Go straight to the Marietta Farnsworth v Derbyshire County Council front page
Case No: 2603232/00
Mrs M Farnsworth Derbyshire County Council
DECISION OF THE EMPLOYMENT TRIBUNAL
30 October to
CHAIRMAN: Mr J K Macmillan MEMBERS: Mr K Gascoyne
Mr W B Morgan
For the Applicant: Ms J Jones of Counsel
Richard Hopkinson & Co Solicitors
For the Respondent: Ms R Wedderspoon of Counsel
Ms B Mehon
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
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
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 
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
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
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
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
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
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
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
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
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
DECISION SENT TO THE PARTIES ON
AND ENTERED IN THE REGISTER
FOR SECRETARY OF THE TRIBUNALS
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