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Case No: 2603232/00

 

THE EMPLOYMENT TRIBUNALS

 

BETWEEN

 

Applicant                                                                 Respondent

                       

Mrs M Farnsworth                                                     Derbyshire County Council

 

 

DECISION OF THE EMPLOYMENT TRIBUNAL

 

 

HELD AT:     Nottingham                                        ON:     19, 2O July200l

                                                                                                30 October to 5 November 2001

 

 

CHAIRMAN:   Mr J K Macmillan                             MEMBERS:  Mr K Gascoyne

Mr W B Morgan

 

 

REPRESENTATION

 

For the Applicant:                                       Ms J Jones of Counsel

Instructed by:-

Richard Hopkinson & Co Solicitors 

Nottingham

 

 

For the Respondent:                                 Ms R Wedderspoon of Counsel

          Instructed by:-.

        Ms B Mehon

 

 

DECISION

 

The unanimous decision of the tribunal is that the complaints of unfair dismissal and breach of contract succeed. The remedy hearing will take place on 11 March 2002. The Respondent is Ordered to pay the Applicant’s costs subject to a detailed assessment by a district judge in default of agreement.

 

EXTENDED REASONS

 

1.   This is a complaint by Mrs Farnsworth that she was unfairly and wrongfully

dismissed from her employment as the manager of the llkeston Adult Education

Centre on the 21st July 2000. At the end of the Respondent’s case, we indicated

to Ms Jones who appears for Mrs Farnsworth, that we did not need to trouble Mrs

Farnsworth to give evidence to us. It is not normal for an employment tribunal to

inform a respondent employer at the conclusion of their evidence that their case

was in such disarray that there was in effect nothing which required a response

from the Applicant. But this case bears few of the hallmarks of the ordinary. We

have heard evidence from two witnesses for the Respondent; Mr Adrian Farrar,

the principle personnel officer in the Education Department and Mr Donald Peace

Rae, the Assistant Chief Education Officer, Life Long Learning. But we have not

heard evidence from two witnesses who plainly should have been called and about

whom we will deal in greater detail in this decision.

 

2. The Respondent admits the dismissal and gives as the reason that Mrs

Farnsworth was guilty of gross misconduct, namely that she victimised, harassed

and bullied a number of her colleagues throughout a two year period between

September 1997 and October 1999. The Respondent has been represented by

Miss Wedderspoon.

 

3. It is only right that we should pay fulsome tribute in this decision to Ms

Jones, whose painstaking and exemplary cross-examination of the Respondent’s

witnesses has remedied a gross injustice.

 

4. The law needs to be spelled out only in this level of detail.

 

a)     Section 94 of the Employment Rights Act 1996 creates the right in an

employee not to be unfairly dismissed. Section 98 deals with the general

provisions relating to the fairness of the dismissal. It provides that it is for the

employer to show, that is to prove, the reason or principal reason for the

dismissal which, in order to be fair, must be one of the reasons set out in

subsection (2), or some other substantial reason. Amongst the reasons

which are potentially fair is one which relates to the conduct of the employee

which is the allegation in this case.

 

b)     The all-important test of reasonableness is set out at Section 98(4), which

we do not propose to repeat in this decision. We remind ourselves that it is

not our task to substitute our judgement for that of the employer, but merely

to say whether the employer had reasonable grounds for their decision.

 

c)     In particular it is not our task to say whether the allegations against Mrs

Farnsworth are made out as a fact, as would be the case if we were sifting

as criminal, as opposed to an industrial, jury.

 

d)     In all cases of this nature, employment tribunals derive very considerable

assistance from the judgment in British Homes Stores -v- Burchell [1978]

IRLR 379 EAT which has recently been approved by the Court of Appeal.

Although there is now no longer a burden- of proof on the Respondent to

demonstrate fairness, and Burchell falls to be read accordingly, we need to

be satisfied only of three things: that they genuinely believed the allegation

which they made against Mrs Farnsworth; that they had reasonable grounds

for that belief; and that they had reached that belief after making reasonable

enquiries.

 

5.   It was because the evidence of the Respondent’s own witnesses signally

demonstrated that they failed at least two, (and, we have to say, raised suspicions

about the third), of the three parts of the Burchell test, that we did not need to put

Mrs Farnsworth to the stress of giving evidence.

 

6.   We now turn to the facts.

 

a)   Mrs Farnsworth commenced employment with the Respondent in 1983. So

far as we are aware until the matters complained of in this case, her

employment with them had been incident free and she was highly thought

of. She had been instrumental in the establishment of the Ilkeston Centre

which she managed and had put in many additional hours over and above

those required by the job description to bring about its inception.

 

b)   In June 1999, she was seconded to what has been described to us only as

the Kosovo Refugee Project. The original length of that secondment was

unclear but it quickly transpired it would be no more than about three

months. In her absence one of her deputies, Karen Stephens, acted up.

Karen Stephens and Mrs Farnsworth appear to have been good friends, to

the extent of sharing private confidences, until that moment.

 

c)   When Mrs Farnsworth returned to resume her duties on the 13th September,

it was clear that Karen Stephens was in some distress. It was explained to

Mrs Farnsworth by Ian McGregor, her immediate line manager, that her

return to the Centre meant that Karen Stephens would have to relinquish the

£100 a week that she was enjoying while acting up which she could ill afford

to lose. Not surprisingly that caused distress to Mrs Farnsworth.

 

d)   On the 16th September, Karen Stephens made a complaint of bullying

against Mrs Farnsworth, alleging interference by Mrs Farnsworth in the

running of the Centre during her absence on secondment.

 

e)   Under the Respondent’s harassment policy, complaints of harassment,

which includes bullying, must normally be made within three months of the

event complained of, but time may - echoes here of the discrimination

legislation - be extended if it is just and equitable to do so. Whilst Karen

Stephens’ complaint did relate to events within that 3 month period, virtually

none of the other complaints which eventually surfaced with what it would

appear to be some encouragement, did so.

 

f)   However, we have been shown no evidence that anyone involved with the

investigation took a decision under the harassment policy to extend the time

limit and if so, for what reason. If, which is by no means clear, its existence

was recognised, it appears to have been ignored. The Respondent has

attempted to defend its position only by pointing to the imposition of another

time limit, September 1997, which was the date of the opening of the

Ilkeston Centre, implying that this might be thought of as generous as there

were some concerns going back even beyond that date.

 

g)   The person who carried out the initial investigation under the. Harassment

Policy was Mr McGregor. He has not given evidence to us and we are

conscious therefore that he has not had the opportunity to deal with what

has been said about him and his involvement in this matter. From what we

have learned during the evidence, Mr McGregor should have instantly

disqualified himself from undertaking that enquiry.

 

h)   Even on his own account, given to Mr Murray and to Mr Rae, he appears to

have had an abnormally close personal friendship with Karen Stephens,

certainly one which was far closer than his friendship with Mrs Farnsworth.

It extended to caring for her children from time to time. The rumours,

however, which were rife in the college and which Mrs Farnsworth was in

part accused of starting, was that the two were having an affair.

 

i)   Whether there was any truth in the rumours is irrelevant for the purposes of

this decision and Mr McGregor in fairness has always denied them. But

because of the extent of his admitted friendship he should not have involved

himself in what was bound to be a very sensitive and difficult investigation.

It should have been done by someone much less close to the principle

complainant.

 

j)   It took Mr McGregor surprisingly little time to conclude that there was prima

facie evidence of gross misconduct and the further investigation of what was

now a disciplinary matter was handed over to Mr Murray.

 

k)   We have also not heard evidence from Mr Murray despite making it clear

that we regarded him as an important witness. The only evidence that we

have heard about his handling of the investigation has come from Mr Farrar

who assisted him in the sense of offering advice and guidance.

 

I)   Absent an explanation from Mr Murray, the only conclusion to which we can

come is that his handling of the investigation was fundamentally dishonest.

We say that for two reasons. Firstly during the course of the investigation he

received unsolicited letters in support, of Mrs Farnsworth and interviewed

people whose evidence supported her and contradicted that of the

complainants. He suppressed all of that evidence, or at least the very great

majority of it.

 

m)   That was bad enough, but to make matters worse it seems clear from Mr

Farrar’s evidence that Mr Murray misled him about the nature of the material

in question. Mr Farrar’s understanding was that it was nothing more than

character references which Mr Murray did not feel he needed to put before

Mr Rae. who would eventually hear the disciplinary proceedings. But when

Mr Farrar was taken through the evidence which had been suppressed, he

accepted that, at least in part, it dealt with specific episodes of alleged

bullying and was therefore highly relevant for the ultimate decision maker.

 

n)   It is also noteworthy, for reasons which will become clear at the end of this

decision, to record that the material which was suppressed by Mr Murray

was not voluntarily disclosed by the Respondent.  When it became

apparent that some material might have been suppressed, Ms Jones sought

an order for its specific discovery, which the Respondent opposed. We

ordered its disclosure and it has entirely supported Ms Jones’ original

premise, that the picture put before Mr Rae, the decision maker, had been

deliberately distorted by Mr Murray.

 

o)   However, there was evidence of a number of alleged acts of bullying by six,

and as the investigation unrolled a seventh, colleagues of Mrs Farnsworth.

And another matter emerged, namely that Mrs Farnsworth had improperly

dismissed an adult education tutor, one Andrew Slater.

 

p)   Mr Rae, who apart from one minor exception, found all of the allegations to

be proved, has given evidence to us over a number of days. He has, if we

may say so with respect, attempted at great length to justify the unjustifiable.

His decisions were not merely perverse. In some cases they, and the

reasons which he has advanced for them, can only be categorised as

spurious.

 

q)   The letter of dismissal gives a flavour of his thought processes. He found

that Mrs Farnsworth had “victimised, harassed and bullied the employees

listed below throughout the period of September 1997 to October 1999”. No

reasonable reading of that uncomplicated phrase could prepare the reader

for the finding which Mr Rae actually made, which was that on perhaps

either one or two isolated occasions within that period, each of them had

experienced an incident.

 

r)   We were also extremely troubled by the way in which, in particular in those

cases which Mr Rae described as borderline, he justified his decision by

including in the factors which persuaded him, that the allegations were part

of Mr Murray’s case - as though that had some probative value in itself - and

that the victims of the alleged bullying had regarded it as such. It seemed

therefore that no matter how flimsy the allegation, he was three parts of the

way towards convicting Mrs Farnsworth, provided those two extremely

unpersuasive criteria were fulfilled, which of course they were in every

instance.

 

s)   Our overview of all of the evidence tendered on both sides of the disciplinary

hearing and listening to Mr Rae’s attempts to explain his reasoning, lead us

sadly to the conclusion that, almost irrespective of the points raised in Mrs

Farnsworth’s defence, her fate was sealed.

 

t)   The way in which Mr Rae rationalised his finding of guilt in some instances

leaves us with serious doubts about the degree to which he actually

believed the case being put forward by Mr Murray, who, it is relevant to note

was his immediate deputy.

 

u)   If we deal with the individuals named by Mr Rae in the letter of dismissal

and explain why we specifically reject his reasoning, it will explain, at least in

part, those rather damming and generalised conclusions.

 

v)   It was found that Mrs Farnsworth had dismissed Andrew Slater, an adult

education tutor, from his paid employment without just cause or due

process. In his evidence, Mr Rae said that he regarded the dismissal of Mr

Slater as malicious, and implied that it was an attempt to get at Karen

Stephens because it was she and not Mrs Farnsworth who had appointed

him. He also suggested that Mrs Farnsworth’s silence when asked a

particular question, demonstrated that she knew perfectly well what the

process was for removing a tutor and that she had deliberately flouted it.

 

w)   He had to admit, however, that those conclusions were in flat contradiction

of another piece of evidence which he gave. Mrs Farnsworth put forward as

a written submission to the disciplinary hearing, a detailed explanation of her

handling of the Andrew Slater matter. Mr Rae told us that he accepted that

explanation in its entirety, apart from one small point, which was that Mrs

Farnsworth had raised her concerns about Mr Slater’s qualifications to teach

a particular course and explained how she was addressing the problem,

with Mr McGregor. She claimed to have done so during supervision, a

periodical meeting between a manager and that manager’s senior.

 

x)   The only reason, it would appear, why Mrs Farnsworth was not believed on

that point was because Mr McGregor said that it had not happened. The

mere assertion by Mr McGregor seems to have been enough for Mrs

Farnsworth to be disbelieved, notwithstanding that Mr Rae accepted the

remainder of her account of the Andrew Slater matter. Mr Rae did not

appear to think it advisable to check Mr McGregor’s supervision notes.

 

y)   Mr Rae agreed that had he accepted that one last point, Mrs Farnsworth’s

handling of the Andrew Slater matter would have been “exemplary”. Even

without it, he accepted that it was clear that she had good grounds for acting

as she had and he agreed that her evidence on this point which he did

accept as truthful, demonstrated that she could not have been acting

maliciously. Quite why he originally came to the precisely opposite

conclusion, assuming that at that time he believed those parts of her

evidence which he told us he believed, is impossible to say.

 

z)   Next is Teresa Oates. She was sprung on Mrs Farnsworth and her

representative as a witness during the course of the disciplinary hearing with

no prior warning and no prior statement. There are two matters of concern

about Mr Rae’s finding that Mrs Farnsworth “bullied and harassed Teresa

Oates, one of the witnesses during the investigation”. The first is that it is

almost certain that Teresa Oates was not being truthful.

 

aa)  There was a conflict between Mrs Farnsworth and Teresa Oates, not merely

about where a certain meeting had taken place on the day of Mrs

Farnsworth’s suspension, but rather more importantly, about its content.

Teresa Oates’ written statement, made subsequently but reflecting what she

had said at the disciplinary hearing, said that it was Mrs Farnsworth who

had gone to her house to speak to her and she did not know how to handle

it. The context made it quite clear that the implication was that this was the

first stage in a process of harassment and bullying, presumably designed to

get Teresa Oates enlisted into Mrs Farnsworth’s camp.

 

bb)  Mrs Farnsworth’s evidence was that it was Teresa Oates who had visited

her at her home and she was able to produce an itemised telephone bill for

the afternoon in question which demonstrated, even to Mr Rae’s

satisfaction, that she had been at home. The purpose of the visit, according

to Mrs Farnsworth, was for Teresa Oates to offer her support.

 

cc)  Astonishingly, although Mr Rae accepted Mrs Farnsworth’s evidence about

where that meeting had taken place, he seemed quite incapable of

recognising that that might well mean that Mrs Oates’ account of what took

place was also unreliable. Quite clearly, where the meeting had taken place

had a substantial bearing on what it was about.

 

dd)  The second difficulty with Teresa Oates’ evidence is that, read on the cold

page, it at best very ambiguous with nothing in the conversations which she

records that is immediately obvious as a threat or bullying. Yet Mr Rae

seems to have accepted without question both her feeling that it was in fact

bullying and the unspoken implications which she claims to have believed

lay behind Mrs Farnsworth’s words.

 

ee)  No reasonable employer could have reached the conclusion that Teresa

Oates had been harassed or bullied on the face of the evidence presented

to Mr Rae.

 

if)  The next complainant was Christina Rose. She had not worked at the

Centre since 1998 and had made no complaints during her employment.

Mr Rae agreed that this was a borderline case but in attempting to explain

why he eventually decided that she too had been bullied, in addition to citing

the fact that it was Mr Murray’s case that that was so, he also said that she

impressed him as a witness. Whilst we do not think Mr Rae was deliberately

telling us an untruth, that answer demonstrates the extent to which he was

prepared to go to justify his decisions.

 

gg)  His own note made at the end of Christina Rose’s evidence strongly

suggests that at the time, he took a somewhat view: “No evidence that ME

was responsible for people being referred to John Davidson” (a reference to

Christina Rose’s complaint that she was being sidelined and given

uninteresting work to do whereas John Davidson who did the same job but

who was much more experienced got the more interesting work) “Lots of

evidence of ME’S support”. In other words lots of evidence that Mrs

Farnsworth had supported Christina Rose. Finally: “Her letter to MF

24/7/98 is fairly damming - if she really felt depressed would she have

written it as she did’.

 

hh)  The letter of the 24th July 1998 was Christina Rose’s letter of resignation.

Not only is there not a hint in it of the allegation which she subsequently

made, it is an extremely pleasant, cheerful letter which thanks Mrs

Farnsworth for her support and looks forward to working with her again in

the future. We still do not understand how an honest judge, having

expressly found that there was no evidence to support the principle

complaint, could, in the absence of any further evidence, have nonetheless

come to the conclusion that the complaint’s case was made out. But that is

what Mr Rae purported to do.

 

ii)  The next complainant was Linda Gilbert another case which Mr Rae

described as borderline. Although, in our judgement, such a description

was something of an overstatement, borderline or not, for the usual dubious

reasons he succeeded in finding it proved, It was the stalest complaint of

all, relating to early 1998.

 

jj)  Linda Gilbert was one of nine crèche workers. Mr Rae saw a letter signed

by all of the other 8 crèche workers which gave a very favourable opinion of

Mrs Farnsworth’s abilities as a manager and of her as a person. A witness

described Linda Gilbert as very over sensitive and made the memorable

observation that if the Pope had passed by she would have complained that

he was looking at her in a funny way.

 

kk)  We were treated to a rather undignified (and wholly unconvincing)

exposition by Mr Rae of the reasons why he found that whilst she might

have been a sensitive witness, she was not over sensitive. He apparently

overlooked the fact that she worked closely with a lady called Jan Barber

who was one of the other complainants and had made no complaint about

Mrs Farnsworth until Jan Barber had complained. The decision by Mr Rae

to uphold Linda Gilbert’s complaint can only be characterised as perverse.

 

II)  Next is Lynne Whittle. No complaints were made by Lynne Whittle about

the events of which she subsequently complained, at the time when they

were supposed to have happened. It is again noteworthy that she worked

closety with two other complainants, Margaret John and Jan Barber. Mr

McGregor’s evidence about his dealings with Lynne Whittle -suggested that

she felt she had problems with the staff at the Ilkeston Centre, but she did

not name Mrs Farnsworth personally, and that after his intervention she was

happy-that they had been resolved.

 

mm)  We are unclear how Mr Rae was able to find Lynne Whittle’s complaints

proved if one takes away his usual responses about them falling into a

pattern and they being part of Mr Murray’s case and the powerful impression

that she made upon him when giving evidence to him. This latter

observation would have been very persuasive but for the fact that he made

it about all of the complainants indiscriminately, irrespective of the obvious

lack of merit in the complaints of the majority of them.

 

nn)  Next is Margaret John. A reading of Margaret John’s evidence leaves one

wondering how it was that she could ever have been regarded as a witness

to anything, let alone to have been found by Mr Rae to have been

“victimised, harassed and bullied throughout the period September 1977 to

October 1999”. Her written statement is mostly concerned with fairly minor

matters which took place in 1996. Her complaint was made only after Jan

Barber had complained and the only contemporaneous event about which

complaint is made was said to have taken place on the 1st October, which

was after disciplinary proceedings against Mrs Farnsworth had started.

 

oo)  A point of which Mr Rae may not have been aware but which is central to

the credibility of this witness, is that she was a close friend of Jan Barber

with whom she had just been on holiday. There is not a shred of evidence

that Margaret John had ever been bullied or harassed by Mrs Farnsworth at

any time during the relevant period, the matter complained of on the 1st

October not being by any stretch of the imagination an act of bullying. Taken

in isolation, it seems like a storm in a teacup over a part-time clerk from

another centre who was asked to give some of her hours to the Ilkeston

centre but then failed to turn up when expected. We remain baffled as to

why Mr Rae, absent his usual reasons for believing a complainant, could

have concluded otherwise.

 

pp)  Jan Barber, who might be described as one of the two principal witnesses,

also made complaints that were very stale. She produced two different

documents, the first one of which is headed “Chronological list of incidents

in Erewash”. From that, although it is not entirely clear, it would appear that

the last complaint in time of anything done directly to her by Mrs Farnsworth

was probably the autumn term of 1998.

 

qq)  Her second document, which was far more graphic in its detail of the effect

that the so-called bullying had had on her, also contained an additional and,

if true, very damming statement: “Eventually I  broke down in supervision on

the 30th June 1999. I told my line manager that I could no longer continue

and I thought it would be better for the team and the SRB project if they

appointed someone who was more favoured by Marietta. I felt that I was

being pushed out of my job” etc etc.

 

rr)  Mr Rae, it would seem, failed to notice two rather important points. The first

was that that statement was not in her original chronological account of

events, a surprising omission if the allegation was true. Secondly the line

manager in question, Mr McGregor is not recorded as having said anything

about a meeting in supervision on the 30th June 1999 nor about being told

that Jan Barber could not continue, nor about being told that it was her view

that she should be replaced by someone who was more favoured by Mrs

Farnsworth. Again, given the nature of the allegation that he was

investigating, had it happened it seems inconceivable that he would not

have mentioned it.

 

ss)  The only evidence of Mr McGregor’s that approaches this concerns a

meeting, which he dates about a month earlier, in which Jan Barber

suggested that a way around such difficulties as she might be experiencing

with Mrs Farnsworth was that they might work more closely together. It

does not appear that Mr McGregor was ever asked whether there had been

a second supervision meeting which he had forgotten to mention, or

whether Jan Barber had ever behaved in his presence in the way she

described.

 

tt)  That point by itself should have so undermined Jan Barber’s credibility as a

witness as to make it impossible to find her allegations, such as they were,

proven. But that was not the only instance where her credibility in this matter

had been seriously in issue. At a very early stage, something of which Mr

Rae might have had notice but almost certainly did not have the detail, was

that she had alleged that Mrs Farnsworth had forged a memo to her from

Karen Stephens. Subsequent investigation demonstrated that that

allegation was totally unfounded and, in fairness to the Respondent, was not

proceeded with.

 

uu)  In addition to those two very substantial doubts about her credibility, her

evidence that she had been deliberately frozen out by Mrs Farnsworth was

contradicted by a substantial body of other evidence. Several people

described Mrs Farnsworth’s working habits which, in an open plan and busy

office, included the ability to so concentrate her thoughts as to make her

oblivious to the rest of the world. Again, it would seem that Mr Rae was

more impressed by the distress which Jan Barber appeared to demonstrate

when giving evidence than by the very obvious flaws in the evidence itself.

 

vv)  Finally there was Karen Stephens and here we return for a moment to Mr

Murray’s handling, this time not of the investigation but of the disciplinary

hearing. If we may coin an old and hackneyed phrase but one which serves

the purpose, this was not prosecution but persecution. If was long on

adjective and hyperbole and short on accurate fact. The list of people who

had been made ill by Mrs Farnsworth’s conduct, according to Mr Murray,

outstripped by a considerable distance those of whom in truth such a thing

could conceivably have been said.

 

ww)  Perhaps his worst solecism is in connection with Karen Stephens. She did

not attend the hearing and to the Respondent’s knowledge had

disappeared, her house was shut up and her private life was known to be in

disarray. She had been off sick and in receipt of sick pay, although Mr Rae

was unable to tell us for certain whether her absence was still covered by

sick notes at the date of the hearing. Yet Mr Murray felt able to draw the

conclusion, based it would seem on nothing more than an assumption, that

she was unable to attend the hearing because she was too ill to do so, as a

result of the bullying she had received from Mrs Farnsworth.

 

xx)  Mr Rae, in fairness to him, told us that because of her absence he placed

less reliance on her evidence than he would otherwise have done and only

found it proved where it was supported by others. This brings to light

another difficulty in Mr Rae’s handling of the matter. It has not taken more

than a comparatively superficial analysis of the written witness statements to

show that many of the complaints came out of a concerted attempt by those

at the centre of this matter, Karen Stephens and then Jan Barber, to find

others to support them. At least one witness spoke of being asked directly

and many witnesses refer to the fact that they were making a complaint for

the first time because they realised that others were also complaining.

There was obviously a lot of talking amongst the complainants, and some

worked together, some were close friends and holidayed together. That in

no way diminished the value of their evidence in Mr Rae’s eyes.

 

yy)  Yet in a Freudian slip which his attempts to justify increasingly damaged his

credibility, he clearly suggested that those who came forward to give

evidence on behalf of Mrs Farnsworth must be a friend, or even close friend,

of hers and supportive of her which served to undermine their worth as a

witness. He said that in particular of the evidence of John Davidson.

 

zz)  It is therefore perhaps not surprising that he was prepared to accept Karen

Stephens’ basic complaint of bullying, that Mrs Farnsworth throughout the

three month period of the secondment, had consistently interfered with her

running of the Centre. This, despite a substantial body of evidence to the

contrary.

 

aaa) The sequence of events leading up to the making of the first complaint,

which we have already set out in part, should have caused sufficient alarm

to any decision maker to alert him to the possibility that Karen Stephens was

a witness upon whom little reliance could be placed. But there is another

piece of the jigsaw that needs to be slotted in, and, again it is something of

which, as we understand it, Mr Rae was aware.

 

bbb) A lady called Diane Webb, a very few days before Mrs Farnsworth’s return

to the Centre, had voiced her concerns to Ian McGregor about the way in

which Karen Stephens’ was performing the role of acting centre manager. It

is much more likely than not that Mr McGregor had raised those concerns

with Karen Stephens. Mr Rae admits that that would be the normal course

of events. There can be very little doubt that Karen Stephens must suddenly

have felt very insecure, which might well have motivated her to complain

about Mrs Farnsworth.

 

ccc)  Notwithstanding that Mr Rae did not ultimately accept that Mrs Farnsworth

had, as Karen Stephens alleged, broken a confidence, the one complaint

against her which Mr Rae did not uphold, and notwithstanding that in her

written statement she attributed a complaint of bullying to a Mr Alan Bailey

who was said, according to Karen Stephens to be petrified of Mrs

Farnsworth, something which, when interviewed Mr Bailey flatly denied, Mr

Rae was content to accept the bulk of Karen Stephens’ complaints.

 

7.    The Respondent falls at every hurdle. No reasonable employer, even on

the material which reached Mr Rae, could have concluded that here was anything

more serious than a manager under pressure doing her best to get the Centre to

perform at its best. The majority of the complaints should have been regarded with

enormous suspicion. The rest at worst were momentary losses of sang froid about

which no complaint was made at the time. No reasonable employer could have

concluded that they remotely approached what anyone with a modicum of common

sense would have regarded as bullying. The fact that most of the witnesses

purported to regard it as such was not, as Mr Rae seemed to believe, highly

persuasive evidence, it was largely beside the point. Even Mr Rae, had he been

aware of the evidence suppressed by Mr Murray, might possibly have reached a

conclusion more favourable to Mrs Farnsworth although we have little confidence

that that would have been the case. For all of those reasons, the complaint of

unfair dismissal succeeds.

 

8.    There is also a complaint of wrongful dismissal, that the dismissal was

without notice. It necessarily follows from our finding that Mrs Farnsworth was not

guilty of any provable misconduct let alone gross misconduct, that to dismiss her

without notice was a breach of contract. The damages to which she is entitled for

that breach are the net earnings she would have received in either the contractual,

about which we have heard no evidence, or a reasonable, or the statutory notice

period which, because of her length of service, would have been 12 weeks.

 

9.    Under Rule 14(1) of the Employment Tribunals (Constitution and Rules of

Procedure) Regulations 2001, where, in the opinion of the tribunal a party has in

bringing the proceedings, or a party or party’s representative has in conducting the

proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably

or the bringing of the proceedings by a party has been misconceived, the tribunal

shall consider making, and if it so decides, may make, an order for costs. For the

reasons which we have given, we are of that opinion and are therefore prepared to

consider making an order for costs against the Respondent on two grounds. Firstly

that in attempting to suppress the documentary evidence which was adduced as a

result of the order of this tribunal and in continuing to defend these proceedings

after the highly damaging evidence of Mr Farrar, they have acted vexatiously.

Secondly given that the definition of misconceived is having no reasonable

prospect of success, their whole defence of these proceedings has been utterly

misconceived. We hasten to add that none of the criticisms which we have

levelled at the Respondent are in any way a reflection on Ms Wedderspoon whose

conduct of these proceedings on their behalf has in every way been admirable.

 

10.  We have now heard submissions from Ms Wedderspoon and Ms Jones on

the question of costs. Ms Jones reminds us that the question of the suppressed

documents was raised at the outset of this case in the Originating Application. She

also makes the unanswerable point that the Respondent has been condemned out

of the mouths of their own witnesses and on the face of their own documents.

Having heard the submissions, the opinion which we provisionally held is

confirmed. We are satisfied that this is a case where the Respondent should pay

the Applicant’s costs of these proceedings, such costs, in the absence of

agreement, to be the subject of a detailed assessment by a district judge.

 

 

Signed by the Chairman on the

9th November 2001

 

DECISION SENT TO THE PARTIES ON

 

29th November 2001

AND ENTERED IN THE REGISTER

FOR SECRETARY OF THE TRIBUNALS

 

 

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