Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Curran v Londonderry Citizens Advice Bu... [2010] NIIT 05127_09IT (23 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/05127_09IT.html
Cite as: [2010] NIIT 05127_09IT, [2010] NIIT 5127_9IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REFS: 5127/09

6219/09

CLAIMANT: Eileen Curran

RESPONDENTS: Londonderry Citizens Advice Bureau

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim that she had been unfair dismissed for making a protected disclosure fails. It is also the Tribunal decision that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Ms E Kennedy

Mrs T Madden

Appearances:

Ms Curran appeared and represented herself.

The respondents were represented by Mr Gerry Grainger, Barrister-at-Law, instructed by Mrs Louise McAloon, Worthingtons Solicitors.

The Claim and the Response

1. The claimant, Ms Curran, lodged two claims namely 5127/09 on 12 April 2009 and 6219/09 on 24 June 2009. Claim No: 5127/09 stated that Ms Curran was claiming unfair dismissal on the grounds of “whistle blowing” against the respondents; claim No: 6219/09 stated that Ms Curran was claiming unfair dismissal, breach of contact and unauthorised deduction of wages.

2. The respondents presented responses to each of these claim forms on 1 July 2009 and 3 September 2009 respectively. The first response denied Ms Curran’s allegations in relation to any protected disclosure or that, in the alternative there had been any qualifying disclosure. This response stated that the respondents had summarily dismissed Ms Curran in accordance with the respondents’ disciplinary procedures for four charges of unacceptable conduct and standards of work.

3. The second response also refuted Ms Curran’s allegation of a protected disclosure or that Ms Curran had been automatically unfairly dismissed on the basis of making a protected disclosure. The respondents also denied having made any unlawful deductions from Ms Curran’s wages.

4. The respondents also contended that Ms Curran’s claim for unauthorised deduction from wages had been lodged out of time in that the alleged deductions were made on 25 November 2008 and Ms Curran’s claim was not lodged with the Tribunal until 24 June 2009. Additionally the respondents contended that Ms Curran had been procedurally and substantively fairly dismissed.

Sources of Evidence

5. Witness Statements

The Tribunal was furnished with the following witness statements:-

1. Ms Curran,

2. Ellen Pollard,

3. Paddy Casey,

4. Michael Little.

Respondents’ Witness Statements

1. Catriona Kyle,

2. Jacqueline Gallagher,

3. Raymond Cassidy,

4. Paddy Grey,

5. Sam McPherson.

Ms Curran also provided supplementary witness statements in answer to the respondents’ witness statements.

Oral Evidence

The Tribunal heard oral evidence from the following:-

For the respondents

Catriona Kyle,

Raymond Cassidy,

Jacqueline Gallagher,

Paddy Grey,

Sam McPherson.

For Ms Curran

Ms Curran,

Rita Hanaway,

Ellen Pollard,

Michael Lyttle (CAB),

Danny Breslin (Legal Advisor with the Law Centre),

Sean O’Farrell (Senior Generalist Advisor and Tribunal representative, Waterside CAB),

John Doherty (Senior Welfare Rights Officer CAB),

Sean Mc Callion (Money Advisor CAB),

J J Doran (member of the Management Board of Londonderry CAB),

Ronan Moyne (CAB).

Overview

6. The Tribunal endeavoured to address only the legal and factual issues as identified by the Case Management Discussion on 23 November 2009, attached. However other issues arose during the course of this hearing that the Tribunal had to consider and determine. The Tribunal touched on these other issues only where they seemed to be relevant to the determination of the issues in this case and with regard to the credibility of the parties.

7. In this case there were few areas of agreement between the parties, which difficulty was compounded on occasion by the circumstance where one party’s description of an event was met by the other party’s denial that the event had occurred at all. In reaching conclusions about these incidences the Tribunal has given reasons, on a balance of probabilities, as to whether the event in question was more likely to have occurred than not.

8. An additional difficult in this case was the fact that Ms Curran had two claims. The first claim was for “ordinary” unfair dismissal, breach of contract and unlawful deduction of wages and the second claim for unfair dismissal by virtue of the “whistle blowing” legislation.

Findings of Relevant Facts

9. The Tribunal found the following facts agreed or proven on the balance of probabilities:-

Commencement of Employment

In November 2007 Ms Curran applied for the post of Tribunal Representative at Londonderry CAB (LCAB) and was unsuccessful.

However, some weeks’ later Ms Curran was contacted by a friend of hers, Mr Danny Breslin. Mr Breslin worked at the law centre and he was also on the board of management of LCAB. Mr Breslin advised her that he had been tasked with finding out if she would be willing now to take up the job as the first candidate appointed had left.

10. Ms Curran stated that she had told Mr Breslin that she would consider the job and stated that she had eventually advised Mr Breslin that she would take up the post at LCAB. Ms Curran had experience of advice work and had also obtained a law degree.

Ms Gallagher stated that Ms Curran had contacted her on 13 February and she had had a long conversation with Ms Curran who explained to Ms Gallagher that she was unhappy at Gingerbread. This unhappiness arose from Ms Curran’s view of the management at Gingerbread having unilaterally amended employees’ contract terms in relation to statutory sick pay.

Ms Gallagher stated that in view of this she had gone into some detail with Ms Curran about the position in relation to changes to contracts at LCAB with regard to SSP. Ms Gallagher stated that she explained to Ms Curran that all organisations were making this change on the basis of a directive from the Department of Social Development. This had indicated that funding for certain posts was funding for the post, and not the person, so that DSD would no longer pay sufficient monies from which an organisation could “top up” statutory minimums for sick pay ( or maternity pay) . Ms Gallagher also stated that she had discussed with Ms Curran details of LCAB’s opening hours, closing hours, annual leave entitlements and statutory holidays.

11. Ms Gallagher also stated that Ms Curran had told her that she was unsure whether her post at Gingerbread would continue to be funded. Ms Gallagher stated that she, for her own part, was in a similar position in relation to funding for the tribunal representative post, that it too was up for renewal but that she had been given oral confirmation that funding for that post would continue.

12. Ms Gallagher also stated that during the course of this conversation she and Ms Curran had agreed a start date for 25 February 2008.

13. Ms Curran denied that this conversation had happened or that she had any conversation with Ms Gallagher before 25 February 2008. Ms Curran stated that all her negotiations were done with Mr Breslin. Ms Curran was unsure as to how her start date of 25 February had been agreed but it was her case that she arrived for work on 25 February 2008 and then had her first conversation with Ms Gallagher.

14. The Tribunal accepted that Mr Breslin had approached Ms Curran to take soundings to see if she would be interested in taking up the post of tribunal representative recently vacated by the previously successful candidate. However the Tribunal noted that Mr Breslin gave no evidence of his having agreed Ms Curran’s start date with Ms Gallagher.

15. The Tribunal did not accept that Ms Curran had not spoken to Ms Gallagher prior to her start on 25 February 2008. The Tribunal accepted that the telephone conversation between Ms Curran and Ms Gallagher had taken place as stated by Ms Gallagher and reached this conclusion on the basis that Ms Curran could not explain how her start date had been agreed and felt that it would be highly unusual and unlikely that a new employee would turn up for employment without any prior contact with the organisation.

Induction

16. It was part of Ms Curran’s defence to the respondents’ allegations about her unacceptable conduct and standards of work that she had not been told any of the office standards or expectations for her behaviour. However the respondents stated that this topic had been covered in the course of Ms Curran’s induction which had occurred on two separate dates. Ms Gallagher stated that she had personally given Ms Curran an induction into the bureau on two separate occasions. The first of these was Monday, 25 February 2008 and this included staff rules, introductions and details of all housekeeping procedures and enough information for Ms Curran to familiarise herself with the bureau and organisation.

Ms Gallagher stated that she had also shown Ms Curran the bureau’s database, called CARMA, and other IT systems and advised her that copies of the CASE Training Manual and ATP information had been emailed to her computer on 19 February 2008.

17. Ms Gallagher accepted that this induction was primarily an introductory session but stated that she had arranged the second full induction with Ms Curran for 3 March 2008. Ms Curran agreed that this date had been set for what she stated was the first induction. However Ms Gallagher suffered a personal bereavement and the induction was rearranged for 3 April 2008.

18. Ms Gallagher stated that she subsequently completed a second induction with Ms Curran on 3 April 2008, covering, amongst other things, Health and Safety, Citizens Advice Bureaux policies and principles including confidentiality and equal opportunities, domestic arrangements, expenses, opening times and days, initial work plan, training and development, supervision and support and up to another 14 topics.

Ms Kyle stated that she had been present when Ms Gallagher had completed both induction sessions with Ms Curran. This was on the basis that it was Ms Kyle’s duty to inform staff of how appointment scheduling was done and to tell them about procedures with regards to appeal papers left into the bureau, fire drill procedures, first aid procedures and stationery requests procedure.

Ms Kyle also stated that it was part of her role as Administration Manager to fill out the desk diary, kept at reception and that she had noted in it the re-arranged date, 3 April 2008.

Ms Curran stated that this induction did not take place on this rearranged date or at any other time.

The Tribunal saw the Staff and Volunteer Induction checklist document, dated 3 April 2008, and signed by Ms Gallagher. The document was not signed by Ms Curran. Ms Gallagher stated that at the end of the induction meeting they had both been called out and that she had not asked Ms Curran to sign the document at a later date.

Ms Curran stated that Ms Gallagher must have completed the document without reference to her. Ms Curran stated and demonstrated that there was only a reference to “induction” in her diary on 3 March and no reference to “induction” on

3 April. Ms Curran did accept however that a reference “Eileen induction” did appear in the desk diary on 3 April 2008.

The Tribunal concluded that Ms Curran had received the two induction sessions as described by Ms Gallagher and Ms Kyle. The Tribunal noted and accepted that the second induction session checklist had not been signed by Ms Curran but did not consider that this fact alone was sufficient to set aside the evidence of Ms Gallagher and Ms Kyle.

Additionally the Tribunal did not accept that the evidence of Ms Gallagher and Ms Kyle had been deliberately created as a defence to Ms Curran’s allegations. In the Tribunal’s view this would have involved Ms Gallagher and Ms Kyle agreeing to falsify the induction checklist and then to lie to the Tribunal. The Tribunal did not accept that Ms Gallagher and Ms Kyle were involved in such a conspiracy in relation to this matter, or any other.

Sick Leave/ Return to Work Interview

19. In August 2008 Ms Curran went on sick leave between 13-15 due to a broken bone in her foot. She returned to work after three days and came into work thereafter on crutches for the next two weeks. At the end of the month Ms Curran received her full monthly salary including full pay for her sick absence.

20. In November 2008 Ms Curran got a very bad flu which developed into a chest infection. The illness developed so much that Ms Curran was required to take three separate courses of antibiotics and have an x-ray. Ms Curran took sick leave from 5 to 7 November 2008. This period of sick absence was paid at half pay. However Ms Curran did not raise any objection to this until January 2009.

Ms Curran was scheduled to meet a client on Wednesday, 5 November 2009, in relation to an appeal hearing on Monday, 10 November. On Friday, 7 November 2008 Ms Curran contacted the office and requested if someone could bring the file to her home so that she could work on it over the weekend. Ms Curran then got a telephone call from Mr Cassidy who told her that he could not find the relevant file. Ms Curran stated that Mr Cassidy implied that she had misplaced the file and she felt compelled to go into the office to find it. When she did so Ms Curran discovered that an appointment had been arranged with the client for that same afternoon, which she dealt with before going home.

Mr Cassidy agreed that he had contacted Ms Curran and had advised her that he was unable to locate the relevant file. However he stated that he had not made any remark or implication to Ms Curran to the effect that had misplaced the file and refuted any suggestion that his call had been to pressurise Ms Curran’s return to the office to conduct the client interview.

On her return to the office on Monday 10 November 2009 Ms Curran was invited to attend a “back-to-work” interview. At this interview Ms Curran was asked if she was fit to return to work and she replied that she was not but that she felt she had to return so that she could represent the client at the appeal hearing. Ms Curran stated that she had understood this to be a disciplinary interview.

On the other hand Mr Cassidy stated that he was conducting a “welfare to work” interview, as recommended by the management board to ensure all employees were fit to return to work. He also stated that Ms Curran claimed throughout the interview, and at times aggressively, that this was a disciplinary interview.

In the event Ms Curran did return to work that Monday and worked until 13 November 2008 when both Ms Gallagher and Mr Cassidy spoke to her and advised her to go home and to take the next day off as sick leave on the basis that she was still very sick. Ms Curran stated that she believed that this period of absence had been recorded as sick leave and not permitted absence and that this manoeuvre had been contrived by Ms Gallagher and Mr Cassidy to show her sick absence record, and her, in a bad light.

Ms Gallagher and Mr Cassidy denied this allegation and stated that they had suggested to Ms Curran that she take the next day off work because she was still so sick and not fit to work.

The Tribunal noted that although Ms Curran stated that she had believed that this had been a disciplinary interview Ms Curran gave no evidence of any part of the interview that indicated that it was any thing other than a “back-to-work” interview.

Further the Tribunal noted that Ms Curran brought forward no evidence to demonstrate that the suggestion that she take a further day’s sick leave was a deliberate act designed to cast her in a bad light. On the contrary Ms Curran’s own evidence was that this was a period of sickness that became prolonged and had caused her to be on antibiotics for some weeks. Therefore the Tribunal accepted that Ms Gallagher and Mr Cassidy, observing Ms Curran, genuinely concluded that she was not fit to be at work and suggested that she take the next day off, a Friday, to speed her recovery.

The new employment contracts/events of 14 January 2009.

21. In November 2008 new employment contracts were handed to a number of employees. In addition to Ms Curran these included Rowan Moyne, Michael Little, Sean McCallion and John Doherty. These new contracts indicated that these employees would now receive only SSP for sick absence and not full pay. These staff members were asked to consider their new contracts, to sign them and to return them for filing by 20 January 2009.

22. On occasions during November, December and January these staff members were asked variously by Ms Gallagher, Mr Cassidy and Ms Kyle if they had signed the contracts and were in a position to return them. Ms Kyle spoke to these staff members one morning, 14 January 2009 and asked each of them if they were yet in a position to return their contract.

23. On her approach to Ms Curran there followed an exchange of words between Ms Curran and Ms Kyle the contents of which were vehemently disputed. In her claim form Ms Curran stated that on being asked if she was going to sign her new contract she had replied no and added that what management was doing was unlawful in that they were seeking to alter her contractual rights and failing to follow the correct procedures to do so. In her witness statement and evidence at hearing Ms Curran stated that she had said that it was unlawful the way in which management were bringing in changes without consultation.

24. Ms Curran stated that the words she used to Ms Kyle constituted her “blowing the whistle” on the respondent organisation and was the basis of her claim for unfair dismissal. Ms Curran stated that from the minute she had uttered these words and, in her view, thus “blown the whistle”, management had contrived a disciplinary case of misconduct against her leading ultimately to her unfair dismissal. Ms Curran stated that two of her colleagues, Mr Rowan Moyne and Mr Shaun McCallion, could confirm that they had overheard her making this statement to Ms Kyle.

25. The Tribunal noted the evidence of Mr Moyne and accepted that he was unclear when this incident took place and that although he remembered Ms Curran making a remark to Ms Kyle that he was unable to remember the exact words spoken. Mr McCallion on the other hand clearly recalled Ms Curran’s version of her statement to Ms Kyle.

26. For her part Ms Kyle stated that she had approached Ms Curran and had made a statement to Ms Curran that she was assuming Ms Curran would not be signing her contract to which Ms Curran had said no, that she wanted to check out the SSP clause. Ms Kyle recorded this exchange at the time in her work diary and the Tribunal noted that this entry mirrored Ms Kyle’s account of the exchange.

Before reaching its conclusion on this exchange the Tribunal considered the events in the office leading up to 14 January 2009 and events subsequent to it.

Events in the office prior to 14 January 2009

Ms Curran stated that the atmosphere in the office changed on receipt of the new contracts. The affected staff all resented the new contract terms in relation to the new arrangements for sick pay, that it would now only be SSP and not full pay as previously and that they had become anxious and disturbed by increasing management pressure on them to sign the new contracts against their will.

Ms Curran stated that she contacted and joined a union, NIPSA, and distributed forms amongst her colleagues who all immediately joined up too. Ms Curran stated that she and her colleagues attended meetings with their union representative, Paddy Casey, and that they believed that the union had raised a collective objection with management on the issue.

However the evidence before the Tribunal was that although the affected employees and Ms Curran did join the union and had some meetings with Paddy Casey, no collective objection was raised by the union on their behalf. The Tribunal noted that there was no evidence from the union to support Ms Curran’s claim that management would have been aware of their collective dissatisfaction with the contracts terms.

The evidence also demonstrated that no one individual, including Ms Curran, raised any objection to management in relation to the content of the new contract, before Ms Curran’s remark on 14 January 2009. Indeed at least two of the employees agreed that they had not thought about nor read the contract in any detail between November and January when they were asked to return the signed copy.

Ms Gallagher accepted that she and others had, from time to time, mentioned the signing and return of the new contracts to staff. Ms Gallagher stated that she had sought to gather in the contracts before 20 February in order to have the governance file ready for an upcoming audit. Ms Gallagher did not accept that there had been any undue pressure exerted on any staff.

The Tribunal accepted that the arrival of the new contracts had engendered a level of dissatisfaction amongst the affected staff and that this had propelled them into joining the union. The Tribunal also accepted that some staff had met Paddy Casey and that they had expressed their dissatisfaction to him.

However on the evidence before it, in particular from some of Ms Curran’s colleagues who stated that they had either forgotten about the new contract until January, (Mr Lyttle), or had not read it until just before Christmas, (Mr Moyne), the Tribunal discounted the impression created by Ms Curran’s evidence that this dissatisfaction amongst staff created in the office a hostile or difficult atmosphere of active disquiet and unrest or unwarranted pressure from management.

Mr Lyttle stated that he had forgotten about his new contract until after Christmas and that he had just wanted to bury it to avoid confrontation. Mr Lyttle remembered being asked on a few occasions by Mr Cassidy and Ms Kyle if he had signed it and he stated that he had eventually signed the new contract but only because he felt pressurised to do so by Mr Cassidy who had told him that if he did not sign it that he could possibly lose his job.

Mr Cassidy denied saying this to Mr Lyttle or putting him under any such pressure.

The Tribunal noted that Mr Lyttle did not raise a grievance against management’s behaviour towards him even though his evidence indicated that Mr Cassidy had threatened him and noted also that he had not raised this matter with his union. The Tribunal also noted Mr Lyttle’s demeanour during his evidence and noted little reticence to speak out against management or to avoid confrontation. In view of this inconsistency the Tribunal gave little weight to his evidence.

Exchange of correspondence 20 January 2009.

On 20 January 2009 Mr Cassidy gave Ms Curran a letter inviting her to a meeting at 12.30 pm on Wednesday, 21 January 2009 “to discuss your recent conduct within the bureau and your ability to carry out your duties in keeping with the aims of Citizens Advice Bureau.” The letter added “You have the right to be accompanied by a fellow work colleague or trade union official”.

On the same date Ms Curran gave Mr Cassidy a letter which stated “in keeping with the 20 January 2009 deadline I wish to object to the unilateral proposed changes to my contract, I wish to object to unauthorised deductions from my wages, I wish to object to the fact that I was subjected to differential treatment in comparison with other male colleagues”.

Ms Curran was anxious to stress to the Tribunal that this exchange of correspondence between herself and Mr Cassidy had been “mutual”. This was to establish the fact that she had not written her letter to Mr Cassidy in response to his letter to her. However the Tribunal was given no evidence of what time anyone had given what letter to whom.

The Tribunal did accept that Ms Curran’s letter had been written and handed to Mr Cassidy on 20 January 2009 as this was the day of the deadline for the signing of the new contracts. The Tribunal also accepted that Ms Curran’s letter was not written in response to Mr Cassidy’s letter to her as if that had been the case the Tribunal concluded that it would, more likely than not, have made some reference to the defence of “whistle blowing” Ms Curran subsequently sought to rely on.

The Disciplinary Meeting/the Whistle Blowing Claim

27. Ms Curran protested that the notice for this disciplinary meeting was too short. The respondents accepted that in this instance they had not followed the proper procedure of advising Ms Curran of the disciplinary hearing in good time. In a further letter also of 20 January 2009 Mr Cassidy advised Ms Curran that an alternative date had been arranged for the meeting for 26 January 2009. This letter advised Ms Curran of her right to be accompanied.

28. The Tribunal had sight of a document setting out the purpose of the meeting. It read as follows:-

Disciplinary meeting 26 January 2009

Eileen Curran

Disciplinary Points

1. Illegal altering of carma notes files in relation to clients including preparation notes; and the extremely serious nature and consequences of these actions to the Bureau

2. Being insubordinate and disrespectful to Management in their normal running of the Bureau. Trying to undermine the Management of the Bureau by the making of a public speech which was disrespectful of Management (being present) and which made all staff extremely uncomfortable. A statement which contained derogatory remarks concerning the integrity and honesty of management.

3. Undermining the Bureau as the main central provider for advice services: bringing the Bureau into disrepute by unacceptable treatment of vulnerable clients; evidenced by documented protestations of clients about the way they were treated by the disability rights worker: the unprecedented large number of client withdrawals; verbal protestations of clients and preference of clients to rather be represented by other advice centres following their initial preparation meetings/initial Tribunal adjournments by the Tribunal rights worker.

4. Inability to adhere to Bureau protocols; not reporting to work (16 December) and when attended the Bureau still did not report to line manager. Breach of dress protocols – wearing of denim jeans which are prohibited in the Bureau or at venues where the Bureau is being represented.

However Mr Cassidy accepted that this document, with the charges clearly set out, was not presented to Ms Curran before the disciplinary meeting which actually took place on 27 January 2009.

29. The Tribunal saw a Record of Proceedings of this disciplinary meeting. Although they did not appear in the same sequence as they appeared in the prepared note the subject matter of each of these charges was canvassed during the course of the disciplinary meeting.

In the second paragraph of the note of the disciplinary meeting and immediately after Ms Curran’s trade union representative, Mr Paddy Casey, had asked Ms Gallagher and Mr Cassidy to identify the specific charges against Ms Curran, Ms Curran herself spoke and, according to the notes, stated “I want to invoke the whistleblower legislation.” Subsequently Ms Curran received a copy of this Record of Proceedings and corrected this quotation in line with what she stated she had said which was “I have invoked the whistleblower legislation”.

30. Ms Gallagher made it clear that she had never heard of this legislation and had no idea what Ms Curran was talking about. Mr Cassidy was equally in the dark. Neither Ms Curran nor Mr Casey explained what Ms Curran meant by this statement or how she felt that it applied to her. When Ms Gallagher asked Ms Curran what she meant by invoking the whistleblower legislation Ms Curran advised Ms Gallagher that she should seek legal advice immediately.

31. The disciplinary meeting continued. During the course of it Ms Gallagher and Mr Cassidy canvassed each of the above charges with reference to specific events. The first charge discussed at the meeting was “unacceptable conduct” to which Ms Gallagher referenced an unprecedented high number of clients requesting their papers and either conducting their cases themselves or seeking alternative representation from other agencies. She also referenced a number of verbal complaints she had received, directly and indirectly, from clients complaining about treatment they had received from Ms Curran. Mr Cassidy indicated that there were at least 17 case withdrawals and other cases of reported complaints totalling 35 cases.

Other complaints against Ms Curran at this meeting included her failure properly to follow bureau protocols and specifically in relation to reporting for work. Mr Cassidy referenced an occasion when Ms Curran had gone directly to an appeal without first reporting to him for work. This had been an episode that Ms Curran acknowledged but had thought had been resolved some time before. When she expressed her confusion that this had been raised again Mr Cassidy stated that it was “just part of the bigger picture”.

Another complaint against Ms Curran was insubordination and undermining management, referenced by her having made a “grand-stand speech” which had slighted management and had suggested that management would act improperly to find fault with her work. Ms Gallagher stated at the meeting that Ms Curran’s behaviour had amounted to intimidation and harassment of management.

This allegation related to an incident that had occurred in the office on the 21 January 2009, after the invitation to the disciplinary meeting had been issued, when Ms Curran had noticed Mr Cassidy accessing some of her files. Ms Curran accepted that she had spoken to her colleagues and had stated that she believed that the respondent organisation which fought for the rights of others would now attempt to find flaws with her work. She denied stating this in any grand-stand way. Ms Curran accepted that Mr Cassidy had overheard her and had made a report of it and had asked her to put her complaint in writing, he said twice and she said once, but that she had not done so.

During the course of the disciplinary meeting Mr Cassidy said that, although the meeting had been set up initially to discuss Ms Curran’s conduct towards management and clients, his investigations into this had disclosed an altogether more serious matter which struck at the heart of the contract between the respondent organisation and Ms Curran and broke the necessary trust between them. This related to the charge against Ms Curran that she had illegally tampered with and altered files on the respondent organisation database, known as “CARMA”.

This charge related to Ms Curran’s dealing with a client known as WM. Ms Curran had seen him first on 23 September 2008 to interview him about his forthcoming appeal. She made notes of their discussion at the interview and typed them up the following day. The discussion between them included the presentation of his appeal but on the day of the appeal (30.9.09) Ms Curran stated that, while she had prepared relevant case law on the point in the appeal, WM had given evidence that undermined the success of the appeal. However although WM did not succeed in achieving the best outcome on appeal that had been looked for by Ms Curran he did retain the benefit he had originally had and was thus no worse off.

During the next few weeks WM tried several times to contact Ms Curran to discuss his appeal outcome and Ms Curran put him off until she eventually agreed to meet him on 30 October 2009. Ms Curran stated that she had been reluctant to meet WM again as she found it difficult to deal with his having lied at his appeal hearing. At this interview WM made it clear that he was unhappy with the outcome of his appeal and became aggressive. Ms Curran called on Mr Cassidy for assistance who, during his discussions with WM, appeared to Ms Curran to support her, for example by saying, as she stated, “…lying to one of my workers, I am not having that”.

Mr Cassidy disputed this version of events and denied that he had ever either called WM a liar or put to him that he might not have been telling the truth. Mr Cassidy also stated that Ms Curran had not raised this allegation during the disciplinary process. For Mr Cassidy the additional importance of this case example, over and above the client’s dissatisfaction with Ms Curran’s handling of his case, was that his investigations into it appeared to demonstrate that Ms Curran had “tampered” with WM’s file in such a way that brought the database file in line with advice Ms Curran stated she had given WM but only after WM’s complaint to the respondent organisation.

Ms Curran refuted the allegation that she had illegally tampered with the database. Ms Curran stated that she had not been trained in the use of the database and that she used it in the way that her other colleagues did.

At the conclusion of this disciplinary meeting Mr Casey asked if he could have details of the cases that had been referred to during the course of the meeting and copies of the documents on which Ms Gallagher and Mr Cassidy had relied.

Ms Gallagher said that Ms Curran would be provided with any documents she required and that she would also receive any technical help required in relation to the carma system. It was agreed to hold a further disciplinary meeting on Friday 13 February 2009.

The Whistle Blowing Claim

32. On receipt of a copy of the notes of this disciplinary meeting Ms Curran immediately wrote to Ms Gallagher to draw her attention to a correction she wished to make. Ms Curran asked for the notes to be amended to reflect that fact that her statement about Whistleblowing had actually been “I would like to inform you that I have invoked the Whistle Blower Legislation”. In a subsequent letter to Mr Cassidy dated 29 January 2009 Ms Curran wrote “I would like to follow up in writing my oral statement at the disciplinary meeting of 27 January 2009 that I had invoked the whistleblower legislation”. By letter dated 30 January 2009 Ms Gallagher wrote to Ms Curran and advised her that all disciplinary proceedings would be suspended until such times as the management committee could investigate why she had invoked the whistleblower legislation.

This letter also asked Ms Curran to confirm whether she intended to raise a grievance in respect of the whistleblower legislation. The letter went on to invite Ms Curran to attend a meeting with the management committee on 13 February 2009 in relation to her remark about the whistleblower legislation.

33. On 10 February Mr Cassidy wrote to Ms Curran in response to her letter to him of 20 January 2009 (re her contractual terms) and confirmed that a meeting would be held on 13 February 2009 at 3.40 pm.

34. Ms Curran replied to Ms Gallagher’s letter and advised her that her invitation to meet the management committee on 13 February at 10.00 am was not received by Ms Curran until 12 February and that this was unreasonable notice, she wanted an adjournment to give her time to prepare for the meeting and to seek appropriate representation.

A new hearing date was set for Friday 20 February at 11.00 am. However a meeting did take place on 16 February 2009 at which Ms Curran met Mr Gray, Mr McPearson and Ms Gallagher. This meeting dealt with the issues raised by Ms Curran in her letter of 20 January 2009.

On the same date, 16 February 2009, Ms Curran received a letter from Mr Gray stating the following “with respect to your letter of 20 January 2009 the panel have investigated the matters you raised, have taken legal advice and have concluded the following:

1. there are no changes to your contract that was issued to you in November 2009;

2. there were no unauthorised deductions from your wages; and

3. the contract is subject to funders not gender”.

35. On the same date Ms Curran replied stating that she did not accept the findings and that she considered Mr Gray’s investigation flawed with regard to the gender issue.

36. Also dated 16 February 2009 Mr Gray wrote again to Ms Curran in relation to her letter of 20 January 2009 and in particular to the allegation regarding the unlawful deduction of wages. Mr Gray stated that he had fully investigated the matter and had interviewed the staff involved and had taken legal opinion from the solicitors employed by CAB. Mr Gray went on to advise Ms Curran that the money taken from her wages in November 2008 had not been so taken illegally and that the local management staff had acted entirely correctly in paying her only statutory sick pay. Mr Gray added that due to the error CAB would not seek to recover the money.

37. Also on 16 February 2009 Ms Curran received a letter from Mr Cassidy advising her that the initial disciplinary hearing was 27 January that had been suspended and would continue on Monday 23 February 2009 at 12.00 noon.

38. The Tribunal heard from both Mr Gray and Mr McPherson in relation to their view of their meeting with Ms Curran. The Tribunal noted that prior to meeting her both men had thought Ms Curran’s whistleblower complaint was going to be an allegation of fraud or other offence on the part of management.

39. It was clear to the Tribunal that Mr Gray and Mr McPherson subsequently believed that the whistleblower complaint was Ms Curran’s grievance in relation to the change in her contract and the unlawful deduction of wages. This accorded with the evidence that Mr Gray’s investigations were into whether Ms Curran had been unlawfully underpaid for a period of sick leave in November 2008 and his conclusion that the latter payment of only SSP had been in line with her contract as amended by the directive from DSD. On reaching this conclusion Mr Gray’s investigations were over.

40. The notes of the meeting of 13 February 2009 demonstrated that although Ms Curran did not fully articulate her point they did record Ms Curran’s view that management was conducting an exercise in undermining and finding fault with her work and her behaviour and all this only after her remark to Ms Kyle. The notes recorded Ms Curran’s assertion that management’s attitude towards her had changed from having previously only praised her for her work prior to 14 January 2009 to conducting a “fishing expedition” to cast doubt on her ability to do her work after that date.

41. It appeared to the Tribunal that neither Mr Gray nor Mr McPherson appreciated fully that Ms Curran’s whistle blowing complaint was her allegation that the disciplinary charges and action brought against her had been so brought because she had “blown the whistle” to Ms Kyle when she had stated that it was unlawful the way management were trying to bring in changes to their contracts without consultation. There was no investigation into Ms Curran’s allegations that the management’s shift in attitude towards her had only occurred after 14 January 2009 and that all enquiries into her work were also after that date.

Ms Curran wrote to Mr Gray to this effect on 27 February 2009 who replied on 19 March 2009 confirming his original conclusions.

However Ms Curran’s allegations in relation to her allegation that the disciplinary charges were brought against her as the result of her alleged “whistle blowing” allegation were thoroughly considered by this Tribunal.

Ms Curran stated that she believed that Ms Gallagher and Mr Cassidy concocted the disciplinary charges against her and only began their investigations into her work after the 14 January 2009, when, as she believed, she had “blown the whistle” to Ms Kyle. Ms Curran stated that she felt supported in this view by the fact that she had received no complaints about her work before 20 January 2009 and that she had frequently received praise for her work before that date. Ms Curran stated that she felt further supported in this view by the fact that a number of examples of her behaviour, used against her in the disciplinary process, had occurred after the disciplinary process had begun.

Ms Gallagher and Mr Cassidy gave evidence that they had become concerned about Ms Curran’s ability to do her work when they began receiving complaints about her from clients from late September 2009. Ms Gallagher stated that it was also at about this time that she began to have concerns about Ms Curran’s attitude and demeanour towards Ms Kyle and Mr Cassidy.

Ms Gallagher stated that she spoken to Ms Curran about her concerns about her work and in particular about client management on three separate occasions during October 2008. Ms Gallagher accepted that these had consisted of informal chats, usually on the smoke break, when she had sought to impress on Ms Curran the value of Ms Gallagher’s own motto, “clients first and always”. Ms Gallagher accepted that she did not put to Ms Curran any specific complaints she had received and that she had not recorded or taken a note of these chats.

Ms Curran denied that Ms Gallagher had spoken to her on any such occasion or had spoken to her in any way in relation to client management. Ms Curran did accept that she was aware of Ms Gallagher’s motto as it was one that Ms Gallagher used from time to time.

Ms Gallagher stated that due to her high level of anxiety about Ms Curran’s treatment of clients and the numbers who were moving to other agencies for representation she commissioned Mr Cassidy, from in or about October 2008, to conduct an ongoing audit into Ms Curran’s work.

It was during the course of this audit that Mr Cassidy identified 35 cases which he believed demonstrated Ms Curran’s poor client and case management. Mr Cassidy also believed that he uncovered an occasion where Ms Curran had tampered with the database in relation to the client, WM.

The Tribunal found that Ms Kyle’s diary note was consistent with Ms Kyle’s recollection the exchange between herself and Ms Curran’s remark, which was an agreement by Ms Curran the Ms Kyle’s assumption that Ms Curran would not be signing the contract as she wanted to look at the SSP clause. This evidence satisfied the Tribunal that Ms Curran had not made the remark as she had claimed.

Further and in the alternative, the Tribunal did not accept Ms Curran’s view that Ms Gallagher and Mr Cassidy had concocted the disciplinary charges against her or that they had begun to do so only after 14 January 2009, or after her alleged “whistle blowing” remark on that date. In reaching this conclusion the Tribunal did not accept that, between 14 January 2009 and 21 January, —the first proposed date for the disciplinary meeting— Ms Gallagher and/or Mr Cassidy would have had sufficient time to amass the amount and detail of the charges brought against Ms Curran.

Nor did the Tribunal accept that there was even sufficient time between 14 January 2009 and 27 January, the date of the actual disciplinary meeting, to conduct such a thorough an investigation as into the case example of WM and the tampering of the database.

The Tribunal accepted that Ms Gallagher probably did speak to Ms Curran as she described, at the smoke breaks, but the Tribunal also concluded that Ms Curran may not have appreciated that they were arising out of Ms Gallagher’s specific concerns in relation to Ms Curran’s own work. The Tribunal concluded that they did not amount to any kind of informal warnings about Ms Curran’s performance at work.

The Tribunal also considered that Ms Curran’s claim was predicated on there being a conspiracy between Ms Gallagher and Mr Cassidy that would have had to have begun some time around 14 January 2009 and continued not only throughout the course of the disciplinary process but throughout the preparation for and at this hearing. The Tribunal did not accept that this had been the case.

The Tribunal did accept that there were a number of instances of Ms Curran’s behaviour on which the respondents relied to conclude that Ms Curran should be dismissed which post-dated the commencement of the disciplinary process. However these episodes fell to be dealt with as they occurred in that timeframe but were not the only bases for the disciplinary charges. Ms Curran was given proper opportunities to answer these allegations in that process and on appeal.

The Disciplinary Meeting Resumed 25 February 2009

42. The disciplinary meeting resumed on 25 February 2009. At the outset of this meeting there was a discussion around a possible non confrontational solution to the issues but Mr Cassidy suggested that any resolution would require Ms Curran to admit that she had tampered with the database. The meeting continued without any such resolution.

During this meeting a heated argument developed between Mr Cassidy and Ms Curran in relation to preparation notes that Ms Curran had taken at her preparation interview with WM. At one point during this meeting all those present adjourned from the meeting room to Ms Curran’s computer where she retrieved a document demonstrating that she had notes of that meeting.

These typed notes were not the handwritten notes of that interview. However Mr Cassidy was anxious to see the handwritten notes as they would have recorded the decisions taken by Ms Curran in discussion with the client WM as to how his appeal would be conducted and would help him thereby establish the truth of the client’s allegation that Ms Curran had conducted his appeal contrary to their initial discussion.

No handwritten notes were ever produced even though Ms Curran told the Tribunal that her practice was to take handwritten notes and then to type them up afterwards.

43. At this meeting Ms Gallagher gave Ms Curran the opportunity to discuss each one of the 35 cases that made up the charges of client mismanagement and the increase in withdrawals from the Bureau. This process took so long that the meeting was adjourned. It resumed on 11 March 2009. Prior to this continuation meeting Ms Curran received a letter inviting her to it and it set out the same four charges as they had been put in the note Mr Cassidy had prepared on 26 January but not given to Ms Curran.

Disciplinary Meeting on 11 March 2009

This meeting continued with the discussion about the 35 cases identified by management as being of concern. At then end of this exercise, and in defence of the decisions she had taken not to represent some clients, Ms Curran stated that she felt that she had the right to refuse to represent clients who came within the remit of an agreement she and Mr O’Farrell had drafted. This agreement amounted to a strategy whereby only cases with a reasonable chance of succeeding would get assistance. Ms Curran stated that she felt that she was now coming under adverse management scrutiny for implementing this strategy, even though management had signed up to this agreement too.

Ms Gallagher stated that she accepted Ms Curran’s point on this but indicated that the respondent organisation’s main policy was client first and always. Mr Cassidy accepted in his evidence that he had not appreciated that Ms Curran and Mr O’Farrell had been following this policy but he did not accept that this was the explanation for the complaints they had received about Ms Curran’s client mismanagement.

At the end of this meeting Ms Curran was suspended on full pay.

Subsequent to this meeting Ms Gallagher investigated a number of issues that had arisen between Ms Curran and Ms Cassidy in the interim period between the disciplinary meeting on 25 February and the continuation meeting on 11 March 2009. These included an episode where Ms Curran found a folder with WM’s handwritten case notes in it. The folder was not one of Ms Curran’s usual appeal files and she accused Mr Cassidy of having “made up” the file.

Mr Cassidy refuted this allegation and described in full the incident where this had arisen. Ms Curran had spoken to Mr Cassidy in a loud and sarcastic tone of voice and had suggested that as well as putting a new sleeve on the file that Mr Cassidy had removed some parts of it. Ms Curran noticed that some files had been taken out of the cabinet and had gone on to remark, again in loud and sarcastic tone, “let’s hope that they don’t go missing as well?”

Ms Gallagher accepted Mr Cassidy’s account of the incident and having concluded her investigations issued a letter of dismissal dated 24 March 2009. The letter advised Ms Curran that she had been dismissed on the grounds of gross misconduct and that the charges against her had been proven.

Prior to the Appeal

44. Ms Curran appealed against this dismissal. The appeal hearing was on 9 April 2009. Prior to this meeting Ms Curran sent a letter, dated 8 April 2009, with a number of requests for information to assist her to conduct her appeal. The copy of this letter provided by the respondents contained a list of 10 items requested. Ms Curran produced a copy with a list of twelve items requested.

During the disciplinary process and before her appeal hearing Ms Curran went to some lengths to establish the fact that the respondents had tampered with her letter, leaving off the last two items. Ms Curran contacted Royal Mail to seek an explanation for the fact that, having sent it by recorded delivery, it had not been signed for. Royal Mail investigated the matter and concluded that the letter had not been sent by recorded delivery, although Ms Curran stated that she had specifically done so.

However a further document was produced at this hearing which appeared to be Ms Curran’s original letter and it had only ten items on it. Accordingly the Tribunal accepted that the respondents had not tampered with the letter. However the Tribunal noted that the two items that had allegedly been left off the letter were requests for Ms Curran’s diary and her sick absence record. As other documents indicated that Ms Curran had previously requested these items the Tribunal could not understand the significance of Ms Curran’s allegation that the respondents had removed these requests from the letter, except to create a suggestion of a further conspiracy against her which the Tribunal did not accept.

The Tribunal was appraised, at some length, of the dispute between Ms Curran and Mr Cassidy about who had Ms Curran’s original diary — Ms Curran had only copies of her diary. Mr Cassidy maintained that he had returned Ms Curran’s diary to her but that she had thereafter refused to give it back to him. Ms Curran stated that she did not have her original diary but only had copies of some of its pages.

Ms Curran explained this to the Tribunal by stating that she had a practice of photocopying her diary on a Monday and adding to it thereafter during the week. However Ms Curran could not account for the fact that her copies were not complete, saying that she must have lost a few pages. Mr Cassidy stated that his desk had been right beside the photocopier and that he had never seen Ms Curran photocopy her diary as stated.

The Tribunal did not ever see the original diary. Its value in the case was limited in that the issues on which recordings in it might have thrown light were few. The main issue in relation to it was that Ms Curran’s case success rate was higher than the respondents’ view of it but this point had been conceded by the respondents at the appeal and formed no basis of Ms Curran’s dismissal.

Ms Curran was advised by Mr Casey that the appeal panel comprised Mr Gray and Mr McPherson. Ms Curran objected to Mr McPherson’s sitting on the panel as he had heard the “whistle blowing” grievances. Mr McPherson advised Mr Casey that he had tried to get other members of the management committee to sit on the panel but no one had come forward.

Ms Curran asked the respondents for written proof of this and for copies of letters from committee members refusing to be on the panel. However no such letters existed as Mr McPherson stated that he had made the request at the end of a committee meeting. Ms Curran called Mr Breslin, a member of the management committee, who stated that he did not recall Mr McPherson asking if any one would like to sit on the appeal panel. However it was put to Mr Breslin that he had left the meeting early although there was no reference to his having done so in the minutes.

The respondents called another committee member, Mr Doran, who did recall Mr McPherson asking for committee members to come forward for the appeal panel. Mr Doran could not remember the date of the meeting at which this was said. He stated that no one had put themselves forward.

The Appeal Hearing

The appeal was conducted by Mr Gray and Mr McPherson on 20 May 2009. They heard submissions from both Ms Curran and management.

The appeal panel found all of the charges against Ms Curran to have been proven but reduced the sanction against some of the charges from dismissal to final written warning. The appeal panel also accepted Ms Curran’s case success rate figures as against Mr Cassidy’s calculations.

The appeal panel upheld the charge in relation to Ms Curran’s illegally tampering with and altering the database records and upheld the sanction of dismissal in relation to this charge.

The appeal panel also concluded that Ms Curran’s allegation that the respondents had tampered with her letter to them requesting ten items of information to help her prepare for the appeal was a very serious allegation that cast a serious doubt in the appeal panel’s minds as to Ms Curran’s creditability.

The Law

45. Ms Curran brought two claims for unfair dismissal, one that she had been unfairly dismissed under the Employment Rights Northern Ireland Order 1996 and one because she had been unfairly dismissed under the Public Interest Disclosure (Northern Ireland) Order 1998.

Protected Disclosures

The Public Interest Disclosure (Northern Ireland) Order 1998 amends the Employment Rights Order Northern Ireland 1996 to include new employment protection for employees who make “protected disclosures” to provide the following:

(1) A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that the worker has made a “protected disclosure”.

(2) Meaning of “protected disclosure” Article 67A of the Employment Rights Northern Ireland Order 1996 provides – “a protected disclosure means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of the Articles 67A to 67H”.

(3) Disclosures qualifying for protection, at Article 67B – means “any disclosure of information which, in the reasonable belief that the worker is making the disclosure, tends to show one or more of the following -

a. that a criminal offence is being committed or is likely to be committed;

b. that a person has failed, is failing or is likely to fail to comply with any legal obligations to which he is subject;

c. that a miscarriage of justice has occurred, is occurring or is likely to occur;

d. that the health and safety of any individual is being or is likely to be endangered and;

e. that the environment has been, is being or is likely to be damaged;

f. that information tending to show that any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(4) A qualifying disclosure is made in accordance with this Article if the worker makes a disclosure in good faith – (1) to his employer or (2) where the worker reasonably believes that the relevant failure relates solely or mainly to the conduct of a person other than his employer or ii. any other matter for which a person other than his employer has legal responsibility to that person.

Unfair Dismissal

The Employment Rights (Northern Ireland) Order 1996 provides at Article 126,

Paragraph 1:-

“An employee has the right not to be unfairly dismissed by his employers.”

The Order goes on to state at Article 127, Paragraph 1(C):-

“For the purpose of this Part if the employee is dismissed by his employer if and subject to Paragraph 2 and Article 128 and only if –

(a) the contract under which he is employed is terminated by the employer (whether with or without notice).”

Article 130 of the Order goes on to state that:-

“(1) In determining ... whether the dismissal of an employee is fair or unfair it is for the employer to show –

(a) the reason or if more than one (the principle reason for the dismissal); and

(b) that it is either a reason falling within Paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

Case Law

46. The Tribunal was referred to and considered the following case law:-

Iceland Frozen Foods Limited v Jones 1993 ICR 17,

Sainsburys Supermarkets Limited v HITT 2003 IRLR 23,

British Homes Stores Limited v Burchill 1978 IRLR 379 EAT,

Darnton v University of Surrey 2003 IRLR 133 EAT,

Streat v Derbyshire Unemployed Workers Centre 2004 IRLR 687,

Highel London Borough v Knight 2003 IRLR 140 EAT,

Parksons v Sodexho Limited 2002 IRLR 109.

Logan v South Eastern Health and Social Care Trust 2009 NICA 47

Babula v Waltham Forest College 2007 IRLR 346.

The case law states that in order for a claimant to avail of the protection of automatic unfair dismissal in respect of a protect disclosure a tribunal has to make three key findings. The first is whether or not the employee believes that the information he/she is disclosing meets the criteria set out in one or more of the
sub-sections of the legislation. The second is to decide objectively whether or not that belief is reasonable. The third is to decide whether or not the disclosure is made in good faith.

The Tribunal’s Conclusions

The Protected Disclosure

47. The Tribunal did not accept that Ms Curran’s remark made on 14 January 2009 amounted to a protected disclosure in that the Tribunal did not accept that Ms Curran had made the remark she claimed to have made. The Tribunal accepted Ms Kyle’s version of the exchange between Ms Curran and herself and as such the remark, an agreement that she would not be signing the contract, that she wanted to look at the SSP form again, could and did not, in the view of this Tribunal, amount to a disclosure under the relevant legislation.

However, and in the alternative, if this Tribunal is not correct in reaching this finding of fact the Tribunal also considered the position as if the remark made was as claimed by Ms Curran. The Tribunal concluded that Ms Curran did not establish the fact that she had reasonable belief for her remark, that the respondents had failed, were failing or were likely to fail to comply with any legal obligations to which they were subject.

Ms Curran was a tribunal representative by profession with experience of the law, legal language and a good understanding of most legal concepts. To qualify for the legal protections under the Protected Disclosure legislation Ms Curran was required to have a reasonable belief – based on, for example, an ignorance of the law, an ignorance of the situation in which the DSD directive had placed the respondents --- or on evidence, or a reasonable belief based on an interpretation, even if mistaken, of evidence, that the act done, being done or being contemplated was unlawful.

In the circumstances of this case Ms Curran was fully aware of the situation in relation to the need for the new contracts and had even witnessed the same situation unfold in her previous job. Ms Curran was aware of the external pressure and requirement on the respondents to bring those contracts funded by DSD into line with that Department’s directive.

Ms Curran’s remark as claimed made reference to the respondents “not following the correct procedures to do so.” However the evidence as accepted by all parties was that the respondents had given the affected employees the new contracts to consider and sign during a period of some weeks during which time there were no individual or collective objections raised. Therefore, in the view of the Tribunal, Ms Curran could not sustain the contention that she had any such reasonable belief.

Additionally, to satisfy the legal requirements under the Protected Disclosure legislation, a disclosure needs to have been made “in good faith”. Ms Curran’s remark, if made as claimed, was not a genuine attempt by Ms Curran to clarify the position as she had not made any prior query into the matter nor did she make any immediate and proper follow-up.

The Tribunal also took account of the fact that Ms Curran sought to have the notes of the first disciplinary meeting amended to alter her recorded remark from “I want to invoke the whistle-blower legislation” to read “I have invoked the whistle-blower legislation”. The Tribunal concluded that Ms Curran was fully aware of the importance of this change as she wanted the legal protections under the legislation to flow from the date of the exchange between herself and Ms Kyle and thereby pre-date the start of the disciplinary proceedings against her.

In the Tribunal’s view both variations of the phrase would have been sufficient to have given an employee protection under the legislation, if a protected disclosure had been made, however the Tribunal concluded that Ms Curran overplayed her hand and was seeking to ensure the whistle-blowing defence would be operative since before the disciplinary process began. The Tribunal concluded that this demonstrated that Ms Curran sought to use the whistle-blowing defence with more than a degree of calculation.

Accordingly the Tribunal unanimously concluded that the claimant’s claim of unfair dismissal for making a protected disclosure fails.

Unfair Dismissal

48. The law on the Tribunal’s role in unfair dismissal cases is very clear. Having established that the employer had a reasonable belief, at the relevant time, in the guilt of the employee of the misconduct as charged and that the employer has conducted a reasonable investigation and that the employer’s response is within the band of reasonable responses the Tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view of any of this.

Reasonable Belief of the Guilt of Ms Curran as charged and the reasonableness of the Investigation.

The Tribunal discarded the contention that management had concocted the disciplinary charges against Ms Curran in response to her having made a protected disclosure. In reaching this conclusion the Tribunal noted that there was no evidence to suggest that Ms Gallagher, Mr Cassidy and Ms Kyle had colluded together and conspired against Ms Curran to produce false disciplinary charges against her. In order for this plan to succeed the conspiracy would have to have extended to their giving false evidence to this Tribunal and having had the benefit of observing the demeanour of all three witnesses the Tribunal concluded that this was not the case.

Further the Tribunal also accepted that management did begin to have anxieties about Ms Curran’s attitude to clients and her work as early as late September 2008 and accepted Mr Cassidy’s evidence that his investigation into Ms Curran’s work pre-dated either 14 January 2009 or 20 January 2009. The Tribunal accepted that both Mr Cassidy and Ms Gallagher had received complaints against Ms Curran some time in October 2008 which when investigated were borne out by other clients.

The Tribunal also accepted that Mr Cassidy had a reasonable belief that Ms Curran had illegally tampered with the database. The evidence indicated that Mr Cassidy had made a significant and thorough investigation into the matter and demonstrated with reference to the CARMA database screen print-offs that Ms Curran had at the very least altered or amended or even updated the database in relation to the case of WM. Mr Cassidy reached the reasonable conclusion that Ms Curran had illegally tampered with the database in light of this evidence and of the significance of Ms Curran’s timing in doing so, that is to say immediately after WM complaint about her.

Further the Tribunal accepted that the management also properly investigated the other charges against Ms Curran, for example the insubordination and disrespect of management and the failure to adhere to protocols. In one instance Ms Curran accepted her own behaviour even though she had thought the discussion about it at the time had dealt with the matter.

The Tribunal noted that while the disciplinary meetings did deal with a number of examples of Ms Curran’s behaviour that had not occurred before the formal charges were preferred, the Tribunal accepted that the events had occurred during the course of the disciplinary process. The Tribunal accepted that the respondents were correct in dealing with these as they arose and noted that Ms Curran was given proper opportunity to respond.

The Reasonableness of the Sanction

In considering whether the sanction of dismissal in this case came “within the band of reasonable responses” the Tribunal acknowledged that this phrase offered a wide scope to employers to claim that the sanction imposed should be untougched. However in this case the Tribunal concluded without hesitation that the dismissal of Ms Curran in the circumstances of this case as found was well within that band.

Accordingly the Tribunal unanimously concluded that Ms Curran’s claim for unfair dismissal fails.

Chairman:

Date and place of hearing: 10-14 May 2010, Limavady and 17-18 May,
20-21 May and 24-25 May 2010, Coleraine.

Date decision recorded in register and issued to parties: