Ms P McNeill v NCG Corporation: 2501093/2016
JUDGMENT
[1]The claim of automatic unfair dismissal by reason of protected disclosure fails and is dismissed.[2]The claim of ordinary unfair dismissal is well founded and the claimant is entitled to a remedy.REASONS
[1]By a claim form filed on 7 September 2016 the claimant brought a claim against the respondent for automatic and ordinary unfair dismissal. The claim for automatic unfair dismissal was advanced by reason of the claimant having made a protected disclosure.[2]By a response filed on 6 October 2016 the respondent denied all liability to the claimant.[3]The matter came before Employment Judge Hunter on 3 November 2016 at a private preliminary hearing for case management and Orders were made. The issues in this matter were summarised and are set out below.[4]At the hearing it became necessary to issue a witness order to secure the attendance of the respondent’s witness Robert Kleiser at a time convenient to the Tribunal rather than at the convenience of the witness. Accordingly this witness appeared on 8 February 2017 in answer to a witness order issued on 7 February 2017. At the conclusion of the hearing there was insufficient time to deliberate and announce Judgment. Accordingly I reserved my decision which is now issued with full reasons in order to comply with Rule 62(2) of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Witnesses[5]In the course of the hearing I heard from the following witnesses:- Respondent5.1 Lynne Elizabeth Griffin (“LG”) - Group HR and Organisational Development Director.5.2 Deni Chambers (“DK”) - Director of Creative and Digital Industries.5.3 Barbara King (“BK”) – Vice Principal Corporate Services.5.4 Robert Paul Stephen Kleiser (“RK”) – former Interim Vice Principal.5.5 Diane Thurston (“DT”) – Director of Education Services.5.6 Jo Powell (“JP”) – Director of Finance Planning and Resources.5.7 Amanda White (“AW”) - Director of HR for Newcastle College. Claimant5.8 The claimant. Documents[6]I had before me a bundle of documents extending to some 384 pages. I have made reference in the course of my deliberations to those documents to which I was referred in witness statements or during the course of the hearing. Any reference in this RESERVED JUDGMENT Case Number 2501093/2016 Judgment to a page number is a reference to the relevant page within the agreed bundle.The Issues
[7]At the start of the hearing issues were agreed with the parties and are now as follows:- Public interest disclosure claim7.1 Did the claimant disclose information to the respondent? The claimant asserts that at a meeting with LG on 6 June 2016, she told LG that the respondent college was using public funds to employ the friends and family of appointing officers to posts in circumstances where the appointees were not the best people for the job.7.2 Did the claimant have a reasonable belief that the information disclosed showed or tended to show that the respondent was in breach of a legal obligation to which it was subject? The claimant asserts that the respondent is under an obligation to adhere to the Joint Audit Code of Practice which requires the auditors to provide assurance to the Skills Funding Agency and the Education Funding Agency that public funds paid as grants have been used with regularity and propriety. Propriety involves the proper use of public funds.7.3 If so did the claimant reasonably believe that the disclosure was made in the public interest? The claimant asserts that she believed that the disclosure was in the public interest because it was involving the misuse of public funds.7.4 If so was the disclosure made to the claimant’s employer? Unfair dismissal complaint7.5 Was the making of any proven protected disclosure the principal reason for the claimant’s dismissal?7.6 Has the claimant produced sufficient evidence to raise the question whether the reason for the dismissal was a protected disclosure?7.7 Has the respondent proved its reason for the dismissal, namely redundancy or some other substantial reason?7.8 If not, does the Tribunal accept the reason put forward by the claimant or does it decide that there was a different reason for the dismissal?7.9 In the event that the protected disclosure was not the reason for the dismissal, has the respondent shown that there was a potentially fair reason for dismissal and, if so, did the respondent act within the band of reasonable responses in treating that reason as sufficient to dismiss? In this case the respondent asserts the reason for dismissal was redundancy and that it acted reasonably in its warning of and consultation with the claimant, in the method of selection of the claimant (namely competitive interview) and in its search for alternative employment for the claimant.Findings of fact
[8]Having considered the evidence both oral and documentary and in particular the way in which evidence was given to me and the cross-examination of the witnesses, I make the following findings of fact on the balance of probabilities:-8.1 The claimant was born on 13 December 1967. The claimant was appointed to the role of Manager – Operations at Newcastle College (“the College”) on 6 May 2013. The claimant was dismissed by the respondent effective from 31 July 2016. The claimant began work in the School of English and Maths in May 2013. In 2014 that school became known as the School of Access to Learning (“the School”). Prior to working in further education, the claimant worked as a teacher of mathematics to A level standard.8.2 The College is part of a group of colleges controlled by the respondent. There is a chief executive officer of the respondent to whom the various principals of the colleges in the group are accountable. The College is by far the largest college in the group. Its administrative resources are very considerable indeed. The Principal (“the Principal”) of the College at all material times was Tony Lewin.8.3 In April 2014 the claimant was interviewed for the position of Director of the School and came a close second to the person who was appointed, namely Liz Kitson. On 23 July 2014 the claimant met with Liz Kitson and was told that her role within the School had been provisionally selected as redundant. The claimant was subsequently offered the role of Section Manager for Adult and Community Learning within the School. She was not interviewed and did not actually apply for the role but was appointed to it and that was the role which the claimant was undertaking at the time of the events which led to her dismissal. At the time of her dismissal the claimant had some 50 teachers working in her section and she managed a budget in excess of £2 million annually. The claimant’s responsibilities included curriculum planning, continuous quality improvement, business planning and performance management. The claimant was responsible for adult ESOL, adult employability, access to higher education and the English and Mathematics programmes for adults including GCSE.8.4 The respondent has (page 56) a redundancy and redeployment policy (“the Policy”) but the Policy is not contractual. The Policy states as a key principle:- “Where the substantive duties of the post holder are wholly or mainly the same in the new structure as they were in the old, and where no other staff in the same role are displaced, the member of staff should be appointed to the position in the new structure automatically without competition. Where there are differences in the post as a new role, a competitive selection process will be conducted”. At section 5 of the Policy the selection method is stated as “including but not limited to desktop selection, competitive interviews or an assessment meeting”. The Policy states at section 7 that during any consultation period, every effort will be made to seek alternative employment within the organisation.8.5 The respondent has (page 66A) a disclosure policy (“the Disclosure Policy”) which seeks to protect the interests of staff who raise genuine concerns about malpractice in the organisation. At section 2.2 (page 66E) “staff are encouraged to raise concerns if RESERVED JUDGMENT Case Number 2501093/2016 they reasonably believe that an act of malpractice is being committed or is likely to be committed. Prevention is as important as reporting past or ongoing acts”. The Disclosure Policy states that concerns may be raised orally or in writing and, if orally, a manager will document the meeting and a copy of the concerns raised should be forwarded to the employee to confirm that facts have been represented as they had been raised and that it is a true and complete understanding of concerns. The Disclosure Policy goes on to record that the manager should immediately inform both their director and the divisional head. The Disclosure Policy continues:- “The Divisional Head will notify an appropriate Executive who will determine what further action needs to be taken and inform the Group Chief Executive. The internal notification process provides guidance for executives on routing, managing and reporting concerns. In any cases of significant fraud, suspected fraud or irregularity the Group Chief Executive will inform the chair of the audit committee and where appropriate under the joint audit code of practice, the chief executive of Skills Funding as soon as practicably possible and agree the most appropriate course of action …”.8.6 The claimant carried out her duties efficiently and there were no performance or disciplinary concerns raised with the claimant at any time during her employment with the respondent.8.7 A restructure of the College occurred in 2016 following a review of operational practice, financial climate and observations made by the Principal that the College was not operating as efficiently as it could be. The then existing structure of the College was not set up to respond to changes in funding and policy which were affecting the sector at that time particularly with regard to making the most of the respondent’s then new degree awarding powers and in preparation for the then imminent changes to technical education proposed by the Sainsbury report. The purpose of the restructure was to create a more coordinated approach to teaching and training across the College.8.8 In 2016 a business case was produced by the Principal setting out the rationale for the restructure of the College which effectively would achieve a reduction of the annual wage bill of £5 million to £4 million. The rationale for Phase I of that restructure is set out in the business case (page 84). Charts were produced showing the existing departmental structures. The relevant chart for the claimant (page 92C) showed the School being headed by a Director of Access to Learning supported by an Operations Manager and a Quality Manager who in turn were supported by Section Managers. The claimant was one of the Section Managers reporting to the Quality Manager. That role (page 87) was shown as becoming one known as Head of Adult Education in the restructure. It was explained that the restructure was to be done in two phases – phase I and phase II. Phase I would involve managers of the College and would put into place a new management structure and the managers thus appointed would then manage the restructure at Phase II which would involve the majority of the staff of the College. Those affected by Phase I numbered around 94 people and those affected by Phase II numbered around 620 people. Notwithstanding that division, certain members of staff who would be part of the Phase II restructure were allowed to take voluntary redundancy in April and May 2016 before Phase II had got underway. The claimant sat at the lower end of the management team and close in terms of salary to members of staff who would be dealt with as part of the Phase II restructure.[9]Claimant9.1 The claimant filed detailed written representations extending to 5 pages to which she spoke briefly. The submissions are summarised.9.2 The ability of the claimant to carry out the roles of operational manager and section manager has not been questioned at any time. The events in relation to the claimant’s employment in 2014 were not fair but the claimant worked with them. The claimant submitted that she was concerned at the potential for abuse in a system of selection which relied only on interview and a presentation. The claimant asserted her belief that appointments resulting from such a process were a misuse of public funding.9.3 The claimant detailed her meeting with LG and the disclosures made at that meeting. She submitted that those matters were further collaborated by the notes taken at the appeal meeting with RK on 27 July 2016. The subsequent actions of LG were not appropriate to the serious allegations the claimant had raised with her and her actions were not plausible particularly because LG made no contact with the claimant after 7 June 2016 and did not seek any clarification from the claimant that the interpretation she (LG) had placed on the claimant’s email of 7 June 2016 (namely that she was happy with the action taken) was correct. The actions of LG who was head of HR for the whole group of six colleges did not comply with the respondent’s whistle blowing policy. LG did not respond to subsequent questions raised by the claimant enquiring if a representative of HR was present at other interviews to ensure fairness.9.4 It was submitted that the presence of AW at the subsequent meeting with the claimant was to appease her and to make sure the claimant was not appointed to the role for which she was being interviewed. The claimant submitted that by then she had been labelled a trouble maker and someone not appointable by reason of the disclosures which she had made. The absence of any contact between LG and the claimant after the meeting on 6 June 2016 is troubling as is the failure to respond to emails sent to her by the claimant.9.5 It was submitted that the absence of any response to the disclosures made by the claimant and referred to at subsequent meetings is troubling. The claimant submitted RESERVED JUDGMENT Case Number 2501093/2016 that her response to LG thanking her for arranging for AW to be present at her consultation meeting was politeness on her part and was not an acceptance that the investigation into the matters she had disclosed was complete. It was submitted that the respondent had provided no evidence that the disclosures of the claimant in respect of nepotism and fraud were ever investigated or that the claimant was told that the respondent did not believe that her beliefs were not true. It was submitted that no one had told the claimant at any time that the investigation into her disclosures was closed and had she been told that was so, she would have challenged it.9.6 It was submitted that the respondent had the opportunity to affect both future interview and job opportunities for the claimant after the disclosures were made and she was excluded from any phase 2 redundancy jobs as they were not advertised until after she had been made redundant. The claimant was not invited to the first meeting to explain phase 2 of the redundancy process even though she was still employed by the respondent when that meeting took place. The offer of a zero hours contract to teach maths was only made after the claimant had been made redundant. A course leader not at risk of redundancy was “slotted in” to a new post yet the claimant was not even considered for that post. No-one has ever explained to the claimant why her post was removed from the structure despite requests for that information.9.7 Other people had raised issues about the fairness of the process including the appointment by the Principal of a person he was in a relationship with whilst married and the appointment of three vice and assistant principals who were ex colleagues from a different college.9.8 There is no evidence that the appeal officer RK approached his task with an open mind. The evidence about conversation in respect of training being provided to the claimant in respect of the role for which she applied in the appeal process is contradictory.9.9 The witnesses for the respondent have given evidence of an interview system designed to ascertain whether a candidate was “appointable” yet BK stated that the claimant was “appointable” to a role when the scores suggested that she was not. There is a complete lack of consistency from the witnesses of the respondent as to how interviews were conducted.9.10 It was suggested that there was evidence that appointments were pre-determined in many cases. There was no evidence that after the deadline of 23 May 2016 for expressions of interest that the claimant was able to apply for any other roles.9.11 The claimant referred to a number of previous decisions without providing any copies of them or seeking to explain their relevance to the issues raised.9.12 In oral submissions, the claimant stated that it was conceded by the respondent that she had a reasonable belief that the matters disclosed to LG were in the public interest. The appointment process of Simon Chambers was predetermined. He was interviewed by his wife and the fact that she was to carry out interviews could have deterred other people from applying for the post. A wife should not be allowed to interview her husband for a role in any circumstances. It was submitted that it must be questioned why LG did not commission a whistle blowing enquiry after the meeting on 7 RESERVED JUDGMENT Case Number 2501093/2016 June 2016. It was submitted that if the claimant had not raised protected disclosures then she would have been appointed to the curriculum leader role for Employability Education and Maths – there was no reason not to appoint the claimant to that role.9.13 In making final submissions after those from the respondent had concluded, the claimant asserted that there was no “frenzy” in the Phase II process in the School in which she worked. The question of whether a person was appointable or un-appointable was not something which was ever explained. The concept of being appointable was been made up after the event to allow favoured candidates to be appointable. Respondent10.1 On behalf of the respondent Mr Vials filed written submissions extending to 91 paragraphs (14 pages) and supplemented these by oral submissions. The submissions are summarised.10.2 It was submitted that the first question to consider is whether the claimant made a protected disclosure to LG at the meeting on 6 June 2016. The Tribunal should then consider whether any protected disclosure was the reason for the dismissal and, if not, whether the respondent has proved that the reason for dismissal was redundancy and that it acted reasonably in treating that reason as sufficient to dismiss the claimant.10.3 Reference was made to Cavendish Munro and it was submitted that the claimant had not disclosed information but rather had raised allegations and voiced concerns .An analysis of the relevant correspondence between the claimant and the respondent was carried out and it was submitted that none of the correspondence included information. An analysis of the content of the meeting between the claimant and LG on 6 June 2016 was carried out in which the claimant had asserted that the appointment of Simon Chambers was not appropriate as he was not the best person for the job. It was submitted that no information was provided that any person appointed to a role was not in fact the best person for the role. The claimant accepted that she could not pass comment on the suitability of Simon Chambers for the role to which he was appointed. Reference was made to Goode which supports the proposition that expressing an opinion does not attract protections as a protected disclosure. In respect of the question of causation, it was submitted that only LG and the Principal Tony Lewin knew of the disclosures (if that is what they were) in any event.10.4 It was noted that a worker does not have to prove the facts or allegations disclosed are true: it is for the worker to show a subjective belief in the matters disclosed which the Tribunal finds objectively reasonable. Rumours, unfounded suspicions, uncorroborated allegations and the like are not enough to establish a reasonable belief.10.5 The claimant will only be automatically unfairly dismissed if the reason for her dismissal or if more than one the principal reason for the dismissal was the making of the protected disclosure. If the making of the protected disclosure was a subsidiary reason for the dismissal then the claim will not be made out. The Tribunal needs to determine the decision making process in the mind of the dismissing officer - in this case those who scored the claimant in her redundancy interviews. The respondent asserts that the alleged protected disclosure had nothing to do with the claimant’s dismissal as it never formed part of the conscious or subconscious reasoning of those involved in the selection. Neither DC nor BK knew much of the claimant prior to her RESERVED JUDGMENT Case Number 2501093/2016 interview. There is no evidence that they had any axe to grind against her at all - least of all for making a protected disclosure. It was submitted that the only plausible explanation for dismissal was redundancy following a poor performance at interview and poor presentations – the claimant having accepted in evidence that her presentations were poor.10.6 The respondent undertook a wholesale restructure of the college at Newcastle. The process involved over 700 staff and it is inconceivable and fanciful to suggest that the process was instigated or motivated by the claimant’s protected disclosure or a wish to see her employment terminated. The disclosure on 6 June 2016 was at a point in time when the claimant had been deemed “un-appointable” and therefore at risk of redundancy. Only LG and Tony Lewin knew of the alleged protected disclosures and all the witnesses of the respondent who were involved in handling the redundancy process in which the claimant was involved confirmed on oath that they were not influenced by any third party when assessing the claimant and knew nothing of alleged protected disclosures. The tribunal s not obliged to draw inferences and should not do so.10.7 It was submitted that the definition of redundancy was applicable to the situation in May/June/July 2016 and that that was the reason the claimant was dismissed. The college was to be restructured to respond to changes in funding and policy and the restructure was to create a more coordinated approach to teaching and training across the college. The claimant accepted in evidence that her then current role was being removed and combined with 2 other roles and her role did not remain the same in the new structure. The new role was effectively a promotion and carried with it a higher rate of pay and grade. If fewer employees are needed to do work of a particular kind there is a redundancy situation – McCrea –v- Cullen and Davison Limited 1988 IRLR 30 NICA. The claimant has complained that she has not been shown the economic justification for what the respondent did – there is no need for the respondent to do so – Polyflor Limited –v- Old EAT 0483/2002.10.8 In order to act reasonably, the respondent should warn and consult in relation to redundancy, adopt a fair basis to select for redundancy and consider suitable alternative employment for those affected. It was submitted that the approach taken to warn and consult about the restructure and the steps taken to take on board comments received was reasonable. The claimant stated that she did not attend the presentations on either 4 or 5 May 2016 but when pressed conceded she may have been present but could not recall the presentation. It was submitted that that was inconceivable.10.9 It was submitted that in respect of the basis for selection, a tribunal may not substitute selection criteria it would have chosen: it can only interfere when what the respondent has done is something which no reasonable employer would have done. It was submitted relying on Morgan –v- Welsh Rugby Union 2011 IRLR 376 that an employer is entitled to undertake a competitive interview process and appoint the candidate it considers best for the role even if this is based on its subjective view. It was submitted that the authority of Samsung Electronics UK) Limited –v- Monte-Cruz 2012 EAT 039/11 showed that assessments carried out in good faith were not to be second guessed by an tribunal. In this case those assessing the claimant had done so in good faith and if there were any flaws, they were not egregious and the claimant cannot complain about them.