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The employment contract
[ch 2: pages 24-25]Employment contracts often contain written contract terms prohibiting bullying, harassment and discrimination, as well as terms requiring employees to comply with codes of conduct or standards of behaviour. In addition, every contract contains important implied contract terms that are likely to be relevant where a member suffers bullying. These include the duties:
• not to breach the duty of mutual trust and confidence;
• not to discriminate or harass;
• to act in good faith;
• not to exercise discretion or power arbitrarily;
• to deal fairly with grievances and complaints; and
• to take reasonable care of workers’ health, including mental health.
The implied duty not to act in a way that destroys or seriously damages mutual trust and confidence is fundamental to all employment contracts. For example, heavy-handed, bullying behaviour by an employer when operating disciplinary procedures can result in a breach of the duty of trust and confidence. Here is a good example:
A practice manager who had worked for 13 years at a dental surgery and had a clean disciplinary record was suspended and summoned to a disciplinary meeting by the new owner of a dental practice to explain why she had failed to record a colleague’s sickness absence properly. There was no investigation meeting. A letter accusing her of “repeated and blatant breach of company rules and procedures” was described by the tribunal as “disproportionate and intimidating”, especially since there were no rules and procedures in place. Her request to be accompanied by the ex-owner of the practice was refused and when he tried to enter the meeting he was physically barred and the meeting aborted. She was threatened that if she failed to attend a rearranged meeting, she would not be paid.
The EAT upheld a tribunal’s conclusion that the employer, through its unjustifiably heavy-handed actions, had fundamentally breached the duty of trust and confidence, entitling the practice manager to resign and claim constructive dismissal.
Leeds Dental Team Limited v Rose [2014] UKEAT/0016/13/DM
A major weakness of the legal protection available in the employment tribunal against workplace bullying is that in most cases, an employee cannot bring a tribunal claim based on bullying while still remaining in their job. Instead, the only option is to first resign and then claim constructive unfair dismissal (see below).
It is possible to bring a claim for bullying linked to discrimination, harassment or victimisation under the EA 10, or for bullying connected to whistleblowing under the Public Interest Disclosure Act 1998, without resigning your job.
The weak legal protection available to the targets of bullying makes it all the more important to think about alternative solutions that enable the member to remain in their job, including third party interventions such as mediation (see Chapter 6).
Some employers have also introduced roles such as fair treatment advisers or bullying and harassment support officers. In an organised workplace, union reps can play a full role in developing and implementing interventions of this kind.
The TUC and Acas have produced joint guidance on workplace mediation, available from the Acas website (www.acas.org.uk/media/pdf/m/7/Acas_TUC_Mediation_Guide_AUGUST_2010_%28Final%29.pdf).
Acas is the TUC’s preferred mediator.