Whistle blower made a scapegoat by Ulster Bank awarded over £28k

14 February 2014

Northern Ireland Employment law, Whistle blower awarded damages in case against Ulster Bank

Whistle blower made a scapegoat by Ulster Bank awarded over £28k in damages.

An Industrial Tribunal has awarded a successful whistleblower £28,792.82 after finding that he was subjected to detriment by his employer, the Ulster Bank, on the grounds of having made protected disclosures. [AB v Ulster Bank Case References 2250/12& 724/13]

The Claimant, who is referred to as AB under an anonymity Order which covers all witnesses who gave evidence to the Tribunal, is employed as a Team Leader in the Ulster Bank Cash Centre. The issue in this case concerned the signing of vouchers which authorised the movement of cash between accounts. The Claimant and his colleagues were required to sign large numbers of vouchers and the correctness of the figures entered on vouchers could not always be checked by a physical count of cash, due to the volume of cash and vouchers involved. During a number of conversations on separate dates with Mr F (the Claimant’s Line Manager) the Claimant conveyed information and ultimately his suspicion that Mr P, a colleague who controlled access to the vault, was stealing money from the vault.The Claimant conveyed to his manager that Mr P was controlling the cash vault, that he had a lavish lifestyle, was a gambler, had lavish gambling trips to Las Vegas twice a year, was in charge of a betting syndicate in work and always paid out winnings in £50 notes despite very little being contributed by syndicate members. The Claimant has previously raised concerns about Mr P with a previous manager, Mr L, in 2009. The Tribunal found that the Claimant was in a position to have a “good hunch” that something was wrong when he observed the lifestyle conducted by Mr P and the way the gambling syndicate ran ie the Claimant had a reasonable belief in the disclosure he was making.

It noted that this was not a case in which the Claimant’s suspicions turned out not to be true. In fact they led to very serious allegations being put by the Bank to Mr P. Their investigation led to the clear suspicion that it was Mr P who had stolen “approximately £500,000” as he was actually charged with this by his employer. The Bank therefore shared the Claimant’s suspicions that Mr P was stealing and this emphasised to the Tribunal the reasonableness of those suspicions. The Bank accepted that it was AB’s conversations with his managers on 2 particular dates which led to a cash count which revealed a shortfall of approximately £7,000 in the vault. The Bank further accepted that it was as a result of AB’s further conversation with his managers on a later date that it was discovered that cash (which was not counted in the audit) was stored in bins in another part of the vault. The Bank accepted that this discovery precipitated a further cash count which led to the discovery of a cash shortfall of approximately £565,000.

The Tribunal held that the Claimant made three disclosures in conversations on or after 13 December 2011 which individually and cumulatively amounted to protected disclosures and that the disclosures in conversations at note destructions in August 2011 and on 1st December 2011 also amounted to protected disclosures.

The Claimant was initially suspended on 9th January 2012 (with three other staff members) pending investigation into potential gross misconduct relating to “lack of due diligence checks” on the voucher for £1.3 million (which had the Claimant’s signature on it) and for not raising with management the concerns he had about a shortfall.

The Tribunal held that this first period of suspension was reasonable given the supervisory nature of the Claimant’s job and the fact that a large sum of money had gone missing from the vault. The Claimant was cleared of all disciplinary charges and his suspension was lifted on 20th July 2012.The Claimant was told to liaise with Mr F, his Line Manager, regarding a return to work. Unbeknown to the Claimant, the Respondent then adopted a “holding position” in that he was neither suspended nor was he allowed to return to the workplace. The Tribunal found that the Claimant was unreasonably and unjustifiably kept in limbo at this time.

The Claimant was then suspended for a second time on 6th September 2012 on a charge of gross misconduct in relation to his having signed a voucher for £1.3 million meaning that a particular category of cash was moved from one account to another and an alleged lack of due diligence on his part. The voucher ultimately facilitated the storage of cash in odd bins so that the auditors did not take account of them until they were pointed out by the Claimant. The disciplinary outcome hearing took place on 28th January 2013. The disciplinary charge was not upheld as it was found that there was no procedure in place relating to the checking and signing of vouchers for the category of notes in question. The Tribunal considered that the Claimant was given no credit at any stage for raising the issues that led to the discovery of the shortfall and this remained the case during the tribunal process. The Tribunal found that the Claimant was unreasonably and unjustifiably suspended and disciplined a second time and that there was a delay in the outcome. It identified that the Claimant was subjected to a series of eight detriments following the lifting of the initial suspension on 20th July 2012 on the grounds of his having made protected disclosures. The Tribunal found that the focus of senior managers was to make the Claimant a scapegoat for the loss that had been discovered. The Tribunal found that Mr K, Head of Banking Operations, exhibited a pervasive and directing influence presumably on behalf of more senior managers and great pressure was being put on more junior managers from above to produce a report to ensure that the Claimant could be disciplined.The Tribunal found that Mr K had essentially directed Mr C, Specialist Investigator, to produce a second report (without any further investigation) to include the voucher issue as a charge of gross misconduct, despite Mr C’s attempts to explain why he had consciously decided to discount this at the time of his first report. Human Resources staff, and in particular Ms D, HR Case Consultant, were concerned about ensuring compliance with procedures to the extent that she took the serious step of sending a “red flag” email highlighting the serious risks in persisting to withhold witness statements from AB in advance of the disciplinary hearing and designating the case as “high risk”. Very senior managers pushed the process forward in the face of considerable misgivings of their own HR professionals and in full knowledge of the risks pointed out to them. The Tribunal considered that the detrimental acts were not therefore committed out of ignorance, carelessness or incompetence but as a positive attempt to pursue the Claimant unreasonably in full knowledge of his fragile mental state and regarded this as a particularly aggravating feature in the case. It was noted from the documents that the case was visible at Exco level and that there were concerns about the Bank’s reputation given that this occurred in the middle of the widely reported hiatus relating to the Bank’s computer systems.

The Tribunal firmly found that the actions of the Bank after the lifting of the initial suspension in July 2012 were aimed at making the claimant a scapegoat. It was highly critical of the Respondent’s treatment of the Claimant in this case and noted that the fundamental rationale of the legislation is that people should be encouraged to come forward with concerns about wrongdoing. “The point is to protect people and to make the culture such that people feel safe in revealing suspicions and the basis of their suspicions particularly when it means pointing the finger of suspicion at a close colleague. It is clearly in the public interest that an undertaking such as this (which is essentially publicly-owned as it is part of RBS) whose business is safeguarding customers’ money, has a culture whereby people working with cash come forward if information like that in this case is disclosed.

The Bank subsequently, sought over 50 changes to paragraphs within the Tribunal’s draft decision on safety and security grounds. The changes principally sought to remove any reference to very senior managers at Exco level, their job titles, the fact that the events took place in the Bank’s Cash Centre, the amount of missing cash and the signing procedures within the Bank. The application was refused. In the recent Employment Appeal Tribunal case of Norbrook Laboratories (UK) Ltd v Shaw the EAT held that a single protected disclosure could be made in multiple communications to an employer, even if the individual communications in and of themselves would not ordinarily amount to protected disclosures. It was held that separate communications when considered as a whole (even if made to different people) can be capable of amounting to a protected disclosure.

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