TSSA Journal November 2009

Snide comments hurt

Q. I won a grievance against my manager for setting unrealistic targets that amounted to bullying. I was moved to another department, which I am quite happy about, but I have overheard my former manager making snide remarks about me to other colleagues, and while each instance seems nothing much it does get wearing after a time.

A. Although the remarks aren’t directly to you, they are made so that you can hear about them. In the case of Green v DB Group Services (UK) Limited, harassment was found to arise from ‘behaviour by colleagues which might seem childish and petty (in isolation) but dealing with it on a daily basis had a cumulative effect’, so I would say this is definitely harassment. You can take out another grievance, and you could also remind your HR department that in England and Wales harassment is a criminal offence, and if they don’t take steps to stop it they could be vicariously liable.

Doctor’s confidentiality

Q. I have been off sick for nearly three months and my company wants my permission to get my medical records from my doctor. I have refused but they say it is in my contract that I have to give permission. I checked my contract and it did say that, but there is a previous illness I really don’t want them to know about.

A. There’s nothing to worry about. They can’t enforce such a clause in your contract, the Data Protection Act 1998 makes it null and void (and I bet they know it). Bear in mind, though, that if you do refuse a company can ‘draw its own conclusions’, so you could give permission for your doctor to discuss your current condition but nothing else. You should also ensure that any report goes directly to their Occupational Health Service, not to your manager or human resources department. The company can then be guided by the OHS report, and your confidentiality should be preserved. Don’t forget also that you have a right to see the OHS report before it is sent, and though you can’t amend it you are allowed to add your own comments.

Time changes

Q. My contract says I work 09.00 to 17.30, with one hour for lunch. Some time ago my manager agreed that I could start at 09.15 after dropping my children off at school, and make it up by taking a shorter lunch break. Now I have a new manager who says I have to be in at 08.45 every day, to attend briefings. Can she change my start time like this?

A. There are two issues here. Firstly, although nothing was put in writing there was an agreed change to your contract to start at 09:15, and so they need your agreement to change back. If they don’t believe it was agreed, ask how come you’ve been allowed to do it for five years. Secondly, even if you did decide to revert to your original nine o’clock start time, she has no right to insist that anybody starts earlier to attend briefings. Stick to your guns and if she keeps trying to make you change take out a grievance.

Compromised?

Q. The company have told me that I am redundant, and that I am only entitled to statutory redundancy pay. They have given me a compromise agreement to sign. What’s my next step?

A. Your next step is to wonder why they’ve offered you a compromise agreement if you are genuinely redundant. A compromise agreement is used to sign away all your legal rights to take them to an employment tribunal, and would be expected in cases where your dismissal is not necessarily fair but they want to pay you off anyway. If your redundancy is genuine they don’t need it, and if it isn’t you want a lot more than the statutory amount before you sign it. Tell them you’ll only sign it if they make you a much better offer. On the general theme of compromise agreements, they are only valid if countersigned by a person qualified to explain to you exactly what it means in respect of you signing away your legal rights. This is usually a solicitor. The employer would be expected to pay the legal fees for this and it is always advisable to get it in writing that they will. We recommend you use those with experience in employment law, such as Morrish and Co.