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Case
No: 2603232/00
Applicant Respondent
Mrs M Farnsworth Derbyshire County Council
DECISION
OF THE EMPLOYMENT TRIBUNAL
HELD AT:
30 October to
CHAIRMAN: Mr J K Macmillan MEMBERS: Mr K Gascoyne
Mr W B Morgan
For the Applicant: Ms J
Jones of Counsel
Instructed
by:-
Richard
Hopkinson & Co Solicitors
For the Respondent:
Ms R
Wedderspoon of Counsel
Instructed by:-.
Ms B Mehon
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
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
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
written it as
she did’.
hh) The letter of
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