The Hazards of Multi-Corporate Workplace Mobbing and Bullying on Settlement Agreements
What #PhilipLandau, #London #EmploymentLaw Solicitor taught me about Settlement Contracts 25-Apr-2017
If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance.Philip Landau, Discrimination at work: understanding the Equality Act
Under the Health and Safety at Work Act 1974 employers are responsible for the health, safety and welfare at work of all employees.Advisory, Conciliation and Arbitration Service (ACAS), Bullying and Harassment at Work
I am a USA citizen who was sponsored for employment in Weybridge, England on a Tier 2 shortage occupation list (SOL) basis. I have the unfortunate experience of having been in need of legal guidance in employment law during my overseas assignment. My family -Tier 2 dependents – also resided and were sponsored by my employer. I was an outsider from another country unfamiliar with UK employment law and practices. I had worked globally with affiliates of the Norwegian based company, Petroleum Geo-Services ASA (PGS). As a foreign worker, I relied heavily on the core values, policies and processes promulgated by PGS executive management as a basis for the conditions of my employment. In October 2013 – over three years ago – I engaged London based solicitor Philip Landau, currently of Landau Law. I had submitted a formal grievance citing health-harming workplace bullying (mobbing), harassment, and other executive wrong-doing within the Weybridge, England based affiliate, PGS Exploration (UK) Limited (PGSUK). (It might have been considered whistle-blowing.) PGSUK, with guidance from PGS executives and legal staff, had offered me a settlement agreement following the submission of my formal grievance, but prior to a scheduled grievance hearing. The HR Manager said that PGS senior legal, HR and Contract executives regarded my grievance as a dispute with the company. In my view, I was the only actor following policy and law. I rejected the initial settlement offer, which was proffered by one of the principals implicated in the grievance, and decided to proceed to the grievance hearing. Distraught, vulnerable, and confused, I sought to learn more about my predicament and seek counsel. This is my testimonial about the professional services which I received from Landau.
Settlement agreement offers come as a shock to many employees. In England, it is required that the offeree of a settlement contract receive legal counsel to guide them through the process. It was during the delay following the grievance hearing entertained via video conference by the Norwegian superiors (which I didn’t feel was handled well at all) that I started to search for a solicitor for advice. Landau is a prolific writer on topics of employment law in The Guardian, as well as other venues. I came upon one of his articles (on workplace bullying, I believe), whereupon I provided some contact details. Landau was with Landau, Zeffertt and Weir Solicitors at this time. Following this initial contact, Landau contacted me. I provided him with more details about my situation, which included my lengthy grievance. Landau requested that I summarize key points. I was awaiting to hear some decision or receive some minutes about my grievance hearing which I had attended prior to my search for legal counsel. Fundamentally, my grievance was about being harassed and bullied and then pushed toward an investigation into a possible performance improvement plan. My grievance challenged the fairness and propriety of the PGSUK performance management system and the unsubstantiated false-narrative and justifications for pushing me toward that direction. Even the Landau Law website (currently) describes bullying as misusing the performance management process:
Some of the classic signs of bullying includes being frozen out of meetings which the individual would normally be expected to attend, having people who would normally report to them taken away, not being asked to pub lunches or other office gatherings, being put on unwarranted performance improvement plan, being given a poor appraisal, being overly critical in emails and verbal communications, and being generally unpleasant and belittling.Office Bullying, Landau Law website
My grievance was predicated on an event which is referred to as an ambush meeting in workplace bullying vernacular. On very short notice I was invited to my ambush meeting by the HR manager. Both my immediate supervisor and his immediate supervisor were also there waiting for me. During this meeting, I had to endure and listen to these three bullies spew unsubstantiated bullshit my way.Very soon following the ambush meeting, I requested minutes of the meeting, queried how the meeting conformed with workplace policy, and also queried about raising a grievance about the entire unprofessional (illegal?) experience. I was denied all of these requests. Information was withheld and designated policies transgressed. This happened on 13-Jun-2013. At this point, nothing had been documented for me to respond to, and so I requested something in writing. On 24-Jul-2013 I received a letter (which I had requested, as I wanted something in writing). The HR Manager authored a letter with the subject line, Investigation for possible implementation of a Performance Improvement Plan (PIP). This is what I refer to as the ambush letter which restated the unsubstantiated claims brought-up during the ambush meeting. This is where the HR manager interjected performance into the communications. (My intention to file a grievance proceeded the delivery of the ambush letter.) Within this letter was an invitation to a meeting on 11-Sep-2013 where we could discuss the issues brought-up. This meeting was postponed until 20-Sep-2013. PGSUK had tried to push me toward a PIP, but I simply did not see that PGS has any evidence to support a PIP. My response to the letter was my grievance which pointed this out. So, for an incident which initiated 13-Jun, I was finally going to be able to present my argument 20-Sep. Though there were attempts to delay the meeting, I was determined to present my grievance that day. The grievance delivery meeting was short.
A grievance hearing was scheduled for 14-Oct-2013. All of this information was provided to Landau for review. I even provided him with a the PGS Company Handbook. The work environment continued to be hostile and I essentially knew I had to leave. I did engage Landau to help me. On 25-Oct-2013 Landau notified me by email that he had made contact with PGS/PGSUK lawyers to discuss my situation. Landau seemed to be steering me toward a settlement solution and to not complete the grievance process. (Of course, if the situation were to go to actually go to tribunal it is preferable that to follow the prescribed workplace process of the grievance, I had read.) I was sort of confused at the advice to be honest because PGSUK simply had not presented any documentation to support their performance claims. Even Landau’s advice points out the proper path (below). None of this was followed by PGSUK. The need for the PIP had not even been determined at that point, according to the ambush letter.
If there is a disciplinary case to answer, you should be notified in writing with sufficient information about the issues and be given details of a disciplinary meeting, time and venue. The disciplinary meeting should be held as soon as possible and you should have a reasonable time to prepare for your case. Employers should provide evidence of any wrongdoing, and you should be allowed to answer any allegations, ask questions, present evidence and call relevant witnesses.Landau Law website
PGSUK decided to have a law firm which they often conducted business with to negotiate the settlement instead of their legal staff. I was familiar with Watson Farley and Williams (WFW) because they had advised and handled the Tier 2 visa process for me and my family. In fact, I (we) had received my second Tier 2 visa on 15-Jul-2013 – nine days before the delivery of the ambush letter – indicating that my services were required by PGSUK. Honestly, everything was very strange to me. At the start of negotiations with WFW, I was forwarded the following mail:
“Without prejudice” discussions essentially do not bind parties to any of the concessions which may be made during the negotiation process in the event that no agreeable settlement contract terms are achieved. There are many questionable things about this communication. For one thing, my grievance essentially was my response to the ambush letter. Also, I had always wanted to go through the legal grievance process. PGSUK offered the settlement to avoid the grievance process. The underlying performance issues were never substantiated by any process or documented and were in fact the basis for my grievance in the first place. At the same time, I had just paid money to Landau. Landau’s assistant during the negotiations was Holly Rushton. (Rushton followed Landau to Landau Law, but now is with Hine Legal.) I have to say that I was never completely satisfied with the settlement reached. The process took its toll on me and my family. I was visiting doctors regarding trouble sleeping and just normal health issues that needed attending to while I had medical benefits and insurance. During the month of November 2013, I had taken a week of sick leave. I had never abused my sick leave in all of my years working for PGS. Nevertheless, my direct supervisor and the HR manager requested that I see the contracted occupational health nurse. By this time, I was very motivated to leave the unpleasant and toxic work environment, but not on ridiculous terms. PGSUK/PGS knew this because it was in the health report which they had requested.
The negotiations continued through the month of November. I signed a settlement on 5-Dec-2013, but I remained employed until 31-Dec-2013 as I was placed on garden leave. Within the article, Settlement agreements: what do employees need to know?, it is stated that settlement agreements are typically offered to employees when they are being made redundant or if an employer can show that they are performing badly in their job or are guilty of misconduct. Typically, the employee is given money in return for certain conditions, such as not bringing a claim against their employer. “A settlement agreement will only become binding once you have received independent legal advice on it,” says Philip Landau. He follows with saying, “if you get it wrong, there’s no going back, and this is why the legislation insists that you take independent legal advice.” I was involved very little and kept rather busy with work while the negotiations commenced. This was likely a mistake, but I was kept quite busy with work. I did insist on a mutual non-disparagement clause being included within the settlement. I kept a hands-off attitude and let Landau do what he was both professionally qualified and experienced to do. After all, he had published articles about the legal process. I left England unemployed.
There were many discussions with regard to the non-disparagement clause, especially as it applied to the three principals which were the focus of my grievance. Everyone was very aware of my concerns about the PGS narrative. As far as 4-Dec-2013 this was an issue:
During the final days of negotiations, bedraggled and confused I signed, what I now believe was, an illegitimate contract. This is what I have discovered. PGS, WFW and Landau had conspired to agree on a false narrative with the intent to harm me and protect the corrupt organization and their bullies. I believe it to be fraud. Through the play in words, “underlying performance issues” the colluding parties turned a grievance regarding bullying and harassment into a legal performance-based termination and separation. PGS was able to do this without providing any defense or documentation. All they needed was a pliant and corruptible pair of solicitors such as Thomas, and more importantly, Landau and Rushton. The negotiations were carried out on a false narrative. This is called gaslighting. Wikipedia says that gaslighting is a form of manipulation that seeks to sow seeds of doubt in a targeted individual or members of a group, hoping to make targets question their own memory, perception, and sanity. Using persistent denial, misdirection, contradiction, and lying, it attempts to destabilize the target and delegitimize the target’s belief. The only way for such a disastrous settlement outcome was through the actions of Landau. It was an illegal termination made to look legal.
About 10-months after leaving England, Oct-2014, citing the Data Protection Act 1998 (DPA), I submitted a subject access request (SAR) to PGSUK. I made Landau aware of my SAR with PGSUK at the time. A SAR allows data subjects, such as myself, to receive copies of all personal data which a data controller, such as PGSUK, holds about them. When I received my personal data from PGSUK, I was astonished. The contents of my personnel file were populated with mostly forged/false documents pertinent to my troubled period of employment with PGSUK. The final health report which I never received in Nov-2013 even though the nurse requested a copy be sent to me (in England) a recommended a follow-up visit, had been destroyed from my record along with my grievance document. (I received a copy through a separate SAR to the nurse in 2014.)
I went round-and-round with the PGSUK personal data processors (Human Resources [HR]), most notably the principal processor was the HR Manager whom I had filed a grievance against, requesting that PGSUK remove the false instruments. PGSUK adamantly refused to remove any data from my personnel file even though DPA requires that only fair and accurate data is processed. Soon after I received my data from PGSUK I sought legal advice only to learn how binding settlement agreements were. Even though I could easily show the information held within my personnel records were false from email histories and other documentation, it did not matter. The Information Commissioner’s Office (ICO) that determines DPA compliance does not have a standard or authentication process for held data.
Character assassination is at once easier and surer than physical assault; and it involves far less risk for the assassin. It leaves him free to commit the same deed over and over again, and may, indeed, win him the honors of a hero in the country of his victims. ~ Alan Barth
One had better die fighting against injustice than die like a dog or a rat in a trap.~ Ida B. Wells
I knew that the information held within my personnel file was false. In July 2014, I decided to confront the issue through blogging because of the strength of settlement contract in prohibiting future ligation. I could not stand defamatory content residing in my personal data. That is where I am now. I have published many articles about this issue since then. At first, I published on LinkedIn™ Pulse (LI), where I had pretty good readership. However, when I begin to post my queries on the LI PGS space comment section several times, I was restricted. I had had over 4600 connection on LI and managed a group, Marine Seismic Survey, with over 1450 members. PGS has never fully responded to any of my queries.
Since August 2016, I have split content onto two websites. On www.marineseismicsurvey.com , I continue to blog about issues on the marine geophysical exploration. My newer site, nopgs.com <taken down December 2018 through dubious litigation in Thailand> , now holds my blogs which challenge the false PGS narrative through presenting my truthful narrative of events. NOPGS is an acronym for NO Psychopaths in Geo-Services. (Bullies often have psychopathic and narcissist qualities.) In addition to NOPGS hosting my blogs, I also provide links to articles on workplace violence, harassment, bullying, mobbing, and whistle blowing, as well as holds some informative information videos. I believe workplace bullying a terrible thing. It is known as the silent epidemic which infects too many workplaces. My aim is to inform and empower targets of this dysfunctional management and abuse. The key issue for me is that no settlement agreement can change the truth. At this point in time I have accused PGS agents, including the CEO, of lying, cheating, and fraud. That is the power of truth. However, all of this does not address the central issue of how these false instruments were able to remain in my personnel file in the first place.
Recently, I requested my case file from Landau. I also submitted an SAR to WFW. I am not sure why I waited so long. I was looking at the problem as a retaliation constructed after my termination of employment from PGSUK. However, PGS/PGSUK has double-downed on not changing any of the contents held within my personnel records. I have even brought the issues to the attention of the PGS Compliance Team. If we hold PGSUK/PGS by this information which they hold, then that means these documents were held within my personnel file during the negotiation process. This means that Landau/Rushton and WFW processed false instruments. The many issues which I have with my personnel file are best presented within article 8, The Petroleum Geo-Services (PGS) Ambush Meeting and the Definition of Fraud. In reviewing my email communications with Landau and Rushton, it is clear that they were provided with the information to detect many of the issues which I detected within my personnel file. This is why I did not initially target my complaints with Landau. I just assumed the issue was with PGS/PGSUK agents. My file from Landau contains no notes or information beyond the emails that we exchanged. He has not provided the names of PGS lawyers that he references within a separate communication, nor the source documents to support PGSUK’s position.
The most significant document held within my file is a memo titled, Conclusions from Grievance Hearing, which is dated 25-Oct-2013. There are many problems with this document, not least of which is that I never received the memo 25-Oct-2013, I received it with my SAR content. The additional problem with this memo, is that it contradicts the pretense of the 01-Nov-2013 without prejudice discussions. These discussions went on for over four-weeks. Had the settlement discussions fell through, then the grievance would have had to be addressed. That is what without prejudice means. If conclusions were already made, what was the purpose of the settlement discussions? Were there really settlement discussions or did all the lawyers just kill time until I gave-up and accepted the settlement offer? Landau and WFW Risk and Compliance Director, Neeta Aulak, have been provided article links (8 & 13), but have thus far been unwilling to answer questions or clarify what was discussed for over four weeks. Landau and WFW will not state which PGS/PGSUK agents provided the source information and how that information was vetted or even what source information they used to base their decisions.
The PGS/PGSUK narrative is substantially different from what I provided through my grievance and emails, as well as other information sent to Landau. At no time did PGS/PGSUK, Thomas, or Landau request or discuss clarifications. The above email also indicates that WFW solicitor Rhodri Thomas knew about the grievance and cites performance issues. What were the specific performance issues? They are wholly undocumented and unsubstantiated. That was the point of the grievance! The contents and narrative of my personnel file are false instruments stating an unsubstantiated false narrative. The documents contain wrong dates and reference none existent documents and/or meetings. As Landau states, you better get the settlement right. I am now gaining a better appreciation of what happens when lawyers form a bad settlement agreement. Landau is a prolific writer and I would like for him to respond to these issues. Thus far, these questions have left him without words to explain to his former client. This is what is suspicious. If Landau were my truth advocate, then he would also want honest clarification about the veracity of the contents held within my personnel file following his negotiated settlement contract on my behalf. What incentive did Landau and Thomas (WFW) receive from PGS/PGSUK to not follow the very advice which one writes and reads about? (I suppose starting a new legal firm is a good way to launder money.) I do not know all the ins-and-outs of settlement contracts. However, the end result cannot be unfair or inaccurate personal data simply because it would then violate the DPA. Also, I am not a compliance and risk director, but the agency is legal compliance and not cover-up.
Since leaving England, I have read more about UK employment and criminal law to try and understand what happened to me. The article What is Mobbing? – The Office Disease states that, “The expulsion of the targeted person was predetermined by those doing the mobbing from the very start and there was nothing the targeted person could have done to resolve the issue.” Workplace mobbing involves the direct support and involvement of upper management. Upper management will break policies and laws it seems to achieve this often corrupt and psychopathic objective. With mobbing, it is never a fair fight. When mobbers corrupt the one sliver of equity and refuge that targets of workplace violence have – their legal protections – this only punctuates the cowardice and corruption of senior executives who are not concerned with managing enterprises so much as being in the top tiers of their corporate hierarchy where they are paid handsomely for their charade. I knew PGSUK management let me down, and so I sought justice from PGS executive management. I knew PGS executive management let me down too, and so I sought Landau. And in this respect, it is Landau who let me down the most. I hired Landau because he had knowledge and a reputation which he shared with the public. The only possibility for any degree of parity exists from outside the mobbing organization. It is imperative that your legal counsel is an advocate who understands the interweaving dynamics of organization psychology and employment law involved with workplace bullying and mobbing. Workplace bullying may not be explicitly against the law. However, the abuse of position is a form of fraud and senior executives and company directors have an agency responsibility to be fair to employees, be trustworthy, and especially maintain a safe workplace. We do not need laws against workplace bullying so much as we need to make executives of companies accountable for the decisions that they make. It is the role of solicitors to make sure such decisions are legal and just, because in reality the greatest risk to any enterprise is senior management that allows non-compliant decisions.
There are limits, however, to the ‘without prejudice’ rule. It cannot be used to hide perjury, blackmail or ‘unambiguous impropriety’Reed Smith LLP
“Unambiguous impropriety” amounts to a catch-all description of situations where the cloak of the without prejudice rule acts so as to shield some bad action on behalf of the party invoking it, and is in effect an exception based upon the rule of unconscionability—that such bad action should not be protected by a rule of public policy.Chris Bryden & Michael Salter trace the origins & history of the without prejudice rule