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‘You can’t sit with us’ – How mean girls can lead to their own employer’s downfall

March 26, 2024

As is so theatrically (and potentially accurately) presented in the movie ‘Mean Girls’, high school is entangled with cliques, bullying, and victimisation. You would hope that as people grow up and mature, they would see the error in such ways. However, seemingly some of this behaviour does seep its way into the workplace.

Crucially, workplace bullies’ punishments are no longer restricted to detention and suspension. The recent Employment Tribunal case of Kassem v North Tees and Hartlepool NHS Foundation Trust shows employers just how much money they could be asked to compensate claimants if they fail to stamp out workplace bullying.

Mr Kassem is a surgeon who had been working with the Trust since 2002 without any complaint or incident.

He described a culture where white and Indian surgeons were ‘untouchable’. There was a ‘group within a group, the members of which got better support, better juniors and better pay’, equivalent to Regina and her plastics. Just like Cady Heron, Iraqi born Mr Kassem began to experience continuous bullying, harassment, and unfair treatment from his superiors. Playbook mean girl tactics.

In August 2017, Mr Kassem made what he believed to be a protected disclosure to a superior. He expressed concern over 25 patients who he felt had suffered avoidable illness, harm, or death. The Trust’s investigation concluded that all patients had been provided with appropriate care. However, Mr Kassem’s disclosure was shared with those whom he had been experiencing issues with, who subsequently leaked these views to other colleagues. Mr Kassem’s claims seemingly offended the ‘Indian surgeons’, part of the inner group and known to receive favouritism and protection from the Directors. The mean girls turned on him.

Mr Kassem was subjected to threats and poorly managed disciplinary processes, the details of which were also spread throughout the workplace. Various colleagues made complaints and refused to work with him. He was unnecessarily criticised and treated unfairly compared to his colleagues. Mr Kassem was subsequently suspended and eventually removed from the emergency on call rota. He remained employed but was unfit to work.

As a result of this, Mr Kassem brought a claim of detriment on the grounds of a protected disclosure amongst other things.

Following a hearing, the Tribunal determined that it was evident to them that the change in Mr Kassem’s role to ‘benefit services’ was merely a façade for the perpetrators true intention to remove him from their workplace.    

Mr Kassem was awarded more than £400,000 in compensation for the effect to his mental health and his career this bullying behaviour had upon him. Mr Kassem was successful in his claims for harassment, discrimination, victimisation, and detriment resulting from his disclosure. Crucially, the Trust’s mishandling of the protected disclosure aggravated the mean girls’ bad treatment of Mr Kassem and increased the compensation awarded.

What could/ought the Trust have done differently to avoid getting themselves into this situation? How could they have managed the situation differently so that the plastics and their reign of terror against Mr Kassem was prevented?

The relevant legislation can be found in section 43A-C and S47B of the Employment Rights Act 1996. To qualify, an employee must

  1. Make a ‘qualifying disclosure’.
  2. It must be in the public interest.
  3. It must be made to an appropriate or prescribed person or body.

Qualifying disclosures would have to fall into one category of the following list.

  • That a criminal offence has been, is being or is likely to be committed.
  • That a person has failed, is failing or is likely to fail to comply with any legal obligation they are bound by.
  • That a miscarriage of justice has occurred, is occurring or is likely to occur.
  • That the health or safety of any individual has been, is being or is likely to be endangered.
  • That the environment has been, is being or is likely to be damaged.
  • That any of the categories above have occurred and it has been, is being or is likely to be deliberately concealed.

Once a protected disclosure has been made, it would be an automatically unfair dismissal if an employer dismissed an employee because they made that disclosure. The employee should also not suffer any detriment. Detriment can take many forms. This could be a reduction in hours, overlooked for promotions or being set unreasonable targets. In Mr Kassem’s case, his role was changed and he endured bullying and harassment from his colleagues.

Furthermore, an employer should ensure the disclosure is handled fairly and the identity of the whistle-blower is kept confidential.

Examples of good practice are:

  • Take every whistleblowing complaint seriously.
  • Appoint an impartial investigator with sufficient authority.
  • Fully and properly investigate.
  • Take appropriate and proper action based on the report’s conclusion.

A whistleblowing policy is not legally required; however, it can be invaluable to employers to handle situations correctly. It can provide employees with assurance and deter bad behaviour.

This case provides a valuable lesson on the significance of safeguarding their employees who not only make protected disclosures, but also endure bullying and harassment by the popular clique. Failing to do so could likely land them with a hefty cheque to sign!

If you do not currently have a whistleblowing policy or you realise that you have a case of Regina George and her plastics roaming your corridors, you can come to our employment team for advice!

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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