Court of Appeal dismiss appeal by Employee ?determined to make mischief? in CAB by raising ?spurious allegations?
The Claimant in this case brought a claim for unfair dismissal, sex discrimination detriment, detriment and dismissal on the grounds of making a series of protected disclosures and detriment and dismissal due to making health and safety disclosures. The Claimant in this case and by the time it came to the Tribunal had four claim forms lodged with the Tribunal and the four claims contained details of the Claimant’s claim which ran to approximately 400 typed pages of narrative and include a selection of pasted whole documents and parts of documents.The Claimant’s submission at the appeal stage of the disciplinary process ran to 120 typed pages. The Claimant in this case was employed as a Generalist Adviser/Tribunal Representative by the Respondent from 16 November 2009 until he was dismissed on 13 December 2011.
The reason given by the Respondent for the dismissal was gross misconduct in the form of insubordination and intimidatory behaviour leading to an irretrievable breakdown in relationships. The Tribunal noted that the Respondent is a charity funded primarily by financial contributions from the local Council and as such is subject to the provisions of a Service Level Agreement and to various audit requirements. The CAB had a Board on which sat unpaid volunteers including the Chairman and the Vice-Chairman. It was accepted between the parties that there were no problems with the Claimant’s work until mid-August 2010. On 9 September 2010 the Claimant raised issues about workload and working processes and suggested in particular that opening hours to the CAB be cut and that a system of triage be introduced to alleviate pressures and preference to the drop-in system.The Claimant also suggested that a fellow employee should be relocated from the upstairs office to assist at the adviser sessions on the ground floor. It was the evidence of one witness at the meeting she had concerns for the Claimant’s mental health as she observed him to be under stress and she know of particular stressors in his private life and that he had alluded several times to the stress he was under. The witness stated that the Claimant behaved aggressively at the meeting insisting firstly that the work should be organised in the way that he proposed and secondly that a staff member should move downstairs and that the Bureau should close its doors and shorten its hours. This was not agreed to by the Manager of the CAB and the proposals were not deemed to be necessary or advisable and indeed contravened the opening hours required under the conditions of funding.
It was the Claimant’s case that from this meeting he was cold-shouldered and ignored by the Manager and this amounted to bullying. On 11 September the Claimant sent an e-mail to the Manager making eight proposals for reorganisation of the office operations because of his perception of the lack of triage. The Claimant relied on this letter dated 11 September as containing multiple protected disclosures under PID. A fellow volunteer within the CAB was suspended and as the Claimant was upset by this he sent a letter to the Chairman of the CAB Board in relation to this suspension and in the letter stated “It is with regret that I feel that I have to raise a health and safety concern with you as an employee of Banbridge Citizens Advice Bureau”. The Claimant referred to European Directives and the Health and Safety at Work Order. In the letter he referred to the Manager and stated that “I have watched her own stress levels increase as she has tried to deal with sagging morale and poor team spirit. I am writing this because I do not believe that she can lead us through this difficult time without your support”.
The Tribunal found that the Claimant raised this 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. The Tribunal stated that “the Claimant then 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 disclosures made by him in that regard were protected disclosures”. The Tribunal stated that on the basis of the evidence that the Claimant was determined “to complain no matter what as he appeared determined to make mischief in the organisation”.
On 24 May 2011 the Claimant was suspended pending disciplinary investigation into issues of insubordination and bullying and threatening behaviour. The Tribunal found that the Respondent was justifiably driven to dealing with the Claimant in a disciplinary fashion as his disruptive behaviour and the undermining of his Manager could not be tolerated any further and it was clear that the Claimant would not agree to going down the medical route. The disciplinary hearing took place on 7 December 2011 and the Claimant failed to attend citing at the last minute that he was unwell. There was no medical evidence put forward to support this and the hearing went ahead in his absence. The Tribunal did not find that the Respondent was at fault in going ahead with the disciplinary hearing in the Claimant’s absence in view, firstly of the Claimant’s behaviour generally in seeking to delay and frustrate processes by raising spurious concerns and secondly the fact that the Claimant was unreasonable and notifying the panel so late and in failing to provide supporting medical evidence for his alleged incapacity. The actions of the employer in these circumstances was within the band of reasonable responses. The Tribunal stated “Many of the alleged disclosures were expressions of opinion and allegations where the Claimant set out criticisms and made proposals for the improvement of systems and service and are therefore not protected disclosures in that they did not convey information”. “The Claimant lacked the requisite good faith as the issues were raised as part of his campaign to paralyse the Respondent managers in order to get his way and to express his annoyance for the way Mr O’Neill had been treated. In addition the Claimant appears to have had contempt for the abilities of Mrs Ellis as a manager. The Claimant appeared to believe that he should be in charge as he knew best and if anyone disagreed with him he retaliated by making unreasonable or spurious allegations”.
The Claimant appealed to the Court of Appeal on a number of grounds, namely: “That the Tribunal failed to give adequate reasons for its decisions and thereby failed to comply with its duty to give reasons as set out in Rule 30(6) of the Industrial Tribunals (Constitution and Rules of Procedures) Regulations (Northern Ireland) 2005”. The second ground of appeal is that the decision contained incorrect factual findings which are sufficiently serious to undermine the decision. The Court of Appeal stated that it did not consider that “disputes over the date on which grievances were raised were material”. The third ground of appeal was related to findings and credibility. He took issue with this statement by the Tribunal that Mrs Ellis said he had behaved aggressively at a meeting. The Claimant also raised issues that the Tribunal was biased against him. He complained about the fact that the Tribunal removed four statements that he had used at an interim hearing which he proposed to use at the full hearing. The Court did not accept that this indicated bias. As a result of his failure to submit his witness statements on time the Tribunal ruled that the evidence should be given orally. The Tribunal was entitled to take the view that his proposed reliance on the interim statements was an attempt to circumvent the ruling. The Tribunal limited oral closing submissions to one hour. The Court stated that this was a sensible case management approach in a case which the Tribunal had considered carefully over the previous nine days.He also complained about the speed of the decision which was given approximately five weeks after the end of the hearing. The Court stated that the Tribunal is to be commended for its expedition rather than criticised.
The Claimant submitted that the decision was perverse and he also complained that he was prevented from presenting his claim effectively and thereby denied a fair trial.The Court of Appeal stated that “the Tribunal imposed time limits in this case which were entirely appropriate, removed witness statements which should not have been put in the bundle and gave a speedy decision. There is nothing about any of these issues that could possibly give rise to a complaint about a fair trial”. Costs in the Court of Appeal were awarded in favour of the CAB.
Maxine Orr is a Partner and Head of Employment law with Worthingtons Solicitors.