Friday, June 16, 2006
Scanlon Employment Tribunal
Appearances
For Claimant: Mr M Hay, of Counsel
For Respondent: Ms S Langridge, Solicitor
RESERVED JUDGMENT
The unanimous Judgment of the Tribunal is
(1) That the respondent unfairly dismissed the claimant contrary to sections 94 and 98 of the Employment Rights Act 1996.
(2) That the respondent unlawfully dismissed the claimant for a reason relating to a protected disclosure contrary to section 1 03A of the Employment Rights Act 1996.
(3) That the respondent victimised the claimant in relation to a complaint raised by the claimant in a letter dated 1 6 March 2003 contrary to section 4(1) of the Sex Discrimination Act 1975 by taking disciplinary action against her ending with her dismissal.
(4) That the Polkey/O’Donaghue submission that the claimant would have been dismissed by the respondent in any event has not been established.
(5) That the claimant is assessed as having contributed 20% to her unfair dismissal.
(6) That a remedies hearing should now be held, and
(7) That a case management discussion regarding the matters to be considered at the remedies hearing should now be arranged
REASONS
1 The claimant was represented by Mr M Hay of counsel. The respondent was represented by Ms S Langridge solicitor. There were agreed bundles of documents consisting of four ring binders extending to 1,509 pages. During the course of the hearing a series of additional documents were included. The Tribunal heard evidence from Mr Cohn Moore the Chief Executive of the respondent Council and also from the claimant. It is to be noted that in relation to both of the claims of discrimination by victimisation and the public interest disclosure dismissal the person alleged to have been the primary discriminator in each case, Mr R Richardson, was not called by the respondent as a witness. The evidential issues arising from his absence are considered elsewhere in this judgment.
2 The issues in this case were as follows:
(a) A complaint of unfair dismissal. The respondent relied on four grounds misconduct.
(b) A complaint that the claimant made a protected disclosure for the purposes of part IVA of the Employment Rights Act 1996 and that her dismissal was automatically unfair pursuant to section 1 03A of that Act.
(c) A complaint of discrimination by victimisation arising from the claimant’s letter dated
(d) The alleged failure to pay holiday pay contrary to the Working Time Regulations was withdrawn as was the concurrent claim under section 1 3 of the Employment Rights Act 1996.
(e) A breach of contract claim remained outstanding in respect of the payment of a survey fee. During the course of the hearing the Tribunal had cause to issue a witness summons to the Halifax Bank in respect of those fees. The Tribunal makes no award in respect of the claimant for those fees on the basis of its understanding that the respondent is now willing to make payment of these fees to the claimant. However, if at the remedies hearing payment has not been made the Tribunal reserves the right to adjudicate and determine the issue.
THE FACTS
3 The Tribunal finds the following facts on the balance of probabilities having had regard to the evidence of the witnesses, the documents to which we were directed and also having taken into account the submissions as to matters of fact and law made on behalf of the parties. Because of the complexity the findings of fact are divided into a series of sections and within sections there are also subheadings relating to different topics. Accordingly our findings are as follows:
COUNCIL POLICIES
Disciplinary procedure
3.1 The respondent’s “Disciplinary Procedure: Code of Practice” issued in February 2003 was agreed by the parties as containing the terms and conditions applicable to the issues in these proceedings. The following provisions appear to be of particular relevance:
(a) Investigation
“Where a potential disciplinary incident occurs an investigating officer shall be identified by the Head of Service (or representative). The investigating officer should conduct a full investigation into the facts surrounding the incident. The investigation should be conducted as soon as is practically possible and where appropriate obtain statements from any witnesses. It/s important to keep records of the investigation for later reference. Having investigated a/l the facts the investigating officer should prepare a report of their findings along with recommendations and issue to the Head of Service. The Head of Service will determine whether or not any further action will be required. As part of the investigation process the investigating officer shall:
• In form the employee in writing of the matters to be investigated.
• Notify the employee of the time date and venue for the investigation meeting.
• In form the employee that they can be accompanied by a friend or trade union representative if they wish.
• Prepare a written statement for all investigation meetings conducted”.
(b) Suspension
“In certain circumstances for example in cases involving gross misconduct it maybe necessary for a period of suspension .the employee shall be in formed of suspension by the Head of Service (or representative) in person and this shall be confirmed in writing. It should be made clear that suspension is holding action and is not considered to be disciplinary action. The suspension should be kept under review to determine whether it is necessary to continue. Where the suspension continues beyond the four week period the employee should be informed in writing of the reasons for the continuing suspension and given as much detail with regards to the investigation as possible .. Where an employee is suspended a contact officer not connected with the investigation shall be appointed ...“.
(c) Disciplinary Measures
“Dismissal will not usually be considered for a first breach of discipline unless the grounds are gross misconduct. In cases of gross misconduct leading to dismissal it will be a summarily (sic) dismissal without notice”.
(d) Procedure
“This procedure is designed to comply with the rules of natural justice by separating and making a clear distinction between investigation and decision making . the Head of Service/Department is responsible for invoking and taking disciplinary action . . . (and) may appoint a representative to hear the case on his/her behalf .. .
(e) Disciplinary Hearing
“Before any form of disciplinary action is taken there should be a disciplinary hearing which the employee has the opportunity to state their case and to answer the allegations that have been made . . in advance of the hearing the employee should be advised of any rights under the disciplinary procedure . . in writing at least ten days prior to the arranged hearing . in certain circumstances a formal pre -hearing will be arranged. The purpose of this hearing will be for the Chair of the hearing to discuss arrangements for the actual disciplinary hearing
• to enable the employee and/or trade union representative to prepare a case management must prepare a detailed document of the issues, evidence, breaches and witnesses to be called. This document should be sent to the employee and trade union representative five working days prior to the formal exchange of cases.
(f) Appeal
‘There is a right of appeal in all cases of disciplinary action and notice of appeal should be forwarded to the Head of Service of the relevant service/department setting out clearly in writing the grounds for appeal. Appeals must be made in writing within fourteen working days authority to hear disciplinary appeals is vested in three independent officers of the Council graded Assistant Head of Service or above “.
3.2 Also produced to the Tribunal were a series of training notes on the local disciplinary procedure. At page 1283 of the bundle was a flowchart which contained the following sequence: discovery of matters which may contravene a disciplinary rule, followed by investigation and suspension (where the matter is considered serious or potentially serious). Thus, the guidance note makes clear that some form of investigation has to precede the suspension.
Other Policies
3.3 The respondent Council has a harassment and bullying policy at page 1290 in
the bundle of documents. It includes as an example of harassment the following:
“Unwelcome sexual advances (touching/physical contact, standing too close and display of pornographic/offensive materials)”. Amongst the examples of bullying are the following:
“A culture endorsing an aggressive and intimidating style of management.
Undermining wearing down gradually and making unreasonable demands.
Criticising excessively.
Deliberately ignoring or excluding individuals from activities.
Overloading with work and reducing deadlines.”
Under the heading of Good Management it provides three examples of bullying which are as follows
“Setting unreasonable targets with unreasonable deadlines. Dressing down in public.
Making subjective and critical judgments about performance that are not substantiated — not offering sup port to address the perceived shortfall’
There is a two-stage procedure provided for in relation to dealing with the complaints of harassment and bullying and the following provisions appear relevant in this case
“All complaints of harassment/bullying will be dealt with fairly, confidentially and sensitively. The investigation will be concluded as quickly as reasonably possible.
Employees who make a complaint about any form of harassment/bullying will not be subject to victimisation by management.
In cases where harassment/bullying is not proven disciplinary action maybe considered if a bogus complaint has been brought with unwarranted/malicious intent”
3.4 The Council’s Grievance Procedure was an additional document produced during the course of the hearing. It cites the ACAS Code of Practice as
inspiration which it seeks to follow. The policy envisages an ‘initial meeting’ prior to formal procedure and provides that where the grievance cannot be resolved informally it must be dealt with under the formal procedure. This is as follows:
(a) First stage — the grievance is made in writing and “where the grievance is against the line manager the matter should be raised with a more senior manager.” The manager should then invite the employee to a hearing within 5 working days and thereafter respond in writing 5 working days after the hearing.
(b) Second stage — if the matter is not resolved the employee is allowed to raise the matter at a more senior level. The policy provides for a timetable and appropriate levels of representation.
(c) Final stage — this is a right of appeal to Chief Executive.
There is a requirement for records to be kept of the grievance and the response j
the grievance.
3.5 The respondent has an “Equalities Policy Employment”. The document produced to the Tribunal starts at page 1441A of the bundle. There was some debate during the course of the hearing regarding the provenance of this document. Overnight Mr Moore had to change his position and amend the evidence that he had offered to the Tribunal in this regard. However so far as one can establish it appears agreed that this was a policy that was approved in about July 2002. In section 5 of the policy there are eight provisions which in effect amount to a policy of non discrimination in relation to all conceivable grounds of discriminatory conduct. In section 6 is the following provision:
‘All vacancies will be advertised in accordance with the Council’s policy on appointments and promotion which is available from the Human Resources Division “.
And in section 7 the selection and recruitment process there are detailed provisions regarding the steps to be taken when a job becomes vacant which requires in effect for a impartial appraisal of applications, it requires internal candidates to go through the same processes any external candidates and for aM criteria to be applied in a fair and non-discriminatory manner.
It also states in section 4 that whistleblowers will be protected from victimisation if they have complained about discrimination.
Job Application And Appointment
Job Application
3.6 The respondent advertised for an Equalities Officer in about June 2002. The job description for the post contains the following references
(a) Purpose — “To advise and assist the Council and its officers in a/I matters concerning equality of opportunity and treatment for men ad women, ethnic minorities and disabled persons in the recruitment retention training promotion and disciplinary procedures of its employees”
(b) Principal duties and responsibilities — “To develop by liaison with chief officers and their staff a coherent
consistent and co-ordinated policy framework for the promotion of equality of opportunity in all aspects of Council activity within the national and international legislative frameworks ‘
To develop and implement policies and procedures which will promote and monitor equal access to training for all employees of
“To perform other duties consistent with the appointment which the assistant chief executive (Finance and IT) may from time to time place on her/him”.
The job description identifies 15 duties and responsibilities. None of these specify a requirement for the holder of the post to conduct or carry out training or indeed to contribute to the training process as such. There is no explicit provision to act as a trainer, It is clear from the description given that this a policy job where the principal responsibility is to develop policies, to advise Council members, working parties and other officers of the Council in relation to equal opportunities. In this regard the Tribunal find that the conclusion of Mr Moore in his dismissal letter that there were explicit requirements of this post holder to conduct training was on the facts perverse. Equally, this Tribunal could find no implicit requirement in this job description that there was a duty to carry out the training of others. The catch all provision to perform other duties consistent with the appointment must be construed in relation to the principal duties. This does not allow the employer to change the character of the employment. The only direct training obligation was the duty to make oneself available to be trained.
(c) Relationships — “To be responsible to Human Resources Planning Officer and operate
under his/her general direction”.
3.7 The person specification which was issued at the same time does not specify the need for any training qualifications experience or skills on the part of the post holder. It contains a commitment to further training to improve management and personal skills and as we shall see on the facts set out below the claimant demonstrated such a commitment. However the person specification cannot be regarded as either an explicit or implicit requirement to train others.
3.8 On
Appointment
3.9 The claimant’s application was acknowledged on
invited to an interview on
Assistant Chief Executive Mr R Richardson and he made the appointment which
was confirmed by a letter on
respondent’s conditions of service and the job specification. The post was graded at
P06 at a starting salary of £25,473 per annum. We were told by Mr Moore that this
a mid-ranking post with two grades above and two grades below.
3.10 The respondent issued a statement of particulars of the terms and conditions of employment and there is a copy in the bundle signed as received by the claimant on
3.11 On appointment the claimant’s line manager was Jonathan Watts whose title was the Human Resource Planning Manager. In his job description was the explicit responsibility to manage the Equalities Officer and to ensure the effective and efficient provision of those functions and responsibilities. It was further his responsibility:
“To initiate, develop, co-ordinate and monitor a corporate equalities policy”.
“To give leadership, management and direction to staff working in the division through the establishment of service plans and individuals objectives, priorities and performance appraisal”
“To develop and implement programmes in respect of the management, development and training of employees within the division’
“To supervise guide and advise staff working within the division:
3.12 The position on formal relationships at this point seems to have been that the claimant reported to Jonathan Watts. Mr M Oyston was Assistant Chief Executive (Human Resources). Mr R Richardson was Assistant Chief Executive (Finance and IT). Both Mr Oyston and Mr Richardson were directly accountable to Mr Moore the Chief Executive. However, in consequence of the reorganisation of the Council’s affairs Mr Oyston appears to have fallen out of the picture although Mr Richardson seems to have had a role throughout. Mr Richardson’s ‘deputy’ was Ms Linda Wilson. However, the person to whom the claimant was primarily accountable was her line manager Mr Watts.
Council Reorganisation
3.13 A very significant factor in these events is the Council’s decision to outsource many of its core activities such as human resources to a private sector contractor. We understand this contract was one of the biggest of its kind ever negotiated in local government. One of the consequences of this massive transformation in the way in which the Council operated was that senior officials like Mr Richardson had to spend a great proportion of their time in negotiations with the private sector contractor called Liberata. It is quite apparent from the history that is recounted below that these negotiations were a source of considerable distraction from day-to day management. This external focus goes some way towards explaining what appears to have been a lack of effective strategic direction and control over the activities of the claimant.
3.14 This question of direction and control was further exacerbated when the claimant’s line manager Jonathan Watts switched sides in March 2003 and accepted a job with the contractor Liberata. This event gave rise to even more difficulties at the day to day level to add to lack of strategic direction. In particular there seems to have been a two month hiatus between Jonathan Watts declaring that he was going to Liberata and Pauline Kavanagh formally taking over his duties. That takeover was not assisted by the medical absences of the claimant and the holiday absence of Ms Kavanagh. In the end Ms Kavanagh only managed the claimant for a few days.
3.15 What made matters worse was that the claimant was occupying a new post. The claimant did not come into an established position where the role and functions of the post was well understood by both those within the departnient as well as other departments of the Council. That was an understanding that had to be created. Misapprehensions regarding this corporate service role are readily apparent from the history of this matter. It seems likely that some departments had expectations which were not justified. There may have been an element on the part of some people of trying to shunt off on to the claimant difficult jobs that they did not want to do themselves. This is always an endemic risk in large organisations. The lack of understanding of the claimant’s role gave rise to that opportunity. When a new role is introduced into a hierarchal public body it is vital that at a senior level of the organisation the role and functions to be performed are clearly established. That requires active management in the early stages so that the new position is developed in a coherent manner and that overall management objectives are secured. Unfortunately in this case this fundament requirement was not adequately addressed. One of the reasons appears to be that Mr Richardson and Mr Watts were spending so much of their time on the Liberata contract. In consequence the claimant was left to drift. It is obvious n retrospect that irrespective of her previo experience the claimant did not have the capability to achieve a self-definition of role without appropriate assistance and guidance. Clearly she did not have the authority to impose boundaries on others. Mr Richardson and Mr Watts manifestly failed the claimant in this regard.
3.16 It was this serious management failure at the inception that substantially led to the events that ended with the claimant’s dismissal. The respondent unfortunately never recognised that the genesis of all these events lay in its own its own fundamental deficiencies. Had the respondent done so perhaps things would have turned out differently. Instead the respondent has put all the blame at the claimant’s door. The Tribunal recognises that at this time the respondent was engaged in critical months of negotiation. Therefore we are sympathetic to the fact that during this period issues relating to the claimant were not addressed in the way that they ought to have been. However, Mr Moore and Mr Richardson and others should have had the wit to see the beam in their own eye and should have recognised these serious organisational errors. Unfortunately they did not do so.
3.17 It was on in October 2003 that the respondent Council gave formal agreement to the restructuring of the organisation following the conclusion of the outsourcing agreement with Liberata. At this point Mr Richardson became Director of Finance, Performance and Procurement. Pauline Kavanagh was confirmed in the post as strategic HR manager responsible to Mr Richardson. The Equalities Officer post was to report to Ms Kavanagh. It seems that these arrangements were backdated with effect to
3.18 From October 2002 to March/May 2003 Jonathan Watts was the claimant’s line manager. Mr Watts transfer to Liberata is recorded in the minutes of the “Mapping the Market Advisory Committee” held on
“Members were advised that the Strategic Human Resource Officer for the Mapping the Market team has secured a post with Liberata. The officer concerned cannot now be involved in contract negotiations. The director of finance performance and procurement in formed the committee that a principal personnel officer would be descoped to fulfil this role. The Chair members and trade union members and trade union representatives thanked him for his assistance and wished him well for the future ‘
3.19 It appears that Pauline Kavanagh was offered Mr Watts’ post on 7 March 2003 and that she accepted it before the meeting on
EVENTS OCTOBER 2002 TO JUNE 2003
The first phase October to March
3.20 The claimant commenced work with the respondent on
There is no documentary evidence to suggest that Mr Richardson instructed Mr Watts or the claimant at this time that the claimant’s priority should be the development of the equality in employment policies.
3.21 In December 2002 an issue arose regarding gypsies and travellers who were apparently occupying Council owned land. It seems that certain officials in other departments considered that it was the role of the Equalities Officer to deal with this issue. The claimant wrote to Mr Richardson on ii December saying that she had had a telephone call from someone in the Development Department and that she had explained to them —
“That it’s not my role to deal with individual complaints regarding gypsies’
The claimant also noted that the complaints procedure adopted by the officer working group identified Paula Craddick and
3.22 On
“The role of the post is clearly one of strategy and policy development. The key role is to ensure that the policies procedures and practices are in place across the Council to ensure we comply with equalities legislation. At present that includes race, gender and disability. Shortly age, religion and sexuality will also be included. At present our policies procedures and practices are fairly dire and there is much to be done in a short time. The way to look at the equalities post is akin to the health and safety unit. Health and safety is the responsibility of every employee. The role of the H & S unit is not to take over that responsibility but to ensure that the law and good practice is corn pl’- with. The role of the Equalities Officer is to lead and promote good practiL .t is not to take over every function in relation to an ethnic minority. The functions of the Council in relation to travellers are — site management, site identification, and environment and health enforcement, eviction, welfare assessment and provision and finally community cohesion. The only one of these issues that the Equalities Officer may in due course have a significant role is the last point of community cohesion”.
3.23 In December 2002 Anthea Henderson returned to her office from a meeting and found a yellow sticker on a Robbie Williams calendar (placed there by the c’aimant) with a note suggesting that the calendar should be removed. Ms Henderson spoke to Ms Wilson (Mr Watts’ line manager) who it seems then spoke to Mr Watts. But no action was taken. The calendar was not removed and nothing further was said about this matter until May 2003. There was very little personal contact between Ms Henderson and Ms Scanlon either before or after this incident. It seems that Ms Henderson was extensively engaged in the Liberata negotiations at a location away from the Council offices. The claimant explained that she left the note because Ms Henderson was usually not to be found in her office. The offending calendar was displaying a picture of Robbie Williams in a state of semi- nakedness with his trousers round his ankles. The claimant thought this as potentially offensive in accordance with the Council’s policy:
“Unwelcome sexual advances (touching/physical contact, standing too close and display of pornographic/offensive materials)”
3.24 The claimant had been considering the respondent’s medical questionnaire prior to a meeting. The claimant prepared a highly critical appraisal of its alleged deficiencies. In a covering e-mail to Mr Watts the claimant described it as a “Nazi questionnaire”. It should be noted at this point that the claimant seems to have got on extremely well with her line manager Mr Watts. There are a number of exchanges between them which indicate a degree of considerable cordiality between them. This is perhaps one of the reasons why the language used by the claimant to Mr Watts seems to differ in tone from other communications with other officials.
3.25 The claimant’s unfavourable view of the questionnaire was apparently shared by the trade union Unison. Although the claimant was involved initially in later discussions between the respondent and Unison it seems that the claimant was not invited to attend on the instructions of Mr Richardson. The claimant therefore formed the view that she had been deliberately excluded by Mr Richardson. It seems that Mr Richardson took the view that the claimants presence was no longer required, however, we had no direct evidence on this point. It is to be noted that this decision not to include the claimant was made post
3.26 On 6 December 2002 the claimant wrote to Mr Richardson regarding a forthcoming meeting on 19 December to discuss equalities issues, It seems that that meeting was to concentrate on best value issues. The claimant however thought it necessary to widen the scope of that meeting. In that regard she wrote as follows
“I think we also need to use this meeting as an opportunity to clarify our arrangements for meeting the specific employment ethnic monitoring duties arising from the Race Relations Amendment Act (and also what is suggested in the equality standard and the new regulations on sexuality and religious discrimination) — as I recall the former was conveniently left out of both the race equality scheme and the revised equality in employment policy that Malcolm Oyston prepared”.
3.27 The Equality in Employment policy lies at the heart of one of the four grounds on which the claimant was dismissed. It is the respondent’s position that Mr Richardson gave an instruction in the first week of October 2002 to the claimant that she should update that policy as a matter of priority. Not only is there no record of such an instruction or such a meeting but remarkably there is no documentary trace of this matter having been raised again by Mr Richardson until June 2003. In his statement to the disciplinary hearing Mr Richardson did not say in terms ‘I gave an instruction to the claimant in the first week of October to revise this policy as a matter of priority.’ At best there is an oblique reference, strangely written in the third person, suggesting only that the policy was mentioned. If, it had been instruction the claimant’s letter dated
on any of these occasions. The claimant’s evidence in this regard is entirely consistent with the documents before us. Mr Richardson (not being a witness) was not available to offer an explanation.
3.28 Although initially the claimant attributed the Equality in Employment policy to Mr Oyston it seems that Mr Richardson was the author of this document. At a later stage the claimant accepted that. There was considerable uncertainty at the Tribunal as to the identity of that document. There was a document at page 1441a of the bundle. Mr Moore suggested this was the policy document in question. It is not dated. It was further suggested that it had been issued in about July 2002. Given the alleged centrality of this document to the dismissal this lack of clarity about something said to be fundamental to the dismissal was somewhat surprising.
3.29 On the
‘There is a Council policy document which was produced as / understand by your division in July of last year prior to my commencing my employment. It/s called equalities in employment”
The memorandum also contains reference to the meeting of 18 December and various actions that the claimant had taken as a result of that meeting. Following that communication there are various exchanges between the claimant and Mr Watts and Ms Kavanagh. There is no record of any response from Mr Richardson. These communications make it clear that the claimant was proposing to give priority to race relations issues but also had within her consideration the Equalities in Employment policy. The employment policy had been flagged up as an issue because the claimant had identified it in her e-mail of
3.30 It was evident at this point that the claimant was becoming somewhat frustrated by the responses that she was receiving particularly from the personnel department which included Ms Kavanagh. She wrote to her line manager an e-mail on 21 January saying in relation to further communications from personnel —
“Jonathan I feel I am wasting my time with this. Once again I have interrupted work I have been doing to write something for personnel only to get the usual dross back”.
There was an exchange of e-mails on the 10 and
“Finding that the attitude exhibited by some personnel officers is to restrict
any types of equality policy in the area of employment — anything which seeks to make staff accountable for the procedures that they operate. This is quite frightening given the ignorance that they exhibit and particularly annoying when they appear to be unable to read the material to which they are ref erred’
Again Mr Richardson appears not to have responded to any of the matters raised by the claimant either directly or indirectly.
The Complaint
3.31 On 10 March the Mapping the Market Advisory Committee was told of Mr Watts’ intention to leave the Council’s employment and to transfer to the private sector contractor Liberata. On the following day the claimant wrote to her line manager Mr Watts in the following terms:
“I have just heard that Pauline Kavanagh is my new line manager i.e., Human Resources Manager and that she was offered the post on Friday evening. Could you please clarify if this is the case? If the above is correct could you please confirm how this fits in with the Council’s equal opportunities policy or any claim that the Council could hope to make to be an equal opportunities employer?”
3.32 It seems that what prompted the claimant to write this enquiry to Mr Watts was information given to her from a number of sources about the appointment. It seems that some of the persons who spoke to the claimant regarded themselves as potential applicants for the post had the position been advertised. Mr Watts confirmed to the claimant that the appointment had been made prior to the meeting of
3.33 On 12 March there was a brief exchange in the corridor between the claimant and Mr Richardson. The claimant indicated to Mr Richardson that she was not happy about the way the appointment had been dealt with. It seems that subsequent to this exchange there must have been some communication between Mr Richardson and Ms Wilson because Ms Wilson then invited the claimant to meet her.
3.34 This meeting with Ms Wilson took place on
3.35 On Sunday 16 March the claimant wrote to Mr Richardson. This is a letter which she composed at home and it was handed in on Monday 17 March. The letter opens with these words -
‘As the Council’s Equality Officer I wish to make a formal complaint regarding a fundamental breach of the Council’s equality in employment policy by yourself”.
The letter continued by noting that the claimant had heard about the appointment from a number of sources on 11 March, had subsequently written to Mr Watts - that on 12 March she had spoken to Mr Richardson himself. The letter then no as follows —
“Jonathan confirmed that you indeed offered the position to a member of staff in a telephone call on
3.36 The claimant’s letter also identified a series of provisions in sections
1 ,2,3,4,5,6 and 7 of the policy and also in Appendix 2 all of which she alleged had
been breached. The claimant then set out in relation to section 7 of the policy a
series of questions as to whether Mr Richardson had addressed each of the issues the claimant alleged required to be addressed pursuant to the policy. The letter then continued with these words —
“Failing to implement a transparent fair and consistent approach to recruitment and selection limits the pooi of potential candidates, damages staff moral and undermines the integrity of any policies we have in this area. It can also give rise to allegations of unlawful discrimination and can in deed be unlawful. It is my opinion that because of your actions a number of officers currently employed by the Council may feel that they have been discriminated against on grounds of race gender or disability. Complaints could be made by these officers to Tribunals and if successful the Council could be forced to financially compensate them. Such complaints successful or otherwise would result in negative publicity which would affect the standing of the Council and its business. This brings me on to a further strand of my complaint. That is that your actions in this instance which are now common knowledge throughout the Council have damaged and will continue to damage our credibility to lead on equalities”.
3.37 The letter of the 16 March also referred to an associated policy issue —
“You also have a 10,000 word report containing recommendations which / have prepared on issues that / feel need to be addressed to progress equalities work. Despite your being unable to meet with me until
It is to be noted that this letter was also copied to the Chief Executive Mr Moore to her line manager Mr Watts and also to the Unison branch secretary John McCormack.
3.38 In a memorandum dated
“I am in receipt of your letter of complaint dated
3.39 The 10,000 word report that the claimant referred to was the claimant’s report to the Chief Officers Management Team (COMT) which was to be held on
This looks great”.
Mr Watts makes a number of factual observations and adds a P.S. as follows
“I hope this is helpful as there is a lot of really good work here which is critical for the authority”.
3.40 The respondent did not suggest to the Tribunal that Mr Watts had failed in his duties or that he was acting otherwise than in accord with the instructions of Mr Richardson and Mr Moore. It is therefore a matter of fact that the claimant’s work activities and the priorities she accorded the various parts of her work were fully approved by Mr Watts up to May 2003. That carried with it the implied approval of the respondent to the work and activities of the claimant.
3.41 The claimant’s report on equalities identified the need for a corporate equality plan to encompass all equality issues. The claimant suggested that this was necessary in order to meet the requirements of the equality standard for local government. In the appendices to her report the claimant makes it clear that employment equality policies were to be an integral part of the overall corporate policy. And in Appendix 3 at paragraph 8.5 all the matters that had to be addres, in regard to employment policies were set out. Therefore, the claimant was
considering employment policies within the context of an overall equalities policy with the approval of her line manager.
3.42 The claimant also produced as an Appendix 5 a schedule of proposed implementation activities. This identified a series of tasks. Item 20 on schedule 5 is entitled:
“Drafting of comprehensive equality policy for consideration by CEPG “.
That task was indicated as the responsibility of the equality officer with a target for completion of the end of May 2003. Anyone reading the document that the claimant had produced could be in no possible doubt that this included as part of a comprehensive Policy, policies relating to equality in employment, not as a stand alone but as an integrated part of the overall policy document. We do not have the minutes of the Chief Officers Management Team but it is understood that Mr Richardson was a member of that body and this report was accepted by them including Appendix 5.
3.43 Furthermore in her letter of 16 March the claimant had specifically drawn Mr Richardson’s attention to that document. The claimant contends that Mr Richardson did not challenge these proposals or instruct that she pursue the employment equalities policy as a separate matter. There is not one shred of documentary evidence to suggest that he did. Mr Richardson’s statements used in the disciplinary hearing do not address his response to this report. On the face of it he would seem to have approved this document as part of COMT. If this report had been a serious breach of his instructions to the claimant it is inconceivable that he would have approved the report. However, that approval casts very serious doubt on the claim that Mr Richardson had given a priority instruction. The Tribunal prefer to accept the claimant’s version of events in this regard which is wholly consistent with the documentary sources available to us.
3.44 On the 21 March 2003 Mr McCormack the Unison Branch Secretary wrote to Mr Oyston with a copy to Mr Watts and Mr Richardson in the following terms —
“I am becoming increasingly concerned that the proposal to place a principal personnel officer into Jonathan Watts’ substantive post without the due process of recruitment. Call me naive if you wish but when I was summoned to a meeting with Ray Richardson to be appraised of Liberata’s approach to Jonathan it never entered my mind that we could possibly short circuiting our recruitment policies and procedures. Whilst I am aware it may come as a disappointment to the proposed post holder I must now insist that this post be advertised in the correct manner i.e., internal first then external if no applicants ‘
3.45 Mr McCormack’s e-mail is at variance with the evidence given by Mr Moore to the Tribunal which is as follows
“[He] went to the leading members of the Council the leaders of the opposition and the trade unions. We had a meeting at which I explained that the process would be a departure from the norm. They all agreed that it was the right thing to do in this specific circumstances’
[ It is to be noted that initially this passage of his evidence was prefaced by the word ‘I’, Mr Moore correct this to ‘he’. The ‘he’ we were given to understand was Mr Richardson.]
3.46 When the meeting to which Mr Moore refers took place is unclear. The only record of a meeting with all three groups present was
3.47 On 17 March (the same day the claimant delivered the letter to Mr Richardson) the claimant attended a meeting with Mr Richardson and Mr Watts. During the course of this meeting the contents of her letter were not raised by Mr Richardson. The claimant told us that this was the first meeting between the claimant, her line manager and Mr Richardson since she commenced her employment 51/2 months previously. The purpose of this meeting was for the claimant to obtain some guidance from Mr Richardson on the various reports and other proposals the claimant had put forward in relation to her work and to
priorities. The claimant describes the meeting in these terms
“Mr Richardson was uncommunicative to me in this meeting which he cut short after 45 minutes. Mr Watts was very embarrassed by this and apologised to me afterwards. From this point forward I encountered unwillingness on the part of Mr Richardson to engage with me in a constructive and professional manner regarding my work”.
3.48 Mr Richardson in his statement to the disciplinary hearing makes no mention whatever of this meeting. He did however discuss this matter in an interview with
“I had set one hour aside for the meeting. The outcome of the meeting wa 10 instruct PS to produce a report for CMT which I had for sometime been pressing PS for. PS says she did produce a report for CMT off her own back. This is not the case I spent a lot of time producing the original existing equality documents; she refers to government circulars and CRE guidance which PS simply rehashed. / was looking for something more specifically tailored for
These contentions are in some respects difficult to reconcile. Prior to this meeting on 17 March the claimant had produced a report for CMT, indeed, she referred to that report in her letter to Mr Richardson of
3.49 On a date between the 18 March and
“I thanked her for bringing it to my attention and went through the reasoning behind Mrs Kavanagh’s appointment. I acknowledged that it was an exception to the norm but that the circumstances were highly exceptional. I pointed that there had been no alternative. We were negotiating a three hundred million contract which included provision for HR services. All the staff had been listed for transfer to the contractor (Liberata) under the TUPE legislation except for Jonathan Watts. The contractor offered Mr Watts a position in the middle of the negotiations which he accepted. This left the Council with no HR advisor at a difficult stage in the negotiations and we therefore had to remove someone from the TUPE list urgently. We had to fill the position over night. This was not therefore a normal appointment.”
3.50 Mr Moore explained that because of the reorganisation normal procedures were not being followed. As he explained:
“In the context of redeployment and restructuring we might ring fence existing staff who are eligible to apply for posts. This is sometimes appropriate in order to protect a existing employees positions with the authority rather than make them redundant.”
3.51 The act of descoping was in effect to take off the TUPE transfer list one of the
HR officials in order to fill the vacancy created by the departure of Mr Watts. The
vacant post had a primary requirement that it had to be a qualified HR professional.
Mr Moore explained the position as follows:
“There were I believe only six such candidates internally and we contacted five of them before the appointment was made. I believe that of the six who were eligible four were women and two were men. All but one was contacted by ‘phone except one of the women as she was away on holiday. Both the men and all women who were contacted confirmed they did not want to apply for the post. The candidate who was on holiday later confirmed she was not interested. Only Pauline Kavanagh wished to be considered and she was appointed. If more than one had expressed an interest we would have carried out interviews that same day’
3.52 On
3.53 What the Tribunal finds most exercising is the explanation of urgency. We were told that with Mr Watts’ departure it was vital to have someone appointed to this position to carry out the functions that he had been carrying out. However it seems that Ms Kavanagh did not take up her appointment until 8 May. Thereafter it appears Ms Kavanagh was on holiday for a period of about two weeks. Therefore she was only effectively manager of the claimant for a few days. In terms of the alleged urgency of the situation in March the Tribunal was offered no credible explanation why all procedures had to be abandoned. On the face of it the respondent had more than adequate time in order to make an appointment by. a proper process even if, for understandable reasons, it had restricted applications to internal candidates only. Equally, the urgency of the negotiations with Liberata was not demonstrated. It may have been a reasonably urgent requirement to have someone in place but the evidence that this was “overnight” was signally lacking
3.54 Mr Moore told the Tribunal that he did not recognise the claimant’s concerns expressed to him as a matter of whistle blowing. In his evidence to the Tribunal Mr Moore said this:
“I did not view Mrs Scanlon's complaint as being an exercise in blowing the whistle. There was no whistle to blow. Furthermore she was complaini about a decision which had involved not only myself and Ray Richardson, her union representative John McCormack. Mrs Scanlon says that she was blowing the whistle but if that was so I would have expected her to go to someone not involved in the decision she was complaining about. The Council operates a whistle blowing policy which allows any employee to blow the whistle on anyone including the Chief Executive. Mrs Scanlon was aware of this policy but chose not to avail herself of it. I believe this is because she herself did not see it as a whistle blowing issue but more as first stage grievance “.
The claimant stated that she was unaware of these whistle blowing procedures. However, it was her intention to raise what she regarded as a serious breach of policy. If Mr Moore considered this approach as a complaint he like Mr Richardson did not treat it formally as a grievance or a whistle blowing complaint. That omission casts some doubt on his contentions to this TribunaL Apparently he is free to follow procedure or not according to his whim but the claimant’s motives are to be doubted for not following procedure.
3.55 Mr Moore admitted to the Tribunal that the appointment of Ms Kavanagh had been a clear breach of the Council’s policies. His contention was that there was exceptional justification for the breach. This was a breach in which he was by his own admission complicit. Mr Moore did not explain to us to whom a whistle blowing complaint could reasonably be addressed in respect of a public body other than to its Chief Executive. Although Mr Moore disputed that the claimant had raised issues of sex discrimination it is clear from the terms of her letter of
3.56 On
“I refer to the above letter the tone and contents of which were of some concern. Given your series of e-mails between Ms Kavanagh and yourself I feel that the issue is not about the appointment process but about the appointee and your attitude towards her. It is unfortunate that you have thought fit to make various accusations without being in possession of the full facts. I also note that you did not seek to appraise yourself of the facts by discussing the matter with me. I note that you have not raised concerns about the equality of opportunity or lack of it afforded to the same group of staff including Ms Kavanagh by Liberata in their appointment of Jonathan Watts to a senior human resources post within the organisation .. .you are also aware that the then head of strategic HR has been approached by Liberata to take up a role with them, this effectively excluding him from the negotiations. To secure the Council’s negotiation position was vital that an HR professional was available to represent the Council. That resource could only come from the staff who are currently scoped, I had discussions with a number of in dividuals including the Chief Executive . . . it was clear that given the urgency of the situation that normal recruitment processes could not be used. Discussions were also around the suitability of scoped staff for the job, again a number of discussions were had to consider the likely candidates ie the principal personnel officers. From those consulted . . . the view was taken that the potential appointee who had the most appropriate skills was likely to be Pauline Kavanagh’
3.57 Mr Richardson also indicated that he had approached Ms Kavanagh and confirmed to her that he would be prepared to offer her the post. Mr Richardson then went on to say that he had had a discussion with the Assistant Chief Executive (Human Resources) who had pointed out to him the risk of possible challenge from other employees. it would seem that it was this advice that prompted the consultations with other employees after the appointment had, in fact, been made. Mr Richardson also suggested that he had had a discussion with Mr McCormack on
3.58 The photocopy in the bundle of Mr Richardson’s memorandum of 15Apr11
2005 is incomplete in that the left hand margin is truncated (page 205). There is a
particularly important passage in the letter but there are blanks where the words are
absent or indecipherable. These are indicated as below
the opportunity as soon as possible after the meeting to talk with Principal Personnel Officers by ......... to explain the situation that has arisen and a course of action decided upon. I sought their views......... matter and of those consulted (one officer was away for two weeks holiday) all were supportive of the...... taken..... Of the staff concerned have raised any formal grievance under the Council’s policy or raised any issues .............equality of opportunity ..............Process did not comply with a Council policy as you rightly point out but given the circumstances I real alternative course of action.”
3.59 This letter demonstrates that Mr Moore was in serious error in the evidence that he gave to the Tribunal. He told us in unqualified terms that the respondent had contacted five of the potential six candidates “before the appointment was made”. Mr Richardson’s letter shows that that was not true and that any consultation was after the event. It maybe that Mr Moore was attempting to make a somewhat disingenuous distinction between the offer and acceptance between Mr Richardson and Ms Kavanagh and sending out the formal letter of appointment. Mr Richardson’s letter proves that the matter was a done deal before other poter
candidates were informed. All of this suggests that subsequently there was an attempt to justify a course of conduct to cover up the breach of procedure. The reaction of Mr McCormack as reflected in his e-mail of 21 March gives some credence to that conclusion.
3.60 In his letter of 15 April Mr
3.61 As noted elsewhere in this judgment there is evidence that tends to support the view that the claimant was somewhat zealous in her attitude to equal opportunities and would take stands on what she saw as points of principle. Thus, as in the calendar incident noted below the claimant did not always appreciate that others might not perceive the equal opportunities issues in the same way as she did. So far as the claimant was concerned she thought that this appointment was a major issue of principle. From the claimant’s standpoint the respondent was flouting quite fundamental principles of equality. The claimant was concerned that if the respondent was prepared to act in this way what was the purpose of developing equalities policies that would just be set aside when they became inconvenient and stood in the way of management objectives. Although there had been differences of view between Ms Kavanagh and the claimant, the contact between them had been limited. We are not persuaded that the personal antipathy towards Ms Kavanagh was the mover. We are satisfied that this was an important point of principle and that the claimant was taking a stand on the issue as she saw it.
3.62 On
3.63 Until
“If I want to sent you somewhere bad I could believe me”.
Mr Richardson did not address that issue in his statement to the disciplinary hearing but he did mention the matter to Mr Harbour when he was interviewed in the following terms:
“I responded to her in a fairly jokingly manner but no its not a punishment the alternative would be to move her over where Lena Hogg safety officer is. This is in an annex building but / can’t recall any conversation about rats’
3.64 On
“I take exception to your assertion that I have an “attitude” to Pauline Kavanagh. I view such an assertion as both an attempt to malign my own professional integrity and to undermine what I regard as a serious and valid complaint . - .1 regard it as something of a shame that given all of the consultation you appear to have undertaken around this matter you did not see fit to even in form me of this situation”.
Mr Moore in evidence accepted that with hindsight it would have been appropriate to consult the claimant as Equalities Officer before any decision had been made regarding the appointment of Ms Kavanagh. Therefore in evidence Mr Moore conceded an issue that does not appear to have been accepted by Mr Richardson.
The Calendar Dispute
3.65 On
3.66 Mr Harbour in his interview with Anthea Henderson records as follows
“AH was asked if she made a formal complaint about PS to which AH con firmed that she hadn’t and said that whatever LW and RR did they did off their own backs. AH asked why thye wanted a statement and she was told something about PS formally complaining to RR about an issue and they felt it was right and appropriate to ask her why she had reacted as she had to one of her colleagues. AH was concerned as she had not anticipated this and she didn’t want to take the matter further”.
3.67 This statement puts the matter clearly into perspective. There had been a minor disagreement between the claimant and Ms Henderson. Ms Henderson was content to take the calendar down but she wanted to know whether there was a Council policy. In fact the Council’s policy (which predated the claimant’s arrival) does prohibit certain images. In the claimant’s judgment a semi-naked man with his trousers round his ankles could be regarded by some people as offensive. In the same way some employees may find images displayed of women to be offensive. The claimant’s decision to raise the issue pursuant to the Council’s policy would seem to have been quite appropriate. However the way that the claimant went about it may have been a little over zealous. It is apparent that Ms Henderson did not consider the photograph to be in any way exceptional because it had been tolerated for some years. However, what is particularly noteworthy is that Ms Henderson did not attach any great significance to this incident and she certainly did not wish to complain or take the matter any further.
3.68 It would seem that Mr Richardson and Ms Wilson thought that the claimant’s conduct was something that they ought to investigate. It is clear from Mr Harbour’s investigation that they sought to elicit a complaint from Ms Henderson and that she declined to do so. According to the claimant on 14 May as she was emerging from her office she was confronted by Mr Richardson and Ms Kavanagh who were in the corridor outside. According to the claimant Mr Richardson informed her that the incident involving Ms Henderson was the subject of a bullying and harassment complaint.
3.69 In Mr Harbour’s account Mr Richardson explained the position as follows:
“I advised PS that she should be careful it terms of approaching individuals regarding the display of inappropriate material that it was not her job to police the issue. Any such issues should be taken up with the appropriate line manager and PS should be careful she does not expose herself to be seen as acting in a bullying or harassing manner. PS slept on this and asked was / accusing her of bullying and harassment. I explained that this was not the case. I was trying to protect her. I asked her to write a briefing note to CMT to remind managers as to what was appropriate or inappropriate. There is an existing policy in the Council stating what is and is not appropriate, PS clearly presumed / was accusing her of bullying and harassment, her parting shot was that she would discuss this complaint made against her with her trade union with a view to raising grievance. In view of this statement by PS and as a precaution I asked PK to collect statements from those involved in the incident with the calendar. I have taken no action with these statements as I have received no notification of a grievance . . .perhaps I was jumping the gun; the statements were gathered because PS said she would make a formal complaint.
3.70 On
3.71 On 16 May Mr Richardson responded indicating that he thought the daimant had clearly misunderstood the nature and the purpose of the meeting and that he was attempting to provide her with managerial guidance and instruction on the display of inappropriate materials. Mr Richardson continued as follows:
“The collection of statements from the staff concerned arose directly from your assertion that you would be documenting the incident and forwarding it to UNISON. You have placed the matter on a formal footing and as such I must respond accordingly. I will decide on the course of action which needs to be taken once I have all the in formation available”.
This of course does not explain the initial motivation for pursing enquires. Thus, Mr Richardson acknowledges that the matter has been put on a formal footing. Remarkably he seems not to have instigated any the steps provided for under the relevant policies. Mr Richardson therefore appears to have disregarded
Council’s procedures despite having acknowledged that a situation requiring formal action existed. There was no explanation for this other than the suggestion that this was a protective action contingent on the claimant complaining to Unison. This was a rather unhappy position for Mr Richardson to take. On the one hand threatening formal action under the Council procedures but on the other suggesting he would only do so if the claimant complained about him. Mr Richardson admitted to Mr Harbour in this regard that he was possibly ‘jumping the gun’
3.72 The secondary issue through these exchanges was a dispute about Mr Richardson’s instructions. There appears then to have been some misunderstandings between the parties. Initially on 15 May the claimant stated as follows:
“You have now requested as I rewrite the Council’s policy in this area. However it is somewhat apparent from the issues highlighted in this letter and from our brief discussion yesterday that any policy I write will be unacceptable. Given this and my own reservations about developing policy on the hoof can you please confirm your requirements?”
On 16 May Mr
“In the meantime I will be grateful if you could carry out the instructions which were given to you at the meeting. If you are unclear as to what is required your line manager will clarify this for you”.
3.73 On 28 May the claimant wrote to Mrs Kavanagh referring to this matter and asking for clarification of what was required of her vis-à-vis the bullying and harassment policy. In the same e-mail was a reference to a racist incident reporting and an e-mail from someone called Graham Watson. On the same day Ms Kavanagh responded in these terms
“We do need to address this issue and perhaps it could be added to your paper for the items that need addressing for 12 June meeting. When Ray spoke to you at the brief meeting you refer to we had not had the approach from Graham nor was the purpose of that discussion to review in detail the harassment and bullying policy’.
The Social Services Trainina ISSUC
3.74 On
“Pauline, it is essential that / get done at least six basic awareness training sessions on the new legislation for as many staff as we can fit in. The inspectors when the come in November will have a very dim view otherwise — we know this from a recent inspection in
3.75 The claimant responded by saying that the person that Mr Bates needed to make enquiry of was Pauline Kavanagh because she now had the responsibility for the strategic management of equalities and the initiation of work in that area. The claimant then went on to deal with some other matters. Later the same day Mr Bates responded as follows:
“Pauline does this mean you are not doing the sessions I am requesting.”
3.76 In her statement to the Tribunal the claimant explained the reasons for her taking this position in the following terms:
“As I understood it, my role as Equalities Officer was to advise and assist the respondent in their training of employees. It was not one of my duties to provide the training, I was just to advise on what and who needed to be in the training sessions. This is why I had said to Maurice Bates that he should contact Pauline Kavanagh. Also the Council had a corporate training unit, as did the Department of Health and Social Care. To my knowledge, both were transferred to Liberata, the Council’s strategic partner from
3.77 The claimant’s contentions regarding the allocation of responsibilities in relation to training was not substantially challenged. Indeed, the exposition of the role of the Equalities Officer made by Mr Moore in December 2002 [ above] is entirely in accord with this analysis by the claimant of the scope of her duties. Equally, the job description and person specification are likewise consistent with the claimant’s view. Furthermore the position taken by Mr Richardson on the calendar is equally illuminating, namely, that even where an issue is expressly within, the claimant’s remit it was not her responsibility to take direct action but only to advise.
Other matters leading up to 12 June meeting
3.78 The claimant had and has a long term medical condition psoriasis. This can be very distressing when it flares up. It appears medical opinion suggests some link between stressful events and outbreaks of the condition. The claimant’s evidence was that at about this time in May 2003 her skin condition began to deteriorate. I Monday 19 May the claimant attended work but then requested and was granted four days annual and flexi leave. The claimant sought time off in order to try and get her psoriasis under control and visited her GP for treatment. Her GP also diagnosed that the claimant was suffering from depression and prescribed a course of treatment for that condition. The claimant told us that she then contacted Mr Watts and asked him if he would mediate with Mr Richardson because the encounter with Mr Richardson and Ms Kavanagh [ 14 May] had had a profound effect on her. It is the claimant’s belief that Mr Watts did attempt to intercede on this basis but Mr Richardson did not response positively to his approaches. There was no evidence from Mr Richardson to rebut this contention.
3.79 The claimant’s absences from work at this period were as follows:
Tuesday 20 May - absent
Wednesday 21 May - absent
Thursday 22 May - absent
Friday 23 May absent
Monday 26 May — Bank Holiday
Tuesday 27 May — claimant returns to work
Wednesday 28 May — half day
Thursday 29 May — full day
Friday 30 May — full day
Friday 13 June — booked as holiday
Ms Kavanagh was also on holiday for some of this time but it has not been possible to fully determine the dates of her absence. The starting for her holiday was possibly 29 or 30 May. However, it is certain that Ms Kavanagh returned to work on Monday 9 June.
3.80 The claimant on 27 May sent an email to Ms Kavanagh seeking clarification as foflows:
“I am unaware of what priority you have given particular things identified in each of the action plans that I have prepared around equalities. Similarly, I am unaware of how you/Ray want this work to proceed as to date there has been an absence of discussion of what I have put forward. Similarly, there has also been an absence of discussion on a number of strategic issues that I have raised in reports that I have produced. Given this, could you please advise as to how you want me to respond to the request below from Maggie Dolmer regarding what is expected from social services. Surely this is the type of issue which should be clarified through the Operation and Corporate Equality Planning Group? This would mean that we only have to tell service areas once.”
3.81 There is no paper trail for the meeting of 12 June. Unfortunately, because we did not hear from Ms Kavanagh or Mr Richardson, we have to rely on the documentary evidence. There is no paper trail to show who initiated this meeting. Accordingly, there is little to guide us as to what was in the minds of either Ms Kavanagh or Mr Richardson. It is unclear whether that meeting was arranged in response to the e-mail on 27 May or whether it was motivated by some other consideration. Possibly Ms Kavanagh had suggested a meeting to consider the various issues raised by the claimant with Mr Richardson because (as she is noted as suggesting elsewhere) that she was not fully appraised of these matters having only recently taken over as line manager. The claimant thought that the meeting was to address the various concerns she had expressed regarding her work programme.
3.82 On 28 May there was an exchange of e-mails between the claimant and Ms Kavanagh regarding the statements being gathered by or on behalf of Mr Richardson. The claimant sought information regarding this matter claiming that what was going on was intimidating, undermining her ability to do her work, undermining her confidence and making her suspicious of her colleagues. The claimant also raised issues over the harassment and bullying policy. Ms Kavanagh the same day responded by saying that the harassment and bullying policy could be discussed at the meeting on 12 June and then continues as follows:
“As I said this morning after you raised the subject of the discussion, Ray is gathering in formation to enable him to respond to your letter to him. He is in receipt of your letter and he needs to gather facts to respond to it. I think this is sound management practice. I am not aware that there is any procedure being invoked. I am sure that once Ray has all the facts and is in the position to respond to you he shall do so.”
3.83 On 29 May Mr Richardson wrote to the claimant asking for the briefing paper for the Chief Officer’s meeting regarding “the display of inappropriate media ie pictures, calendars, clip art, notices, etc” and noted that the deadline for this was noon on Monday 2 June. The claimant responded on the same day indicating that she was somewhat confused by this instruction and noting that she had sought clarification from Ms Kavanagh both verbally and in writing. The claimant noted that she was under the impression that Mr Richardson had wanted her to rewrite the policy “so that junior staff will prevent it from challenging the racist, sexist behaviour of anybody who is senior to them”. The claimant then enclosed a copy of a response that she had received from Ms Kavanagh and stated that she still required guidance as to what was required of her. The claimant concluded by saying:
“I am genuinely confused as there are inconsistencies with what / have been told verbally and with what is being put in writing.”
3.84 Mr Richardson replied the same day noting that the claimant appeared to have again misunderstood his instruction. Mr Richardson’s response continued as follows:
“I have not at any time requested you to review the policy in this area and definitely not “that junior staff were prevented from challenging the racist/sexist behaviour of anybody who is senior to them”. What I asked you to do was to prepare a briefing note on the display of inappropriate material: ie what the policy is ie it should not display examples of inappropriate behaviour. What to do if you think something is inappropriate ie approach the manager of the individual or the Equalities Officer who will approach management on their behalf, Individuals should not directly challenge those who are displaying material which may be outwith the policy. This will hopefully maintain the anonymity of the individual and avoid confrontation. It was a fairly simple piece of work and both Pauline Kavanagh was at the meeting and myself thought it had been made clear to you what was required. I think that we are having great difficulty in me communicating and you understanding what appears to me to be relatively simple instructions. / have set aside half an hour with Linda Wilsbn in the absence of Pauline Kavanagh on Monday 2 June at
3.85 The claimant responded to this the following day by e-mail and confirmed that she was happy to attend the meeting and cautioned that if Mr Richardson wished to discuss anything regarding the allegations made against her or the investigation he was conducting, then she would need to know beforehand in order that she could arrange for her trade union representative to attend. There is no note or record of the meeting of 2 June. Neither Ms Wilson nor Mr Richardson refer to a meeting in their statements to the disciplinary hearing. In her interview with Mr Harbour, Ms Wilson did describe the meeting. Mr Harbour recorded Ms Wilson’s description as follows:
“The meeting was to discuss PS’s work issues. PS brought along to the meeting a file and a list of things for RR to do. There was quite a tense atmosphere throughout the meeting. PS was very definite about what she felt should be her job responsibilities and she was annoyed that RR had not responded to some issues. LW recalled interjecting and saying that the purpose of the meeting was to move the work forward and to decide what to do and how best to do it. The meeting didn’t get any better. LW cannot remember how the meeting concluded.”
3.86 This description is at variance with the claimant’s account which was that after a disappointing start she felt that some progress had been made. Later in the week, however, the claimant found out that she had been excluded from the meeting on the medical questionnaire. It does not appear to be in dispute that this was the result of an instruction given by Mr Richardson. The claimant attributes the reason for her exclusion to a change in Mr Richardson’s attitude towards her following the complaint of
The Away Day
3.87 Because of the reorganisation there was a proposal to have an away day so that the teams of people within the new division could get to know each other. The primary purpose evidently was to ensure that the roles of each team and the way in which individual teams interacted with each other should be clearly established. On 29 May Ms
“
There was an outline schematic plan for the day and in relation to Ms Kavanagh’s team there were a series of requirements. Most of these would fall normally to Ms Kavanagh to deal with. The claimant’s role was restricted to the area of equalities.
3.88 The claimant, at about this time, also put forward proposals for equality training workshops for senior managers. These were half day sessions and when on 9 June Ms Wilson e-mailed the claimant and asked whether this presentation could be adapted for the divisional away day on 18 June the claimant responded that the presentation would take about 45 minutes and that it was fairly detailed. On 6 June Ms Wilson responded as follows:
“Never mind — just a thought. Can we get together (with Pauline) at some point next week though to have a look at what we can do on the 18th. I am keen that all of the teams are aware of what the division as a whole is responsible for.”
On the same day, that is 6 June, it was confirmed that the claimant would be attending a Diversity Training for Trainer’s course to be held at
3.89 On
3.90 On 11 June Ms Kavanagh wrote to the claimant about the away day in the following terms:
“I have briefly discussed with Linda the purpose of the away day. Linda explained that the purposes for some team building to commence and for a sharing of information regarding responsibilities. It is not expected that any of us offer detailed descriptions of roles and responsibilities, but merely a broad overview of our roles. To this end I request that you either:
(A) provide me with brief bullet points outlining your role/responsibilities which I will include in the overall HR presentation.
or
(B) prepare an electronic presentation 10 minutes which you will deliver to the team. I do not mind which of the above you choose, should you choose (A) then I will need this by Monday 16 June to enable me to include details in the overall present ation. A response on your intentions by Friday would be helpful.”
It should be noted, therefore, that the instruction regarding the away day had a deadline of Monday 16 June for compliance. In addition, there was a request for a response on which of the options (A) or (B) the claimant was going to pursue. The latter response had a deadline of
3.91 On the afternoon of 11 June there was a meeting between the claimant and Ms Wilson at which the claimant raised the question of the e-mail of 11 June noted above. Ms Wilson described that the claimant’s attitude was initially aggressive in describing how much pressure she was under. Ms Wilson then stated as follows:
“Pauline sat down although she was still agitated. She apologised and said that it was all getting too much. I talked about organising priorities and the meeting with Ray Richardson/Pauline Kavanagh was referred to I suggested meeting again after that. Pauline started to relax and the conversation moved on.”
It seems that Ms Wilson the following morning then spoke to both Mr Richardson and Ms Kavanagh separately advising them of what had taken place in her meeting with the claimant. Thus, prior to the meeting the respondent knew that the claimant was in an emotional state and stressed by her work.
Suspension Investigation and Disciplinary Action
Meeting of 12 June
3.92 There was no record taken of the meeting of 12 June. There appears to have been no agenda other than a broad purpose of a first discussion between the claimant and her new line manager and her departmental head. There are few documentary sources to suggest exactly what was in the mind of Mr Richardson in convening this meeting other than his statement to the disciplinary hearing which is as follows:
“I convened the meeting to address specific issues in relation to equalities training for social services and to discuss the work load and the work plan of Pauline Scanlon the Equalities Officer.”
3.93 There was a pre-meeting between Mr Richardson and Ms Kavanagh. We do not know what was discussed. In their statements to the disciplinary hearing neither Mr Richardson nor Ms Kavanagh mentioned the pre-meeting. However, Mr Harbour’s note of his interview with Ms Kavanagh does indicate that both Ms Kavanagh and Mr Richardson had made notes of various matters that they wished to discuss with the claimant. Mr Harbour records as follows:
“It was felt more appropriate for RR to lead the meeting as PK was new in the post. RR was more in formed regarding PS priorities but as PK needed to be aware of PS’s workload as her line manager”.
Any notes made that day by Ms Kavanagh and Mr Richardson appear not to have been retained.
3.94 The claimant prior to the meeting had prepared a note [ which a copy was available to the Tribunal] in which she had identified over 40 items. However, it seems that the claimant did not get the opportunity of raising her agenda and this document was not submitted. The meeting lasted about 40 minutes and from the accounts of the claimant, Ms Kavanagh and Mr Richardson it appears that Mr Richardson led the meeting. He raised the issues that subsequently gave rise to disciplinary charges. The claimant describes the meeting as one that she felt was very hostile towards her and she felt that she was being denigrated and attacked. It would appear that Mr Richardson was pursuing what he regarded as deficiencie I the claimant’s conduct or performance. The claimant accepts that she terminated the meeting. All parties are agreed that the claimant did this after requesting the attendance of a trade union representative and when that request was refused she left the meeting.
3.95 Mr Richardson in his statement to the disciplinary hearing stated that he opened the meeting by discussing the request from the Social Services Department. He then referred to the fact that the claimant produced a job description for a post in the Social Services Department. That document identified the claimant’s post and indicated a relationship between the two positions. The claimant had not been consulted about that proposal although it would seem that Mr Richardson had discussed it with Mr Bates. Thus, the job description was a relevant issue to be raised. According to Mr Richardson the claimant suggested that because of this new post she would not be required as a trainer. In response Mr Richardson said that:
“I disagreed saying that she was expected to maintain close liaison witi, e post holder, ensure corporate best practice was adhered to and to disseminate best practice across the departments of the Authority.”
Ms Kavanagh confirms this account in her statement adding:
“I said it would be unfair to expect the Social Services Officer to undertake training if she has not been trained and did expect Pauline to at least contribute to the training within social services.”
Given that the claimant had equally not been trained as a trainer the distinction sought to be made here was somewhat difficult to discern.
3.96 The accounts of Mr Richardson and Ms Kavanagh both confirm that at this point the discussion regarding social services training was concluded and that the meeting moved on to other matters. It is obvious that the claimant had been disputing her role as a trainer for social services. However, neither of the management statements suggests that the claimant was given an instruction to carry out such work which the claimant refused to obey. The claimant, in her evidence to the Tribunal, said that no such instruction was given and in consequence there could have been no refusal.
3.97 Mr Richardson indicated in his statement that he next raised the issue of the Equalities in Employment policy as follows:
‘This had been before members in July 2002 as a draft for consultation. Further consultation was undertaken with local trade unions with the TUC. The draft and consultation responses as been given to Pauline Scanlon on appointment in October 2002 and she has been asked to finalise the policy, prepare a report for the Council Executive and obtain approval for implementation. This has not yet been achieved and I asked about progress made so far. Pauline said that she had given me a 10,000 word resume of the organisational position on which these points were dealt with and asked if I had read it.”
3.98 Mr Richardson did not record his response, if any, to this question. The reference to the 1 0,000 word document is to the comprehensive review of policies in relation to equalities that was approved by the Chief Officer’s meeting in March 2003. That review set out the requirements for employment policies. Accordingly, had the contents of that document been in the mind of Mr Richardson he would have known what the claimant’s proposals were.
3.99 At this point both Mr Richardson and Ms Kavanagh say that the claimant wagged her finger and said “just like that” at Mr Richardson and produced a job description relating to Ms Kavanagh suggesting that it was Ms Kavanagh’s responsibility to initiate policies. Although Mr Richardson made reference to a review of the Employment in Equalities policies it is apparent that neither Mr Richardson or Ms Kavanagh referred to the contents of the claimant’s report. There seems to be little doubt that at this point the claimant became quite upset. According to the claimant’s account:
“I became increasingly intimidated and conscious that nothing I said was making a difference and I was being tag teamed by them. I was quiet for most of the meeting as they were being inconsistent in what they were saying and it was the most humiliating meeting I had ever been in.”
3.100 It is evident that the discussion about the Equalities in Employment policy was not concluded by an instruction and a refusal. Although the claimant was arguing with Mr Richardson and Ms Kavanagh neither of their statements indicate that there was a instruction to the claimant followed by a refusal to obey that instruction. There was an argument but no conclusion was reached. The claimant was seriously perplexed by Mr Richardson raising an issue the claimant had outlined in a report which had been approved by him as one of the Chief Officers three month’s earlier. The programme in appendix 5 had indicated that the policy drafting would have been completed by the end of May 2003. It would have been a perfectly proper issue to ask the claimant why she had not completed the work within the indicated timetable. It would seem that Mr Richardson had either not read the claimant’s report or had forgotten what it said.
3.101 Between October 2002 and June 2003 Mr Richardson had many opportunities to remind the claimant of this alleged instruction. It may well have been something that he mentioned to the claimant in October 2002. However, if it had been a priority instruction then it is inconceivable that on the series of occasions when the claimant wrote to either Mr Richardson directly or copied him in, when terms in which she wrote were inconsistent with such an instruction, that he did take action to point out her error. Furthermore, the document approved at the Chief Officer’s meeting in March was also inconsistent with this requirement. Why did Mr Richardson remain silent and allow that document to be approved? Furthermore, the claimant’s line manager Mr
3.102 Mr Richardson concludes his statement to the disciplinary hearing as follows:
“I formed the view that on at least two occasions in the meeting Pauline Scanlon had refused to undertake reasonable management instructions. I also formed the view that she had been grossly insubordinate during meeting. I instigated a disciplinary investigation at
3.103 Ms Kavanagh in her statement generally supports Mr Richardson’s conclusions noted above, but subject to an interesting qualification as follows:
“It is my opinion that on at least two separate occasions Pauline has failed to respond to reasonable requests to carry out work which is covered within her role and responsibilities and job descriptions and these failures to respond amount to refusal to carry out the work.”
3.104 About an hour after the meeting concluded, the claimant returned to the office she shared with Ms Kavanagh accompanied by a union representative. She told Ms Kavanagh that she unwell and that she was going home. The claimant never returned to work having left the office at approximately at about
Suspension and Investigation
3.105 The following day Friday 13 June the claimant was absent on a pre- hooked holiday. On the same day two separate letters were sent to the claimant, one from Mr Richardson and one from Ms Hall the investigating officer. The claimant received these letters on
“With reference to my meeting with yourself and Pauline Kavanagh on 12 June, I would be grateful if you could attend a further meeting to discuss your abrupt departure from the meeting. You may wish to bring a friend or a trade union representative with you. The meeting is at
3.106 It is to be noted that although a time is given rio date for the meeting was given. It seems likely that Mr Richardson had also been appraised of the fact that the claimant had gone home because he wrote to her home address. In all probability, Ms Kavanagh would have told him that the claimant had said that she was ill. On 16 June, the claimant’s GP issued a sick note for a period of 4 weeks. The diagnosis on the certificate was as follows:
“Stress/depression — aggravated by work situation/psoriasis.”
3.107 The second letter sent on 13 June was from Ms Hall. It opened as follows:
“In accordance with the Council’s disciplinary procedure Code of Practice I have been asked to undertake an investigation into the following matter:
That on at least two occasions you have refused to carry out reasonable management instructions which could be deemed gross misconduct under the disciplinary procedure.”
The letter then proposes a hearing on Friday 20 June and encloses a copy of the disciplinary procedure. What is notable about this letter is that it does not specify the instructions said to have been breached or the occasions on which they were alleged to have been breached. This particular omission persisted and as noted below was the subject of representations made by both the claimant and her trade union.
3.108 On 16 June Mr Richardson wrote to the claimant again referring to the 12 June and to the formal investigation. He then continued with the following statement:
“As you have refused to carry out what I believe to be reasonable management instructions on at least two occasions I have decided that suspension is appropriate. You are therefore suspended from work from Monday 16 June.”
The letter then continued with various requirements and information about the suspension. It also included a reference to the fact that the claimant would be contacted in the near future with the name of a contact/support officer to whom the claimant would be able to direct questions relating to procedure or to her suspension.
3.109 On 17 June the Regional Office of Unison informed Ms Hall that the claim
would not be fit to attend on 20 June. On 23 June Ms Hall proposed a reference to a occupational health advisor, which was arranged for
“As you know she is off work because of problems in the job which you are aware of and the subsequent suspension had a deleterious effect on her state of mind, it has a/so had a negative effect on a long term skin condition which she suffers from and she is therefore taking appropriate medication for her anxiety and depression and suitable treatment for her skin. She is not mentally fit enough at the moment to deal with an investigatory interview in relation to the alleged problems but my impression is that she may be so in about a month’s time. My impression is that when she is better and the allegations have been dealt with she will be fit enough to carry out the duties of her post.”
3.110 On 24 July Ms Hall wrote to the claimant provisionally arranging for “e investigatory meeting to be held on 21 August subject to a prior appointment with occupational health service to assess her fitness to attend such a meeting. The significant element in this letter of 24 July is the following:
“I have therefore requested Colin Moore the nominated officer to indicate his wishes in this matter and he has agreed that the investigation process will be delayed for approximately one month.”
3.111 Mr Moore in his initial statement to the Tribunal did not deal with the reasons why he, the Chief Executive, had become the nominated officer. Similarly Ms Hall in her formal report did not explain the circumstances which led to that decision nor do the statements of the primary witnesses, Mr Richardson and Ms Kavanagh. As will be noted below, this matter was subject to challenge at the time by the claimant and her trade union representatives. The Tribunal thought that it was extremely surprising that Mr Moore did not deal with this matter more fully other than when seeking to justify his decision to deny the claimant the right to an appeal hearing.
3.112 On 6 and 7 August [ a reminder on 12 August} Unison wrote to the respondent with a series of complaints, these included: a failure to appoint a contact officer, failure to review the suspension and failure to follow other procedures. In addition clarification of the allegations were sought, what were the instructions, when were they given and when were the alleged refusals. On 14 August Ms Hall replied. In her letter she advised that the investigation had taken a form of interviews conducted with Mr Richardson, Ms Wilson and Ms Kavanagh. However, although there is an obligation under the Council’s procedure to keep records in fact no notes of those interviews have been disclosed in these proceedings.
3.113 Although there were requests seeking disclosure of Ms Hall’s investigatory note the respondent never complied with them. However, Ms Hall offered this clarification:
‘The allegations relate to requests made by Pauline Kavanagh and Ray Richardson for work to be undertaken. These requests were allegedly made in a period beginning in late May and ending on
Thus, we can apprehend from this response that Ms Hall’s investigation was confined to the social services training and to the away day presentation. One must presume that those were the only issues raised by the witnesses. That is inconsistent with the evidence relating to 12 June when the away day seems not to have featured but rather Social Services and the employment policy. This casts doubts as to the competence of Ms Hall’s investigation.
3.114 Mr McCormack the Unison Branch Secretary, not being satisfied with this response asked the following questions:
“What training events?
What input was she asked to give and what is she alleged to have refused to give?
When did these so called refusals take place?
Who allegedly gave her instructions and what were the instructions that they gave?
Would she be shown these instructions in the evidence of her alleged refusal?”
It appears that there was no written response to any of those questions.
3.115 By this stage the claimant had received clearance from her GP to return to work on
3.116 There was no statement from Ms Hall about what took place on 2lAugust. Therefore we only have the claimant’s account. The claimant told the Tribunal as follows:
“During this interview I was not told the specifics of the instructions I was alleged to have refused or the extent I had allegedly failed to comply with them.”
A statement was prepared by Ms Hall on the basis of the interview. This was prepared as if it were a statement made by the claimant in the first persc’n. Subsequently the claimant challenged the contents of this statement and refuse i sign it. The statement as prepared by Ms Hall principally covers three areas, the social services requests made by Mr Bates, the away day request initiated by Ms Wilson and the events of the meeting of 12 June. There is a short section that refers to the Corporate Equalities policy.
3.117 It is to be noted that neither the Corporate Equalities policy nor the alleged misconduct of the claimant at the meeting of 12 June seem to have been within the scope of the investigation. Ms Hall appears equally confused as to her terms of reference. Ms Hall’s responses to Unison suggest that the suspension and investigation was confined to social services and the away day and not to other matters. It seems that it was on that basis the claimant was interviewed.
3.118 On 20 August the claimant sent a complaint of bullying and harassment to her contact officer. The opening paragraph specifies in terms that it is:
“A complaint of bullying and harassment.”
The complaint then specifies the persons against whom these complaints are made as Mr Richardson, Ms Wilson and Ms Kavanagh. Despite the clarity of this complaint formal action was not taken until
3.119 The complaints enumerated include the following: Failing to respond to work submitted and ignoring work completed.
Being excluded from meetings.
Undervaluing her efforts.
Attempting to bully her into discharging the responsibilities of others
Being shouted at by Mr Richardson on 12 June.
Having false and malicious allegations put to her regarding her conduct contrary to Council procedures.
Being subjected to investigation contrary to Council procedure.
Being suspended for ambiguous allegations of gross misconduct with intent to harass and distress her.
Being subjected to behaviour over a prolonged period which has had a detrimental impact on her health.
Being subjected to an aggressive, intimidating and bullying style of management.
Threats to isolate her.
Failing to respond to requests for additional hours worked.
3.120 On 3 September Ms Hall issued her report. The report indicated that she had interviewed the following people:
Ray Richardson —
Pauline Kavanagh —
Linda Wilson —
Pauline Scanlon —
It should be said that the report written is relatively brief. The chronology of events and summary of interviews is little more than one and a half pages of A4. It refers to the complaint made by the claimant in March 2003 and the claimant’s allegation that it was from that time her management relationships changed. It notes the discussions about the claimant’s workload and role, It then mentions the social services request, the discussion regarding Equalities Employment policy, the claimant leaving the meeting and Mr Richardson’s opinion that her insubordinate behaviour during the meeting could constitute gross misconduct. It ends with the conclusion that during the meeting of 12 June the claimant:
“Had refused to review the Equalities Employment policy and be involved in the social services training events. They considered that these were reasonable management requests.”
3.121 In a section entitled ‘discussion” Ms Hall deals with the question of training noting that the claimant had stated that she was not a trainer. Ms Hall’s report continued:
“She clearly believes that training staff should not be an expected component of her day to day duties. It is not clear if she had been given an opportunity to express this view effectively to her managers. It is clear that the training need was to be addressed in a course to be attended in July 2003. I formed the view that managers had clearly articulated their requirements for Pauline to participate in staff training events and that this was a reasonable requirement of the post holder.”
3.122 It is to be noted at this point Ms Hall did not identify any refusal by the claimant. This report continued with a discussion of the claimant’s complaint of March 2003 and then sets out this statement:
“It is clear that PS was reluctant to undertake a review of the Equalities Employment policy. It is my opinion that to some extent this was due to her views about PK’s appointment and her right to be her manager. She does not accept that she refused to undertake this work.”
3.123 The final section in Ms Hall’s report is her conclusion section which consists of five single line paragraphs which, for the purposes of this judgment are elided together:
“I conclude that PS has refused to undertake work that her managers could reasonably expect her to undertake on two occasions. I am of the opinfr that her refusals were to some extent the result of a lack of trust L J openness by both parties and by increasing alienation between her and her managers. I am of the opinion that there may be an irreversible breakdown in working relationships between PS and both PK and PR. I conclude that the holding of a disciplinary hearing is the appropriate course of action.”
3.124 The first thing to be said about the Hall report is that her conclusions are ambiguous and inconsistent with her apparent terms of reference. As noted above we do not have any of the supplementary documentation on which she relied and therefore we can only draw our conclusions from the material which the respondent relies upon in these proceedings. Therefore, in relation to the refusal “to undertake work”the work to which she refers in her report is the social services training and the Equalities Employment policy. There is no mention of the away day. However, it is clear from the earlier letters of Ms Hall that it was the away day and the Social Services training incidents which were the subject other investigation. Therefore, she makes a finding in respect of a matter which was within the ambit of her investigation and fails to make any finding on the second matter but inst d substitutes a third matter that appears to be outside the scope of her instructions.
3.125 Ms Hall’s references to a refusal on “two occasions” are ambiguous. She does not specify what constitutes these “two” occasions. She can have been in no doubt that this was an issue, because it was raised by the claimant at her interview on 21 August, it had been raised twice before by Unison in correspondence and it is also referred to in the grievance letter which Ms Hall was aware of because she refers to it in her report. There could, therefore, be no possibility in Ms Hall’s mind other than that she had to direct her attention to the question of specifying the two occasions on which refusals were said to have been made. It is quite evident that Ms Hall did not do so. Similarly Ms Hallmakes no conclusions regarding the conduct of the claimant on 12 June. Ms Hall concludes with an opinion of irreversible breakdown of relationships which is a matter which she had not raised with the claimant at her interview on 21 June.
3.125 Clearly as an investigation this was a very poor affair, muddled and imprecise in its conclusions. Without any of the supporting documentation and notes it is therefore impossible to know whether Ms Hall had looked at any of the source documentation such as the claimant’s report to the chief officer’s meeting in March 2003. Had she done so she may have found great difficulty in expressing an opinion that the claimant was reluctant to undertake a review of the Equalities Employment policy. Her conclusion in that regard appears to be contrary to the facts. To some extent Ms Hall has fallen into the trap well displayed by Mr Harbour of concentrating on people’s opinions and attitudes rather than attending to the facts and seeing whether the witnesses’ opinions were consistent with those facts.
Disciplinary Proceedings
3.127 On
‘That at such hearings there is the potential for findings of gross misconduct which may lead to disciplinary action including summary dismissal.”
3.128 Because of the potential complexities, a pre was proposed for Monday 29 September to be chaired by Mr Moore. The letter also enclosed a schedule of issues and evidence to be raised. This document names witnesses who were not identified by Ms Hall in her report. This suggests one of two things. Either Ms Hall intentionally omitted from her report enquiries which she had conducted. Alternatively, that between her report (which appears to have been submitted on 3 September) and Mr Noonan’s letter of
3.129 The schedule enclosed with the letter of 19 September enumerated four issues. These were as follows:
(a) “Failure to respond to requests to undertake work related to the preparation and delivery of equalities training for Social Services Department staff planned for September 2003 which amounted to a refusal to undertake the task.”
(b) “Failure to respond to requests to undertake work related to the preparation and delivery of awareness training for staff within the Department of Finance, Performance and Procurement planned for I 6 June 2003 which amounted to a refusal to undertake the task’
(c) “Failure to respond to request to undertake work relating to the Equal Opportunities Employment policy of the Council which amounted to a refusal to undertake the task.”
(d) “Rude and insubordinate behaviour (in a meeting held on
3.130 The pre-hearing meeting was held on
3.131 The meeting then considered the question of the grievance which the claimant had raised on 20 August. Mr Moore is recorded as having concerns:
“About one issue tainting the other and he felt if he heard the grievance he would be unable to hear the disciplinary. PS said that she had the right to have the grievance heard separately. CH thought that the two issues were linked and asked if they could be heard at one meeting with the grievance being heard first then moving into the disciplinary element.”
After further discussion Mr Moore indicated that in his opinion the claimant’s document of 20 August was not a grievance but was a complaint under the Bullying and Harassment policy. Therefore, he proposed to appoint an officer to carry out an investigation under that policy and to make recommendations accordingly.
3.132 As a result the original purpose of the pre-hearing meeting was lost and never reinstated. According to the claimant Mr Moore, thinking aloud, had identified other Directors Dr Joan Reece, Director of Development and Ms Jenny Levv,s, Director of Education as persons who could possibly hear the disciplinary. The question that does not appear to have been considered was who would hear an appeal. Mr Frankland who is the Assistant Chief Executive and is a solicitor wrote on
“I am advised that Mr Moore considered alternative decision makers but only on the basis of availability. He has confirmed that he will now make himself available to hear this disciplinary case.”
Thus, it seems that at this point in the process Mr Moore [ invited to do so] did not direct his mind as to how compliance could be achieved with the Council’s disciplinary and appeal processes or to any potential difficulties arising from his apparent wish to have an overarching role in all these areas of contention affecting the claimant.
3.133 On 30 September Mr Harbour began his investigation with a letter to the claimant. The Tribunal had no statement from Mr Harbour outlining how he had conducted his investigation. Therefore the only document to which we can make reference is his report which appears to be dated
‘The purpose behind the taking of statements has been to produce evidence to either corroborate or refute the complaint submitted.”
3.134 In his summary Mr Harbour sets out his conclusions. He opens with the following proposition:
“I have found no evidence to support the contentions made by Pauline Scanlon of infringement by her managers or colleagues of the Council’s harassment/bullying policy. I have, however, established that some of Pauline Scanlon’s colleagues did feel harassed by her perceived aggressive and hectoring behaviour.”
3.135 In his summary Mr Harbour is very supportive of the management position throughout and rejects almost in their entirety the complaints of the claimant. One very interesting passage in his summary is as follows:
“It is worthy of remark that Pauline Scanlon should have reported directly to Jonathan Watts who was for most the period under investigation, her line manager. Jonathan appears, however, to have occupied a supporting/befriending role leaving the managerial responsibility to Ray Richardson. Whilst it is argued by Ray Richardson that he wished to maintain a direct involvement in the successful implementation of equality policies in practice throughout the Council, the responsible post holder was Pauline Scanlon under the management of Jonathan Watts. Although the continuing involvement of the Direct of Finance, Performance and Procurement is understandable, one impact may have been the blurring of roles and responsibilities and a consequent increase in stress due to the confusion about who is responsible for what. Whilst Pauline Scanlon appears to be suffering symptoms of stress, I cannot find evidence to link this to harassment and bullying.”
Although Mr Harbour in this passage accurately identifies one of the main lines of causation in this unhappy story of events, he fails to follow through the logic of his own analysis. In one sense we can forgive Mr Harbour because he was concentrating on bullying and harassment. However there is no excuse for Mr Moore not directing his mind to this issue.
3.136 Mr Harbour’s recommendations were:
1 That there was no evidence of bullying and harassment and therefore
no action should be taken against the officers identified in the complaint of 20
August 2003.
2 That any further action deemed necessary should be taken pursuant to the Council’s disciplinary procedures.
3 That there should be a clear policy statement preventing personnel officers acting as support officers.
4 There should be clarification of the Council’s harassment and bully. policy to ensure that complaints are resolved at the appropriate level.
3.137 It is to be noted that Mr Harbour did not make the findings necessary prerequisite for disciplinary action. The Council policy provides as follows:
“In cases where harassment/bullying is not proven disciplinary action maybe considered if a bogus complaint has been brought with unwarranted/malicious intent”.
Further it seems that it was Mr Moore who made the decision to accept Mr Harbour’s findings.
3.138 The Tribunal considered the statements gathered by Mr Harbour. However, these statements were taken for a particular purpose, namely, an investigation into a complaint of bullying and harassment. Although the subject of these complaints also coincide with many of the areas in which the disciplinary process was concerned, the purpose and intent of Mr Harbour’s enquiry was of a different nature. In particular it is to be noted that very often Mr Harbour concentrates on the feelings and opinions of the witnesses. Thus, instead of testing in every case those opinions and attitudes against the facts, Mr Harbour sometimes assumes the facts and concentrates on the witnesses opinions as to those facts. As we say, that may be entirely understandable given the nature of his enquiry. What we do say, however, is that this body of evidence should therefore be treated with caution. However, Mr Harbour did attend to matters that are absent from the disciplinary hearing statements. It is therefore useful to refer to some of the statements Mr Harbour prepared because in the absence of the primary witnesses before the Tribunal it is the only source of information we have.
3.139 Following the delivery of the Harbour report to the Chief Executive Mr Frankland wrote to the claimant adding a fifth allegation which it is said had emerged through Mr Harbour’s investigation. It is not clear from either the statements of Mr Moore or the letters of 26 and 28 November 2003 written respectively by Mr Moore and Mr Frankland as to exactly how the decision was taken to add a fifth charge. However, the probability is that this decision was one taken by Mr Moore on advice from Mr Frankland. Mr Frankland in his letter states as follows:
“Colin Moore has passed the report to me and taken advice on how best to proceed in light of the closely overlapping issues between your complaint and the disciplinary allegations. Following recommendations made in
3.140 On 3 December Mr McCormack wrote to Mr Frankland with a series of complaints. These were in summary as follows:
That the investigation of the bullying and harassment complaints had not been completed in accordance with the assurances given.
ii That the findings on Mr Harbour were not substantiated.
iii That Mr Moore on 29 September said that he had contacted Ms Lewis and she had confirmed that she would chair the disciplinary hearing.
iv That the allegations the Council now intended to proceed with had not been put in those terms to the claimant and therefore she had no opportunity to respond.
v That Mr Harbour had failed to pursue enquiries with Mr Moore despite being put on notice.
vi That documents disclosed under the Data Protection Act to support the contention of victimisation on the part of Mr Richardson.
3.141 The McCormack letter then continued to identify a series of issues including:
(a) The fifth charge which had now been raised.
(b) That documents that the claimant required for her defence had not been disclosed despite requests.
(c) That the claimant’s requests for access to the contents of her computer had also not been complied with.
3.142 in conclusion, Mr McCormack made two formal requests:
(a) “That any hearing would only hear those allegations made against her at the investigatory hearing attended by myself, Pauline and Catherine Hall”.
(b) “That this hearing be deferred until sometime in the new year so that al/the problems identified above can be addressed.”
3.143 On
3.144 On 26 February Mr Frankland sent a copy of the management statement of case and suggested that any challenge to the scope of the charges which were being made could be raised as a procedural issue at the hearing. The five charges outlined in the document sent with the letter of
1 “Failure to respond to request to undertake work related to the preparation and delivery of equalities training for social services department staff planned for September 2003 which amounted to a refusal to undertake the task.”
2 “Failure to respond to request to undertake work related to preparation and delivery of awareness training for staff within the Department of Finance, Performance and Procedure planned for 18 June 2003 which amounted to refusal to undertake the task.”
3 “Failure to respond to request to undertake work relating to the Equal Opportunities Employment policy of the Council which amounted to refusal to undertake the task.”
4 “Rude and insubordinate behaviour (in a meeting held on 12 June
2003) towards the Director of the Department and her line manager including
deliberately walking out of the meeting.”
5 “A pattern of aggressive and hectoring behaviour towards colleagues leading to an in ability to form effective working relationships which was in breach of the harassment and bullying policy.”
The Hearing
3.145 A considerable number of exchanges followed between the parties relating to evidence, disclosure and process. Eventually a date of 10 May was fixed for the disciplinary hearing. In April Mr McCormack unexpectedly had to take compassionate leave. He was unable to prepare for the hearing on 10 May and had to withdraw. Although he had been expected back on 4 May he did not in fact return and his compassionate leave was succeeded by sick leave. Although the claimant was accompanied on 10 May by Eve Cole from Unison, she did not attend as the claimant’s representative. Ms Cole was not in a position to take over such a complex matter and was present merely as a friend and note taker. In terms of the advocacy of the claimant’s case this was an unfortunate development. The claimant handed in a request for a postponement on the grounds of Mr McCormack’s absence. Mr Moore considered this and agreed to adjourn the hearing on the understanding that it would resume on 14 May with the presentation of the management case. On the same day Mr Moore wrote to the claimant and expressed the belief that there had been ample time for the defence case to be substantially prepared. The following day
3.146 In his letter of 10 May, Mr Moore had required that any witness statements had to be provided five clear days before the resumed hearing. So far as the defence case was concerned, at that point it was envisaged that it would be heard on I and 2 June. The claimant maintains that this was the first time she had been made aware of such a condition. The claimant had been prevented by the terms of the suspension from talking to anyone outside the trade union about the case. She could not carry out any personal investigations or gather documents. Mr McCormack who had aided her throughout was unavailable and the only person to assist was Ms Cole who was new to the branch office, unfamiliar with her case and lacking the experience to deal with a matter of some complexity. As the claimant rightly points out, the respondent regarded the case as so complex that it required three senior managers to present it. All these events proved extremely stressful for the claimant with the consequent effect on her health. A sick note was provided by the claimant’s GP to substantiate her medical incapacity.
3.147 On 2 June Mr Moore had meetings to consider the medical situation and the disciplinary proceedings. Mr Moore accompanied by Mr Richardson and his external legal advisor, Ms Langridge, met Mr McCormack who had now returned to work and Ms Cole. Following that meeting on 2 June Mr Moore wrote to the claimant attempting as he describes it:
“To inject a much needed sense of proportionality in the proceedings... which I hoped would focus Mrs Scanlon’s attention on the key issues. By this time we have moved a long way from the core issues which I felt needed to be determined. I was also disheartened by the enormous volume of paperwork which Mrs Scanlon was producing as its relevance appeared very doubtful.”
3.148 In his letter of 2 June, Mr Moore said that of the fifth charge, having listened to the management case, he did not feel the allegation had been made out. The reasons he gave were firstly that he was not convinced that the claimant’s behaviour amounted to bullying and harassment and secondly he had some concerns regarding procedure. Given Mr Moore’s apparent involvement in the bringing of this charge in the absence of evidence that the complaints were either bogus and/or activated by malice this conclusion merely emphasises that this charge ought not to have been raised in the first place.
3.149 Mr Moore’s letter continued in this regard as follows:
“I am therefore of the view that we should not proceed with this fifth allegation. However, when the defence case is put forward I would like Mrs Scanlon to deal with one other issue. Whether or not the behaviour could be described as bullying and harassment, there is clear evidence of a wide spread breakdown in relationships, not only with management but also colleagues. It is possible that subject to fitness, Ms Scanlon would be returning to work next Wednesday. If so, how are these seriously damaged working relationships going to be mended.”
So having abandoned one charge Mr Moore purports, in effect, to add another complaint on substantially the same premises in the midst of the disciplinary hearing.
3.150 In the letter of 2 June Mr
“I view the fourth issue on its own as misconduct of a less serious nature.”
3.151 The letter of 2 June sets out seven questions which Mr Moore thought it was necessary for the defence case to address. These were as follows:
“1 Was Mrs Scanlon asked to do the task?
2 Did she in fact refuse?
3 Was there good reason to refuse? This involves concepts of
reasonableness i.e.
• Was the instruction reasonable?
• Was the refusal reasonable?
4 What reasons does Mrs Scanlon in fact rely on for refusing?
• Were the instructions not clear?
• Does she think they were not her responsibility?
• Does she say she was overwhelmed by the volume or pressure of work?
5 Was Mrs Scanlon’s behaviour on
subordinate?
6 Are there any mitigating factors?
7 Does Mrs Scanlon dispute the evidence of Ian Cockerill and Vanessa
Mundy?”
3.152 There then followed a series of fraught exchanges regarding the continuation
of the hearing. The claimant obtained a further certificate from her GP certifying
sickness on the grounds of “stress/depression/anxiety” That was dated 18 June. In
a note her Doctor indicated that the claimant should be well enough in two to three
weeks to attend a hearing.
3.153 On 18 June Dr Maguire the Occupational Health Physician saw the claimant at the behest of the respondent. Dr Maguire indicated that physically, although there had been an obvious deterioration of her psoriasis the claimant should be physically capable of attending a hearing in the near future. However, he noted as follows:
“Very recently there has allegedly been deterioration in her mental condition because of the stress and anticipation of an impending hearing and as a result her GP has referred her to the psychiatric unit at
3.154 On 2 July Mr Moore, having had regard to the conflicting views of the claimant’s GP and the Council’s Occupational Health Advisor, decided to proceed with the disciplinary hearing on Thursday 22 July and Friday 23 July. Mr Moore indicated that the hearing would go ahead whether or not the claimant was fit to attend.
3.155 The attendance of witnesses was another issue in dispute. The claimant was of the view that she had been promised that Jonathan Watts would be available to be questioned. In the event he was not available. However, Mr McCormack was available when the hearing of the claimant’s case was heard beginning on 22 July 2004.
3.156 The claimant’s complaints regarding the hearing were described in her statement to the Tribunal in the following terms:
“Even though the management case was given three days to be delivered I was allowed less than an hour to present my position. This was despite two days having been set aside... (I was told) that I could not read out in full the statement of defence that / had prepared. I was stopped from reading this statement after only a page and a half and was told that it would take me over three hours.”
3.157 Mr Moore, for his part, told the Tribunal that he had indicated to the claimant that he wanted to take her documents as read and for her to highlight the key points in an oral presentation. The claimant was unwilling to do this and she began to read her presentation. Mr Moore then told us as follows:
“After 20 minutes or so, I intervened to say that I was not willing to proceed on that basis. I calculated that at the rate the document was being read it would take two and a half to three hours to complete the reading and it was adding absolutely nothing to the process. What I wanted was for Mrs Scanlon to engage with the issues and present her key points to me. The reading of lengthy notes were simply having a soporific effect on everyone and I fe, was a strain on Mrs Scanlon as well.”
3.158 Mr Moore maintained that he told the claimant that he would attend to the paperwork and he then said that with his legal advisor he went through Mrs Scanlon’s documents as he promised. He continued:
“We were satisfied that a great number of the voluminous papers were irrelevant to the issues in the case. For example, Mrs Scanlon produced copies of policies and publications the content of which were irrelevant merely to show what task she had been working on. It would have been enough simply to set out a description of the task without producing the paperwork itself.”
3.159 Although the Tribunal has some degree of sympathy with the attitude of Mr Moore to the large volume of material presented by the claimant he may in having adopted that attitude overlooked vital documentation. For example, claimant’s report to the Chief Officer meeting in March 2003 is in fact a document that goes to the heart of one of the issues and raises serious questions about the credibility of Mr Richardson’s evidence. It may well explain how Mr Moore came to the conclusions he did if by being been deterred by the volume of material he did not attend to crucial aspects of the claimant’s presentation and therefore misdirected himself as to the facts.
The Decision to Dismiss
3.160 Following the hearing, Mr Moore told the Tribunal that his conclusions were as follows:
“I came to the view that allegations I to 3 amounted to gross misconduct and justified Mrs Scanlon’s dismissal. In relation to allegation 4 I concluded that she was guilty of rude and insubordinate behaviour which could also be classed as gross misconduct justifying dismissal.”
Mr Moore then also indicated his concerns about relationships, his agreement with Ms Hall’s conclusion that there had been an irreversible breakdown and confirmed that all these matters had been set out in a letter to the claimant on
3.161 Notably Mr
“One of the pieces of evidence which weighed heavily in my mind was the evidence of Ian CockeriIl. He was a relatively new employee at the time when he had certain conversations with Mrs Scanlon. His evidence indicated a certain mindset on Mrs Scanlon’s part towards her line manager and the Authority which was extremely negative. It also showed that her decision to walk out of the meeting with Ray Richardson and Pauline Kavanagh on 12.6.03 was premeditated.”
3.162 The Tribunal learned that Mr Cockerill had previously been employed by the respondent Council and he had returned to work for them shortly before the events he describes in his statement. The claimant expressed considerable reservations about the way in which Mr Cockerill’s statement had been procured. The statement as presented to the Tribunal was dated
3.163 It seems that on 9 June when Ms Kavanagh returned from holiday, Mr Cockerill had a conversation about the equalities agenda with her. It was suggested by Ms Kavanagh that there was a lack of progress and that there were difficulties with the claimant. Thus, Mr Cockerill had been influenced in his views by this conversation with Ms Kavanagh. Furthermore, it appears that on his arrival on 3 June he had been accommodated at the desk previously occupied by Vanessa Mundy. At that stage he was told that Vanessa Mundy had moved because of her disagreements with the claimant.
3.164 The key passages of Mr Cockerill’s statement that seemed to have influenced Mr Moore particularly are as follows:-
“On Tuesday 10 June Pauline Scanlon told me that she had been asked to put together her brief about her role and responsibilities to be used at an “away day” on 18 June arranged by Linda Wilson for her staff. Pauline Scanlon stated to me that she did not think it was her job to do this and that Pauline Kavanagh’s (sic) should be doing this instead. She therefore had decided that she was not going to complete this task. By this time I was becoming uncomfortable with the situation in the office and I spent most of time (sic) working from the community planning team office next door. On Wednesday 11 June I had to return to my desk in the shared office with Pauline Scanlon and Pauline Kavanagh. Pauline Kavanagh was not present when Pauline Scanlon informed me that a meeting had been arranged between herself, Ray Richardson and Pauline Kavanagh on the morning of 12 June. I was asked if I would be around at this time because Pauline Scanlon felt that she would have to walk out of this meeting and wanted someone to be in the office if she did. She felt this would be necessary as she believed that Ray Richardson would follow her when she walked out of the meeting and she did not want to be alone in the office should this be the case. I did not get the impression that I was being asked to be around because she was intimidated or frightened of Ray Richardson, but that I would serve as a witness to anything that would be said. I concluded that the arranged meeting was going to be confrontational. Pauline Scanlon going to be asked to do a task and that she was going to refuse to do so. She had clearly thought about this and had already decided to refuse and as a result walk out of the meeting.”
3.165 In his interview with Mr Harbour on
“That she was not the easiest person to get along with; she could be quite intense, overbearing and opinionated.”
Significantly, Mr Cockerill also told Mr Harbour that he had never observed any direct interactions between the claimant and Ray Richardson.
3.166 It is to be noted that Mr Harbour’s account of his interview with Mr Cockerill prefaces quite a few of the statements of Mr Cockerill with the construction that ‘
Mr Cockerill, “got the impression that”. Quite clearly in a short space of time with having any direct evidence of the events at all, Mr Cockerill had formed an unfavourable personal opinion of the claimant. Against this the Tribunal have the claimant’s denials of the accuracy of this account. It is a matter of fact that the claimant’s denials are, in many cases, more consistent with the verifiable facts than are Mr Cockerill’s version of alleged expressed intentions prior to the event. Mr Moore took Mr Cockerill’s evidence as corroboration of the charges but those charges were not on the facts sustainable. A disputed discussion about future intentions has to be measured against the facts. For example if no instructions were given at the meeting there could be no refusal. Therefore even if an intention to refuse had been expressed by the claimant that cannot be reasonably be used to ‘prove’ something that, in fact, never happened. As for leaving the meeting the claimant had previously set out in writing that if matters relating to her conduct were to be raised by Mr Richardson she would require a trade union representative to be present. The claimant left only following a refusal of such a request,
3.1657The respondent’s letter of 9 August sets out the findings in relation to the four allegations. The decision was as follows:
“1 In relation to allegations 1, 2 and 3 I find that you deliberately refused to comply with a reasonable request by your line managers. This amounts to gross misconduct and my decision therefore is to terminate your employment with immediate effect.
2 In relation to allegation 4 I find that you did behave in the manner alleged by Mr Richardson and Ms Kavanagh on 12 June and that your behaviour was rude and insubordinate. This also amounts to gross misconduct justifying your summary dismissal.
3 As for relationships, I cannot ignore the serious state of your working relationship with Mr Richardson and Ms Kavanagh and I must act in the Council’s best interests. Even if I did not feel there were sufficient grounds to terminate your employment on the four allegations in question, I would have to say that your dismissal on the grounds of an irretrievable breakdown in relationships would be appropriate.”
3.168 The letter of 9 August then indicates that the last day of employment would be Tuesday 10 August and the letter concludes as follows:
“You have a right to appeal against this decision by writing to me within 14 days of receipt of this letter setting out the grounds of appeal. We will then need to consider how to proceed given that I am the most senior officer of the Council and several other senior officers have been directly involved in these issues. Once you have notified an intention to appeal I propose to liaise with you and your Union representative with a view to agreeing how we deal with the arrangements from there.”
3.1679 the letter of 19 August in relation to allegation 1, Mr Moore’s conclusions were founded on the following considerations: that a request was made by Mr Bates by e-mail on 16 May 2005; that was discussed on 12 June; that training was an explicit and implicit part of the claimant’s job description; that the claimant’s response to the Bates e-mail of 16 May concluded with the claimant “resisting the task at the 12 June meeting.” These facts constituted a refusal.
3.170 In relation to allegation 2, the requests in respect of that work were identified as the
“a lot of weight to Mr Cockerill’s evidence since he had only known you for a matter of days at the time and had no reason to lie”.
3.171 In relation to allegation 3, Mr Moore uses this construction in relation to the nature of the instructions:
“Ray Richardson says he instructed you in October 2002 to review and update the Equality in Employment policy.”
Mr Moore then goes on to conclude that that instruction was in fact given in October 2002 and again on
3.172 In relation to allegation 4, Mr Moore concluded that the claimant: tw refused to do tasks required of her; wagged her finger at Mr Richardson and s j “just like that”; thrust Ms Kavanagh’s job description at Mr Richardson; stood up ended the meeting and behaved in a generally rude and aggressive manner towards her managers. Again, in this regard, Mr Moore placed considerable emphasis on the evidence of Mr Cockerill who of course was not present at the meeting and did not offer his evidence until many months later. Mr Moore therefore concluded that the claimant had been rude and insubordinate.
3.173 At no stage in the process had the claimant been told that it was proposed to terminate her employment on the basis of the irretrievable breakdown of relationships. Although this matter had been raised as a conclusion in Ms Hall’s report and was referred to particularly by Mr Moore in his letter of 2 June, the investigation had not been conducted on that basis nor was not a disciplinary charge. It was not therefore a matter requiring the claimant to present her defence. Although Mr Moore said in his letter of 2 June that he wished to consider the point in general, the terms of that indication are far too ambiguous. Mr Moore in his letter of 9 August describes the position as follows:
“While it has not been the job of this hearing to examine the relationships issues in detail, I have made it clear that I have concerns about this. I also stated that it is not an exercise in establishing fault but I do have to take account of the state of relationships between you and your managers in particular. You are unwilling to comment on this at the hearing before my decision was made.”
Despite these words Mr Moore, nevertheless, reached conclusions on relationship issues in his findings.
The Refusal to Grant an Appeal
3.174 In relation to the appeal, Mr Moore set out his position in his statement to the Tribunal in the following terms:
“I concluded my letter by offering Mrs Scanlon the opportunity to write confirming whether she wished to appeal setting out the grounds. At this stage I hoped that we could identify a mechanism for offering an appeal although I was already aware that this would present serious difficulties... I took legal advice as I was concerned by how we could deal with the appeal process. I concluded that we could not realistically go forward with an appeal.”
3.175 On
“1 As stated in my letter of 9 August I am the most senior officer of the Council and it is therefore difficult to identify an officer with authority to overturn my decision.
2 Few of the Chief Officers are independent of the disciplinary issues concerning you and I do not consider it feasible or appropriate to take this matter outside the authority.
3 Importantly in your grounds of appeal you make direct and explicit attacks on my integrity and good faith. I would obviously expect you to be unhappy with my decision and to seek to challenge it but the specific grounds you have presented make it difficult to see how an appeal could proceed. The person hearing the appeal would be asked to overturn the dismissal in a way which is tantamount to finding that I, as their Chief Executive, acted in bad faith. This is quite different from finding simply that I was mistaken. I do not believe it/s realistic to expect such an outcome whether the appeal is heard by officers or by members.
4 Finally, your grounds of appeal address aspects of my concerns about relationships but do so in such a way as to reinforce my belief that you are not capable of working with your line managers. It therefore strikes me as futile to proceed with an appeal in circumstances where your reinstatement would not be an achievable outcome.”
3.176 It was apparent that there was at least one Chief Officer, the Director of Education, Ms Jenny Lewis, whose lack of involvement in any of these matters would indicate that she could have taken a role in the disciplinary hearing. Beyond that there were two other possibilities, Dr Reece the Director of Development and Mr Kirkland the Director of Neighbourhood Services. Mr Moore had to concede that there was also the possibility of a panel of elected members, but his objection to that potential course of appeal was that the elected members of the Council would be in the same position as another Chief Officer and would be adjudicating on his conduct which, as he saw it, was an impossible position. The impossibility which seems to be envisaged by Mr Moore is that if any of these persons found that he had been acting in bad faith then his own position would be untenable. Why that consideration should utterly vitiate a right of appeal was not explained by Mr Moore. If indeed he had conducted himself in such a manner then why should an appeal hearing not so conclude. Is the role of Chief Executive in the Local Authority to be held to beyond criticism? The Tribunal did not hear anything from Mr Moore that convinced us that there was any rational argument based on these premises.
3.177 However, as addressed in our conclusions, the real issue here is why Mr Moore got himself in this position in the first place. Under the disciplinary procedures it would appear that he should not have been involved initially. In that event he would have been available to hear an appeal. Not only does Mr Moore appear to have managed the disciplinary process but also the harassment bullying complaint as well. At the end of all these matters he then declares that there is no right of appeal based on his own involvement throughout. That involvement did not come about by mismanagement. This situation came about as a result of the intentional acts of Mr Moore. If he did not initially direct his mind to the consequences of what he was doing, he ought to have done so. It is clear that he had legal advice at all stages from both internal and external legal advisers. He has absolutely no excuse for the situation that he created. He cannot rely on his own serious mismanagement of the process in order to deny an appeal.
SUBMISSIONS OF THE PARTIES
4 Both parties presented skeleton arguments setting out their respective positions. The contentions put forward by the parties are considered at length in the law section and the conclusions sections set out below. Both parties relied on a series of authorities which the Tribunal has also considered. The claimant cited the following:
Abernethy v Mott Hay & Anderson [ ICR 323;
Cartyn v St Cuthbert’s Cooperative Association Ltd [ IRLR 188
Smith v City of
British Homes Stores Ltd v Burchell [ IRLR 379;
Polkey vA
A v B [ IRLR 405;
Strouthos v London Underground Ltd [ IRLR 636;
Redbridqe LBC v Fishman [ IRLR 69 EAT;
UCATT v Braine [ ICR 542 CA;
Gogay v Hertfordshire County Council [ IRLR 703 CA;
Lock v Cardiff Railway Co Ltd [ IRLR 358;
Francis v Ford Motor Co [ IRLR 25 IT;
Hawkins v Prickett [ IRLR 52;
Munif v Cole & Kerby Ltd [ ICR 486;
Robert Whiting Designs Ltd v Lamb [ ICR 89 EAT;
West Midlands Cooperative Society v Tipton [ IRLR 112 HL;
Whitbread & Co Plc v Mills [ IRLR 501;
Chief Constable of West Yorkshire v Khan [ IRLR 803 HL;
Harrow LBC v Knight [ IRLR 140 EAT;
O’Neill v Governors of St Thomas Moore RC School [ ICR 33 EAT;
James v Eastleigh Borough Council [ ICR 554 HL;
Owen & Briggs v James [ IRLR 502 CA.
The respondent cited substantially fewer authorities. Those not already cited by the respondent were as follows:
Iceland Frozen Foods Ltd v Jones [ IRLR 439;
Linfood Cash & Carry Ltd v Thompson [ IRLR 235 EAT;
Kraus v Penner [ IRLR 260.
Subsequent to submissions the respondent’s solicitor drew to our attention a transcript of the case of T Gover & Ors v Property Care Ltd a judgment of the EAT handed down on 22 November 2005 appeal number UKEAT/0458!05/ZT. That decision contained reference to a number of authorities that the Tribunal had identified, namely, O’Dea v ISO Chemicals and King v Eaton and King v Eaton No, 2
THE LAW
5 There are three principal areas of law at issue in this case: first of all that relating to unfair dismissal, secondly, public interest disclosure (whistle blowing) and thirdly, discrimination by victimisation. These are now addressed in turn.
Unfair Dismissal
6 The respondent gives four reasons for the dismissal and all of these relate to conduct. Accordingly, conduct is a potentially fair reason falling within section 98(2)(b) of the Employment Relations Act 1996. The respondent contends that the first three reasons it relies on constitute gross misconduct: these were the alleged refusals to carry out training for social services, to contribute to the away day presentation and to carry out work on the Equalities in Employment policy. The fourth reason, rude and insubordinate behaviour, had been conceded by Mr Moore the dismissing officer prior to his decision (as noted in the findings of fact) as being of a different character to the first three and not, of itself, constituting gross misconduct. In submissions, this fourth ground was described by the respondent’s solicitor as:
“The 4th allegation also amounts to serious misconduct with the element of disobedience being present thereto.”
7 Council for the claimant raised the issue of the multiple reasons advanced by the respondent. In this regard it may be helpful to cite the passage from
“However, there is a risk facing an employer who seeks to rely upon a number of reasons, or even a number of separate grounds each of which contribute to the statutory reason for dismissal. The risk is that if a particular allegation forms part of a reason, or principal reason, for dismissal and that reason is neither established on the facts nor believed to be true on reasonable grounds, the Court will find that the employer has not acted reasonably in all the circumstances in relying upon the reason for dismissal. In Smith v City of Glasgow District Council [ IRLR 326 the House of Lords held that an industrial tribunal had erred in law in holding a dismissal to be fair in circumstances where the employer had in dismissing the employee relied upon the grounds for dismissal, but one was shown to be unsustainable and could not be relied upon on reasonable grounds. However, Lord Mackay who delivered the leading judgment did indicate that this ground played an important part in the decision of the employer he said: ‘to accept as a reasonably sufficient reason for dismissal a reason which at least in respect of an important part was neither established in fact nor believed to be true on reasonable grounds, is in my opinion an error of law’. Presumably, however the failure to establish a particular ground or reason will not be fatal to the fairness of the dismissal in circumstances where the employer is alleging that he dismissed for a number of grounds each of which justified the dismissal independently of the other.”
8 It seems that the respondent concedes in effect that the fourth ground of rude and insubordinate conduct does not, itself, constitute a sufficient ground for summary dismissal. In relation to the first three grounds the thrust of the respondent’s argument is to the effect that each of these constitutes of itself a sufficient ground for summary dismissal. Against that it equally appeared to be accepted that the point in time which the claimant’s alleged conduct crystallised for the purpose of these dismissals was the meeting of
9 In British Homes Stores Ltd v Burchell [ IRLR 379 EAT it was held the employer must establish first, that it entertained a reasonable suspicion amounting to a belief in the guilt of the employee in the misconduct in question. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. Third, the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case. In British Gas v McCarrick [ IRLR 305 CA it was held that the decision for the Employment Tribunal is whether on the facts which were known or ought to have been known to the employers, the employers genuinely believed, on reasonable grounds, that the employee was guilty. In Linfood Cash & Carry Ltd v Thompson [ IRLR 235 it was held that it was not for the Tribunal to make its own assessment on the evidence before it and it is not entitled to interfere on the ground that it prefers one witness to another. There has to be logical and substantial grounds to go behind the employer’s approach.
10 Counsel for the claimant drew our attention to the case of A v B [ IRLR 405 EAT. Although that case involved criminal misconduct and so is to be distinguished from the claimant’s position, there are some parallels. In particular it seems to the Tribunal that an Equalities Officer facing summary dismissal on the grounds alleged is in a career threatening position. It is unlikely that given a dismissal on those grounds she would ever be able to secure a position with another public authority. Thus, in this case we are looking at a decision which has the most serious long term consequences and threatens the ability of the claimant ever to work again in this field.
11 Accordingly, it seems to us that the following passage in the judgment of Mr Justice Elias is of some relevance to this case. It was as follows:
“In determining whether an employer carried out such investigation as was reasonable in all the circumstances, the relevant circumstances include the gravity of the charges and their potential effect upon the employee. Serious allegations of criminal misbehaviour where disputed must always be the subject of the most careful and conscientious investigation and the investigator carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as on the evidence directed towards proving the charges. This is particularly so whereas is frequently the situation the employee himself is suspended and has been denied the opportunity of being able to contact potentially relevant witnesses. Employees found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in their chosen field. In such circumstances anything other than an even handed approach to the process of investigation would not be reasonable in all the circumstances... (and) where the investigation is defective, it is no answer for an employer to say that even if the investigation had been reasonable it would have made no difference to the decision. If the investigation is not reasonable in all the circumstances then the dismissal is unfair and the fact that it may have caused no adverse prejudice to the employee goes to compensation.”
12 In Iceland Frozen Foods Ltd v Jones [ IRLR 439 EAT, it was held that the function of the employment tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair. If the dismissal falls outside the band it is unfair. This was approved by the Court of Appeal in Post Office v Foley [ IRLR 827 CA. That decision emphasised that Iceland Frozen Foods does not require such a high degree of reasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair. However, the Tribunal must not substitute their own decision, their proper function is to determine whether the decision to dismiss is one which a reasonable employer might have adopted. Although the application of that approach may lead the Tribunal to conclude that a dismissal was unfair, they are not then substituting their own judgment for that of the employer, they are judging the process by reference to the objective standards of a hypothetical reasonable employer and not by reference to their own subjective views.
13 ill Whitbread & Co v Mills [ !RLR 501 EAT, it was held that whether the employer acted reasonably or unreasonably in treating the reason for dismissal as sufficient must be considered as a single question. However, Tribunals are bound in their deliberations to pose a number of subsidiary questions, including:
1 Has the evidence shown us that the employer has complied with the predismissal procedures which a reasonable employer could and should have applied in the circumstances of this case?
2 Where there is a contractual appeal process has the employer carried it out in its essentials?
3 Where conduct is the main reason, has the evidence shown us at the time of dismissal the employer had a reasonable suspicion amounting to belief in the guilt of the employee and if necessary has complied with the principles in Burchell?
4 During the disciplinary hearings and the appeal process, has the employer dealt fairly with the employee?
14 In Strouthos v London Underground Ltd [ IRLR 636 CA, it was held that an employee should only be found guilty of the offence with which he has been charged. It is a basic proposition whether in criminal or disciplinary proceedings that the charge against the defendant of the employee facing dismissal should be precisely framed and that evidence should be confined to the particulars given in the charge. Care must be taken with the framing of the disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. Where care has clearly been taken to frame the charge formally and put it formally to 1 employee, the normal result must be that it is only matters charged which can form u basis for a dismissal.
15
“It is a general principle underlying the contract of employment that the employee must obey the lawful and reasonable orders of the employer. Usually the question of whether the order is lawful or not depends on whether it is in accordance with the contract of employment. If it is then the employee is generally committing an act of misconduct in refusing to comply with it. If it is not, then the employer is acting in breach of contract in seeking to compel the employee to do something which he is not lawfully entitled to require him to do.”
16 Hary continues with a number of qualifications to this principle and these are as follows:
“First, even if the employee is committing misconduct by refusing to obey this order, this act of misconduct does not necessarily sufficiently grave to justify the employer adopting dismissal as the sanction. Second, exceptionally, employees can refuse to obey lawful orders. Third, the refusal to cooperate or comply with the order must stem from some element of fault by the employee.”
Accordingly, reference has to be made to the contract of employment in determining the scope of the employer’s powers. If the employer is insisting on the employee doing something outside the terms of the contract and the employee refuses and is dismissed the dismissal may well be unfair. However, in the case of Farrant v The Woodroffe School it was held that:
“Where the conduct relied upon by the employer is the employee ‘s refusal to obey an instruction, the question as to whether that instruction is lawful, a critical question in a claim of wrongful dismissal, is a relevant but not decisive question when considering the reasonableness of the dismissal under section 98(4) in the case of unfair dismissal.”
17 Finally, in the case of The Union of Construction Allied Trades & Technicians v Braine [ IRLR 224, the Court of Appeal held that even where an order is lawful and can probably be made, the employee might still be acting reasonably in refusing to comply with it. Accordingly where the dismissal is for a refusal to obey an instruction the primary factor to be considered is whether the employee was or could have been acting reasonably in disobeying the instruction.
18 An employer having prima facie grounds to dismiss will, in the great majority of cases, not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the procedural steps which are necessary in the circumstances of the case to justify that course of action — Polkey v A E Dayton (Services) Ltd [ IRLR 503 HL. A dismissal is also unfair if the employer unreasonably treats his reason as a sufficient reason to dismiss the employee either when he makes his original decision to dismiss or when he maintains that decision at the conclusion of an internal appeal. A dismissal may also be held to be unfair when the employer has refused to entertain such an appeal to which the employee was contractually entitled and thereby denied the employee the opportunity of showing that in all the circumstances the employer’s reason for dismissing him could not reasonably be treated as sufficient — West Midlands Cooperative Society Ltd vTipton [ IRLR 112 HL.
19 An Employment Tribunal must award such compensation as is just and equitable. If the facts are such that a Tribunal finds that an applicant has been dismissed unfairly yet concludes that but for the dismissal the claimant would have been bound to be dismissed fairly soon after by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, it is just and equitable that compensation for unfair dismissal be awarded on that basis - O’Donaghue -v- Redcar & Cleveland Borough Council [ IRLR 615 CA. Further it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice in being dismissed. There is no inconsistency in finding that there was unfair dismissal and then awarding no compensation. An employee may bring about his dismissal wholly by his own misconduct and yet that dismissal which would otherwise have been held to have been fair may be held to be unfair through a failure to follow the correct procedure. In such a case the just and equitable award may be one of nil compensation — W Devis & Sons Limited —v- Atkins
[ IRLR 314 HL.
20 In the recent decision of Glover & Others -v- Property Care Limited respondent [ EAT10458105/ZT, the EAT considered the correct approach by an Employment Tribunal to an assessment of compensation where the arguments are raised according to the judgment in Kin -v- Eaton [ IRLR 686. The judgment relies upon a judgment the Court of Appeal in Lambe -v- 186K [ EWCA 1045 and to the following extr from the judgment of
“It seems to us that the matter will be one of impression and judgment so that a Tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say with more or less confidence that the failure made no difference or whether the failure was such that one cannot sensibly re-construct the world as it might have been.”
21 The extract from the judgement of Wall U continues as follows:
“We respectfully agree with the formulation contained in the highlighted passage from that citation. However we share Peter Gibson LJ’s view expressed in the extract from his judgment in O’Dea which we have cited that it is unhelpful for the purposes of assessing compensation to characterise the defect in the employer’s behaviour as either substantial or procedural. The highlighted passage from Kin v- Eaton No 2 seems to us both practical and to coincide with the approach of this Court in O’Dea. It provides Tribunals with a straightforward and sensible yardstick with which to approach such cases and avoid unnecessary and unproductive debate about whether a particular piece of conduct fits into the substantive as opposed to the procedural category”.
22 In Glover the Tribunal applied O’Donaghue -v- Redcar & Cleveland Borough Council and concluded that there would have been a justifiable dismissal at the end of a 4 month period. The significance of this decision is that it reviews a series of decisions which substantially confirm the approach in King -v- Eaton No 2 That approach is that where the failings in the disciplinary processes go to the very heart of the matter then a Tribunal should not embark upon a sea of speculation and attempt to re-invent the world as it never was.
23 In relation to contributory fault the leading authority is Nelson -v- BBC No 2 [ IRLR 346 CA. In that case it was held that in determining whether to reduce an employee’s unfair dismissal compensation on grounds of his contributory fault an Employment Tribunal must make three findings. First there must be a finding that there was conduct on the part of the employee in connection with his unfair dismissal which was culpable or blameworthy. Second there must be a finding that the matters to which the complaint relates were caused or contributed to some extend by action that was culpable or blameworthy. In this context the expression matters to which the complaint relates means the unfair dismissal itself and the word action comprehends not only behaviour or conduct which consists of doing something but also behaviour or conduct which consists of doing nothing or in declining or being unwilling to do something. Third there must be a finding that it is just and equitable to reduce the assessment of the complainant’s loss to a specified extent.
Public Interest Disclosure
24 Section 43B of the Employment Rights Act 1996 defines qualifying disclosures as any disclosure of information relating to one or more of specified categories of relevant failures. Of those failures only two of the provisions appear to apply in this case. The first is that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject and secondly that information tending to show such matters has been, is being or is likely to be deliberately concealed. However, protection is not conferred necessarily by satisfaction of those requirements. It is also necessary for the disclosure to have been made in the correct manner and sections 430 to 43H of the ERA sets out the six different methods by which a worker may comply. In this case the provision which appears to apply is section 43C which is a disclosure to the claimant’s own employer.
25 Such a disclosure confers protection on the employee so long as she makes the disclosure in good faith and the disclosure relates to a relevant failure as defined in section 43B. The requirement on the employee in relation to such a disclosure is that he or she makes it in good faith. These words are not defined in the ERA but it is generally taken to mean acting with honest motives. The question of good faith lay at the heart of the EAT’s decision in Street v Derbyshire Unemployed Workers Centre [ ICR 213. In that case the employment tribunal found that the claimant’s principal motivation was personal antagonism towards the senior manager. The EAT upheld the Tribunal’s decision noting that this was a fact sensitive issue and it was one for the Tribunal to make. The EAT also held that it is not the purpose of the whistle blowing provisions to allow grudges to be promoted and disclosures to be made in order to advance personal antagonism. The purpose of these provisions is that they are:
“To be used in order to promote the public interest. The advancement of a grudge is inimical to that purpose.”
26 It appears that the emphasis must be that the primary or dominant motive of a whistleblower is one essentially devoid of ulterior motives. However, there may be situations where there are mixed motives. A decision in relation to health and safety suggests that where a person acts from a mixture of motives, provided the public interest
element is the primary motive, other motives do not necessarily vitiate the disclosure —
Shilito v Vanlier UK Ltd [ IRLR 495.
27 The next issue which arises in whistle blowing cases is the matter of causation. Is there a direct line of causation between the dismissal under section 103A of the ERA or to section 47B detriment. Thus, it has to be shown that the action taken by the employer is by reason of the employee having made a protected disclosure. It is therefore for the employee to prove the causal nexus between the fact of making a protected disclosure and the dismissal or detriment. In Aspinall v MSI Meck Forge Ltd EAT 891/01, the EAT applied the decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan [ 1965. In Aspinall the EAT concluded that for detriment to be established under section 47B, on the ground that the worker had made a protected disclosure, the protective disclosure had to be causative in the sense of being the real reason, the core reason, the causa causans, the motive for the treatment complained of. It may, therefore, be as n some discrimination cases that there is a dearth of direct evidence as to the employL motives. Accordingly, the Tribunal may have to draw inferences as to the real reason for the employer’s action on the basis of its findings of fact following the principles of King v Great Britain China Centre [ 516.
28 In relation to a Section 103A of the ERA the burden of proof is to be distinguished from a Section 47B detriment. In general terms the position under Section 103A is the same as applies to other automatically unfair reasons for dismissal. Technically the burden is on the employer to show the reason for dismissal and then it is for the employee to show that the real reason for dismissal was an automatically unfair reason. Accordingly the employee has the evidential burden to show the facts which are capable of establishing an automatically unfair reason for the dismissal. Once that has been satisfied the burden reverts to the employer who must prove on the balance of probabilities which of the competing reasons was the principal reason for dismissal — Maund -v- Penwith District Council [ 143CA.
Victimisation
29 Section 4 of the Sex Discrimination Act 1975 provides that the discriminator discriminates against another person, the person victimised, in any circumstances relevant for the purposes of the Act if he treats the person victimised less favourably in those circumstances than he treats or would treat other persons and does so by reason that the person victimised has done anything under or by reference to the Act in relation to the discriminator or any other person, or that they have alleged that the discriminator or any other person has committed an act which whether or not the allegation so states would amount to a contravention of the Act or by reason that the discriminator knows that the person victimised intends to do any of these things or suspects the person victimised has done or intends to do any of them. A specific defence is afforded by Section 4(2) which provides if the allegation made by the alleged victim is false and not made in good faith then in those circumstances the alleged victim cannot pursue a complaint under Section 4(1). Where discrimination by victimisation is the issue the proper comparison to make is between the treatment which was afforded to the complainant who has done a protected act and the treatment which would have been afforded to others who have not done such an act.
30 A complaint must be capable of being recognised as one made by reference to the SDA 1975. Accordingly, a claimant failed in her complaint of victimisation because it was said she did not allege that either the employer or the trade union were acting in breach of the SDA 1975- British Airways Engine Overhaul Limited -v- Francis [ IRLR 9 . Then it must be shown that the less favourable treatment of the person victimised was by reason of him or her having done a protected act. However, in that regard there is no need to prove that the alleged discriminator was consciously motivated by a wish to treat the claimant badly because of the protected act. In consequence a respondent is not able to escape liability by showing an absence of intention to discriminate if the necessary link between the protected act and the less favourable treatment can be shown to exist. Naqaralan -v- London Regional Transport [ IRLR 572 HL.
31 In Igen Ltd v Wong [ IRLR 269 CA the following guidance on the burden of proof in discrimination was given:
“(1) Pursuant to s of the SDA it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 is to be treated as having been committed against the claimant.
These are referred to below as ‘such facts’.
(2) If the claimant does not prove such facts he or she will fail
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal
(5) It is important to note the word ‘could’ in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it sees what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts
(7) These inferences can include in appropriate cases any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA
(8) Likewise the tribunal must decide whether any provision of any relevant code of practice is relevant and if so take it into account in determining such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on tne ground of sex then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit or as the case may be is not to be treated as having committed that act.
(11) To discharge that burden it is necessary for the respondent to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive
(1 2) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possessfr’n of the respondent a tribunal would normally expect cogent evidence to discharge
burden of proof. In particular the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice”
CONCLUSIONS
32 The conclusions section is in three separate sections. First of all the complaint of unfair dismissal is addressed — in two parts. Secondly we look at the public interest disclosure and the SDA victimisation complaints together because they are factually closely related and also share a number of similar principles of law. The third section considers the Polkey and O’Donaqhue contentions that the claimant would have been dismissed in any event. Finally, we consider contribution and fault including whether or not it would be just and equitable to order a reduction of compensation.
33 The Tribunal has concluded that the key event in this story is the claimant’s letter of
Unfair Dismissal — Part One
34 The claimant’s post was an entirely new one. The scope and functions of an existing post are usually well understood organisationally and the new employee merely has to take up the previous incumbents workload. However, with a completely new job the fundamental ground rules have to be established from scratch and that requires a concerted effort from managers and the new employee that seems to have been conspicuous by its absence in this case. Unfortunately, this new appointment coincided with negotiations for a radical outsourcing contract whereby many of the local authority functions were to be undertaken by a private sector company Liberta. Mr Richardson was one of a number of officials engaged in those negotiations up to May 2003. Perhaps senior management were distracted by the re-organisation. It is apparent that from an early stage the claimant encountered difficulties setting the boundaries of her role. The incident over the gypsies and travellers involved a decision made by Mr Richardson. The Chief Executive Mr Moore had to intervene and in confirming the claimant’s position as being primarily a policy role, and not a front line role, in effect he had overruled Mr Richardson. However, subsequent events demonstrate that Mr Richardson did not fully appreciate this distinction or if he did he ignored it.
35 It is apparent that Mr Richardson’s conception of the boundaries of the claimant’s role was not as precise as that articulated by Mr Moore. Despite the claimant’s requests for clarification Mr Richardson did not respond. On the other hand from October 2002 to May 2003 the claimant appears to have had the approval of her line manager Jonathan Watts in relation to both the work she was undertaking and the priorities she was according to that work. There was no evidence to suggest that Mr Watts acted other than within his instructions from Mr Richardson. Mr Harbour reached an interesting conclusion on the Watts/Richardson relationship. Mr Harbour suggested that Mr Watts had, {in some manner not specified], failed to discharge his duties satisfactorily and thereby had exposed Mr Richardson. Mr Harbour postulated that this had impacted adversely on the claimant:
“one impact may have been the blurring of roles and responsibilities and a consequent increase in stress due to the confusion about who is responsible for what.”
Thus, Mr Harbour had highlighted a problem that was in fact a significant contributor to these events. The situation was further exacerbated by an insufficiently structured interregnum between Mr Watts and Ms Kavanagh. Even by the 12 June Ms Kavanagh apparently did not have a substantial grasp of the claimant’s duties. However, these were management deficiencies for which the claimant could bear no responsibility. Mr Moore seems to have observed this fault line through his organisation with an unremittingly Nelsonian eye.
36 The role of Equalities Officer in a large organisation is a difficult one. It is akin to some of the other internal regulatory functions such as health and safety and audit where conflict can arise between the exercise of those duties and the wishes of management. It is therefore a delicate role and one that requires when newly introduced into an organisation a lot of management time and skill in order to ensure its successful launch. An employee encountering problems who asks for help and guidance is entitled to appropriate support. Equally an employee is entitled to assume a consistency in her management instructions. The respondent’s performance in this regard was far from adequate and these management failings were a fundamental contributor to many of the things that went wrong subsequently. For that the respondent must take the blame. Unfortunately the dismissing officer Mr Moore did not recognise these deficiencies or if he did he attached little significance to them. The Tribunal recognises because of the outsourcing contract this was a difficult time and therefore has some sympathy for the predicament the respondent was in. Equally Mr Moore ought to have recognised those matters and taken them into account. Instead he chose to put at the door of the claimant the entire responsibility for this unhappy episode instead of senior management who in reality bear much of the blame for the situation that culminated on
37 Within about two hours of the end of the meeting on
38 Ms Hall’s report to Mr Moore dated
39 The next complication was the claimant’s letter of
40 Arising out of the Harbour report a fifth charge was brought against the claimant. This was despite the fact that the relevant policy provisions stipulate that no action will be taken against an employee for making a complaint under the policy unless it is shown to be bogus and/or malicious:
“In cases where harassment/bullying is not proven disciplinary action maybe considered if a bogus complaint has been brought with unwarranted/malicious intent”.
At no stage can we find in Mr Harbour’s report or indeed anywhere else a finding that the claimant’s motivation for making her complaint of 20 August was one activated by malice or that the complaints were bogus. Although Mr Moore found that there was insufficient evidence to support this disciplinary charge that appears to accept that it was validly brought in the first place. In fact it had been brought in direct breach of a policy intended to protect those who feel they have a genuine grievance even if it is not sustained on the facts. Adding this charge was therefore in the nature of an act of victimisation. Whilst this was not a complaint before this Tribunal it adds to the overall lack of fairness in the approach of Mr Moore.
41 In that latter regard it is also to be noted that throughout these pre-hearing processes Mr Richardson was present on most occasions. Why he should have been present when other witnesses were not present we do not know. Although the conduct of the disciplinary was ostensibly in the hands of the investigating/prosecuting officer Ms Hall in reality there seems to have been many fingers in this particular pie. Given that the investigating officers recommendations are inconsistent with the charges actually brought against the claimant we wonder whether Ms Hall was in fact instrumental in these matters. In fact we think it very likely that the strings were being pulled elsewhere. When it came to the presentation of the respondent’s case in the disciplinary hearing the respondent employed three people to present the case Ms Hall, Mr Richardson and Mr Harbour. We share the claimant’s concern regarding these procedures and the doubt it casts on the overall fairness of the respondent’s approach
42 The claimant encountered delays in accessing the documentary records she regarded as necessary for her defence. The claimant also had to resort to the Data Protection Act. Given that the claimant had been suspended and banned from making any enquiries of her own, the claimant was therefore in a relatively much weaker position than the respondent when it came to the preparation of her defence. The absence of Mr McCormack was a further problem. It is apparent from the correspondence that there was something of a struggle going on between the parties. The respondent’s approach on occasions can only be regarded as being somewhat less than helpful. Certainly there was no real equality of arms in these exchanges.
43 The conduct of the disciplinary hearing was disrupted by the illness of the claimant. Mr Moore allowed the respondent to present its case with three prosecutors in the manner in which it desired. When it came to the claimant’s case Mr Moore prevented the claimant from presenting it in the manner she wished. Accordingly, Mr Moore’s approach was less than even handed. However we should say that the claimant did not help herself by the length of her submissions. Unfortunately the claimant addressed major issues and matters of less consequence with equal weight and at equal length. As a result the documents that she presented were excessively long. One can understand why Mr Moore could have been deterred by lengthy oral submission and even more substantial written submissions. However, from the inception of the process the claimant raised important issues and it would seem that in quite a few instances Mr Moore did not really pursue those matters before making his decision. Even if Mr Moore had chosen the route of only considering those matter he had identified as of relevance to his decision and looked at the claimant’s evidence on those issues he would have been bound to direct his mind to many of the same matters as this Tribunal has done. It is evident that he did not do so.
44 Mr Moore became involved at an early stage in the disciplinary process. It is apparent that there were other chief officers who could have potentially conducted f disciplinary hearing in the first instance. If this had happened then Mr Moore would h
been available to hear an appeal against any decision. At an early stage the claimant’s trade union representative Mr McCormack had raised the question of Mr Moore’s participation and Mr Moore had discussed other possibilities. A letter written by the respondent’s legal officer suggested that Mr Moore had only been considering the availability of other chief officers on the contingent possibility that he would not available. It is evident from this letter that Mr Moore considered that this issue was a matter only of practicality not one of principle. In that he was clearly wrong and wholly unjustified in the decisions he took in that regard.
45 When Mr
46 It is within the knowledge of the Tribunal that many local authorities have appeal panels made up of elected members of the Council. Mr Moore turned his mind against this possibility because the claimant in her appeal had complained about his conduct of the disciplinary process. Accordingly, he argued that if a panel of councillors had found in favour of the claimant that would leave him in an impossible position. There is no reason why Mr Moore ought not to be accountable for his actions just because he is chief executive. Accordingly, if such panel had made findings of fact adverse to Mr Moore then that would have been a consequence that Mr Moore would have had to live with. The wish of Mr Moore to avoid the possibility of his own compromise does not constitute a reasonable ground for refusing the claimant an appeal. Given the potentially career threatening consequences of a decision to dismiss the denial of any right of appeal was a serious breach of the obligation of fairness.
Unfair Dismissal - Part Two
47 Allegation 1 relates to the Social Services training. The Tribunal is satisfied that on the basis of the job description and the person description that the carrying out of training was not within either the explicit or the implicit role of the claimant. Therefore when the claimant suggested on a number of occasions that training was not within her job description she was perfectly justified in doing so. Such a position was entirely consistent with Mr Moore’s own analysis of December 2002. Furthermore, the claimant did accept that it would be part of her duties to contribute help and guidance to departmental and corporate trainers on equalities issues. Indeed, there was evidence that she had already done so. Most significantly the claimant had willingly agreed to go on a course for trainers and was actively making arrangements to attend that course in July 2003.
48 The exchange of e-maits between the claimant and Mr Bates in Social Services is inconclusive. The claimant did not refuse his request but in effect she referred it to her line manager. In the subsequent exchanges with Ms Kavanagh the claimant was certainly disputing the suggestion that she should directly carry out training. There is no record of any unequivocal instruction to the claimant from her line managers [ orally or in writing] to carry out training in the Social Services department or of a refusal to carry out such an instruction. Equally missing from the evidence before Mr Moore was such an instruction from Mr Richardson or of a refusal of such an instruction. There was certainly an argument about this work but the claimant was entitled to object to undertaking it because departmental training duties were not within the scope of her contract. Furthermore the claimant had not been trained as a trainer and had no relevant experience. The manner in which the claimant disputed the position may well have been impolite but to describe this as a refusal without any substantial foundation of fact is wholly unreasonable if not perverse. Unfortunately as noted elsewhere these investigations by the respondent’s officers spent far too much time concentrating on feelings and opinions about things rather than attending to the actual facts. Mr Moore told the Tribunal unequivocally that his decision was based on a refusal made at the meeting of 12 June. No firm evidence of that kind being identified in the documents before us and given the clear evidence of the claimant we find that no such instruction was given. Accordingly there could have been no refusal. Therefore it was not within the range of reasonable responses of a reasonable employer to conclude that allegation 1 had been proved.
49 Allegation 2 concerns the away day. The claimant was probably overstating her difficulties but she have genuine and proper concerns regarding the boundaries of her role which had not been resolved by management. The claimant was being expected to present to other officers a short exposition of her duties. The claimant was reluctant to commit herself to propositions that could have caused further dissention if she got it wrong and of possibly compromising her position with external users of the central service or of cutting across the expectations of her own managers. Therefore not unreasonably the claimant wanted some certainty in her position. That the claimant was in that situation was clearly attributable to a failure of management. Unfortunately Mr Richardson and Ms Kavanagh either did not recognise this or were unwilling to do so. As for Ms Kavanagh’s position she is recorded as suggesting that she did not take a leading role in the meeting of 12 June because she was not as well acquainted with the position as was Mr Richardson. Ms Kavanagh had effectively only managed the claimant for a few weeks during which she had also been absent on holiday. Despite this lack of understanding of the position Ms Kavanagh nevertheless characterised the claimant’s attitude on 12 June as one of obstruction. In Mr Richardson’s case the claimant had raised with him directly [ through Jonathan Watts] the issue of the scope of her role and her work priorities on a number of occasions. These questions had certainly not been resolved by Mr Richardson prior to the 12 June meeting and, indeed, do not seem to have been addressed in any reasonable manner.
50 In this case there was an unequivocal instruction unlike allegation 1. This was an e-mail of
51 Allegation 3 relates to the Corporate Employment Policy. The allegation was that r
52 However, Mr Richardson fault was not only inactivity but in fact he approved the claimant’s conduct of the matter. The claimant’s report on equalities considered at a chief officer’s meeting in March 2003 is af so referred to in the letter of complaint of
53 At the meeting of the 12 June the claimant quite properly referred back to the work that she has done. It is apparent that Mr Richardson took no cognisance of that report. It seems that he did not attend to the facts and that is why the discussion between the parties deteriorated to the extent that it did. It is perfectly apparent that Mr Richardson was simply ignoring the history of what had gone before. Having looked at the evidence before Mr Moore we consider his decision that there had been an instruction to the claimant which she refused to undertake to be perverse. All the facts point otherwise. The claimant had indeed addressed the issue she had proposed a work programme in that regard and it had been approved by Mr Richardson and others. There is simply no basis for the allegations made against the claimant in this regard. That is a matter which ought to have been readily apparent to Mr Moore had he attended to the facts before him and that is why we say his decision was wholly contrary to the weight of the evidence and therefore unreasonable.
54 The respondent conceded that the fourth allegation was insufficient on its own to constitute gross misconduct. However, because of a similar element of disobedience it was therefore consistent with the three primary allegations. Accordingly, taken together with the first three it could constitute a further ground. The Tribunal having dismissed the first three grounds as being unsubstantiated and Mr Moore’s decision in relation to those matters outwith the range of reasonable responses by the respondent’s own analysis the fourth allegation must fail. However on the facts alone the Tribunal doubt whether there was sufficient evidence in any event to bring this charge let alone sustain it.
55 There is little doubt that at the meeting of 12 June the claimant was being difficult and argumentative but it would be a serious error not to recognise that the claimant had substantial grounds of contesting the issues raised. Although we accept that the claimant’s conduct was not beyond reproach in some considerable measure her conduct was a response to the unreasonable conduct of Mr Richardson. It is abundantly clear from the sequence of issues raised by Mr Richardson that the central purpose of the meeting was to hold the claimant to account for perceived failings in her performance. Given that Mr Richardson should have so warned the claimant prior to the meeting. However, he did not do so and he was in serious error. The claimant had previously informed Ms Wilson in writing that if Mr Richardson wished to raise questions about her conduct she required representation. The issue that precipitated the so-called ‘walk out’ was the Equalities in Employment Policy. On this issue Mr Richardson acted in a wholly unreasonable and unacceptable manner. Whether he liked it or not he was bound by the fact that Mr Watts as line manager had approved what the claimant had been doing. Mr Richardson himself had approved the claimant’s March 2003 proposals. It is evident that despite many opportunities to do so between October 2002 and June 2003 he had not ordered the claimant or Mr Watts to change direction. It maybe that on reflection in June he had reason not to be satisfied with the situation but he was not entitled to undo the past as if it had never happened to suit his own purposes. It is quite apparent that Mr Richardson failed address his mind to the facts. Mr Richardson may well have been annoyed by claimant’s attitude but she was raising matters he ought to have considered but instead he pursued an unsustainable allegation. The claimant was perfectly entitled at that point to seek representation and when that request was denied to leave the meeting. The claimant’s conduct in this regard was reasonable. It was the conduct of Mr Richardson that led to the claimant’s departure..
56 The two other main issues raised by Mr Richardson seem to have been treated in the same way. In the case of the away day the line manager had issued a written instruction with a deadline attached to it. In the normal course of events a manager acting reasonably ought to allow that time to expire before concluding that the instruction is not being or will not be carried out. If you take action before the expiry of the deadline you must have compelling reasons for changing the basis of your instructions. However, there were no such reasons. Proof of that is to be found in Mr Richardson’s statement to the disciplinary hearing as well as that of Ms Kavanagh. Similarly, in relation to the social services training, it is unreasonable to instruct someone to undertake duties outwith the scope of their employment contract and in regard to which they have no relevant training or experience. Throughout this meeting therefore Mr Richardson was adopting unreasonaute positions on all three issues. Accordingly, Mr Richardson bears the principal responsibility for the so-called ‘walk-out’.
Unfair Dismissal - Summary
57 The Tribunal has concluded that: there were substantial faults in the suspension, the investigation and in the disciplinary process as a whole; that relevant facts and matters were not addressed by the dismissing officer, and that the claimant was denied an appeal. We have concluded that Mr Moore did not and could not have had a reasonable belief in the guilt of the claimant because the grounds on which he relied were suspect, the investigation was highly unsatisfactory and the disciplinary process had very serious flaws. In no sense do we substitute our opinion for that of Mr Moore but we do say that it is not within the range of reasonable responses for an employer to draw conclusions that an employee is guilty of gross misconduct when the factual basis for those conclusions is unsupported by the evidence. As noted elsewhere there was a lot of belief and opinion expressed in this case and far too little attention was directed to the question of whether the underlying facts were consistent with those beliefs and opinions. Mr Moore therefore fell into the same trap as those on whose evidence he relied. Taking all these matters into account this Tribunal has no doubt whatsoever that the claimant was unfairly dismissed.
Whistle Blowing and Victimisation
58 The claimant’s letter of
first of all the statement of particulars of the contract of employment incorporated various policies and provisions including, inter alia, disciplinary and grievance procedures, bullying and harassment and equal opportunities policies. By incorporating these policies and procedures as part of the overall contract of employment then it must follow that the respondent intended to be bound by them in relation to the claimant and her fellow employees. That is a contract between the respondent and its employees and therefore constitutes a legal obligation.. Section 43B of the ERA is therefore satisfied. Section 43c of the ERA is satisfied by the fact that the claimant made these disclosures first to a Chief Officer, Mr Richardson, and then to the Chief Executive of the local authority, her employer.
59 The claimant’s letter of 16 March also alleges a potential breach of discrimination legislation. Although the claimant does not specify a breach of the SDA 1975 the words that she uses and the facts on which she relies constitute a sufficient complaint of a breach of that Act. The claimant specifically suggested that some employees, who had been denied the opportunity to apply for the vacancy, could have potential claims of discrimination by reason of their gender. As the respondent was aware a woman had been appointed and a number of men had been potentially excluded from the opportunity to apply. Thus, section 4 of the SDA was satisfied.
60 However, there is a requirement of good faith both under Part IVA of the ERA and under the SDA. it was alleged that the claimant was motivated by personal antagonism towards Ms Kavanagh. Prior to
61 Mr Moore said there was no whistle to blow and that furthermore the claimant did not use the whistle blowing procedures.
Indeed the subsequent objections from Mr McCormack are wholly inconsistent with the contention of trade union approval at that meeting. The meeting clearly did approve the descoping proposal but as the McCormack objection to the departure from process demonstrates the Committee were evidently told less than the whole truth.
62 The other candidates were spoken to and advised of the vacancy but after the event. Although it was said these employees were not interested in the position some of them at least.were sufficiently concerned to talk to the claimant about the matter. It appears that there had been some internal advice given about the procedures adopted and perhaps that is what occasioned these approaches to potential candidates. The arguments for urgent action to appoint appeared to be very weak. The Tribunal accepts that the Liberata contract was a priority, that the position needed to be filled quickly and that because of the circumstances the vacancy should have been restricted to internal candidates with the necessary qualifications. However given all that, as the claimant and her trade union contended, there was no reason why procedures could not otherwise be observed and a relatively quick appointment be made.
63 We were not informed of any dire urgency with Liberata negotiations that could not have waited a week or so. As for the management of other matters it can be seen how little involvement Ms Kavanagh had with the claimant so there was certainly no urgency on that front indeed, Ms Kavanagh did not take up her duties until
64 With both of these complaints the Tribunal has to find a causative link between the acts of disclosure and the subsequent detriments alleged and ultimately the dismissal.
These questions essentially turn on the events of
65 On 12 June Mr Richardson challenged the claimant about the way she had been performing her duties but Mr Richardson seems not to have checked his facts and tracked back through the instructions [ rather the lack of instructions] but instead he chose to set a course of confrontation. The evidence of Ms Wilson is that immediately before the meeting she had told Mr Richardson and Ms Kavanagh about the stressed condition and irrational behaviour of the claimant the day before. Presumably he knew also from Ms Wilson that the claimant was concerned that if Mr Richardson was contemplating raising conduct issues the claimant required trade union representation.
66 Given those matters a series of questions arise: why did Mr Richardson embark on what was to all intents a disciplinary interview without warning the claimant or allowing her representation; why was he so confrontational when he had been warned by a senior colleague about the claimant’s emotional state; why immediately following the end of the meeting did he escalate the situation to a formal investigation, suspension and charges of gross misconduct? Given that we pose those questions in the light of our findings that the charges of gross misconduct were not substantiated. In saying that we do not say that there were no areas for proper concern but our conclusion is that the action taken was a grossly disproportionate reaction. In addition, the three matters of concern all involved a substantial measure of management failure. This was something that Mr Richardson chose to ignore and by so doing further provoked the claimant. A reasonable manager acting reasonably would not have acted in that way
67 The Anthea
68 At this point the claimant had proved sufficient facts from which an inference could be drawn that Mr Richardson’s conduct was causally connected to the claimants complaint of 16 March 2003 [ protected act] and that it could amount to victimisation pursuant to section 4 of the SDA in that a person who had not done the protected act would not have been so treated. Accordingly the burden of proof moved under section 63A of the SDA to the respondent to prove that it did not commit or is not to be treated as having committed the act of victimisation. Mr Richardson did not give evidence to the Tribunal and the issue was not put to him in these terms in the disciplinary proceedings. We had the evidence of Mr Moore but he of course was not present on 12 June nor did he take any of the decisions immediately following that meeting. Mr Moore’s defence of Mr Richardson was four fold. First of all he Mr Moore had found against the claimant on all four charges of misconduct and thereby considered that Mr Richardson had acted properly throughout. Secondly, that he knew Mr Richardson well and had no knowledge of any matter that would suggest any improper motives on the part of Mr Richardson. Thirdly, Mr Moore did not believe that the letter of 16 March was a protected act. Fourthly, he Mr Moore had conducted the disciplinary proceedings fairly and without any consideration at all of the complaints made by the claimant in March and April 2003.
69 The claimant having shown a set of facts it is for the respondent to provide n explanation on the balance of probabilities that the respondent’s treatment of the claim was not attributable to the protected act. The Tribunal has concluded that the respondent has failed to discharge the burden on it and in consequence we find that the claimant was victimised contrary to section 4 of the SDA. For the reasons fully set above the Tribunal has concluded that the four disciplinary charges were not well founded. Thus, the primary reason the respondent used to justify its actions is thereby nullified. Secondly it is not a necessary requirement to establish an improper motive. However there was evidence to suggest that Mr Richardson’s attitude to the claimant had changed and his conduct prior to, during and following the meeting of 12 June 2003 was indicative of a disproportionate reaction for which the only rational explanation before us was the claimant’s complaint of 1 6 March 2003. Thirdly, for the reasons fully set out above the Tribunal concluded that the latter complaint and the subsequent discussion with Mr Moore were protected acts. Fourthly, the conduct of certain aspects of the disciplinary process in particular the investigation, the circumstances of the fifth charge, the comparative unequal treatment of the claimant and the denial of the appeal taken together with all the other matters leads to a conclusion that the claimant was being treated less favourably. Looking at all these matters in the round the Tribunal did not consider that it had received from the responden convincing explanation of its conduct and therefore the claimant’s complaint must succeed.
70 The public interest disclosure complaint has some close similarities to the section 4 SDA complaint in that there is a requirement for good faith and there is a need to show a causal connection between the protected acts and the matters complained of and in this regard the Tribunal would rely on the reasoning given above in relation to victimisation. The burden was on the employer to show the reason for dismissal. The terms of this judgment in relation to unfair dismissal is to find that the reason of conduct was not made out and therefore the dismissal was automatically unfair. On the facts we judge on the balance of probabilities that the protected acts were causally connected to the dismissal through the chain of events described in this judgement. The claimant’s open challenge to management provides the only credible explanation for the disproportionate action taken against her following the June 12 meeting and the consistent failure on the part of the respondent to have regard to matters substantially in the claimant’s favour and treating her unfairly during the disciplinary process. Accordingly we are satisfied that the claimant’s complaints pursuant to
Polkey and Contribution
71 The Polkey and O’Donaqhue contentions advanced by the respondent were essentially predicated on two propositions; the first was that there had been a complete breakdown in relationships attributable to the claimant’s behaviour and attitude; the second was that in consequence the claimant would have been dismissed fairly in any event. These contentions are fatally flawed by the Tribunal’s findings in relation to the dismissal. Prior to 12 June, but excluding Mr Richardson and the events flowing from the complaint of 16 March, the claimant does not seem to have had the kind of relationships with others that would lead to a conclusion that there had been an irretrievable breakdown. In fact her line manager Mr Watts seems to have consistently given approval to her work. The correspondence shows that the claimant was working on a number of different matters without any undue conflict and the witness statements to the disciplinary hearing do not indicate irretrievable breakdown. In the case of Ms Henderson and Ms Mundy there had been differences between them and the claimant but such things happen from time to time in every working environment. The claimant denied that there had been such a breakdown and she believed she could have worked with any of her colleagues. In June 2003 the various difficulties as conceived by the claimant on the one hand and her managers on the other hand were all capable of remedy. Mature considered management of the situation would in all probability have resolved the position rather than the precipitate confrontational approach adopted. It was incumbent upon management to address those deficiencies described elsewhere in this judgernent and to give the claimant appropriate guidance and time to improve in areas where her performance was in management’s opinion lacking. On the evidence before us we are not able to conclude that the claimant would have been dismissed in any event
72 The breakdown in fact lay in the relationship between the claimant and Mr Richardson. As noted above we attribute that breakdown to the protected act of March 2003. There can be no possible basis for the respondent to contend irretrievable breakdown by relying on considerations that this Tribunal has found to be breaches of the respondent’s legal obligations to the claimant. Subsequent to the
73 The claimant was not without fault and she did contribute to her own downfall in some measure. First of all the intemperate language of the claimant’s letter of 16 March was unnecessarily provocative. Given their respective positions within the organisation the letter was completely lacking in the courtesy that one would ordinarily expect the claimant to have accorded Mr Richardson. The point could equally have been made using more restrained language. If, in fact, this letter upset Mr Richardson then that would have been a natural reaction but the tone adopted may have unwittingly led Mr Richardson into the error of confusing style and content, that his offence at how it was said made him underplay the serious issues the letter raised. As we have noted elsewhere the claimant had some substantial arguments in her favour on the three matters in dispute that resulted in the gross misconduct charges. Unfortunately, the attitude of the claimant in those two or three weeks did not assist and instead of taking apparently intractable positions she ought to have adopted a more constructive approach to resolving the situation. Regrettably the claimant contributed to the standoff between her and Mr Richardson and gave a further impetus to the downward spiral of events. Nevertheless the evidence shows that the claimant was under stress and had to seek medical help and that Ms Wilson on 1 1 June had noted this situation and that the claimant had said she could not cope. Accordingly we have reached the conclusion that it would be just and equitable to reduce the claimant’s compensatory award for unfair dismissal by 20%.
Dr I J Watt CHAIRMAN
RESERVED JUDGMENT
SIGNED BY CHAIRMAN ON
JUDGMENT SENT TO THE PARTIES ON
AND ENTERED IN THE REGISTER
FOR SECRETARY OF THE TRIBUNALS
