Advocate loses tribunal fight after bullying claim against firm

Wednesday 07 April 2021

A lawyer, who claimed she was bullied out of her job, has lost her claim for constructive unfair dismissal against her former firm on the grounds that the breakdown in trust was not serious enough to be considered damaged beyond repair.

Advocate Estelle Burns took Voisin Law to an Employment Tribunal because, she claimed, she felt bullied on several occasions by a “clique” in her team over a period of nearly four years up to February 2020, when she went on sick leave and then resigned.

She asserted that these incidents – which included “sarcastic and rude” comments about timekeeping, questions about her whereabouts, the moving of her desk away from colleagues in the litigation department, not seating her with colleagues at social functions, and her treatment by HR – collectively constituted a repudiatory breach of the term of trust and confidence by her employer, which Voisin Law denied.

Giving its judgment this week after a three-day hearing in February, the Tribunal said that, in order for the claim to succeed, the damage to the relationship of trust between Advocate Burns and Voisin Law would have had to have been so serious “that the relationship is fundamentally damaged and not able to continue as before”.

Pictured: The case was heard by the Tribunal over three days in February.

This “severe test”, it said, had not been met because Advocate Burns had “done very little to seek to improve her position, or to bring the issues she was experiencing to the attention of the people she worked for.”

However, the Tribunal was critical of Voisin Law’s defence.

The panel, chaired by Deputy Chairman Hannah Westmacott, found that the evidence put forward by the law firm in respect of the alleged issues with Advocate Burns’ timekeeping and whereabouts was “at best, inconclusive”.

The Tribunal concluded: “A full picture had not been put forward and the information appeared to have been ‘cherry picked’. 

“Despite the significant amount of time spent discussing [Advocate Burns’] timekeeping at the Hearing, the Tribunal is in no way persuaded that there were any issues with it, not least because during her employment with [Voisin Law] she never received a complaint from any of the people she worked for regarding her time keeping, the hours that she worked or the amount of work that she did. 

“[Advocate Burns] asserts that [Voisin Law’s] reason for raising allegations against her in the context of this claim was to pressure her into dropping the claim. 

“The Tribunal makes no finding on this either way but in general notes that it takes a very dim view of such an approach.”

The Tribunal was specifically critical of an impromptu meeting on 17 February 2020 between Advocate Burns and members of the HR team, which the former referred as “the last straw”. Soon after, she was signed off work until she resigned with immediate effect on 20 March 2020.

Although Advocate Burns told the Tribunal that didn’t dispute that HR had the right to ask her questions in relation to her timekeeping and whereabouts, she said she was “ambushed” and “subjected to interrogation” on her timekeeping and that “the tone of the interrogation was extremely threatening”. 

This was disputed by the Head of HR and Assistant HR Manager, although they conceded that the reason given for the meeting – a “spot check” on timekeeping – was not true and had, in fact, been prompted by a complaint from a colleague. 

Using this example to make a wider point, the Tribunal said: “It is not in dispute that an employer is entitled to ask questions about its employees’ whereabouts and undertake investigations to confirm them, and doing so would certainly not constitute any breach of contract. 

“However, when doing so, the employer should take time to consider the best way to do this without causing embarrassment or creating animosity. 

“Indeed, extra care should be taken if the employer is of the view that the best way in which to deal with the situation is by telling a lie, even if it is a white lie.

“While [the Assistant HR Manager] intended to diffuse the situation by withholding the truth, her actions had the opposite effect and she created further animosity, this time between [Advocate Burns] and HR. 

“From [Advocate Burns’] perspective, she was being lied to by people in a trusted position while they were questioning her about something that could result in disciplinary action and that they were doing so on the basis of complaints that had been made by an individual who she correctly asserts did not like her.

“In addition, there were other things HR could have done to minimise the impact on [Advocate Burns]. They could have looked at other documents to see if there was any validity to the complaints before raising them with her, they could have given Miss Burns warning of the meeting and been more discreet by asking her to attend by email rather than in front of her colleagues.

“The Tribunal concludes that the spot check meeting had a significant impact upon [Advocate Burns]. While there may have been no intention for the meeting to have such an impact, the Tribunal is of the view that more careful consideration should have been given to the way in which the meeting was conducted.”

Although her claim for constructive unfair dismissal was rejected, Advocate Burns was awarded £1,872 in respect of holiday pay, which was not disputed by Voisin Law.