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Bullied employee loses claim for unfair dismissal

The recent failure of an appeal by a bullied employee against a ruling that she was fairly dismissed raises some salient points about how allegations of bullying should be dealt with by employers.

In the case of Simmonds v Salisbury NHS Foundation Trust, the Court of Appeal upheld the employment tribunal’s ruling that the employer had acted reasonably when dismissing an employee who had been bullied at work by a colleague. The court took into consideration the fact that the colleague accused of bullying had been disciplined for misconduct.

Overview

Louise Simmonds joined Salisbury NHS Foundation Trust in 2007 as a trainee medical photographer. Early the following year the relationship between her and her senior colleague had broken down and Simmonds accused her colleague of bullying. The employer took steps to physically separate the women in the workplace but two years later Simmonds raised a grievance about the bullying. Disciplinary proceedings were commenced against the colleague accused of bullying. In 2011 Simmonds had a period of sickness absence and was diagnosed with stress and reactive depression consequent upon the bullying and harassment she was experiencing at work. An external investigator’s report followed which found that it was unsustainable to keep the women separated and would have a negative impact on the operation of the department. Mediation between the two parties failed after Simmonds indicated she was not willing to meet her colleague. This led to the Trust giving Simmonds the option to work alongside her colleague, be redeployed to another role or resign. Finally, in August 2012, the Trust wrote to Simmonds to inform her that she was dismissed as a result of the irretrievable breakdown in working relationships. At tribunal, Simmonds brought claims for unfair dismissal, disability discrimination and failure to make reasonable adjustments.

Ruling

The employment tribunal dismissed Simmonds’ claims. Her depression and anxiety were not found to amount to a disability for which the Trust had to make reasonable adjustments. The case was then considered by the EAT which concluded that there were no arguable grounds of appeal.

The next stage was the Court of Appeal, where Simmonds submitted that she was the innocent party and should not have been the one to be dismissed. She also claimed she had not had a fair hearing because she had not been represented by a qualified lawyer. The Court of Appeal dismissed her appeal, making the point that it is the ET’s duty to decide whether the conduct of the employer is reasonable and the EAT’s job to decide whether there are grounds for an appeal. The Court of Appeal found that the ET had been entitled to require medical evidence concerning the disability claim, and the employee had not challenged that evidence. The ET had been justified in finding that she did not suffer from a disability. The Court of Appeal also disregarded the claim that her representative’s inadequacy had resulted in the wrong decision being made by the tribunal.

Learning points for employers

This case is of interest to employers on a number of levels. When there is conflict between two members of staff there is often a dilemma about which employee should be dismissed. Some cases are clear-cut and when the bullying or harassment are severe there is usually grounds for dismissal for gross misconduct. Many cases are not quite so black and white and, whilst the bullying may not be severe enough to result in dismissal, the two colleagues are clearly unable to continue working in the same space. Where an employee accused of bullying makes attempts to salvage the relationship, as happened in this case, employers may be justified in expecting the bullied employee to co-operate, particularly if failing to do so could have a negative impact on the business or service.

Employers should consider each case individually, looking at all options, in particular redeployment and reasonable adjustments.