 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Industrial Tribunals Northern Ireland Decisions |
||
|
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Maguire v Speechmatters [2008] NIIT 9610_03IT (26 November 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/09610.html Cite as: [2008] NIIT 9610_03IT, [2008] NIIT 9610_3IT |
||
[New search] [Printable RTF version] [Help]
The unanimous decision of the Tribunal is that the claimant’s claim is dismissed.
Constitution of Tribunal:
Chairman: Ms Sheils
Members: Ms S Doran
Mr J Hughes
THE CLAIM AND DEFENCE
1. The claimant lodged a claim of unfair dismissal in breach of the Public Interest Disclosure (Northern Ireland) Order 1998 on 15 December 2003 alleging that her contract of employment had been terminated following her having raised concerns of financial irregularities and false accounting with the Chief Executive.
2. In their response dated 2 February 2004 the respondents denied that the claimant had made any allegations against any person or persons in respect of financial irregularities and refuted the claimant’s claim in its entirety.
The respondents contended at hearing that the claimant had been dismissed because of her aggressive behaviour at work and her undermining, challenging and ultimately threatening attitude towards the Chief Executive.
SOURCES OF EVIDENCE
Witnesses
3. The Tribunal heard from:-
the claimant; and
Mrs Bernadette Marie Macklin, the claimant’s sister.
4. On behalf of the respondents the Tribunal heard from:-
(1) Mr Uel Berkley, Senior Investigator in the Northern Ireland Health Service, Counter Fraud Unit.
(2) Mr Derek Robert Anderson, Head of Internal Audit and Head of Department of Health and Social Services and Public Safety.
(3) Mrs Jackie White, Chief Executive of Speechmatters.
(4) Mrs Lorna Bingham, Finance Officer, Speechmatters.
(5) Mrs Claire Larmour, Office Manager, Speechmatters.
(6) Mr Eric McCullough, Chairman of Speechmatters.
(7) Ms Joanne Small, Honorary Treasurer, Speechmatters.
(8) Ms Sinead O’Regan, Manager in the Upper Springfield Development Trust for Job Assist Centres in West Belfast.
(9) Ms Therese McKernan, Co-Director of Learning and Development in Belfast Health and Social Care Trust.
(10) Mrs Margaret Copeland, Deputy Director, Speechmatters June 2003 – February 2005.
DOCUMENTATION
5. The Tribunal was presented with an agreed bundle on the first day of the hearing. Thereafter the Tribunal was supplied with numerous supplemental bundles and separate pieces of documentation eventually running to several hundred pages. The Tribunal advised the parties that it would only rely on any document to which it was specifically referred.
SUBMISSIONS
6. The Tribunal received written submissions from the claimant and respondents.
Findings of relevant facts
7. Having considered the oral and documentary evidence before it the Tribunal found the following relevant facts either admitted or proved on the balance of probabilities:-
Overview
The Tribunal noted that the claimant based the allegations in her claim solely on information she alleged she had been given by the Finance Officer, Mrs Lorna Bingham. The claimant continued to maintain this position at the hearing. By her own admission the claimant did not ask to see any accounts or take any steps herself to verify the information.
The claimant maintained that when she was allegedly told any of the information by Mrs Bingham she readily believed it. The claimant also stated that she had offered to speak to the Chief Executive on the matters raised by Mrs Bingham on her behalf as Mrs Bingham was too afraid to do so in case she lost her job.
The claimant further stated that the respondents’ defence to her claim was based on a conspiracy amongst the Chief Executive and other staff members in the case to undermine the claimant’s allegations of financial mismanagement and false accounting and to substantiate the reasons for the claimant’s dismissal. The claimant subsequently alleged during the hearing that all the witnesses in the case were involved in this conspiracy including those witnesses who were not employed by the respondent organisation.
The Tribunal sat over a number of weeks and heard evidence from the claimant and the respondents numerous witnesses and had ample opportunity to observe the manner in which this evidence was given. The Tribunal noted the claimant’s demeanour and behaviour which, even allowing for her position as an unrepresented litigant, was at times aggressive, unreasonable and erratic.
The Tribunal found the respondents’ witnesses credible and accepted that any variations between them in relation to the detail of the evidence was more consistent with there not being a conspiracy amongst them than if there had been. The Tribunal was also impressed with the way in which the respondents’ witnesses gave their evidence and conducted themselves in a calm and reasonable manner even in the face of the sometimes extreme allegations being put to them by the claimant.
On the other hand the Tribunal was not always impressed by the written evidence produced by the respondents’ and particularly with its untimely and often erratic production. This was disruptive to the smooth running of the case and caused undue delay.
8. The Dismissal
The claimant took up employment with the respondent as a Policy and Advocacy Manager at Graham House, Knockbracken Healthcare Park, Belfast. A contract of employment was produced by the claimant. This contract was signed by the claimant on 9 July 2003 but was not signed by the Chief Executive at any stage. The contract indicated that the claimant’s date of commencement of employment was 11 June 2003 it was accepted at hearing that her start date had been 12 June 2003.
This contract of employment indicated the claimant’s main terms and conditions of service. This included at Paragraph 21 of the contract the probationary period which applied to the claimant at the start of her employment. This statement read:-
“The initial period of 13 weeks employment of a new employee is recognised as a probationary period, which will be subject to ongoing reviews. At the end of the probationary period, a performance review interview shall be carried out using the format of the performance appraisal system and subject to satisfactory service and conduct, employment with Speechmatters will be confirmed. The company reserves the right to terminate employment within the 13 weeks probationary period if inadequate progress is being made. Similarly Speechmatters may extend probationary period if deemed necessary up to a limit of an additional 13 weeks. If the employee still fails to work to a satisfactory standard during this extended period then employment shall not be confirmed. All company procedures shall apply during the probationary period.
Appeals against decisions may be made using the company grievance procedure.”
The claimant’s employment was terminated on 17 October 2003 by the respondent. The claimant was on annual leave on that date but was called in to attend a meeting with the Chairman of the respondent, Mr Eric McCullough, on that date. Also present was Ms Joanne Small, Honorary Treasurer of the respondent. At this meeting the claimant was handed a letter advising her that:-
“Following consideration of your position by the Board I am unable to confirm your appointment. I am not satisfied that your integration into our organisation in a constructive fashion has been achieved. Your contract of employment will therefore be terminated in accordance with contractual terms relating to termination. You are entitled to receive four weeks pay in lieu of notice. Payment is also due for eight days’ annual leave, three days in lieu of hours worked and your expenses this month.”
The letter advised the claimant that pay in lieu of notice and her P45 would be forwarded to her and she was asked to return her keys forthwith. The keys were not returned at this time.
The claimant was advised at this meeting that this decision had been reached on the basis of verbal complaints from two staff members but the claimant was given no further details about the decision to terminate her contract.
The claimant contended that Mr McCullough advised her at the end of this meeting that she could appeal this decision. Mr McCullough denied advising the claimant that she could appeal this decision. He accepted, however, that he had advised the claimant that she could contact him if she wished to do so. Mr McCullough contended that this was not an invitation by him to the claimant to appeal the decision, but a reaction by him to the claimant’s obvious distress.
Mr McCullough did give the claimant his home address and mobile telephone number. Mr McCullough contended that he had found this a difficult meeting to bring to an end. Mr McCullough also gave the claimant, Ms Small’s mobile telephone number. Ms Small indicated that Mr McCullough had also given the claimant Ms Small’s telephone number in case the claimant wanted to appeal the decision but Ms Small had no recollection of the claimant indicating her intention to appeal at the meeting.
Evidence from the Chief Executive of the respondent, Mrs Jackie White, indicated that Mr McCullough told the Chief Executive that he had given the claimant his phone number and address should she wish to appeal the decision.
Accordingly, the Tribunal found that the claimant had been given an indication that she could appeal the decision to terminate her contract.
The claimant stated that at the meeting she had been shocked at the contents of the letter and had asked for a fuller explanation for her dismissal. She accepted that she had been told that there had been complaints made about her behaviour but she was given no further details. The claimant stated that in turn she had said that her dismissal would “open a can of worms”. Both Mr McCullough and Ms Small denied that the claimant had said this. However the claimant accepted that she had not stated her belief that she was being dismissed because of disclosures she had made or concerns she had raised in relation to financial mismanagement.
Letter of Appeal
9. The claimant wrote to Mr McCullough on 20 October 2003 to his home address. This letter was referred to at the hearing as the claimant’s letter of appeal.
10. The letter asked if the Board could re-consider its decision to terminate the claimant’s contract of employment on a number of bases. The first of these was that her probationary period had ended on 11 September 2003 and that she had been given no indication that the standard of her work or her integration into the organisation was anything other than satisfactory and that the decision to terminate her contract was in breach of Section 21 of her contract of employment.
11. The second basis on which the claimant asked the Board to re-consider its decision to terminate her contract was that, as a qualified Public Relations Practitioner with many contacts, colleagues and friends within the media, the PR Industry, the Voluntary Sector and Local Government who were familiar with her good professional reputation, the letter indicated that if the claimant deemed it necessary she would go through the legal system seeking adequate financial restitution from the respondent. The claimant’s letter also indicated that she would hold the respondent responsible for any defamation of her character as a result of information provided by staff or of reasons given regarding her absence from her place of work.
12. The claimant’s letter made it clear that although she was committed to her work at Speechmatters that she would protect her professional and personal reputation and her family and would take legal steps to do so. The claimant sent this letter to every member of the Board of the respondent. The respondents did not reply to this letter.
13. The Tribunal noted that the claimant’s letter of appeal made no references to her belief that she had been dismissed because of disclosures she had made or concerns she had raised in relation to financial mismanagement.
The Claim
14. The claimant lodged a claim to the Industrial Tribunals on 15 December 2003. This claim alleged that the Finance Officer in the respondent organisation, Mrs Lorna Bingham, had told the claimant that she had serious concerns about a number of financial irregularities and false accounting which the Finance Officer believed had been carried out by the respondent organisation, including the Chief Executive.
15. The claimant alleged that she had been dismissed by the respondent organisation because she had brought concerns about financial mismanagement and fraudulent accounting to the attention of the Chief Executive and that the Chief Executive had then had the claimant dismissed to avoid these alleged concerns coming to light.
16. The claimant’s claim was founded on the allegation that the Chief Executive had dismissed the claimant on false allegations about the claimant’s behaviour at work, in stating that the claimant was difficult to manage, argumentative, erratic, hot tempered, unreasonable, undermining and ultimately threatening.
17. The claim form also indicated that the claimant had made requests to meet the Chief Executive on four occasions to raise her concerns about this matter. The claim form also alleged that after the fourth such request the Chief Executive verbally agreed to meet the claimant but on the day of the arranged meeting the claimant stated that she was told the Chief Executive was unavailable and that the claimant should put her concerns in writing. The claim form alleged that this cancelled meeting was two days’ prior to the termination of the claimant’s contract of employment.
18. Discovery furnished by the claimant to the respondent organisation in August 2004 revealed that the claimant had sent an e-mail on 2 November 2003 to Patricia Lewsley, then SDLP MLA with responsibility for people with disabilities. This e-mail requested a meeting with Ms Lewsley for the claimant to discuss with her a number of issues of serious concern relating to the respondent organisation.
19. The claimant’s discovery also revealed an e-mail from the claimant to the Department of Finance & Personnel alleging that the respondent organisation were continuing to receive funding for the claimant’s vacant post and that the respondents had no intention of advising the Funding Department that the post was vacant.
20. This e-mail was forwarded to the Department of Health, Social Services & Public Safety for them to investigate.
The Alleged Disclosures -The Memos and the Meeting on 27 August 2003
21. The claimant’s discovery also indicated that the claimant had raised concerns about financial irregularities and false accounting with the Chief Executive and that she had done so on four separate occasions.
22. On three of these occasions the claimant alleged that she had raised her concerns in memos she sent to the Chief Executive dated Wednesday 20 August 2003, Tuesday 9 September 2003 and Tuesday 14 October 2003. Copies of these memos were enclosed in the discovery documentation. The claimant also alleged that the fourth occasion on which she had raised her concerns with the Chief Executive was at a face-to-face meeting on Wednesday 27 August 2003.
23. The Chief Executive, Mrs White, denied that she had ever received these memos and stated that the first time that she had seen them was when they were furnished in discovery. Mrs White also denied that the claimant had ever raised any financial concerns with her at any face-to-face meetings or at a face-to-face meeting on 27 August 2003.
The Memos
24. The respondents challenged the genuineness of the memos and asked the Tribunal to consider that either the claimant had used a memo template of the respondents’ or that they had been either replicated or fabricated by the claimant some time after her dismissal.
25. It was agreed between the parties that the claimant had a reasonably high level qualification in computer studies and was computer literate.
26. The respondents contended that the claimant may have removed memo templates from the respondent organisation’s computer system on Sunday 19 October 2003 before she returned her keys on Monday 20 October 2003. The respondent produced evidence which indicated that someone had accessed the respondent organisation’s computer system on Sunday 19 October 2003, but agreed that this evidence did not, of itself, indicate that it had been the claimant who had done so.
27. The respondents also suggested that the claimant had had opportunity to remove memo templates on Monday 20 October 2003, the Monday after her dismissal when the claimant attended the office to return her keys and to collect her personal belongings, which she could have later used as a template from which to fabricate the memos that appeared in discovery.
28. The claimant maintained that she had been accompanied throughout this visit by staff members at all times and for her to do so would have been impossible. The claimant’s unannounced visit had been very difficult for staff members as the claimant had spoken to at least two staff members very aggressively and in a bullying manner. The respondents’ witnesses who were present during this visit, Mrs Bingham and Mrs Larmour, agreed that they had been advised by Mr McCullough to accompany the claimant throughout her visit. The Tribunal accepted that the claimant did have time and opportunity to obtain a memo template during this visit.
29. In considering the suggestion that the memos had been fabricated by the claimant at home the Tribunal was also invited to consider the variations in the typeface to other respondent organisation memos and the fact that the memos in contention were signed in a different way from the manner in which the claimant ordinarily signed memos.
30. The claimant contended that the memos were genuine. She drew the Tribunal’s attention to the fact that their existence was supported by similar references to her having raised the concerns with the Chief Executive which were contained in a document the respondents referred to at the hearing as ‘the claimant’s alleged contemporaneous note’. The claimant also stated that she had copied these memos onto a floppy disc. The Tribunal ordered the production of this floppy disc but the claimant failed to produce it at any stage of the hearing.
31. This document called the ‘alleged contemporaneous note’ was undated but had been sent to the respondent’s solicitors in December 2004. The claimant contended that this document was based on entries she made to her diary on the dates in question which she then added to this single contemporaneous note every evening after work. The alleged contemporaneous note was a word document and the claimant stated at an early date in the hearing that she had the floppy disc of this at home too.
32. The Tribunal ordered the claimant to produce this floppy disc and requested to see it on many occasions throughout the hearing. The claimant in reply stated variously that it did exist, that she was still looking for it, that she would bring it with her on the next hearing day until the claimant finally admitted that she was not in a position to produce it.
33. The Tribunal saw copies of the diary extracts and a separate document which has these extracts typed up and entitled ‘diary extracts’. However there was no independent evidence to indicate that these entries had been made in the claimant’s diary on the dates she said they had been made and not some subsequent date.
34. The Tribunal also saw the document referred to as ‘the alleged contemporaneous note’. The Tribunal noted that this document read as a continuous narrative as if written at one sitting and not written piecemeal or as an amalgam of a series of separate notes. It read as a coherent account of events and not as a document that was added to in the way that the claimant described.
35. The Tribunal concluded that this note was not a contemporaneous note as alleged by the claimant nor that it had been prepared by her in the manner she described. The Tribunal did not accept that either ‘the alleged contemporaneous note’ or the ‘diary extracts’ supported the validity of the memos.
36. The Tribunal found that the claimant had occasion to extract from her work computer a memo template, at the very least on the morning of 20 October 2003 when she went to the respondent organisation’s offices to return her keys and collect her personal belongings.
37. The Tribunal also accepted that the memo template was capable of being replicated, particularly by a person with the reasonably high level of computer expertise as the claimant had, and that the memos could have been created by the claimant after her dismissal.
38. The Tribunal also took into account the facts and noted particularly that the claimant did not make any reference to these memos at either her meeting with the Chairman of the Board at the time of her dismissal, or in her subsequent letter of appeal against that decision.
39. The Tribunal also took into account the fact that the claimant made no reference to these memos in any of the subsequent correspondence that she had with the external agencies she contacted to raise her alleged concerns or at her subsequent interview on 6 May 2004 with Mr Uel Berkley, Senior Manager of the Counter Fraud Unit in the Northern Ireland Health Service, who was detailed to investigate the claimant’s allegations.
40. The Tribunal concluded that the claimant by some means did create these three memos in order to support her claim that she had made disclosures which led to her dismissal. In reaching its conclusions that the memos had been fabricated by the claimant the Tribunal also accepted Mrs White’s evidence that she had not received these memos and had seen them only for the first time when furnished by the claimant in discovery.
The Meeting on 27 August 2003
41. The claimant also alleged that she had raised her concerns of financial mismanagement at a meeting between herself and Mrs White on 27 August 2003. The evidence in relation to this meeting conflicted in almost every respect as between the evidence of the claimant and that of Mrs White. It was agreed however that a meeting did occur on 27 August 2003 and that it was a one to one supervisory meeting between the Chief Executive and the claimant. However, the dispute between the parties was in relation to the content of this meeting.
42. The claimant alleged that at the meeting she mentioned the Hedley Trust Funding and asked Mrs White where the money had gone or on what had the money been spent. The claimant also alleged that she told Mrs White that she knew the Befriender scheme project did not exist and that she had advised Mrs White that as the Headley Trust Funding had been spent on something else that this was unprofessional and dishonest. The claimant further alleged that at this meeting she requested a proper minuted meeting to discuss the concerns she had in relation to the Headley Trust Funding in full. The claimant alleged that Mrs White’s only response to these comments was that she would get back to her.
43. The claimant maintained that although she had stated to Mrs White that the Headley Trust Funding monies had been used unprofessionally and dishonestly the claimant also maintained that she had merely raised a query with the Chief Executive and had made no accusations.
44. Mrs White stated that at no time during this meeting, or at any other meeting, did the claimant make any disclosure or raise any issue in relation to the Headley Trust Funding or any other matter of financial concern. Mrs White confirmed that if any issue had been so raised in relation to the Headley Trust Funding, the Befriending scheme or any other matter she would have been in a position to deal with any queries raised by the claimant. Mrs White also stated that the claimant had not asked her to hold a formal minuted meeting about the claimant’s financial or other concerns nor did she state that she would get back to the claimant.
45. Mrs White further denied that the claimant ever suggested that there had been misuse of any funding monies or that any alleged misuse had been “unprofessional and dishonest” Mrs White added that if any such allegation had been made to her she would have alerted the Chairman, Mr Eric McCullough and the Honorary Treasurer, Ms Small immediately. Mrs White stated that she would have done so in order that any such allegation could have been thoroughly investigated. Mrs White made it clear that if any allegation of that nature had ever been made she would not have perceived the allegation as personal to her and accordingly she would have ensured an objective investigation by the appropriate people.
46. During the course of the hearing Mrs White produced a hand-written document which she stated was a note of the meeting that did take place. This note was in bullet point form and it reflected the staff supervisory subjects covered by Mrs White and the claimant. The note was a “staff supervision form” and it was dated, albeit not signed, on 27 August 2003.
47. The claimant challenged the validity of this staff supervision form on the basis that it was unsigned and further that it had not been countersigned by her.
48. The Tribunal concluded that the meeting on 27 August 2003 was as Mrs White described it. In reaching this conclusion the Tribunal took into account the fact that the claimant did not make any reference to this meeting in her application form to the Tribunal, nor to Mr McCullough at the dismissal meeting on the 17 October 2003 nor in her subsequent letter to the Board following her dismissal on 20 October 2003.
49. The Tribunal also took into account that there were two memos allegedly sent by the claimant to Mrs White subsequent to this meeting and neither of them referred to the meeting of 27 August 2003 or the claimant’s request for a fully minuted discussion of the Headley Trust Funding. The first alleged memo subsequent to the meeting of 27 August 2003 refers instead… “Further to my previous memo …” If the claimant’s version of the meeting of 27 August 2003 were correct the Tribunal would have expected that memo to read “Further to our meeting of 27 August 2003 and your undertaking to come back to me.”.
The Specific Allegations of Fraud and False Accounting
50. The claimant’s discovery revealed the specific allegations of financial mismanagement and false accounting the claimant alleged had taken place at the respondent organisation. These included:-
mismanagement of funding received from Headley Trust (formerly Sainsbury Family Trust);
the dishonest management of funding received from BBC Children in Need;
the payment to the Chief Executive, Mrs Jackie White, for extra hours worked by cheque and not through PAYE; and the loose arrangements around approval for these extra hours;
allegations that a payment of £1,000 for work carried out by Upper Springfield Development Trust for the re-writing of the respondent organisation’s terms and conditions of employment; that the details on the cheque payment did not correspond with the invoice for the work done.
51. There was also an allegation by the claimant that this work had been improperly commissioned by Mrs White and given to a former colleague of Mrs White’s at Upper Springfield Development Trust and paid directly to that former colleague.
52. The claimant also alleged that the sum of £1,000 was an unreasonable sum to pay for the work that was actually carried out, that the completed work appeared to the claimant to be flimsy and unsubstantial and not corresponding with the hours claimed for it.
The enquiries and Investigation into the allegations
The enquiries - Mr Berkley
53. Mr Berkley became involved in the matter when the Department of Finance and Personnel referred to him the claimant’s e mail alleging that the respondents were accepting funding for her post at a stage when it was vacant to the Department of Health, Social Services & Public Safety and ultimately Northern Ireland Health Service, Counter Fraud Unit. Mr Anderson became involved when he carried out the audit into Speechmatters that was recommended by Mr Berkley in his report.
54. Mr Berkley had been contacted by a Mr John Richardson from the Department of Social Development who was Mr Berkley’s equivalent investigator in that Department. Mr Richardson explained to Mr Berkley that Mr Richardson had met the claimant who had outlined to him a number of allegations of fraud and false accounting in the respondent organisation and that as this organisation related more to health matters Mr Berkley’s Unit seemed to be the more appropriate Unit to conduct the investigation.
55. Mr Berkley’s role was to make enquiries into the allegations as contained in the claimant’s e mail and the allegations she had made to Mr Richardson. Mr Berkley was unaware of the respondent organisation and made initial enquiries as to its funding body. He spoke to a Mr Derek Anderson, Head of Internal Audit in the Department of Health and discovered that Speechmatters was partially funded by that Department. Shortly after this Mr Berkley became aware that another person, Mr Colin Langford, Head of Internal Audit in the Northern Health Board had also been made aware of the claimant’s allegations.
56. Mr Berkley, Mr Anderson and Colin Langford then met. Mr Berkley could not remember the date of this meeting but believed that it took place some time before he had arranged to meet either the claimant or the respondents. No notes or records of this meeting were available.
57. At this meeting Mr Berkley was advised of the claimant’s allegations of fraud and false accounting in the respondent organisation. It was agreed by them all that Mr Berkley was the most appropriate person to continue to make further enquiries into the matter.
58. Mr Berkley sought in the first instance to meet the claimant so that she could give him more details of her concerns. He made an appointment with the claimant for 23 April 2004. At the same time Mr Berkley made an appointment to interview Mrs White at Speechmatters on 27 April 2004.
59. The claimant did not turn up for her meeting nor did she send any indication that she would be unable to do so. The claimant did not contact Mr Berkley with any apology or explanation for missing the appointment. The claimant stated that she had tried to contact Mr Berkley and had been unable to reach him or to leave a message.
60. Mr Berkley decided to progress his enquiries by going ahead with his meeting with Mrs White as arranged. He stated that he did so on the basis that he had no indication that the claimant would ever contact him again as this would be a common feature of such complaints to his Unit.
61. Mr Berkley met Mrs White and the Deputy Director, Mrs Copeland, on 27 April 2004 as arranged. Mr Berkley put each of the allegations made by the claimant to Mrs White and Mrs Copeland both of whom became aware of the specifics of the claimant’s allegations for the first time at this meeting.
62. Mrs White and Mrs Copeland answered the allegations fully and produced appropriate documentation to support their answers where this was available. Mr Berkley stated in his report and at this hearing that he was satisfied by the credibility of responses he received from Mrs White and Mrs Copeland and with the documentation they produced for him. Mr Berkley formed a view at this meeting that none of the claimant’s allegations could be supported.
63. Mr Berkley indicated that this was the extent of his enquiries as this was the limit of his role and that further forensic investigations would be better conducted by an auditor.
64. However after this meeting Mr Berkley still sought to meet the claimant in case at that meeting she could substantiate or provide further evidence of the allegations. He contacted the claimant and arranged to meet her on 6 of May 2004.
65. At this meeting the claimant produced no independent evidence of any of the allegations that she had made. She relied on the claim that she was basing her allegations on the information she had been given by the Finance Officer, Mrs Bingham. In particular the claimant did not refer to or produce any memos she later came to rely on as proof of her having tried to raise her concerns about fraud and financial mismanagement.
66. Mr Berkley reached a number of conclusions from this meeting. He noted that the claimant did not produce any evidence or corroboration of her allegations. He also noted that the allegations were specific to Mrs White and he perceived that the claimant was making the allegations as a personal attack on Mrs White. He also concluded that the claimant was making these allegations as a form of retribution against the respondent organisation and against Mrs White in particular.
67. Mr Berkley’s recommendation that a full audit be conducted into the respondent organisation’s finances was on the basis that he had concerns about the lack of proper accounting practices there were from the Health Service’s funding perspective that appeared not to be consistent with best practice.
68. The claimant claimed that Mr Berkley was not an impartial person to listen to her allegations at this stage when he had already spoken to Speechmatters. The claimant maintained that Mr Berkley ought to have tried to contact her after she had missed her appointment with him and to have taken the details of her side of the story before meeting the respondent organisation.
69. The claimant also challenged the limit of Mr Berkley’s investigation and the lack of detail in his enquiries. In particular the claimant drew attention to the fact that Mr Berkley’s report erroneously described a document ( dated 8 February 2003) as an invoice when it was clearly a quotation. Mr Berkley’s report voiced his concern that the work in question appeared, on the basis of his interpretation of this document as an invoice, to have been paid for before completion and although this did not taint the respondent organisation with fraud his report included a recommendation against such a practice.
70. This error emerged at the hearing and only during the course of his evidence when Mr Berkley accepted that his report had referred to a document in relation to one of the allegations as an invoice when it was in fact a quotation. On realising his error Mr Berkley sought to retract his recommendation on the basis that it had been made on a false premise. The claimant sought to exploit this error to undermine the totality of Mr Berkley’s evidence.
71. The Tribunal accepted Mr Berkley’s evidence that he did not try to contact the claimant after her no-show at the first arranged meeting on the basis that in his line of work such non appearance was a frequent occurrence. The Tribunal noted that even though Mr Berkley had drawn a number of conclusions adverse to the claimant at his meeting with Mrs White and Mrs Copeland that he nevertheless sought to give the claimant the opportunity to substantiate her allegations.
72. However the Tribunal rejected the claimant’s argument that the sequence in which Mr Berkley held the meeting with the parties meant that Mr Berkley was not impartial. The Tribunal noted that Mr Berkley could have prepared a report after his meeting with the respondent organisation without having contacted the claimant at all.
73. The Tribunal also noted that in his meeting with the claimant Mr Berkley did not seek to refute the allegations she had made but instead asked the claimant for evidence and corroboration. It was only when these were not forthcoming and the claimant produced nothing more than the stated allegations that he concluded his enquiries and wrote his report.
74. The Tribunal was surprised that Mr Berkley had described and reported the quotation document as an invoice. It was stated clearly on the front of the single page document that it was a quotation. The Tribunal also noted that Mr Berkley’s “investigation” appeared to be somewhat limited.
75. However the Tribunal accepted Mr Berkley’s evidence that although his error had been basic it had also been genuine. The Tribunal also accepted Mr Berkley’s evidence that his role was to make enquiries, not to conduct a more in-depth investigation. This latter was the role of the audit which he recommended in his report should be conducted.
The investigation/audit - Mr Anderson
76. The Tribunal noted that Mr Berkley’s recommendation that an audit be carried out was based on Mr Berkley’s concerns about the controls exercised by the Health and Social Services Boards and how the Boards audited funding granted to bodies like Speechmatters. Mr Berkley’s report also directed Mr Anderson to consider if there were scope to improve controls exercised in relation to these grants within Speechmatters itself.
77. Further Mr Berkley’s report had directed Mr Anderson to consider the degree of autonomy given to the Chief Executive that might not represent best practice. The specific example Mr Berkley directed Mr Anderson to examine was the way in which the Chief Executive was expected to use a personal mobile phone for work purposes which while not in itself unreasonable might not represent best public service practice.
78. The Tribunal heard evidence from Mr Derek Anderson. Mr Anderson was clear that the concerns he ultimately reported were not about the way in which the respondent organisation either audited or managed or controlled its finances but were in relation to the scrutiny or lack of it exercised by each of the Health and Social Services Board. Mr Anderson stated that his concern was common to other organisations where organisations like the respondent organisation received public monies from a number of sources, the term for which was a “cocktail” of funding. This tended to lead to the position where no one funding organisation would take over all responsibility for the monitoring of the public expenditure involved.
79. The audit entailed a combination of Mr Anderson spending an entire day speaking to staff and in particular to Mrs White to Mrs Copeland and to Mrs Bingham. Mr Anderson received all key financial records for the year 2003 which included the annual report and audited accounts, cash received journal, cheque journal.
80. The audit indicated that funding coming into the organisation was given the same code and that it was difficult to distinguish between the grants. Accordingly, Mr Anderson recommended that the organisation review this practice and develop one where grant monies could be more easily tracked.
81. Mr Anderson confirmed that in an analysis of the cash journal and the cheque journal the audit confirmed the amounts corresponded with the electronic recording system.
82. Mr Anderson stated in evidence that, additional to his own conclusions after his audit, he was impressed with the system whereby the organisation’s financial records were checked on a quarterly basis by the Honorary Treasurer, Ms Small, who is a qualified accountant. Mr Anderson stated that this was one of the financial controls that further assured him that whatever shortcomings there were in the respondent organisation’s financial accounting system that these did not support the claimant’s allegations of either fraud or false accounting.
83. The Tribunal noted that Mr Berkley’s report recommending the audit carried out by Mr Anderson was dated one week after the date that appeared on the audit. No definitive reasons were given to the Tribunal for this discrepancy. However while the Tribunal accepted the explanation given by Mr Anderson that this had been simply an administrative error it did create confusion in the presentation of the evidence and caused considerable and unnecessary delay at hearing in establishing the correct chronological order of events.
The Tribunal also noted that although the “quotation/invoice” document was appended to Mr Berkley’s report the confusion around the nature of this document was not picked up by the auditors either. This continued lack of clarity around the nature of this document aroused unnecessary suspicion in the claimant’s mind and caused further unnecessary delays at the Tribunal hearing before being satisfactorily resolved.
84. Mr Anderson was also clear that whatever recommendations were suggested to improve the financial procedures within the respondent organisation were as much to ensure that these would be more transparent and that thus Chief Executive and staff would themselves be protected by the existence of these new controls. Mr Anderson stated that the improvements suggested did not indicated that the respondent organisation had been at any fault or that any blame should be attached to the organisation or anyone in it for the shortcomings his report identified.
The basis of the allegations
85. The claimant based her allegations of fraud and false accounting almost exclusively on information she stated that she had been given by other people and particularly by Mrs Bingham. The claimant accepted that she herself made no investigation into any of the information Mrs Bingham allegedly told her. At hearing the claimant stated that she was unaware in some instances why or on what basis Mrs Bingham harboured the concerns she voiced to the claimant but that the claimant accepted Mrs Bingham’s alleged concerns were well-founded.
86. Mrs Bingham denied telling the claimant any of the information contained in the claimant’s allegations or any other information from which any such allegations could arise.
87. Mrs Bingham did accept that she and the claimant had struck up a friendship in the early days after Mrs Bingham’s appointment to the post of Finance Officer on 4 August 2003. Mrs Bingham also accepted that initially she had joined in with the claimant in making derogatory remarks about the Chief Executive’s competence and her seemingly distant and aloof personality.
88. However, Mrs Bingham went on to express her regret at having formulated this hasty and prejudiced view of Mrs White, whom she accepted that at that stage she hardly knew, and of having shared it with the claimant. Mrs Bingham made it clear that she had very quickly come to perceive the claimant as having an intense personal dislike of Mrs White, always seeking to undermine her and agitating staff against her. Mrs Bingham stated that as she had progressed in her job she had got to know Mrs White herself and had found her professional and likeable.
89. Mrs Bingham accepted that this had been an error of judgement on her part, both as regards the nature of the claimant’s friendship and as regards her own initial view of the Chief Executive.
90. Mrs Bingham stated that at the time of her initial friendship with the claimant she had been in post for three weeks and given the fact that her post was part-time, 20 hours per week, this amounted to just under 60 hours in total that she had been with the respondent organisation.
91. Mrs Bingham stated that as she had not previously worked in the voluntary sector that she had to familiarise herself with the respondent organisation’s documents - bank statements, remittances, annual accounts from previous years, learning about suppliers, stationery and in setting up a new dedicated accounts office - and that she had spent this initial period doing so.
92. Mrs Bingham stated that she would not have been aware of most of the information the claimant alleged that she had told her. She also stated that in that early period of her employment she had had to complete urgent grant aid applications for funding from Northern Health and Social Services Board and the Western Health and Social Services Board and that these had been her priority and that she had given no time or attention to project funding, like the Headley Trust funding or Children in Need funding.
93. The Tribunal heard evidence from Mrs Lorna Bingham over a period of eight days during which period she was cross-examined by the claimant for five days. The Tribunal accepted Mrs Bingham’s evidence. The Tribunal was impressed by Mrs Bingham’s candour and her regretful reflection on having joined the claimant in gossiping and making unpleasant remarks about the Chief Executive.
94. The Tribunal also took into account the fact that when the discussions between the claimant and Mrs Bingham were alleged to have taken place Mrs Bingham had been in post for just under three weeks and given the fact Mrs Bingham’s post was part-time, 2O hours, this amounted to just under 60 hours in total that she had been with the respondent organisation. The Tribunal accepted Mrs Bingham’s contention that she would not have been familiar enough or have even had sight of some of the information she was alleged to have told the claimant.
Headley Trust
95. The respondent organisation had been successful in 2002 in its application to the Headley Trust (formerly known as the Sainsbury Family Trust) for a total sum of funding of £30,000. This money was paid to the respondent organisation in two tranches of £15,000 over a period of two years. This arrangement was clearly stated in a number of documents seen by the Tribunal which included the original agreement of 2002.
96. The claimant’s allegations in regards to the Headley Trust funding were two-fold. The first one was that the Finance Officer, Mrs Lorna Bingham, had advised the claimant that there was no record in the respondent organisation’s accounts of this £30,000. At the hearing the claimant continued to maintain that the sum of £30,000 did not exist and there was no evidence of it in the respondent organisation’s accounts.
97. Secondly, the claimant maintained at the hearing that this money had been given to the respondent organisation for the purposes of establishing a “Befrienders’ Scheme”, a network of volunteers to provide support to people with aphasia, but that this scheme had not been set up and did not exist.
98. The claimant stated that correspondence produced by the respondents as between the respondent organisation and the Headley Trust, written during the period of time the claimant alleged she had sought to speak to Mrs White about her financial concerns, had been written at that time because she had begun to raise such concerns and was concocted by the respondents to conceal their dishonest use of the funds. The claimant also stated that even if the sum of £15,000 appeared in the respondent organisation’s accounts that the accounts were unreliable, even though certified, and did not in any way change her position that this money did not exist.
99. As previously stated the Tribunal accepted Mrs Bingham’s evidence that she did not tell the claimant that there was no sign of the £30,000 in the accounts or that she had any concerns that this money had not been used for the purpose for which it had been granted.
100. The Tribunal saw the respondent organisation’s accounts for the year 2002-2003 and noted that they recorded receipt of a sum of £15,000. The Tribunal also noted that the respondent organisation’s accounts had been signed off in the relevant year by McClure Watters, Charted Accountants.
101. The Tribunal that also had the benefit of the evidence of Mr Uel Berkley and Mr Derek Anderson both of whom vouched for the respondent organisation’s accounts and for the fact that the second tranche of money in the sum of £15,000 appeared in the accounts for 2003-2004.
102. The Tribunal accepted that as the funding had been given to the respondent organisation in two separate tranches of £15,000 it therefore would never have been recorded in the accounts as a sum of £30,000.
103. The Tribunal had the benefit of Ms Small’s evidence in relation to a number of issues in the case and in relation to the financial procedures in particular. Ms Small is a very experienced chartered accountant and is a partner in her own firm in Belfast. She had been invited to assist Speechmatters with their accounts in 2001 and was so impressed by the work of the organisation and the services offered that she agreed to do so. Ms Small carried out this work on a voluntary basis.
104. Ms Small was responsible for the introduction of the SAGE accounting system which she set up in conjunction with Ms Larmour. Ms Small attended Speechmatters on a quarterly basis. She took with her one of her own firm’s staff after workings hours and they prepared the accounts. Ms Small had access to all financial documentation and was thereby in a position to refute the claimant’s allegations that stated that Mrs White had been paid outside the PAYE system, that Mrs White claimed for hours not worked or that there had been any financial mismanagement.
105. Ms Small was familiar with the monies granted to the organisation and with all expenditure. She prepared the respondent organisation accounts for the external accountants. Ms Small stated that if there had been any discrepancies in the accounts these would have been identified by the external accountants but that the accounts had always been signed off, as being correct.
Headley Trust-The Befrienders Scheme
106. The respondents contended that although the Befrienders’ Scheme had been slow to take off that it did exist and that the monies given to them by the Headley Trust had been used for the purpose for which it had been granted.
107. The evidence of the existence of the scheme was provided to the Tribunal by a number of the respondents’ witnesses and was supported by a number of documents which were provided to the Tribunal. However the Tribunal was disappointed that most of these documents were not produced at the outset of the hearing and that some of them took some time during the course of the hearing to be produced. This delay affected the efficiency of the running of the case and had the unfortunate side effect of creating in the claimant’s mind the impression that the respondents were being evasive or that documents might not be genuine.
108. The supporting documents included correspondence between the respondent organisation and the Headley Trust, handover notes of Mrs White’s predecessor, a flyer advertising the scheme and seeking volunteers, records of management discussions between the scheme co-ordinator, Mrs Copeland and the professional staff assigned to work on the scheme and records of notes of volunteers describing their visits with the clients.
109. The Tribunal heard from Mrs White who stated that on her appointment in February 2003 she was aware of the Headley Trust funding, its purpose and that the scheme, although started, needed management support. Mrs White stated that given her own work load and the fact that the respondent organisation had no management team in place she had addressed the needs of this by advertising for and recruiting a senior management team. When the Deputy Director, Mrs Copeland, was appointed in June 2003, Mrs White charged her with responsibility for the scheme.
110. The Tribunal heard from Mrs Copeland who stated that she had assumed management control of the scheme very shortly after her appointment by have meetings with professional staff to be briefed on the status of the scheme and then reporting back to Headley Trust to advise them of progress and developments.
111. Mrs Copeland’s correspondence with the Headley Trust was a combination of a letter and a report advising the Headley Trust that the scheme had been slow to get off the ground but that progress was being made and that the scheme was largely successful.
112. The documentation also included records from volunteers who were assigned to Speechmatters clients and who befriended them under the scheme. These were records of the social visits and excursions the volunteer befriender made with the client.
113. The Tribunal accepted that all the documents produced by the respondents in support of the existence of the Befriending Scheme were genuine. The Tribunal noted that the correspondence to the Headley Trust, in September 2003, was some long time after Mrs White’s first letter to that Trust but that the time delay was entirely consistent with Mrs Copeland’s appointment in June 2003 and of her bringing herself up to speed with the scheme.
Children in Need
114. The claimant’s allegation as regards funding received by the respondent organisation from BBC Children In Need was that Lorna Bingham had told her that Mrs White and Mrs Copeland had falsely stated in a feedback form to BBC Children In Need that a video for which the funding had been provided had been made “free of charge” and the £8,000 received from BBC Children In Need had been donated back to Speechmatters. The claimant alleged that Mrs Bingham told her that there was no paperwork to correspond with these claims. At hearing the claimant stated that she was aware that the £8,000 had not been used to make the video that she had been privy to a conversation to that effect although she didn’t state either with whom she had had that conversation or how she had come to be privy to it.
115. The claimant also alleged that staff had been asked to falsify timesheets and records in relation to the time they had spent on this particular project.
116. The project in question was the making of a video entitled “A Child’s View of Aphasia” the respondent organisation received a grant for £6,124 for the purpose of making this video, and not £8,000 as stated by the claimant. The camera crew who made the video were so impressed with the works of Speechmatters that they indicated that they wished that the money they would have been paid to be donated back to Speechmatters.
117. The Tribunal heard from Mrs Larmour in relation to this. Mrs Larmour indicated that Mrs White had asked her to write to the camera crew to ask them to put their wishes in this respect in writing. Mrs Larmour contacted Mrs Gildea (a former Chief Executive) of the organisation who had since leaving the organisation married Mr George Hewardine, the cameraman in question. Mrs Larmour asked Mrs Gildea if she would ask her husband Mr Hewardine to confirm it in writing that he wished the money to be donated back to the respondent organisation.
118. The Tribunal saw a copy of this letter from Mr Hewardine confirming that he did not wish to take payment and wanted the money to be donated to the respondent organisation. However again the Tribunal was disappointed at the length of time the respondent took to produce this document in support of their position.
119. The respondent organisation wrote to BBC Children In Need on 11 September 2003. This letter outlined the way in which the grant of £6,124 had been spent and indicated that the cameraman/crew costs had been donated back. This letter was written by Mrs Larmour and it enclosed the completed BBC Children In Need grant report form which had also been completed by Mrs Larmour and signed by Mrs Heather Anderson, a social worker who worked on the project. The form was not countersigned by Mrs White.
120. The respondent documentation also included notes of a meeting between Mrs Shelia Malley from BBC Children In Need and Speechmatters in relation to the respondent organisation’s grant report form, the money spent and the respondent organisation’s attempt to re-profile the money that was donated back by the cameramen. In a letter dated 2 February 2004 Mrs White wrote to Mrs Malley of BBC Children In Need with a proposed new plan for the remaining funds.
121. Further correspondence of 30 September 2004 from Mrs Malley to Mrs White indicated that the two had met on Thursday 23 September 2004 and it went on to detail which of those expenses claimed by the respondent organisation in relation to the project would be allowed, which would not and an agreement that there could be a re-profiling of the grant balance, £1,250, to purchase 500 booklets entitled “When Granny Couldn’t Speak”. That letter indicated that as agreed between Mrs White and Mrs Malley the balance of the grant amounting to £3,625.40 would be returned to BBC Children In Need.
122. The Tribunal accepted that the documentation in relation to the spend of the BBC Children In Need grant money and its subsequent re-profiling was genuine. It was accepted by the Tribunal that the cameraman and crew did not wish to charge for their services in the making of the video which left the respondent organisation with the difficulty of seeking to retrieve that money from the grant to use it in the manner in which the cameramen had hoped, for the benefit of the respondent organisation’s work. However the Tribunal also accepted that this became difficult due to the strict rules which are applied by BBC Children In Need in the granting of funds and ensuring that they are used strictly for the purposes granted.
123. The Tribunal did not accept that there had been any dishonesty in relation to the respondent organisation’s attempt to re-profile the grant monies. Nor did the Tribunal accept that Mrs Larmour and Mrs White had only reported back to BBC Children In Need after the claimant had sent Mrs White a memo which the claimant believed alerted Mrs White to the claimant’s concerns.
124. The Tribunal did not accept the claimant’s contention that her memo had been the prompt to Mrs White to cover up her dishonest use of the grant money or her dishonest mismanagement of the grant money. Mrs Larmour felt that staff members involved in the video project did have some difficulty with the completion of the timesheets. Mrs Larmour stated that their difficulty was that she had inserted their home addresses on the grant report form and staff were concerned that this appeared to suggest they had worked on the video in a personal capacity and would subsequently be taxed. Mrs Larmour stated that to resolve this she simply changed the covering letter and invoices and replaced the home addresses of the professionals involved to the work address at Graham House.
125. Another difficulty had been that Mrs Larmour had mistakenly claimed that one of the professional staff members, Mrs Margaret Anderson, had attended the launch of the video when in fact although Mrs Anderson had left the office with the others who were going to attend the launch Mrs Anderson herself was leaving to attend a home visit. Mrs Larmour also stated that staff members were uneasy about having to complete and sign timesheets. She stated that they were uncomfortable with this as it was unusual for them to have to do this. However, Mrs Larmour refuted the claimant’s suggestion that Mrs Copeland had put staff under pressure to complete the timesheets in any false or dishonest way.
126. Mrs Copeland also accepted that prior to completing the feedback form in September 2003 she had asked staff to look through their diaries and complete timesheets in relation to the period of time in 2002 when the video had been made. However, Mrs Copeland stressed that she had not stood over staff to make them do this nor did she at any stage suggest or instruct them to falsify the time records as alleged.
127. The Tribunal accepted that neither Mrs Copeland nor Mrs White made any false statements in the BBC Children In Need grant return form (the feedback form).
Upper Springfield Development Trust
128. The claimant’s allegations in relation to this were that Mrs White had used her former contact as an employee with the Upper Springfield Development Trust to get a friend, Sinead O’Regan, to complete a piece of work for a sum of money far in excess of its worth. The claimant’s allegation was that Mrs White had abused her new position of Chief Executive of the respondent organisation to give out work without permission to friends from her former employment.
129. On her appointment Mrs White had met with every member of staff and had carried out a SWOT analysis. Mrs White noticed amongst other things that the staff terms and conditions varied throughout the organisation and that staff were unhappy with this. Mrs White decided as a priority to re-draft and bring the terms and conditions into line with one another.
130. Mrs White contacted a former colleague of hers Ms Sinead O’Regan from her previous employment, Upper Springfield Development Trust, and discussed with her the organisation’s need for new, homogenised terms and conditions of employment. Ms O’Regan sent Mrs White a quotation for the work. Her quotation of £1,000 was dated 8 February 2003.
131. There was some confusion over the date of this quotation and the date of the meeting between Mrs White and Ms O’Regan. The confusion arose when Mrs White initially stated that the date of her appointment to Speechmatters was 3 February 2003 which gave rise to the suspicion in the claimant’s mind that Mrs White must have made the arrangement for this work with Ms O’Regan before Mrs White had started at Speechmatters.
132. Mrs White gave her evidence in chief over a period of 4 days and stated that she had started in the respondent organisation on the 3 February 2003 and had carried out her SWOT analysis almost immediately. Mrs White also gave this start date in cross examination and stated that she had met Ms O’ Regan in “the first half of February”. However Mrs White corrected this evidence on the sixth day of her evidence and in cross examination and stated that she was unable to remember or find the exact date on which she had commenced employment but stated that it was on a date much later than the 3 February 2003.
133. The claimant alleged that Mrs White gave her evidence to fit in with the date on the quotation (8 February 2003) and that this gave credence to the claimant’s assertion that the quotation and Mrs White’s evidence in relation to it were fabricated. Mrs White denied this and stated that although she couldgive no explanation why the date on the quotation was the 8 February 2003, a date which was before her appointment to Speechmatters, that she had not fabricated either her evidence or the quotation.
134. No document to validate Mrs White’s start date was ever produced to the Tribunal. The Tribunal noted that this mistaken evidence gave rise to confusion which took a considerable period of time to resolve. The Tribunal also noted that the confusion had the unfortunate effect of creating unnecessary suspicion in the claimant’s mind of which she took full advantage. It also had the effect of causing further unnecessary delay to the Tribunal hearing.
135. The Tribunal later heard from Ms O’ Regan on this point. Ms O’ Regan stated that Mrs White had contacted her in early March 2003 and that the meeting between them took place on a date in March 2003. Ms O’ Regan accepted that the quotation was dated 8 February 2003, but stated that this was her mistake and that it arose from her practice of using template quotations.
136. The Tribunal saw documents on which the respondents and Ms O’Regan relied to illustrate the sequence of events, the validity of the quotation and that the money had been received by Upper Springfield Development Trust and not by Ms O’Regan personally. These documents included extracts from Ms O’ Regan’s workbook dated 13 March 2003, her work report for March-April 2003, her yearly work report 2003 and a document citing the monies received from Speechmatters by her organisation in an overview of all monies received by that organisation for 2003. They also included a claim form from Mrs White claiming expense in respect of a meeting with Ms O’Regan dated 15 March 2003.
137. The Tribunal also heard from Ms O’ Regan as to the nature and quality of the work required on the new handbook which was extensive and required substantial updating in line with the changes in employment law.
138. The Tribunal accepted Ms O’ Regan’s evidence in its entirety. The Tribunal was impressed by her professionalism and by the fact that each step of the work carried out by Ms O’ Regan and the monies received could be tracked through documents which the Tribunal had no hesitation in accepting were genuine.
Payment for extra hours
139. The claimant alleged that she had been advised by Mrs Bingham that Mrs White was claiming for extra hours and was insisting on having them paid to her by cheque instead of through the PAYE system. The claimant also alleged that Mrs Bingham had expressed concerns to her that there did not appear to be any system by which these extra hours were approved and that the Chairman permitted Mrs White to approve her own extra hours.
140. The claimant’s additional allegation in respect of extra hours was that Claire Larmour had told the claimant that Mrs White had tried to claim extra hours for a period of time in August 2003 when she was actually on annual leave.
141. The Tribunal heard evidence from Mrs White denying that she had ever insisted on or had been paid for extra hours by cheque, outside the PAYE system. Mrs White stated that on her appointment to her post, which was for 25 hours per week, Mrs White had had a conversation with the Chairman Mr Eric McCullough about what arrangements would be in place for any extra hours worked above and beyond her contract hours. Mr McCullough advised Mrs White that she could claim time off in lieu (TOIL) for any additional hours worked or that she could be paid for additional hours worked up to 35 hours per week, funding permitting, or that she could take a combination of both arrangements. Mrs White asked Mr McCullough to put this in writing and he did.
142. The Tribunal saw this letter dated 25 February 2003 with this agreement in it and which also stated clearly that Mrs White should submit a summary of additional hours to the finance office on a monthly basis and that it would be processed through the PAYE system.
143. Mrs White also denied that she had ever tried to claim extra hours work during a period of annual leave and she went further and denied that Mrs Larmour had ever told the claimant this. This evidence was subsequently supported by Mrs Larmour who denied that she had ever told the claimant that Mrs White had tried to claim extra hours for a period of time when she was on annual leave. Mrs Larmour further confirmed that all extra payments made to any of the Chief Executives she had worked with at Speechmatters which included Mrs White had those payments scrutinised by the Honorary Treasurer and that this acted as a control mechanism whereby if any inordinate payments were being claimed they would be checked.
144. The Tribunal heard evidence from Mr Berkley and Mr Anderson who found no evidence that Mrs White had ever been made payments for extra hours by cheque or outside the PAYE system. The Tribunal heard and accepted the evidence of Ms Small who stated that Mrs White had not been paid by cheque for additional hours outside the PAYE system.
145. The Tribunal also saw and heard evidence about the respondent organisation’s cheque journals. The Tribunal was satisfied that the recorded cheques paid to Mrs White were in relation to her expenditure for either office equipment or outlay in relation to a course she had attended.
Events prior to the dismissal
146. The respondents contended that the claimant’s employment was terminated because of the claimant’s disruptive, aggressive and threatening behaviour. This had included the claimant’s undermining of Mrs White, challenging her ability to do the job of Chief Executive, to raise funds properly or to run the respondent organisation. The claimant would frequently ‘sound off’ about Mrs White’s deficiencies to other staff members and got increasingly agitated and fixated on what she perceived were Mrs White’s professional and personal inadequacies.
147. The respondents contended that at one stage the claimant had suggested that they bring a vote of no confidence against Mrs White. The claimant denied this and further denied her lack of confidence in the management ability of Mrs White and Mrs Copeland. However during the hearing the claimant accepted that she did not believe that either Mrs White or the Deputy Director were fit or had the ability to manage the respondent organisation. The claimant went further and stated that there was absolutely no aspect of the way in which Mrs White performed her work that she could agree was satisfactory.
148. The claimant’s dissatisfaction of the Chief Executive started from her first week of employment where she stated that she had been given no formal induction to the organisation, had spent the first week of her employment in her office on her own and had to put in place an induction programme for herself.
149. The claimant went on to state that in the course of this induction when she met the professional staff they confided to her their discontent with management. The claimant added that she had been shown a memo from Mrs White to the effect that Mrs White had threatened professional staff members with instant dismissal who left pages in a photocopier. This memo was not produced.
150. The claimant also stated that some weeks into her employment Mrs Larmour had advised the claimant that a former Chief Executive of the respondent organisation, Ms Eleanor Gildea, had expressed her unhappiness with Mrs White’s appointment although the Tribunal did not hear the details of what Mrs Gildea’s unhappiness was.
151. The claimant’s further unhappiness in her employment arose when she believed she became aware of the fact that neither the Deputy Director’s post nor her own post was permanent. The claimant stated that on learning this she decided to seek alternative employment. The claimant told staff members that she had application forms for other posts and advised the Tribunal that she had, at that time, applied for other jobs but the Tribunal did not see any of these applications.
152. The respondents contended that the claimant’s conclusion on this was wrong. Mrs Copeland had explained to the claimant at the time that although this funding for their posts had ended that the Board had agreed that the posts would continue to be funded from the respondent organisation’s own resources. The respondents produced minutes of the Board meeting at which this was discussed and agreed. There was no evidence produced by the claimant on which she relied to establish that this was not the case.
153. It was agreed between the parties that during the period of the claimant’s employment low staff morale became an issue of concern. The claimant related this poor staff morale directly to Mrs White’s inability to manage the organisation. The claimant reported several incidents of complaints about Mrs White that staff members had confided to her and the claimant also alleged that she had brought some such concerns to Mrs Copeland on 3 September 2003.
154. Mrs Copeland confirmed this and the fact that she had advised the claimant to raise these concerns with the Chief Executive in the proper way. However, Mrs White stated that at no stage subsequent senior management team meetings of 9 and 16 September did the claimant come to her with the information regarding staff unhappiness and Mrs White confirmed that the claimant did not make any reference to this information at those meetings on 9 and 16 September 2003.
155. In relation to the downturn in staff morale Mrs White noted this herself and called for a discussion on the subject on 9 September 2003. Mrs Bingham, Mrs Copeland, Mrs White and the claimant were all in attendance. Mrs White asked the managers if they had any knowledge as to why staff morale and the atmosphere in the office were so poor. After a short discussion Mrs White left the meeting to attend another appointment but asked the three remaining managers to give some serious thought to the problem of low staff morale.
156. Prior to a second such team meeting arranged for the following week on 16 September 2003 Mrs White had spoken to Mrs Larmour on two separate occasions. Mrs Larmour was frank with the Chief Executive and suggested that the staff morale was affected by the Chief Executive’s own pre-occupation and busyness that staff found her unapproachable. Mrs Larmour also advised Mrs White that staff had become involved in “slagging off” both Mrs White and Mrs Copeland (but mostly of Mrs White).
157. Mrs Larmour told Mrs White that this negativity largely emanated from the claimant who openly ridiculed Mrs White’s fund raising plans, that the staff terms and conditions of employment were not acceptable and that the claimant was also voicing personal negative comments amongst staff about Mrs White, her family and in particular her husband. Mrs Larmour had told Mrs White that the claimant had discussed Mrs White’s husband amongst the more junior members of staff, sneering at the alleged fact that Mrs White had said her husband was bar manager when ‘he was nothing of the sort’.
158. Also prior to the second team meeting on 16 September 2003 Mrs White had also spoken to Mrs Copeland who told Mrs White that the claimant had mistakenly come to the conclusion that her post was not permanent but temporary and that the claimant had announced her intention to leave Speechmatters, had stated that she had application forms in her briefcase for other posts and that at the first meeting the claimant had challenged all senior managers at the meeting to tell the claimant what Mrs White had achieved since her appointment in February 2003.
159. At the meeting on 16 September 2003, Mrs White again asked the senior management team members, including the claimant to discuss with her staff moral but there were no conclusions reached as to why it continued to be low. Mrs White stated that the claimant had spent most of the time at this meeting criticising the administrative team and stating that staff just needed to focus and get on with their work and that the downturn in staff morale was probably due to the introduction of so much change at one time.
160. Mrs White then spoke to Mrs Bingham following the second senior management team meeting on 16 September 2003 and that Mrs Bingham had repeated the same information that Mrs White had been given by Mrs Copeland. It was at this meeting that Mrs Bingham started to open up to Mrs White about her experiences with the claimant. Mrs Bingham gave details of many issues she had with the claimant in that she was openly critical of everything Mrs White was trying to achieve and sneered at Mrs White’s ability to achieve anything. Mrs Bingham advised Mrs White that the claimant kept coming into Mrs Bingham’s office on a daily basis venting her anger at, dislike of and frustration with Mrs White and with Speechmatters.
161. Mrs Bingham added that she found having to tell Mrs White some of the comments the claimant made about her difficult because they were so personal and rude. These were in relation to the claimant’s husband, and her family and the fact that the claimant found Mrs White too young, inexperienced and unqualified for the job as Chief Executive.
162. It was accepted by the claimant that she had not raised any of these issues at either of these senior management meetings when Mrs White had been present.
163. On hearing this, Mrs White decided that the best way to tackle the negativity from the claimant was to confront her and ask her to detail why she was so unhappy working for Speechmatters. Her decision to do so was supported by her own experiences of the claimant to that point.
164. One of these experiences involved Mrs White’s reasonable, professional and polite request to the claimant for a receipt to support an expenses claim for £65 for a working lunch or dinner. Mrs White received an extremely curt and abrupt memo from the claimant in response.
165. Another experience Mrs White had with the claimant that had alarmed her occurred at a senior management team meeting when the revised terms and conditions of employment were discussed. The claimant stated that she would not be signing hers as the section in it dealing with trade union membership (the prohibition on membership) was illegal.
166. Mrs White stated that it was not the point itself that had struck her as difficult but the way in which the claimant had put the point across. Mrs White stated that the claimant did not raise the issue as a senior manager might, to explore the point and to move the issue forward towards a solution but instead the claimant raised it in a negative way and quickly became angry and difficult to deal with.
167. With all this information gathered Mrs White spoke to the claimant on 18 September 2003 and invited her to come into the committee room for a meeting. Again there was a divergence in Mrs White’s and the claimant’s account of this meeting.
168. The claimant agreed that she had had a meeting with Mrs White on 18 September 2003. The claimant stated that Mrs White had called her into the committee room and that Mrs White had been nervous and was shaking. The claimant stated that Mrs White had said that she was aware of everything going on in the organisation and that the claimant had found this statement menacing. The claimant stated that Mrs White had gone on to talk about her need for the claimant’s professional loyalty.
169. The claimant stated that she had not been sure what the meeting had been about but went on to conclude that it and particularly the reference to the claimant’s loyalty had been Mrs White’s reaction to the claimant’s questions about finances. The claimant accepted that she had not raised any of her financial concerns at this meeting nor did she ask Mrs White for a fully minuted meeting at some date in the future at which these financial concerns could be raised.
170. Mrs White stated that she asked the claimant directly why she was so unhappy at Speechmatters and that the claimant had replied that she was not at all unhappy at Speechmatters – in fact the situation was just the opposite. Mrs White stated that the claimant had said that she was “in it for the long haul” that the organisation had much to achieve and it was a wonderful cause.
171. Mrs White asked the claimant if she had any suggestions why there was a downturn in staff morale and the claimant’s only response was in relation to change management and that people would also groan and complain in a period of change. The claimant indicated that she was confident the organisation would be fine.
172. Mrs White agreed that she had spoken to the claimant about the importance of loyalty and teamwork in an organisation. Mrs White confirmed that she talked of the importance of loyalty as a tacit to bring the claimant onboard and if possible to curb her negative behaviour.
173. Mrs White confirmed that the meeting had not been comfortable but she denied that she was nervous or shaking.
174. The Tribunal accepted Mrs White’s version of this meeting. The Tribunal did not accept that the claimant’s evidence that on the one hand she had not been sure what the meeting had been about while on the other hand being certain that the meeting had been Mrs White’s response to the claimant’s financial concerns. The Tribunal noted that although the claimant could remember Mrs White’s references to the need for professional loyalty that the claimant did not ask Mrs White why she felt the need to speak to the claimant in those terms.
175. The Tribunal also noted that the claimant had not used this opportunity to refer Mrs White to the two memos the claimant had allegedly sent at that stage, to ask for a reply to these or to take this opportunity to raise her financial concerns with Mrs White.
Outside work
176. However, in addition to the specific allegations made in this case and the claimant’s often cited negative comments about Mrs White’s professional abilities during work the claimant also accepted that she had reported to the Inland Revenue the fact that Mrs White ran a dancing school and the claimant’s belief that she was not declaring any income she derived from this.
177. The claimant stated that her concerns in relation to Mrs White’s failure to pay tax on income received from the dancing school was based on a discussion the claimant had had with a mother of one of the children who attended Mrs White’s dancing school. The claimant alleged that this woman had told her that the dance class students had to pay for their lessons in cash. The claimant refused to reveal the source of her information on the basis that she stated that she was fearful that Mrs White would victimise the child.
178. The claimant then stated that she had reported Mrs White to the Inland Revenue on the basis of the legal advice given to her by solicitors acting for the claimant in the early stages of proceedings. The claimant waived her right to legal privilege over the advices she had received from her solicitors and produced a letter from them.
179. The Tribunal noted that this letter was obviously a reply to the claimant’s query to the solicitors asking if reporting Mrs White to the Inland Revenue was a course of action she could take. The letter from the claimant’s solicitors made it clear that they were not in a position to advise as to the substance of the claimant’s query but added that if the claimant felt she wished to take this course of action she could do so. The Tribunal concluded that this did not amount to legal advices from the claimant’s solicitors that she should report Mrs White to the Inland Revenue or that she had any basis on which to do so.
180. Mrs White stated that the Inland Revenue did investigate her financial affairs including revenue paid by her on foot of monies received from her dancing school. It transpired that not only had Mrs White paid tax in relation to all earnings received but the Inland Revenue concluded she had over paid tax and Mrs White subsequently received a tax rebate. This was not challenged by the claimant.
181. The Tribunal concluded that this was an example of the claimant’s personal dislike of Mrs White and of her seeking to cause mischief and distress to Mrs White even beyond the workplace environment. In reaching this conclusion the Tribunal took into account the fact that there was no evidence put forward by the claimant that could have been the basis of the claimant’s belief or suspicion for such a complaint. The Tribunal concluded that the claimant’s suggestion that disclosing the name of her so-called informant could lead to the woman’s child being victimised, presumably by Mrs White, was also without basis and was added further to cast malicious aspersions on Mrs White.
182. The Tribunal also took into account the fact that the claimant deliberately distorted the advices she had been given by her solicitors and thereby improperly sought to suggest that she had a firm legal basis for the making of the complaint.
183. It was agreed between the parties that the claimant was also contemptuous of the Deputy Director, Mrs Copeland. The claimant nicknamed Mrs White and Mrs Copeland as “Dumb and Dumber” and the claimant accepted that she frequently referred to them in this way.
184. Mrs Copeland had had direct experience of the claimant’s difficult behaviour at work. There was a series of incidents of the claimant’s behaviour that caused her concern. For example when the claimant had attended a training session run by Mrs Copeland the claimant had challenged Mrs Copeland’s request that participants should complete an evaluation form at the end of the session. The claimant had rejected the suggestion as “ridiculous” and had openly demonstrated her contempt for the fact that Mrs Copeland had made this suggestion.
185. The claimant did not confine her tirades to staff against Mrs White to Mrs White’s professional conduct. The claimant also denigrated Mrs White’s personal life by voicing her disapproval of Mrs White’s family car, a BMW, when Mrs White’s husband was “nothing but a barman”. The claimant also denigrated the fact that Mrs White had described herself as a Chief Executive on a website, Friends Reunited, demanded to know “who she (Mrs White) thought she was” to do so. The claimant denied that she had looked Mrs White up on this website herself at first, but that she had only done so when she had been told that this was what Mrs White had claimed on it.
186. The Tribunal found that the claimant had accessed this website herself and that the claimant had gone on, inexplicably to denounce Mrs White for accurately describing herself as a Chief Executive. The Tribunal found that this episode, in going beyond the work place arena, demonstrated the claimant’s personal and irrational dislike of Mrs White.
The threats
187. In one such abusive outpouring to Mrs Bingham the claimant threatened to send round Chinese takeaway food unordered by Mrs White and to make silent phone calls to Mrs White’s home through the night.
188. Mrs Bingham was very concerned by the level and intensity of the claimant’s dislike of Mrs White. Mrs Bingham was troubled particularly by the personal threats made by the claimant against Mrs White and how, if carried out by the claimant, these would frighten Mrs White whom she knew was frequently alone in the house with her young children in the evenings, given her husband’s evening work as a bar manager.
189. At first Mrs Bingham told no one of the level to which the claimant’s personal dislike of Mrs White had reached or about the personal threats made by the claimant against Mrs White. However Mrs Bingham’s anxiety about the claimant’s increasing dislike of Mrs White and of the personal threats made by the claimant against Mrs White eventually prompted her to speak to Mrs Larmour to whom she particularly told the details of the personal threats the claimant had made.
190. Mrs Bingham asked Mrs Larmour to keep the information confidential and strictly between them. Mrs Bingham was still anxiously trying to decide what to do about the claimant’s threats against Mrs White and was trying to balance between her anxiety for Mrs White’s personal safety with the likelihood of claimant actually carrying out the threats and the need to tell anyone what the claimant had said. However Mrs Larmour was so anxious about the personal threats against Mrs White that she told Mrs White about them.
Meeting at Ivanhoe
191. Mrs White decided to meet Mrs Bingham in the hope that Mrs Bingham would tell her about the claimant’s ongoing negativity and denigration of Mrs White and of the personal threats the claimant had made against her. Mrs White decided to ask Mrs Copeland to come to this meeting with her to act as a witness.
192. The meeting was arranged for 7pm at the Ivanhoe Restaurant on the Saintfield Road on 13 October 2003. Mrs White contacted Mrs Bingham that afternoon and invited her to the meeting. Mrs Bingham stated that she would come to the meeting as soon as she could but that it was likely to be slightly later than 7pm.
193. Mrs White and Mrs Copeland met at 7pm anyway and had something to eat. Although Mrs Copeland was aware of the general purpose of the meeting Mrs White did not tell Mrs Copeland about the personal threats that the claimant had made against her.
194. When Mrs Bingham joined the meeting Mrs White opened the discussion by stating that in her opinion the situation in the office was getting more serious and did Mrs Bingham have any more information to disclose regarding the claimant and her behaviour. At first Mrs Bingham reiterated her account of the claimant’s behaviour that she had previously told Mrs White. Mrs White asked Mrs Bingham how she felt about the claimant’s behaviour and Mrs Bingham confirmed that the claimant was a very difficult person to work with, that she was having an adverse impact on the staff morale, that she found her very tiresome in the way that she constantly came into her office to moan and denigrate Mrs White and that in all she was tired and weary of the situation.
195. Mrs Bingham stated that at first she was reluctant to disclose the information in relation to the threats. She also stated that when she attended the meeting she was unaware that Mrs Larmour had already told Mrs White about them. However as the meeting progress Mrs Bingham did disclose to Mrs White and to Mrs Copeland the fact that the claimant had threatened to send unordered Chinese meals to Mrs White and to make silent phone calls to her home.
196. The Tribunal also heard from Mrs Copeland about this meeting and in particular about the shock she had felt when Mrs Bingham had relayed the claimant’s threats to Mrs White. Mrs Copeland was genuinely stunned at the level of the claimant’s personal dislike of Mrs White and was startled that the claimant’s behaviour had reached this pitch.
197. The claimant alleged that the meeting at the Ivanhoe did not take place. However the claimant had no independent evidence on which to challenge the fact of this meeting. Instead the claimant alleged that Mrs White, Mrs Copeland and Mrs Bingham had fabricated a story about this meeting in order to provide a basis to support the decision that the claimant had to be sacked. The claimant indicated that this view was supported by the fact that there were no notes taken at this meeting to prove that it had taken place.
198. The Tribunal had no difficultly in accepting the evidence of Mrs White, Mrs Copeland and Mrs Bingham that this meeting had taken place as described by them. The Tribunal whilst surprised that no notes had been taken did not accept that this indicated that the meeting had not taken place. The Tribunal did not accept that Mrs White, Mrs Copeland and Mrs Bingham had concocted a story about this meeting and found that it was supported in this conclusion by the fact that their accounts of the meeting varied in certain irrelevant details which were more consistent with truthful accounts than accounts that were concocted or fabricated.
Events leading to the dismissal
199. The day after the meeting in the Ivanhoe Mrs White contacted Mr McCullough. Mrs White had been in previous contact with Mr McCullough when she had advised him verbally about the claimant’s behaviour from 9 September 2003 onwards. On hearing of the more sinister developments Mr McCullough advised Mrs White to contact Ms Therese McKernan to take her advices as to what steps the organisation could take to deal with the claimant.
200. At the time Ms McKernan was the Director of Human Resources for Green Park Hospital Trust with a high level of expertise in Personnel and Human Resource Management and she acted as an external advisor to the respondent organisation.
201. Mrs White had previously spoken to Ms McKernan about her anxieties about the claimant’s behaviour from in or around 1 October 2003 but on hearing of the developments and in particular regarding the claimant’s personal threats against Mrs White, Ms McKernan advised Mrs White that it would be better if Mrs White did not deal further with the issue and that Ms McKernan would pursue it with Mr McCullough. Mrs White stated that although she was thereafter aware of the discussions between Ms McKernan and Mr McCullough and was updated by both of them, she took no part in any decision to dismiss the claimant.
202. Ms McKernan prepared a report outlining the events in Speechmatters. This report was entitled “Speechmatters Problem” and it was neither signed nor dated by Ms McKernan. There was a date and Ms McKernan’s name handwritten on the report but neither had been completed by her. The report was divided into four parts, entitled:-
1. First week of October,
2. 14 October,
3. Concerns of Chief Executive,
4. Background.
203. In the first part of Ms Mc Kernan’s report Ms Mc Kernan included a reference to the fact that the claimant had alleged that she would send the Chief Executive Chinese meals to her home and would make phone calls at night.
204. Ms McKernan accepted that the sequence of events as written in the report was inaccurate in that Mrs White had not been aware of any of the alleged personal threats to her in the first week of October and consequently would have been unable to relay their details to Ms McKernan. Ms McKernan was not certain about the date on which she had prepared the report. However she was very clear that the prompt for writing the report was the meeting which had taken place with the respondent organisation’s solicitor, Mr George Brangham following the termination of the claimant’s employment (17 October 2003). At that stage Mr Brangham advised Ms McKernan that it would be important to record what had happened in the weeks preceding the dismissal.
205. In the section of her report entitled “14 October 2003” Ms Mc Kernan outlined the options she had set out for dealing with the claimant and relayed by her to Mr McCullough who had stated he wanted a fair and reasonable approach to be taken. These options were:-
Precautionary suspension and investigation.
Risks
(a) Would people be able and willing to speak out?
(b) Would the individual avoid the investigation through sick leave etc?
(c) Would any counter-allegations arise/industrial Tribunal applications etc.
Termination without investigation
Risks
(a) Would be perceived as automatically unfair but wouldn’t have qualifying service to go to Tribunal.
206. Although Ms McKernan accepted that the sequencing in her report and the fact that it was neither dated nor signed by her did not indicate that it was a fabricated document and she denied that she had fabricated it.
207. Ms McKernan made it clear that she had not taken any decision to dismiss the claimant and understood that the decision to dismiss the claimant was taken jointly by Mr McCullough and Ms Small. Ms McKernan stated that Mr McCullough had advised her that he had spoken to Mr Brangham during the week and that subsequent to this discussion Mr McCullough requested Ms McKernan to draft a letter dismissing the claimant so that Mr Brangham could review it. Ms McKernan accepted that the final letter of dismissal was the letter as she had drafted it.
208. Ms McKernan accepted that whether the claimant was still within her probationary period was “a grey area”. However Ms Mc Kernan recalled that Mr McCullough had discussed his desire to deal with the issue in as short and as kindly a way as possible. Ms McKernan recalled that Mr McCullough’s concern was both in relation to the negative impact any disciplinary proceedings would have on Mrs White and the staff at Speechmatters and that he wished to avoid this at all costs and the fact that “gross misconduct” in the claimant’s letter of dismissal would militate against the claimant’s obtaining employment elsewhere.
209. The Tribunal accepted Ms McKernan’s evidence. Although the Tribunal was surprised that Ms McKernan did not take notes of the events as they occurred the Tribunal accepted that the fact that Ms McKernan’s report had been written, from memory and some time after the events, affected its accuracy. However the Tribunal did not accept that this in turn was proof in any way that the report had been fabricated.
The dismissal
211. Ms Small had been advised by Mrs White of the two verbal accounts from Lorna Bingham and Margaret Copeland of the claimant’s behaviour during the course of the preceding week. Ms Small contacted Mr McCullough during that week and he had advised her of the advice he had received from the solicitor. Ms Small and Mr McCullough then jointly reached the decision to dismiss the claimant.
212. The claimant alleged, alternately and simultaneously, that Mrs White had manufactured the evidence which brought about her dismissal, had persuaded Mr McCullough, Ms Small and Ms McKernan falsely of the need to dismiss the claimant and had ensured that the claimant was dismissed and/or that Mr McCullough, Ms Small, Ms McKernan and Mrs White had all colluded with one another to dismiss her.
213. The first scenario depended upon a conspiracy between Mrs White, Mrs Copeland, Mrs Larmour and Mrs Bingham to fabricate the evidence for the dismissal. The Tribunal noted that as the hearing progressed the claimant extended the remit of this conspiracy to allow for the second scenario which depended upon a conspiracy amongst Mr McCullough, Ms Small, Ms McKernan Mrs Copeland, Mrs Larmour, Mrs Bingham and Mrs White.
214. The Tribunal also noted that Ms McKernan’s account of the approach to the claimant’s dismissal concurred with the evidence of Mr McCullough and Ms Small, except in relation to the sequencing of events prior to the dismissal. The fact that there was such a discrepancy in so relevant a detail was, in the Tribunal’s view, more consistent with the fact that there had been no collusion amongst these witnesses than if there had been such collusion.
215. Accordingly the Tribunal rejected the claimant’s allegations of a conspiracy in relation to her dismissal.
The Tribunal further concluded that although the claimant’s letter of dismissal referred to the claimant’s failure to integrate into the organisation and that accordingly her employment would not continue beyond her probationary period in reality a decision had been taken to dismiss the claimant on the basis that she did not have sufficient employment service with the respondent organisation to pursue an ordinary unfair dismissal claim.
The Tribunal also noted that in spite of the wording of the claimant’s letter of dismissal indicating that the decision to terminate her contract was “following consideration of (your) position by the Board....” that the evidence supported the fact that the decision to dismiss the claimant had been taken only by Mr McCullough and Ms Small.
Events immediately post-dismissal
217. Mr McCullough stated that he had asked the claimant to return her keys to him at the dismissal meeting. When the claimant refused to do so, the claimant stated that she did not have her keys with her, Mr McCullough asked the claimant to contact the office at another time to make an appointment to come into the building to collect her belongings and to return her keys.
218. Mr McCullough was sufficiently anxious about the claimant’s volatile reaction to her dismissal and her failure to return her keys that he advised Mrs White of his concern. Both Mrs White and Mrs Copeland were attending a conference in London on the date of dismissal and were not due to return to the office until the following Wednesday (22 October). In turn, Mrs White contacted the office and spoke to Clare Larmour. She advised Mrs Larmour that Mrs Larmour and Mrs Bingham were to be prepared for the claimant’s uninvited arrival into the office, to stay with the claimant at all times if she did so arrive. The claimant arrived at the respondent’s offices on Monday 20 October 2003. Accounts of her visit were given by the claimant and by Mrs Bingham and Mrs Larmour. These accounts differed in almost every detail. There was a document which had been jointly drafted by Mrs Bingham and Mrs Larmour immediately after the claimant’s visit and in response to a direction by Mr McCullough to do so on his hearing of how the claimant’s visit had gone.
219. The claimant challenged this account and stated that it had been falsified by Mrs Bingham and Mrs Larmour.
220. There was an agreement amongst the claimant, Mrs Larmour and Mrs Bingham that the claimant’s visit had been stressful for all concerned. However, Mrs Bingham and Mrs Larmour went on to add that the claimant had also been aggressive and threatening and erratic. Mrs Larmour and Mrs Bingham strove to adhere to the direction to attend to the claimant together and to curtail her activity to the collection of her belongings. However, the claimant accessed her computer and worked at it for some time during this visit. She also made a telephone call from the general office at one point. Throughout her visit the claimant harangued both Mrs Bingham and Mrs Larmour. The Tribunal noted that the evidence of Mrs Bingham and Mrs Larmour was largely consistent with their joint report prepared hastily in 2003. The Tribunal noted that their evidence to the Tribunal was also largely consistent with one another but not so consistent to suggest that they had colluded with one another in the preparation of that evidence.
221. Mrs Bingham and Mrs Larmour stated that during the course of her visit the claimant made a number of emotional outbursts. These included a reference to the fact that her sister had cancer and that her brother, who was a barrister, had advised her over the weekend and that the organisation would be hearing from her accordingly. The claimant denied that she had said either of these and stressed that her sister did not have cancer either then or now and that she did not have a brother who was a barrister. Having had the opportunity to watch all three give evidence in relation to this visit, the Tribunal had no hesitation in accepting Mrs Bingham’s and Mrs Larmour’s account of it.
THE LAW
222. The claimant brought a claim under the Public Interest Disclosure (Northern Ireland) Order 1998 which Order amends the Employment Rights (Northern Ireland) Order 1996 to insert after Part V a new Part VA, Protected Disclosures.
223. Article 5 of the 1998 Order also amended Article 70A of the 1996 Order by inserting Article 70B:-
“(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker had made a protected disclosure.”
Meaning of ‘protected disclosure’:-
Article 67A of the Employment Rights (Northern Ireland) Order 1996 provides –
“A protected disclosure means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Article 67A to 67H.”
Disclosures qualifying for protection, 67B –
In this Part the disqualifying disclosure means any disclosure of information which, in the reasonable belief that the worker making the disclosure, tends to show one or more of the following –
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligations to which he is subject,
that a miscarriage of justice has occurred, is occurring or is likely to occur,
that the health or safety or any individual has been, is being or is likely to be endangered,
that the environment has been, is being or is likely to be damaged, or
(s) that information tended to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed.
224. The claimant indicated that she was bringing her claim under Article 67B(b) and (s). Article 67C of the 1996 Order, disclosure to an employer or other responsible persons, provides:-
(1) A qualifying disclosure is made in accordance with this Article if the worker makes a disclosure in good faith –
(a) to his employer, or
where the worker reasonably believes that the relevant failure relates solely or mainly to –
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility,
to that other person.
225. The Tribunal was referred to the following authorities by the claimant and the respondent:-
Bolton School v Evans [2007] IRLR 140 CA
Babula v Waltham Forest College [2007] IRLR 346
Boulding v Land Security Trillium [2006] UKEAT/0023/06
Bachnak v Emerging Market Partnerships (Europe) Limited UKEAT/0288/05/RN
Darton v University of Surrey [2003] IRLR
Kraus v Pena PLC & Another [2004] IRLR
Logan v Commissioners of Customs and Excise [2004] IRLR 63
Lucas v Chichester DHA UKEAT/0713/04/DA
226. The Tribunal was also referred by the claimant to an article entitled ‘Whistleblowers and the Law of Definition: Time to Statutory Privilege? David Lewis, Professor of Employment Law, Middlesex University and found in the Web Journal of Current Legal Issues [2005]’.
The Tribunal’s conclusions
227. In light of its findings of fact the Tribunal concluded that the claimant did not make any disclosure whatsoever regarding any financial concerns she allegedly had about fraud or false accounting within the respondent organisation. The Tribunal’s finding was that the claimant had, by some means, created the memos on which she relied to demonstrate that she had made a “protected disclosure”.
228. The Tribunal also found as a fact that the claimant did not raise any financial concerns of any nature or make any protected disclosure at her meeting with Mrs White on 27 August. This finding was based on the Tribunal’s rejection of the claimant’s evidence about this meeting.
229. The Tribunal went further and found that the claimant did not prove that she did have any such concerns and that she brought no evidence that suggested there might have been any basis for any such concerns. The Tribunal found that the claimant had no “reasonable belief” for any disclosure she alleged she had made.
230. In reaching its conclusions in relation to the alleged protected disclosures the Tribunal accepted the evidence of the respondent’s witnesses entirely.
231. The Tribunal found that the claimant’s claim was entirely concocted specifically to bring the claimant within the remit of the only piece of employment legislation, the Public Interest Disclosure (Northern Ireland) Order 1998, which could have given the claimant a case of unfair dismissal where she had less than one year’s service with the respondent organisation.
232. The Tribunal noted that the claimant confined her allegations of fraud and false accounting exclusively to what she had been told by other people. The claimant accepts that she made no enquiries of her own and in particular that she had accepted Mrs Bingham’s concerns without question.
233. The Tribunal rejected that this was or would have been sufficient in these circumstances to give the claimant a reasonable belief in that information tended to show one or more of the matters set out in the Order.
234. The legislation specifically states that a so called qualifying disclosure remains a qualifying disclosure only if it is made in accordance with an additional Article 67C(1), where that disclosure is made by the worker (the claimant) in good faith. The Tribunal’s findings of fact clearly indicate that the claimant’s behaviour in conceiving this claim, in concocting the evidence for the basis of this claim and in her pursuit of this claim formed part of the continued professional and personal vendetta the claimant had against Mrs White.
235. In reaching its conclusion that the claimant had not acted in good faith the Tribunal took into account the attempts the claimant made to undermine Mrs White both professionally and personally. The Tribunal accepted that the claimant had made threats against Mrs White personally that if carried out would have caused Mrs White extreme anxiety and distress. The Tribunal also took into account the fact that the claimant contacted the Inland Revenue supposedly to “report” Mrs White for not declaring incomes received from her dancing school. The Tribunal noted that this had been done by the claimant without any evidence whatsoever but in fact as a ruse to damage Mrs White it backfired spectacularly.
236. The Tribunal rejected the claimant’s theory that she was a victim of a conspiracy. The Tribunal noted that this conspiracy grew in its proportions with each passing witness to encompass even those witnesses external to the organisation and with a degree of autonomy that made an accusation of a conspiracy in their case a nonsense (Mr Uel Berkley, Mr Derek Anderson, Ms Therese McKernan, Ms O’Regan).
237. The Tribunal accepted the respondent’s case that the claimant was an extremely difficult person to work with, that she was aggressive, erratic, challenging, undermining and unhelpful. The Tribunal itself saw examples of these kind of behaviours during the course of the hearing when the claimant refused to accept the direction of the Tribunal and to conduct herself properly, where the claimant failed to accept that there was no evidence to support the allegations she was making. In some instances the claimant sought to move away from the evidence previously given by her or in some instances to shrug her shoulders and fall back lamely on the answer that this was what she had been told by other people.
238. The Tribunal also had occasion to note the claimant’s attitude to the Tribunal itself. On at least two occasions the claimant failed to appear without excuse or explanation. When the Tribunal office and the Tribunal itself requested an explanation the claimant, although apologising, failed to take responsibility for the delay she had caused.
239. The Tribunal also noted the many spurious interruptions of complaints by the claimant. For example the Tribunal noted the claimant’s complaint that she had come on a number of the respondent’s witnesses at lunch time and she had overheard them talking about her and the case. As one of these witnesses was at that stage under oath the claimant’s allegation was that the witness was behaving improperly. However the Tribunal noted that the claimant did not make this complaint immediately after the lunch break when it ought to have been fresh in her mind but raised it instead the following morning. The Tribunal’s investigation into the accusation wasted yet more time.
240. Another example of the claimant’s inability to accept correction or direction and of her erratic behaviour was her response to the respondent’s representative’s proper request that the claimant did not sigh during her cross examining of the respondent’s witnesses. The claimant denied that she was sighing, stating that she had asthma and that this condition required her to breathe in such a way that it sounded like sighing.
241. The Tribunal did not accept this explanation. The Tribunal did not reject the possibility that the claimant had asthma but found that the claimant sighed after the respondent witnesses’ answers in such a way as to denote her disapproval of them. The Tribunal also found that this was a means by which the claimant sought to influence the Tribunal against the respondent’s evidence. The Tribunal understood that an unrepresented claimant with little or no prior experience of presenting a case to a Tribunal might do this on occasion, unwittingly. However the claimant continued with this practice in spite of the respondent’s objections to it and the Tribunal’s numerous directions that she should discontinue.
242. Accordingly the Tribunal rejects the claimant’s claim that she was dismissed for making a protected disclosure under the Public Interest Disclosure (Northern Ireland) Order 1998.
Chairman:
Date and place of hearing: 29 – 31 January 2007,
1, 2, 21 and 28 February 2007,
1, 2, 8 and 9 March 2007,
16, 17, 18 and 19 April 2007,
11, 15 and 16 May 2007,
25 and 26 June 2007,
23 and 24 August 2007,
8, 9 and 19 October 2007,
14, 15, 16, 17, 21, 23, 24, 25, 28, 29, 30 and 31 January 2008,
1, 26, 27 and 28 February 2008,
3, 4, 5, 7, 10, 11, 12, 13, 18, 19,
20 March 2008, and
7, 8 and 25 April 2008 at Belfast
Date decision recorded in register and issued to parties: