A case is being brought in France by a former employee of a perfume company, but the reasons for his dismissal may smell a little suspicious. I was invited to comment on the story and its potential implications for the Independent On Line, and expand on those comments here.
Mr Desnard has alleged that he was sidelined from his senior position and given jobs below his level of status and skill. Mr Desnard claims to have suffered as a result of this ‘bore out’, citing health problems including epilepsy, ulcers, sleep problems and serious depression, which ultimately have seen him dismissed from his position.
‘Bore out’ is a term that is unlikely to be familiar to many employers, and to the Employment Tribunal in the UK. That said, a campaign to sideline an employee, to diminish their duties and responsibilities and, in effect, take steps to make their role redundant may lead to a reasonable claim for unfair dismissal. There is an implied term in all employment relationships that any work provided by an employer will be appropriate for the employee, taking into account their role, status and relevant qualifications. In addition, many employees will reasonably expect their career to be supported by their employer and to see some progress as they continue in work, either professionally or in terms of role or responsibility.
Breach of contract?
By treating an employee in a way that breaches a term of the employment contract – whether that is in writing or implied – an employee may seek to claim that they have been forced to resign (constructive dismissal) or, as was the case for Mr Desnard, that their dismissal was unfair. In the present claim, the dismissal is alleged to have been as a result of long-term sickness absence, allegedly caused by the actions of the employer, the breach of contract and duty of care. If an employee or a particular role is no longer required, there may be a genuine redundancy situation and a fair process must be followed. The success or failure of each case will always depend on the specific circumstances.
Employers should be encouraged to support their employees and, where issues of performance or capability arise, these should be addressed as soon as possible. At present, employees can typically be dismissed within two years of commencing employment before they can bring a claim in relation to their dismissal, even if outside of a probation period. There are some exceptions, however, including where mistreatment is a result of discrimination. By having a system of regular appraisals and workplace reviews, where concerns of the employee and the employer can be freely discussed, any issues can be resolved before they become long-term problems. There is a responsibility on employees to raise concerns, either formally or informally, about their work – whether burn out or ‘bore out’.
Presenteeism
Employers have recently reported that employees who are disillusioned with their jobs are also causing a problem in the workplace. ‘Presenteeism’ – where employees turn up for work but don’t really engage with their colleagues or perform to their full potential – may be a growing problem. Lack of direction, reduced opportunities for promotion and a period where pay rises have been minimal or non-existent have impacted on a generation of workers who are not fulfilled in their working lives. The increasing range of distractions, such as Google and social media, means that employees may look busy, but are simply not productive. It is essential for employers to engage with their employees and, where necessary, carefully but effectively monitor productivity where this may be an issue.
If you have any concerns or questions about your employment or your employees, and would like to discuss these, please get in touch.
To find out more about the claim and read my comments, please see the full article at the Independent On Line.
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Kevin Poulter 