Campaign of public interest disclosures not made in good faith

11 March 2013

Louise McAloon Employment law specialist discusses a recent Tribunal decision considering claims of Public Interest Disclosure found not to have been made in good faith.

Mr Paul Keogh was employed by Banbridge Citizens Advice Bureau as a Generalist Advisor and Tribunal Representative from November 2009 until December 2011, when he was dismissed for gross misconduct in the form of insubordination and intimidatory behaviour leading to an irretrievable breakdown in relationships.

In a particularly damning Decision of the Industrial Tribunal dated 24th January 2013, in the cases of Paul Keogh v Banbridge and District Citizens Advice Bureau Industrial Tribunal Reference Numbers: 458/12, 3010/11, 2973/11 & 1463/11 the Claimant’s claims of unfair dismissal, sex discrimination, detriment on the grounds of making a series of protected public interest disclosures and health and safety disclosures were unanimously dismissed in their entirety by the Panel.

The Claimant asserted that he had made in excess of 35 protected disclosures and further alleged that he had been subject to over 120 alleged detriments by his employer. From in and around August 2010 the Claimant took issue with what he perceived to be an excessive workload for himself and his colleagues, he complained that a receptionist and effective triage system were needed and that certain advisers should be moved downstairs to alleviate their work pressures. He further alleged that he was being “cold shouldered and ignored” by a Senior Adviser, for raising these concerns, and that this treatment amounted to bullying.

The Tribunal accepted the Respondent’s evidence that the specific instances surrounding workload referred to by the Claimant amounted to no more than normal working pressures.No suggestion was made by the Claimant in his evidence to the Tribunal that he was ever expected to work extra hours to ensure that all clients were seen.The Tribunal was satisfied that there was nothing excessive or exceptional in the workload scenarios cited by the Claimant.

The Tribunal heard, and accepted, evidence that the Bureau Manager had overheard a conversation between the Claimant and his then colleague Mr O’Neill during which they discussed the fact that bullying could not, per se, be litigated in the Tribunal; that the protected disclosure provisions could be used as a “vehicle” to make such a claim on health and safety grounds; that this claim would be difficult to defend and that including a discrimination element would mean that compensation would be “limitless”; and further that costs were unlikely to be awarded.

The Tribunal held that the Claimant later pursued this precise course of action to formulate claims which he estimated would be difficult to defend.“[t]he claimant...escalated his campaign by raising grievances and an inordinate number of complaints and issues in lengthy, verbose and pedantic correspondence.In our judgement the claimant did this in an effort to penalise and paralyse the respondent.He also sought, in our judgement, to bolster his claim of being bullied and overworked to the extent that it amounted to a health and safety hazard and he did so in order to formulate a claim that any issues or disclosure made by him in that regard were protected disclosures.”

The Tribunal found that the Claimant did not raise any of his alleged disclosures in good faith.  Instead the Tribunal held that the Claimant was raising these disclosures “as part of his campaign of raising spurious health and safety issues related to workload to try to penalise the respondent and to bolster his claim that he was overworked.”It further found that he raised these disclosures as part of a campaign “to...paralyse the respondent”, in what was described as a “vendetta” against his former employer. His disclosures formed “part of his campaign to raise every grievance and issue he could”, with a view and a determination to “make mischief" in the Bureau, a small charitable organisation. The Panel found that there were a number of motivations for the Claimant’s behaviour including his annoyance at the suspension and removal of his colleague, Mr O’ Neill, his attempt to frustrate the disciplinary and grievance processes in which he was involved, his apparent contempt for the abilities of the Bureau Manager, his desire to get his own way and his unreasonable perception that he was overworked, bullied and being ignored. The Tribunal found that the Claimant’s purpose in raising particular grievances against the Chair and the Vice Chair of the voluntary Committee was “to stymie the disciplinary process and was a pre-emptive strike by the claimant in relation to other possible disciplinary action...”

The alleged disclosures were found to contain expressions of opinion, they did not convey information such as to qualify as protected disclosures and the Tribunal further found that the Claimant was not subjected to any detriment at all.

The Tribunal found that the Claimant’s allegation of “sex discrimination was a spurious allegation introduced to boost potential compensation in line with the discussion that the claimant had with Mr O’Neill...”. The Tribunal found that the Claimant did not really believe or suspect that sex discrimination was a feature of his case.

Interestingly, the Tribunal noted that “good faith” in the context of a protected disclosure is not simply to be equated with honesty and that it requires consideration of the motive of the person making the disclosure.

In contrast to the Claimant’s witnesses, the Tribunal found that the Bureau Manager had clearly been “driven to exasperation by the negative and undermining behaviour and attitude of the Claimant” but had acted as a caring and responsible manager, who was reluctant to treat many of Mr Keogh’s complaints as disciplinary issues, given her genuine concerns for his wellbeing.  Instead on many occasions the Respondent tried to resolve the problems by offering the Claimant more support, or encouraging him to seek medical help and counselling – however, the Claimant declined both and unreasonably refused to attend an Occupational Health appointment, arranged by the Respondent. The Tribunal further accepted that the voluntary Committee members were “struggling to deal with the multiplicity of issues and procedures generated by the Claimant”.

The Tribunal found that a striking and significant feature of this case was the inordinate and, indeed, disproportionate length of documents produced by the claimant in the internal procedures and in the claim forms lodged with the tribunal.The Tribunal Claim Forms ran to approximately 400 typed pages of narrative.The claimant’s submission at the appeal stage of the disciplinary process ran to 120 typed pages. The Tribunal noted that the “extreme length and diffuse nature” of the Claimant’s documentation made it difficult for the employer to discern the points being made, to proceed in an expeditious manner with their procedures and formed part of the Claimant’s apparent tactic to paralyse the Respondent.

The Respondent has submitted an application for a Costs Order against the Claimant which has been stayed pending the Claimant’s appeal of the Decision to the Court of Appeal.

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