There is a culture of relaxed banter at work, plenty of in-jokes and harmless teasing. Then one of the junior members of staff makes a complaint of sexual harassment and things go awry.
Of course, the practice commences an investigation into the allegations. One of the employees under investigation complains that he is being subjected to a 'witch hunt' and eight months later he resigns prior to any findings, and claims constructive unfair dismissal. Next the employer is hauled off to the employment tribunal.
This was the scenario of a recent case - McNeill v Aberdeen City Council - heard in the employment appeal tribunal. Were the comments harmless jokes or offensive remarks? What can managers do to protect staff and to protect their practice from a tribunal claim?
Duty to investigate
Once an allegation of bullying or harassment has been made, the employer is under a duty to investigate. The investigation is a fact-finding mission and should be carried out without delay by an unconnected (and preferably more senior) person.
In a small practice, that can mean the employer will have to do this or they will have to employ an external consultant.
A threat of 'constructive dismissal' is easily made by a staff member who feels pressured by the investigation, but it has to be followed up by the employee resigning promptly after the events complained of.
The employee would have to show a breach of a contractual term that was fundamental and went to the root of the contract. In today's economic climate, resigning in a fit of temper without a new job is unlikely to be a wise or career enhancing move.
The longer the employee delays before resigning the less likely the tribunal will accept that the employer's action was a fundamental breach.
Importantly, the employee's own behaviour will be considered. In the case discussed, the employment appeal tribunal decided that Mr McNeill had already breached his contract through his intoxication and breaches of confidentiality.
Employers should not be int-imidated by staff who threaten resignation when complaints procedures are implemented.
As long as procedures and investigations are carried out in a fair and thorough manner, with minimum delay, an employer is entitled to robustly manage staff and challenge bullying behaviour. A firm stance on bullying may lead to empty threats of resignation from perpetrators. But it will save the employer from real claims of bullying and harassment from the victims as well as creating a better working environment for all.
- Helen Clark is a solicitor in the employment team at Hempsons, www.hempsons.co.uk