HR" spoke is to speak, speak is verbal communication. You can only issue formal grievances in writing. You don't "Spoke to" in a written letter, you "write to" - how bloody difficult is that to comprehend of make sense off!!

The OP is ready to walk which common sense indicates an untenable relationship exists. They can therefore walk and file for constructive dismissal but that would be hard to win. They can file a grievance to follow up with HR but they have already seen it has no effect. They can continue to suffer anxiety at the risk of stress and clinical depression.

No they did not state they are ready to walk at all, what they did state was a question though "Do I have any leg to stand on here if I quit because of the treatment of this boss? Or is there any other route I can take? I'd appreciate any advice." they merely implied they were considering quitting but on the basis of taking constructive dismissal claim out, but only if their was no alternative route. Issuing a formal Grievance is the only route they should be taking!!

Indeed it's not that uncommon a situation and where many people can't see it going anywhere they can simply go sick on long term stress. The respite allows evaluation time for an exit strategy.

Its common sense and a far, far more productive approach to look for another job and work for a more appreciative boss rather than engage in a deteriorating relationship with someone who thinks very little of you.

But thats not the issue anymore is it. Its a simple issue of not being paid a bonus equal to the rest of the employees. The rest of the issues regarding the boss and incidents between OP and boss have been put a stop too.

To be honest, advising someone to quit their job to seek alternative employment in cases, other than extreme cases where they are at high risk well being and safety wise, is highly irresponsible, especially when their is a legal and contractual based dispute resolution process, i.e. grievance procedure carried out properly, failure of which is ACAS alternative dispute resolution service and then if that fails there is ET as a last resort. As you simply do not know what the impact quitting will have on their finances or family life! i.e. could they afford to meet mortgage payments and keep up to date on their other financial commitments - Have you even considered that, have they even considered that? Probably not!!

I don't think the OP needs you or anyone else to decide for them as to whether they should quit or not!

That seems a very measured approach to me Krypton.

I am sure teaboy won't mind me mentioning that he and I have had a few differences with my thinking he sees things as far too black and white.

For example, I don't believe there is an implied contractual duty of care. A duty of care is a far more common concept in tort in this context. For sure an employer does owe their employees a duty of care but it is not absolute. The remedy for breach, in my view, would be an action in negligence rather than breach of contract.

Victimisation as a form of discrimination is also new to me. I may well be wrong but my understanding was that discrimination was only a valid cause of action when pleaded in terms of a protected characteristic in the Equality Act 2010. Victimisation for assertion of a statutory right is a cause of action in its own right, not as a sub-set of discrimination.

No one mentioned the equality act 2010 that i can recall!

Firstly - Victimisation occurs when your treated less favorably to other employees, either for asserting your rights or as a result of bullying or harassment. As victimisation is a form of discrimination via bullying/harassment, and it is covered under the equality act 2010 - Basically the OP has carried out a protect act, though informally, by speaking to HR about the Boss harassing and bullying them, every employee has the right to not be harassed or bullied - So sorry but yes it victimisation it is covered under the equality act, section 27 to be precise under certain circumstances (but also under employment rights act)!! Treating one less favourably than an other is a form of discrimination as your discriminating against a person by treating them less favorably than another, whether its lawful or not depends on circumstances and legislation! in fact, complaining about unfair treatment of other issues, insisting on legal rights at work or doing anything that is legal and justified within the law that is followed by unfair treatment can be victimisation. Therefore, treating someone less favorably regardless if its connected to protected characteristics of right to not suffer deteriment, is victimisation - if it is unfair treatment that can not be justified - Its clear the bonus deduction is connected to the bosses past bullying and therefore done out of spite on the sly.

Secondly - All contracts include an implied term as to duty of care, even employees have an obligation to duty of care under contract.

Seriously, learn legislation before saying something is covered by it and learn contract law before stating implied terms of duty of care do not exist - Ohh and it is absolute! if it wasn't there be no health and safety regulations, no employment rights protecting employees from harassment, bullying or other wrong doing!!

[teaboy2]

Re: Bullying boss - constructive dismissal?

double post

[stevemLS]

Re: Bullying boss - constructive dismissal?

OK, once again teaboy and I disagree.

Specifically, s27 of the Equality Act 2010 covers victimisation as a consequence of doing a "protected act", a protected act is bringing proceedings under the Act, giving evidence in proceedings taken under the Act, doing some other thing under the Act or making an allegation that some other person has contravened the Act.

None of which is relevant here.

An employer can treat a person less favourably than another provided it is not on the basis of a "protected characteristic" under the Act and there is nothing in this thread to suggest that this is the case.

Can you cite an authority that makes the duty of care a contractual issue, I am perfectly willing to be corrected but in 25 years I have only ever known it to be the preliminary step in establishing a wrong in tort. Not all duties owed to and by an employer are contractual.