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Termination of employment due to bullying

 
Termination of employment due to bullying

Hi I have been a victim of bullying and an assult at a company and have been off for some time because I just couldn't return to the same environment.

I have been to a solicitors and they have negoitated an exit package, but with termination of employment - what does that mean, does it mean i'm being dismissed for being the victim of bullying.

The companies words to me where we can't adapt to your suggestions (because i am willing to work but with changes) because of practical implications. Therefore they are putting practicality before welfare.

What are best ways of making sure the dismissal or terminations does look bad on me and that I left because of bullying.

Thankyou

JACK2009

07/01/2010 13:09:48

You can't - not entirely - and definitely not if your solicitor has done what I think he has done. It sounds like you have a compromise agreement which is a MUTUAL agreement to terminate the contract. You can ask for an agreed reference as part of the package, but there are certain limitations on a compromise agreement which means that you will not get what you want. They always contain a confidentiality clause - this means that neither you nor your employer will ever say ANYTHING other than the fact that you left by mutual agreement and that a compromise agreement is in place which prevents you saying anything else. If you do say anything else, you will breach the agreement and will be required to repay any financial settlement - and can be sued if you refuse.

The compromise agreement constitutes a full and final agreement of all matters between you and the employer - there are no half-way houses and you will not be able to say that bullying allegedly happened.

shikahra

07/01/2010 13:23:40

Shikahra:

"You can ask for an agreed reference as part of the package, but there are certain limitations on a compromise agreement which means that you will not get what you want. "

I guess it depends on what he/she wants. It may well fall within the limitations mentioned.

Can you please explain or refer to any information about those limitations BTW?

Lolas Cat

07/01/2010 16:40:28

I do not respond to posts from Lola's Cat due to her continuing bullying, harassment and abuse on this site. If Jack 2009 wants further information, please ask and it will be answered.

shikahra

07/01/2010 17:33:06

Thanks for your reply

I believe it too could be a compromise agreement but the upsetting part is that I was the victim of bullying, tolerated it up to a collapse. The other person was given a final warning and i returned to the same environment of harassment.

I went to a solicitors because the company failed to monitor the situation and kept dismissing my grievance claims even though there was evidence to show it. I just couldn't go back to the same environment and they are making it look like i am refusing to work. That is defently not the case, i want to work but with changes for safety.

What do you think they are trying to do

What do you think there grounds for a termination of employment is

Is there anything else you suggest I should do to just a settlement, but leave my prospects open. I am deeply upset that it has turned out like this when i was the victim but they kept the bully on

Thankyou very much

JACK2009

07/01/2010 23:40:06

I am very sorry, but the reality is that this is a MUTUAL agreement to terminate employment - in other words it has to be what you both want. The entire purpose of a compromise is that you admit no fault and neither does the employer - they have no regard for your feelings or for justice, or anuthing else. The motivation is hard to guess, but in the end it clearly comes down to one thing - they want the person you accused of bullying more than they want you. They had every opportunity to dismiss and did not do so. Their choice is therefore made. If you want to hold out for "justice" - or whatever serves for that, which isn't actually much - then you must either resign and claim constructive dismissal (your chances of winning will be very slim), wait until the sack you (and they may be able to do this entirely fairly in law giving you no case), or take civil proceedings for damages (which I can't advise you on because it isn't employment law) but which carries an equally large risk that you will loose - the rules of evidence and proof of liability are greater in civil proceedings. It has been done. But it's rare.

But if you agree to this then all allegations and all paste events are buried, and you have no option but to move on. Speaking personally, if the deal is good enough and includes a good reference, for your own sake I would recommend taking it. I cannot assess how good your case might be, but I do know that bullying cases are always hard and if you are forced into constructive dismissal etc you are adding to the risk that you will come away with nothing. Added to which you will have months and possibly more of stress and fighting to deal with. I don't think it is worth damging your health further. But the choice has to be yours.

shikahra

08/01/2010 06:30:34

I am very sorry, but the reality is that this is a MUTUAL agreement to terminate employment - in other words it has to be what you both want. The entire purpose of a compromise is that you admit no fault and neither does the employer - they have no regard for your feelings or for justice, or anuthing else. The motivation is hard to guess, but in the end it clearly comes down to one thing - they want the person you accused of bullying more than they want you. They had every opportunity to dismiss and did not do so. Their choice is therefore made. If you want to hold out for "justice" - or whatever serves for that, which isn't actually much - then you must either resign and claim constructive dismissal (your chances of winning will be very slim), wait until the sack you (and they may be able to do this entirely fairly in law giving you no case), or take civil proceedings for damages (which I can't advise you on because it isn't employment law) but which carries an equally large risk that you will loose - the rules of evidence and proof of liability are greater in civil proceedings. It has been done. But it's rare.

But if you agree to this then all allegations and all paste events are buried, and you have no option but to move on. Speaking personally, if the deal is good enough and includes a good reference, for your own sake I would recommend taking it. I cannot assess how good your case might be, but I do know that bullying cases are always hard and if you are forced into constructive dismissal etc you are adding to the risk that you will come away with nothing. Added to which you will have months and possibly more of stress and fighting to deal with. I don't think it is worth damging your health further. But the choice has to be yours.

shikahra

08/01/2010 06:30:45

Thank you very much for your reply it's been very helpful.

I think a compromise agreement with a good reference is the way forward; it don't partically want it to go to a tribunal mainly because of months of waiting and the possibility of nothing.

Is it ok to go through with my solicator the terms of the agreement before signing, what kinds of conditions are they likely to impose.

Yes, justice is deep in my mind because I have been an innocent victim and now you point it out you probably do require him more than me. The one thing that really hurts as well is he is meant to be retiring very soon and it looks like the company have got someone else in to do both our jobs.

In terms of evidence, I have numerous references from employee there that have witnessed it and have told management but they have become abusive with them and even started to shadow them out. Management have said to me that they investigatied it, but many people who were ment to have been asked, weren't.

Thanks very much and a happy new year.

JACK2009

08/01/2010 10:57:42

It is a legal requirement that your solictor must not only go through all the terms and the implications of the agreement you are signing, and must sign to say they have done so. So it's more than OK!

Yes, I understand exactly what you are saying. It is one of the things that makes these cases so difficult. Whatever witnesses may have been, there are seldom any by the time it gets to a hearing, for one reason or another - and not always due to anything the employer has done. People can also be very unwilling to get involved even when employers encourage them to do so. So many people think that their word, sicknotes for stress (which is what they usually say) etc will prove something. None of this proves anything I'm afraid. They are the sort of cases I hate becasue there is seldom any justice - whether the allegations are true or not (becasue people get accused of bullying when they haven't too, and that is just as bad). In most cases it comes down to whether your face fits as to the outcome, and you did remarkably well to get anything done at all.

shikahra

08/01/2010 15:42:18

This post is not entirely correct. If an agreed reference constitutes a part of the compromise agreement, under contract law, breach of that clause is actionable in civil law. It has nothing to do with going to a tribunal since they have nothing to do with enforcing contract law per se. A breach of a compromise agreement is actionable - in civil law. Similarly, if an employee breaches the agreement then they can and may well be sued - in civil law. It has nothing whatsoever to do with a tribunal. And I point out again Joachim - a COT3 and a compromise agreement are not the same thing!

shikahra

10/01/2010 10:34:48

Yes, but what you said wasn't actually true and you must be careful about making blank statements without any legal backing - if you do this in a tribunals you will get called on it and it will be damaging. Making assumptions is not the way to go. You said " if a employee breaches the condition not to talk to anybody it is not likely that a tribunal would order him to pay the money back". In fact it would be impossible for a tribunal to do so - they have no jurisdiction! But a civil court does have jursidiction and they can and DO enforce such contracts. Anyone reading this would assume that if they breach their compromise agreement there is nothing the employer can do about it. That simply isn't true. If compromise agreements could not be enforced, do you really think any employer would ever pay up?

shikahra

10/01/2010 13:50:06

True - as it is of tribunals if one is not careful! But companies (employers) usually do have insurance - and limited liability, and huge bank accounts - so suing an employee wouldn't be much of a barrier! And to be honest, many would. If it became the precedent that your employees could be paid settlements then blatantly disregard the terms of the agreement, well everyone would be wanting one! For an employee the only likley cause for suing is non-payment or failure to abide by the agreed reference - and in both cases the law is relatively straightforward and clear. remember what I said - this is contract law, and this type of law is much more black and white than employment law, since the terms of the contract are clearly stipulated, and one either has evidence of a breach or not.

shikahra

10/01/2010 21:16:03

THANKS

Thanks for all your advice, it been really helpful.

Do I get this right that the company won't have to pay for a settlement/agreement it would come out of there liability insurance.

Therefore what do they lose from paying someone out?.

What about fee's in which they have such as implying a solicitor. In my case they got the solicitors involved and had to get mine after they threatened me. My solicitor said I had a case, he come back with a figure from there side, and now if i accept an agreement I would have my pay out, then deductions from my solicitor and meanwhile they won't have to pay anyone.

thanks once again

JACK2009

11/01/2010 16:51:06

No, it doesn't work quite like that. The company will pay the settlement. If they have legal insurance they may pay or not (there is always an excess and it's quite high on these) the legal fees, depending on whether the insurers consider the claim is valid. In other words, if they are at fault they may not be covered. Assuming they have such insurance. It's not dissimilar to your house or car insurance - if you crash your car becasue the brakes failed you get paid out - if the insurers discover that the garage told you last week that the brakes were failing and needed replacement, and you ignored that, then you can sing for your money!

shikahra

11/01/2010 16:57:33

Can I be Dismissed without Company adhering to it's Employment contract/it's own policies?

Hi, I started work for a company beginning August 09, after 2 interviews was offers the position of showroom manager & sent a letter confiming this, salary etc & that same letter being the Contract of Employment. There were no clauses in the contract with regard to any trial/probationary period. However, in October without any prior warnings, written or verbally was asked to go upstairs to the accountants office, wasn't asked if I wanted anyone else present. the accountant the proceeded to effectively dismiss me, when asked for reasons (as none were obvious) he said 'sales targets not being met & time for a change' whatever that meant. Now, when i first started i was 'on the road' with salesmen to get some product knowledge so i wasn't really responible for targets until a few weeks prior to being dismissed - we have access to the other showrooms figures and consistently no others met targets all of the time & i had counted that my branch had only met target around 12/14 times that year from january anyway! So i don't believe it to be the case, if so shouldn't they had given me some documented targets and made an issue about targets on proccess to sacking me?

I received a letter from them after chasing it for nearly 3 months & noe the letter says on the grounds of unsuitability, nothing like the reasons given on the day. it is written as being by the managing director but there was no 'further to our discussion' and he definately was not present at the time.

Their policies handbook states the steps the company would take in the process of dismissal & none have been met. Are they in breach of my contract of employment, do i have any grounds to raise a complaint etc?

many thanks - andy

andyupnorth

12/01/2010 14:07:29