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E Palmer
Member - 14 posts
I have an interesting and complex query regarding duty of care . The employee has been off sick with work related stress. she was off in 2004 for two months and contacted her manager via email and letters on several occasions stating the cause, ie pressure to achieve targets and working in some areas as she is mobile,caused the stress. No action was taken by the manager to reduce the stressful situation.No return to work interview was conducted and no plan for return was made by the company Doctor.She returned to work and was ok for 3 years under a different manager. Last July her original manager took responsibility for her again. Withing one week he sent her back to work in the area that caused her original illness. When she advised him that she did not wish to work in the area, he said that he wanted a Doctors letter and if she produced one, she would probably be dismissed as unfit. She went off sick with stress and depression and has been off for 6 months.
This is the problem she raised a grievance against the manager and also stated that he had made general remarks in the past about disliking foreigners and feels that he threatened her job security and is victimising her because of her ethnic origins.
The race incident was in 2003 and obviously over the 3 month deadline. However during her interview the senior manager conducting the interview admitted that the company had failed in relation to duty of care and that we should have created a return to work plan and phased return to work.
This is a long post but my question is are we liable for damages if she decides to leave the company as the senior manager has admitted failure of duty of care?She had evidence to support the fact that she informed us that the job was making her ill and her manager did nothing to help her. Is the race issue relevant after several years as the manager denies saying anything. Other employees were present but have since left the company.
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Angela Ferguson
Member - 12 posts
I'm afraid to say that there is basis for a claim here. This individual done everything she could to advise the employer of the situation and the causes of her being off with stress and did maintain regular contact, The opportunity was there to resolve it and it does seem like it was briefly when she was moved to the other manager but then returned to the original manager who seemed to have been the catalyst for the problem. You also mentioned that the person was victimised by the manager because of her ethnic origin.
Harassment may be defined as conduct that is unwanted and offensive and which affects the dignity of a person.
Businesses may be held liable for bullying or harassment by their employees in the course of their work, the House of Lords ruled.
Harassment is often related to abuse of power and is defined as discriminatory treatment of a person based on specific characteristics such as sex, race, disability, sexuality, age or class.
The Race Relations Act and the Sex Discrimination Act state that "Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval." In the Court of Appeal in Jones v. Tower Boot Company Limited, it was determined that employers may be held liable for sexual or racial harassment in a wide variety of situations.
You also mention 3 months - this no longer applies the time-limit for bringing an action under the 1997 Act is six years, as opposed to the time-limit of three months for an anti-discrimination claim under the employment legislation.
At this moment in time I would seek professional advise and review all company policies relating to conduct at work and send your managers for training as well as implement a good return to work policy via an Occupational Health provider.
I hope this helps.
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Jenny B
Member - 11 posts
There are a number of issues here.
You say that you did nothing to reduce her stress but that she worked under a different manager for 3 years. How soon after her return did she change managers? That could be seen as the company trying to reduce the stress as she did not take any time off while under that person.
From the way you write it I would say that the race issue is something she is trying to add in to strengthen the number of things she can claim for. The more claims she can put to a tribunal the more likely she is to win at least one (that seems to be the train of thought of many tribunal entries these days). I doubt that anyone would follow that claim through unless she has some more recent examples to show it is ongoing. I also suspect that if you find a suitable solution to her returning to work then she may well drop this issue.
How recently did she raise her grievance and has this been fully investigated by the company and a letter sent out to her to let her know that you are looking in to it, take grievances seriously etc.?
You have an issue in that the senior manager has admitted a failure of duty of care. I'm guessing this has also been documented. The thing you have on your side is that the incident being referred to was 3 years ago. Yes, this shows that she has a history but it also shows a lengthy time in between her time off where she has been fine for 3 years. She was not off for a substantial time last time so you could argue that she didn’t need a structured return to work on that occasion, although this all depends on when you would normally put this in place ie. after 3 or 6 months.
She was fine for 3 years before working back in the original area for 1 week. What is the area and can it cause this high amount of extra stress in just a week? Has she avoided the area completely for 3 years until the week before she went off? If so, this again could be seen as you helping her when she returned to work last time.
Have you requested a report from her doctor as to the cause of her stress and depression and his estimate of when/if she'll be fit to return to work? (You'll need to get her permission to approach her doctor and the report will generally cost around £40.) Have you arranged for her to see your company Doctor/an Occupational Health provider for an independent assessment (provider arranged by you and not her which can be useful if you want a second opinion)?
If you want her to return to work then I suggest asking the doctor for a report and/or sending her for an OH assessment then suggesting a structured return to work on this occasion, if the report shows she will be fit to return to work. This may include a staggered return on part time hours, gradually building the hours back up.
If you don't want her to return to work then I would suggest negotiating a compromise agreement with her that effectively pays her off while also making her sign a lengthy document agreeing that, in return for the payment, she will not put in any claims against the company.
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E Palmer
Member - 14 posts
Thanks for the advice. The period of 3 years between illness,when she was ok, was not without problems as she was disciplined for an incident in November2006. Where she falsly adjusted her performance figures to achieve her targets.
In mitigation she siad that due to her illness, ( stress and depression) she had felt unable to cope and that was the reason for the offence. She was disciplined but the manager did not dismiss her . (This was the manager that did not send her to the previous area to work). During the disciplinary interview she also stated that due to the companies excessive pressure to achieve targets, she had felt so unwell that she lost several thousand pound on a busines scheme. She claims that she felt unable to continue in our employment as the job was making her so ill but subsequently had to continue as she had no other means of income and no savings.
She only received a years written warning plus demotion. However the regional manager subjected her to lose 5 days pay,(she actually had to work 5 days overtime without pay) and threatened her that if she objected she would be dismissed.
She later, August.2007 worked under the original manager again who immediately sent her to the area that made her ill, within the first week of his management of her and threatened to dismiss her if she refused. She lasted 6 weeks and then went off sick again.
The grievences were for bullying and harassment. The first that she was forced to work unpaid and that she was bullied, because she could not appeal against the disciplinary without being dismissed. She also advised the regional manager that she was a carer for her elderly parents and that she was unable to work at weekends due to her obligations. He refused to accept this fact and made her work.
The second grievance was that the local manager threatened her job security when she advised him, that the pressure to achieve the companies targets and working in certain areas made her ill. When she phoned him, to advise him she was going to be off sick, he again threatened her again and said that she had failed to fulfill her contract and also said she would suffer the consequences when she returned to work. I believe that this is why she has remained off work.
A very complex case, probably the best outcome would be to pay her off as if she returns to work, we may have a problem in the future. The employeee has 26 years service. without any blemishes on her character until 2004.
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Anne McAllister
Member - 124 posts
Id be sending your managers on training courses on Bullying, Sickness and abscence monitoring, DDA RDA SDA and maybe an inservice "seminar" on how to treat people with dignity and respect/
Would it not be cheaper and more effective to get rid of the manager?
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James Fairchild
Member - 257 posts
Wasn't there a case recently that said that (in certain circumstances) issues such as the race issue in 2003 you mentioned were not just to be looked at as several discrete issues, but collectively as one ongoing issue of discrimination?
E Palmer, what do you want to do with this employee? Do you see any prospect of a return to work (and if so, can your company do this in such a way as to keep him/her working productively and usefully, yet still happy?) or are you focussing on damage limitation/trying to avoid the tribunal? If the latter, then a compromise agreement is surely the best thing to do?
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