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Posted by: John Brace | 13th February 2017

Monkey Island has one secret but how many has Wirral Council?

Monkey Island has one secret but how many has Wirral Council?

                                        

Monkey Island was a video game from my childhood which perhaps I played too much.

Monkey Island has but one secret but how many has Wirral Council?

Monkey Island has but one secret but how many has Wirral Council?

However, this Employment Tribunal over the last fortnight followed the misadventures of Alison Mountney as she struggled to defeat the plans of Graham Burgess and his motley crew and win the heart of Simon Mountney. This involved the mysterious Wirral Council and its impenetrable secrets!

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Employment Tribunal (Alison Mountney v Wirral Council) Day 10 of 10: Judgement

                                

Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for Employment Tribunal case 2400718/16)

Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for Employment Tribunal case 2400718/16)

This is a report of a very small part of an Employment Tribunal hearing I attended (the judgement). By this point the matter had already been heard over 9 days and this was day 10 of 10. Brief details are below.

Venue: Tribunal Room 2, Third Floor, Liverpool Civil and Family Court Hearing Centre, 35 Vernon Street, Liverpool, Merseyside, L2 2BX

Case reference: 2400718/16

Appellant: Mrs A. Mountney

Respondent: Wirral Metropolitan Borough Council

Employment Judge: Judge Robinson

Tribunal Members:
Mr AG Barker
Mrs JE Williams

Clerk: Lynne Quilty

Date: 10.2.2017

Time: 3.18 pm


EJ Robinson asked everybody to sit down and apologised for keeping people waiting for so long. The judgement was unanimous.

He said he would take his time to go through slowly at dictation speed, so that a full note could be taken. No reasons would be included in the written version unless requested. He noticed Alison Mountney was not there and asked if she was in the building to which Simon Mountney answered no.

EJ Robinson said he had to deliver the judgement and that he would go straight to it. Employment Tribunal proceedings were issued on the 17th March, another relevant date was on a form which was the 19th January 2016 and this had been signed in February 2016.

These were the original dates for the Tribunal. The Tribunal had accepted the claims were difficult but would be referring to the Respondent’s list of issues and the Scott Schedule.

Claims were also made in the witness statements as well as other issues, but the Tribunal would only deal with those issues that were brought to their attention in the ET1 form.

Anything after the 17th March 2016 was not considered as part of the claim. EJ Robinson said he felt it was necessary to state what this claim was not about.

It was not about unfair dismissal (as Alison Mountney still retained her job). He hoped all parties would move on regarding the upset to Wirral Borough Council and Alison Mountney, the upset to the Claimant (Alison Mountney) and the stress to witnesses regarding the nature of the allegations.

It was not a personal injury claim, Mr Moore (Wirral Council’s representative) had said Wirral Council had learned from their mistakes. It was not about injury and whether the Respondent (Wirral Council) had caused stress and depression, there was no claim against a trade union, trade union officer or any trade union in Wirral Borough Council (and a trade union or officer was not a party). This was despite some evidence that Alison Mountney was unhappy.

It was not part of the Tribunal’s remit to investigate fraud, the Tribunal was not suggesting that and don’t know. There was no relevance to the issues they had dealt with. Fairness and reasonableness only mattered if Wirral Council was in breach of employment law.

Mentioning whistleblowing and disability discrimination, he said this was not a criticism of Simon Mountney, but when he was asking what is fair or reasonable that was not what the hearing was about, but only would be if there was unfair dismissal.

Moving on to jurisdiction, the Tribunal have found the canvassing issue meant that either at the end of December 2011 or in 2012 that Alison Mountney had told Kate Robinson of her suspicions that more money had been paid than should have been, then Kate Robinson told Surjit Tour but nothing was ever done.

In relation to alleged breaches relating to the Police and Crime Commissioner election, it was not accepted that Lesley Hales was informed in July 2013. This would not have been protected as the status of Lesley Hales at the time was accepted. The Tribunal accepted the evidence that if Lesley Hales had been told she would’ve done something.

Whether the Claimant (Alison Mountney) raised it again it wasn’t under the whistleblowing procedure, but she became a whistleblower about the Police and Crime Commissioner election on the 9th November 2015, when she told her concerns to David Armstrong and Joe Blott.

The Tribunal accepted that Surjit Tour and Kate Robinson did not hear until after, Kate Robinson after March 2015 to early summer, as Kate Robinson thought it was against Graham Burgess about payments.

Moving to actions after February 2015, it was clear that another similar accusation had been dealt with appropriately and the payments reduced.

The earlier allegations had been lost in the ether, with no conscious wrongdoing. It was important to state that if an issue about Bradfield was followed up with Kate Robinson or Surjit Tour, that the Claimant was capable and intelligent enough to do so and despite the fact the complaint was made in December 2012, EJ Robinson made it clear that Bradfield was employed again. The Claimant decided to take Bradfield on despite the allegation.

This allegation seemed to take on an importance out of proportion. Had the Claimant really been conscious of the allegation, she would not have allowed Bradfield as a canvasser.

The Tribunal accepted the Claimant was disabled, suffered from depression, stress and anxiety. When she became disabled and when her employer had known she was disabled, she did go to Occupational Health in April 2013, but did not give permission to release the Occupational Health report to the Respondent (Wirral Council).

The Tribunal felt it was disingenuous not to release it to Surjit Tour. Referring to the letter dated 16th January 2014, in page 445 of the bundle, Kate Robinson was on notice that Alison Mountney could well be disabled.

Alison Mountney’s had an absence for surgery. It was clear in the letter that she was stressed over a work issue, there was poor health with the [Amanda] “Mandy” Gorman grievance hearing hanging over her head, there was no stress assessment or return to work interview.

EJ Robinson said this was remiss of Kate Robinson as she might have discovered what she should have known at that point otherwise.

When she returned, there was a reasonable adjustment of a phased return, although this was not understood as a reasonable adjustment. The Tribunal didn’t know what the PCP (provision, criteria or practice) claims were that put the Claimant at a disadvantage as this would need a reasonable adjustment.

The Tribunal had decided that all claims were in time as they were one piece, one story and it was not practical to bring the claim until the detriment and explained the history.

Exercising the Tribunal’s discretion to extend the time, all disability discrimination claims were included, the whistleblowing claims were not practical until August 2015.

Having cleared the board with the initial decisions, EJ Robinson went through the items in the Scott Schedule.

Item 1 about the particulars of employment had been provided on the 15th October 2010, if the role had been altered it had been made clear what they were therefore the employer was not in breach as she has her statement of employment.

Item 2, it was accepted it was a protected disclosure so there was no need to say more.

Item 3, EJ Robinson said it was incorrect the claim made about Surjit Tour.

Item 4, her substantive role was scrutiny officer, she was helping out in Electoral Services, there was no pressure to return and if she did have difficulties she never made clear what these were, kept her cards close to her chest with no explanation.

Item 5, there was no evidence it had exacerbated her stress, she was frustrated by poor management, left in limbo for two and half years, but her position in limbo was not to do with her status as a whistleblower.

It had been agreed by Surjit Tour that she could join her friend Bramhall, there was misgivings by the trade union that three people had been slotted in without process being followed regarding the unions. Surjit Tour was doing her a favour because she was unhappy at Committee Services and helped her move to Electoral Services.

Item 6, the finding was he (Surjit Tour) did not refuse her request to occupational health. Fiona Johnstone was technically her line manager, Upton had said Surjit Tour was 100% right to do that, therefore there was no issue.

Item 7, there was no insistence she go back to scrutiny, but only ad hoc while helping out Kate Robinson’s team as there was very little work in her [Alison Mountney’s] substantive post.

Item 8 there was no issue with Lesley Hales.

Item 9 she did not raise the PCC issue in July 2013, so Kate Robinson only knew in March 2015.

Item 10, on the 4th July 2013 a meeting at which she was happy took place and a meeting on the 9th July 2013. These were both to tell her about her substantive role and the downgrade to F grade, which was part of Fiona Johnstone’s restructure of scrutiny and the way scrutiny was done. She [Alison Mountney] was never slotted into the vacant H grade. David Davies was deputy when Kate Robinson was absent was ill-health. The position had to be job evaluated otherwise the trade unions would be unhappy. The difference was that David Davies and Bramhall in Electoral Services had substantive posts.

Surjit Tour did not deal with the job evaluation, the remodelling was right in the autumn, delayed from July 2013 to the autumn. All departments were looked at and Upton accepted that the job had to go. It was accepted when there was job evaluation, grades can go up or down, but this was nothing to do with whistleblowing or disability, just due and proper process at Wirral Council.

Item 11, the chat with Joe Blott was informal, positive and he thought her coherent. The discussion between Alison Mountney and Chris Hyams was about her role in the Council and her demeanour did not show she was afraid. Alison Mountney was no backward in coming forward with her grievance or point of view, she had not told Joe Blott she was bullied, the Mandy Gorman grievance implicated Alison Mountney but was dealt with as quickly as possible. Surjit Tour told it was dealt with despite the election. It was a sensitive issue and imagine what Many Gorman would’ve said if she was told Alison Mountney couldn’t be interviewed because she was working? There was a complaint about a delay in the process and her work on the election. However the delay was the same for David Davies and Bramhall, so Alison Mountney wasn’t being treated differently because she was disabled or had blown the whistle. It was not a reasonable adjustment to delay the Gorman grievance. It needed to be completed and not be hanging over.

Item 12, yes it was said, but it was an opinion to allay fears with the best of intention. It was not connected to the whistleblowing.

Item 13, there was an unfortunate delay, but everybody suffered delay and it was not connected to whistleblowing or disability, Joe Blott felt it was better to get right rather than be rushed.

Item 14, she was told the H grade position was deleted. Surjit Tour’s preliminary decision was to decide with KR’s advice that it was a F grade, but once it went through job evaluation it was found to be a F grade which was nothing to do with whistleblowing or disability.

Item 15, Upton gives up on Surjit Tour and Alison Mountney having a meaningful relationship. The issue of the permanent and substantial role after two years, it was a role Surjit Tour only said was a starting point, she had an opportunity to put her case, it was not Surjit Tour or Kate Robinson, it was the job evaluator’s decision therefore not a sham or orchestrated by Surjit Tour.

Item 16, on the other hand, she cannot consult Surjit Tour and on the other hand she did not correspond following the meeting. The rationale was explained and there was a preliminary assessment, the trade union consulted with the Claimant who was given a job description. This was not connected to whistleblowing or disability, there was no reasonable adjustment and no different position regarding the remodelling or restructure.

Item 17, Kate Robinson and Alison Mountney were friends and smoked together. They could talk in January 2010, there was an off the cuff discussion between Alison Mountney and Bramhall about Kate Robinson’s vision, but it was accepted that Kate Robinson had not given extra work once Alison Mountney had aired her objection. Kate Robinson had capitulated and there was no detriment.

Item 18, Kate Robinson did have issues with lateness, there was evidence that Alison Mountney had childcare responsibilities and was taking children to school. Kate Robinson felt Alison Mountney was taking advantage and spoke with her privately. Alison Mountney may have been upset, the Tribunal found that Kate Robinson mentioned this in front of other staff which was poor practice but not to do with her whistleblower status. Kate Robinson’s frustration was that she was taking advantage of flexitime and not to do with disability or whistleblowing. It seems Kate Robinson was frustrated with Alison Mountney being in work at the last-minute, but there was no evidence Alison Mountney breached the policy, therefore Alison Mountney may be right to be upset with Kate Robinson. Kate Robinson was a stickler for getting to work on time and expected others to follow suit.

Item 19, the Tribunal found she had no status regarding whistleblowing.

Item 20, the job share was a non-starter. It was suggested a job share. Both were working 21 hours, to share a job of 37 hours, she asked them to agree a reduction in hours, they had never got back to Kate Robinson, regarding a job share of the H grade full-time post. Kate Robinson had been open if they had come up with a proposal.

Item 21, as there had been no cross-examination of Kate Robinson on this point, the Tribunal felt it would be silly to comment.

Item 22, the Tribunal had listened to Joe Blott and did not accept he was nasty, he did tell her off for language used to his personal assistant, the meeting was one hour and thirty-five minutes so he had a proper open door policy for someone as senior as Joe Blott. Joe Blott found her happy with no impression she had little regard for her managers, she requested no reasonable adjustments.

Item 23, there was no request to amend the absence management process, which was sympathetic and Upton made no request to change it on her behalf.

Item 24, Joe Blott gave no assurance that she would not be downgraded, she was not trying to get out of Electoral Services, which was busy, she wanted matters crystallised and cemented into a proper post, the downgrading had been through a proper process which was not to do with whistleblowing or disability, any employee would be treated the same way, being downgraded led to Alison Mountney being upset and frustrated.

Item 25, Alison Mountney may have been upset, but thought better of it and did more, her husband and union representative made representations that to delay was wrong. Any employee would be treated in the same way, it was not a reasonable adjustment, but Wirral Council were prepared to let her appeal her dismissal, under protest she accepted the F grade post which was not a reasonable adjustment. Wirral Council was under pressure to save money and to treat her differently would be unfair to other staff.

Item 26, the Job Blott email of the 12th October 2015 was a clear email, all issues were dealt with and she was back in work, better after being off ill. It was appropriate for her manager despite the whistleblowing being still outstanding, her treatment was nothing to do with whistleblowing or disability so there was no detriment.

Item 27, the Tribunal did not accept that Joe Blott was rude or angry or that he had not treated her in an appropriate manner.

Item 28, the letter terminating her employment she did not respond to. She was ill, but the union and Simon Mountney who was extremely supportive could’ve sent a letter on her behalf in reply (although the Tribunal realises she may have hid his from her husband). Alison Mountney accepted the grade F post, so the appeal regarding her dismissal stopped. There was no connection to her whistleblowing or disability. If her employer (Wirral Council) had wanted her out of their hair Wirral Council could’ve enforced the termination. However she was allowed to late in time accepted the F grade post, which was not the actions of an employer out to get Alison Mountney.

Item 29, it was accepted that this was no way connected to whistleblowing or disability, but had to be dealt with.

Item 30, this was hardly touched over eight days, on the 15th December 2015 Kate Robinson had sent out a standard letter. This had been sent to many employees so there was no detriment. It was a reasonable letter and Kate Robinson had no idea she didn’t want to be contacted, it was therefore not harassment but a straightforward letter.

Item 31, the Tribunal did not accept Joe Blott said she was “not a whistleblower”. Joe Blott denied this and had made no such remark.

Item 32, the discussions between Joe Blott and Simon Mountney were not a detriment. Simon Mountney and Joe Blott came across as reasonable, amicable, thoughtful and trying to help everybody. There was therefore no detriment.

Item 33, Simon Mountney was allowed as a filter, there had been concerns about data protection, but following solicitor’s advice communication through Simon Mountney was a reasonable approach. It was not the wrong way to be strict about data protection.

These findings were in favour of the Respondent (Wirral Council). The Tribunal preferred the evidence of the Respondent’s (Wirral Council) witnesses.

The Claimant had a conspiracy warped view, which poor management had fuelled. However the Tribunal don’t criticise the Claimant’s position.

On cross-examination the Claimant’s witnesses had rowed back from some of the bald statements in their witness statements as they had wished to help the Claimant.

Martin Morton, David Davies and Bramhall had their own reasons to think badly of the Respondent (Wirral Council) and did not see the whole picture. Hearsay from the Claimant (Alison Mountney) had been included.

When cross-checked against documents this evidence had been less reliable, whereas the Respondent’s (Wirral Council) witnesses had been measured. Surjit Tour and Kate Robinson had been put under pressure by the claims, but had been as accurate as possible.

Put together collectively, the Tribunal came to the conclusion that all claims of the Claimant (Alison Mountney) were dismissed. This was the end of the judgement. He thanked people for their patience, a written decision would be sent out in due course. He thanked Simon Mountney and Mr Moore who had been exemplary.

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Posted by: John Brace | 8th February 2017

Employment Tribunal Day 8 of 10: Employment Judge Robinson ruling

Employment Tribunal Day 8 of 10: Employment Judge Robinson ruling

                                

Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for First-Tier Tribunal case EA/2016/0033)

Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for First-Tier Tribunal case EA/2016/0033)

This is a report of a very small part of an Employment Tribunal hearing I attended, my interest in this part is mentioned in the text below. By this point the matter had already been part heard over 7 days and this was day 8 of 10. Brief details are below.

Venue: Tribunal Room 2, Third Floor, Liverpool Civil and Family Court Hearing Centre, 35 Vernon Street, Liverpool, Merseyside, L2 2BX

Case reference: 2400718/16

Appellant: Mrs A. Mountney

Respondent: Wirral Metropolitan Borough Council

Employment Judge: Judge Robinson

Tribunal Members:
Mr AG Barker
Mrs JE Williams

Clerk: Lynne Quilty

Date: 6.2.2017

Time: 10.00 am


After understanding there were three bundles and about a dozen witness statements, I wrote a letter to EJ Robinson which I handed in this morning of the 8th February 2017 before the Employment Tribunal resumed. In my letter I referred to [2012] 3 All ER 551 which was a judicial review by The Queen on the application of Guardian News and Media Limited decided in the Court of Appeal (therefore binding on the Employment Tribunal). The appeal (overturning the earlier judicial review) allowed Guardian News and Media Limited access to documents (and other material) referred to at hearings open to the public.

I had been sent this last year by a Registrar to a Tribunal who had told me this was the case law that that Tribunal relied on when considering requests by those who aren’t party to a case. For clarity this was not the Employment Tribunal (although the same case appears to be binding on both types of tribunal).

Employment Judge Robinson referring to my letter (after asking if I was there) said I could inspect the bundles and witness statements during the hearing itself and during the hour lunch break (although the clerk at lunch later insisted it was impossible to do what the Judge had ruled on employment grounds).

EJ Robinson did arrange for the witness statements to be added to the bundles which had been mislaid for which I am grateful.

However EJ Robinson ruled that copies could not be supplied by the Employment Tribunal (despite my offer to cover the costs of copying).

It is of course up to the judiciary to make rulings such as these, (the witness statements and documents in the bundle have been referred to at open hearings over eight days), and the bundle does include some documents already published on Wirral Council’s website.

I write this as it should be of wider interest.

If a FOI or EIR request is made there is an exception (court records) which includes tribunals.

Although there are specified rules in the Civil Procedure Rules and Criminal Procedure Rules for access to court records by parties who are not part of the case, the rules on disclosure of documents appear to vary depending on the type of tribunal.

Below however is a quote from the North West Employers report in the third bundle titled, “Report of an investigation into a grievance raised by Alison Mountney” which may help with better understanding about what this Employment Tribunal is about.

This refers to an allegation upheld by the investigator. The quote is, “that Wirral Council has failed in its duty of care and made her ill due to work related stress and this is due to her having been treated differently to other staff and mistreated by others in that the Council did not fully discharge its duty of care by not conducting appropriate risk assessments, securing timely specialist advice and ensuring managers were well informed and equipped to take prompt and appropriate actions to mitigate potential risks to Alison Mountney’s health and wellbeing.”

I requested a formal written response to my letter, but that was denied.

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Employment Tribunal Day 6 of 10: Cross-examination of Surjit Tour (Part 2)

                                

Surjit Tour (Monitoring Officer (Wirral Council)) at the Coordinating Committee held on 15th June 2016

Surjit Tour (Monitoring Officer (Wirral Council)) at the Coordinating Committee held on 15th June 2016

This is a report of an Employment Tribunal hearing I attended, the matter had already been part heard and this was day 6 of 10. As far as I know there are no reporting restrictions. Brief details are below followed by the first part of a report based on my notes.

Venue: Tribunal Room 2, Third Floor, Liverpool Civil and Family Court Hearing Centre, 35 Vernon Street, Liverpool, Merseyside, L2 2BX

Case reference: 2400718/16

Appellant: Mrs A. Mountney

Respondent: Wirral Metropolitan Borough Council

Employment Judge: Judge Robinson

Tribunal Members:
Mr AG Barker
Mrs JE Williams

Clerk: Lynne Quilty

Date: 6.2.2017

Time: 10.00 am


The following is a contemporaneous account of day 6 and continues from Employment Tribunal Day 6 of 10: Cross-examination of Surjit Tour (Part 1).

Mr Mountney referred Mr Tour to page 642 and asked him what was his response to number 6?

EJ Robinson asked to let him known of the provenance of the letter to Alison Mountney dated 12th January and asked for a paragraph?

Mr Mountney referred to answer eight with the response at the bottom. In elections, he referred to the appointment of staff above counter staff. He referred to ability and a named member of staff.

Surjit Tour stated he was incorrect, that staff were required after polls closed at the counting centres on the counting tables. This was a change to counting staff. Moving to the requirement for management approval, he pointed out the named member of staff was a poll clerk.

EJ Robinson asked who was responsible for the appointment of polling clerks? Surjit Tour replied that the appointment of polling clerks was the responsibility of Alison Mountney.

EJ Robinson said that at 10 o’clock the polls close and a poll clerk would be sat at the tables in the polling station?

Surjit Tour answered that a poll clerk would be supervised by a presiding officer, but there would be one or two poll clerks at each polling station.

Mr Mountney said he accepted it for what it is and asked a further question of Mr Tour. Mr Tour answered that if there was an issue with a member of staff employed it was not within the discretion of Alison Mountney and that the responsibility for suitability rested with Kate Robinson.

Mr Mountney asked Mr Tour a question about Kate Robinson to which Mr Tour answered that he didn’t recall Kate Robinson coming to him regarding that individual.

Mr Mountney referred Mr Tour to paragraph 29 of his witness statement and said as it was important he would go back to the first line. A whistleblowing concern had been made in 2015, Mrs Robinson says she told Mr Tour but Mr Tour says he can’t remember. He asked a question of Mr Tour around being made aware by Mrs Robinson.

Mr Tour said he didn’t recall being made aware of the issue at the time, but it had been made clearer in 2015.

Mr Mountney referred to the whistleblowing report and the reports starting at page 649.

Mr Tour asked for a page number? Mr Mountney referred to page 761. Mr Moore suggested it was 771. Mr Mountney confirmed it was 771.

Mr Mountney referred to the bottom of page 770, at the bottom of the page, 3rd line, P1, he asked if Mr Tour agreed to which Mr Tour answered yes.

EJ Robinson interrupted and said it was his fault but asked for a more explicit reference.

Mr Mountney stated page 770, 6.4.9, third line, P1. He stated that it was here that he never dismissed the integrity of the election was an issue. P2 never refers to him and asked how come is says that?

Mr Tour said he did not recall. Mr Mountney coming to Kate Robinson, he asked a further question to which Mr Tour replied Kate Robinson. Mr Mountney asked wouldn’t Mr Tour know?

Mr Tour answered referring to an incident, canvassing and how steps were taken.

Mr Mountney referred to 6.4.5 and at P2, some time after, people agreed Kate Robinson had made a verbal report to P1 about an alleged canvassing fraud, was Mr Tour told?

Mr Tour referred in his answer to internal audit and how the canvassing book had gone to the individual known as P1.

Mr Mountney asked if a report was made? Mr Tour said that he didn’t recall the conversation with Kate Robinson, but that individual therefore says Kate Robinson. Mr Tour answered that he didn’t recall, going on to refer to Bradfield and a canvassing issue.

Mr Mountney asked a question about fraud to which Surjit Tour answered yes. Mr Mountney asked if it was involving public money and he was a solicitor? Mr Tour answered yes. Mr Mountney referred to Mr Tour’s witness statement and matters concerning a polling clerk, he noted these were not issues that concerned fraud and asked a question.

Mr Tour answered that he had seen the context dealing with the issues and that the issues had been addressed. He referred to Mrs Bradfield, he was not belittling the issues, but there were other matters on his mind and his attention and focus had been on those things, he expected it would be dealt with by a manager.

Mr Mountney said he agreed it was, he couldn’t remember where but did it not state Kate Robinson was lying. Therefore it was raised, but Mr Tour had said it was not issue of concern to him. It was not a matter he would expect to be unresolved and pointed out that Mr Tour was the Borough Solicitor.

Mr Tour explained that at the time there was a governance report by Anna Klonowski in early September, the organisation was in turmoil and there were governance issues. In the grand scheme matters prevailing were important, but his attention and focus was on other issues.

Mr Mountney referring to those other issues, said that these election issues might affect the integrity of the elections.

Mr Tour said he was not aware the integrity of the elections was called into question. The issue of Bradfield was how the canvass was conducted as an example.

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Employment Tribunal Day 6 of 10: Cross-examination of Surjit Tour (Part 1)

                                

Surjit Tour (Monitoring Officer (Wirral Council)) at the Coordinating Committee held on 15th June 2016

Surjit Tour (Monitoring Officer (Wirral Council)) at the Coordinating Committee held on 15th June 2016

This is a report of an Employment Tribunal hearing I attended, the matter had already been part heard and this was day 6 of 10. As far as I know there are no reporting restrictions. Brief details are below followed by the first part of a report based on my notes.

Venue: Tribunal Room 2, Third Floor, Liverpool Civil and Family Court Hearing Centre, 35 Vernon Street, Liverpool, Merseyside, L2 2BX

Case reference: 2400718/16

Appellant: Mrs A. Mountney

Respondent: Wirral Metropolitan Borough Council

Employment Judge: Judge Robinson

Tribunal Members:
Mr AG Barker
Mrs JE Williams

Clerk: Lynne Quilty

Date: 6.2.2017

Time: 10.00 am


The following is a contemporaneous account of day 6.

EJ Robinson told people present in Tribunal Room 2 to sit down and apologised for the wait. He said that they would carry on with Mr. Mountney (the lay representative for Alison Mountney).

The order of witnesses would be Surjit Tour, Kate Robinson, Joe Blott and Mr. Williams.

EJ Robinson said good morning to Mr. Tour and said that he could say the oath on a bible of his choice. He then asked Mr Tour to read from the yellow card.

Mr Tour read the oath which starts, “I swear by Almighty God that the evidence I will give..”.

EJ Robinson asked him to sit down. He said that he intended to break at 10.45 am, but if Mr Tour needed a break he must tell him. Mr Moore (representing Wirral Council) would introduce the cross-examination.

Mr Moore asked Mr Tour to find the witness statement. He asked Mr Tour his name to which he answered, “Surjit Tour”. He then asked if it was his business address in the witness statement. It was.

The representative for Wirral Council Mr Moore asked Mr Tour if he had read Mr Tour’s witness statement. Mr Tour answered yes.

Mr Moore asked if Mr Tour wanted to make any amendments to his witness statement.

Mr Tour wanted to make some clarifications. The first was in paragraph 101 on page 20. Referring to a reference here it would be “rolled out in phases”, Electoral Services had been passed until the elections in May 2015.

In paragraph 17, the references to public interest reports, there was just one which was about the highways procurement exercise, the other reference was a reference to a call-in of a different decision regarding services.

EJ Robinson said OK and asked if there were other amendments?

Mr Tour answered that a handwritten letter had been provided to him in October, he remembered the date in reference to paragraph 55, to avoid confusion he didn’t remember receiving it.

EJ Robinson said (to Mr Mountney) that although the letter was not discussed he could ask Mr Tour about it to which Mr Mountney replied OK.

Mr Mountney thanked EJ Robinson and said good morning. Starting at the beginning of Mr Tour’s witness statement he referred to Mr Tour starting at Wirral Council in 2009. He asked Mr Tour if Wirral Council was in turmoil at that time?

Mr Tour said that the detail [of the turmoil] had not become apparent until later. Continuing, he said that Cllr Green had commissioned Anna Klonowski to look into whistleblowing concerns of Martin Morton and that the issues that arose needed to be reviewed.

Mr Mountney referred to page 227 and a Cabinet report in November 2013 that summarised the issues. There had been a need to established effective governance. Wirral Council had many whistleblowers and it was clear to those present at that time that there were issues in the way Wirral Council treated whistleblowers with disdain.

Mr Tour said that although there were issues, that Wirral Council was addressing them which was made clear arising from the Anna Klonowski Associates Ltd review relating to Mr Morton.

There had been a Cabinet report in September 2011, which was a supplementary report which set out the issues of governance in the organisation. Wirral Council had worked to address the governance issues and the failings.

Mr Mountney referred to page 281 and asked a question to which Mr Tour answered yes.

Mr Mountney referred to 2.8 and 2.9, the Anna Klonowski Associates report and the culture at Wirral Council about whistleblowing. The culture was one were there was fear of reprisals (against whistleblowers). He asked a question about this. Mr Tour replied that he accepted it.

Mr Mountney said that the concerns whistleblowers had that they felt they were not listened to, treated fairly and that whistleblowers were conscious of reprisal.

Mr Tour said that in the context of the whistleblowing raised by Martin Morton it was spread out, in 2009 he was not told the large issues but it was clear in the report that Anna Klonowski prepared.

Mr Mountney said he was correct. Referring to the Public Interest Disclosure Act reports, he referred to the major issues. Mr Tour said that the public interest report into highways was to do with the procurement arrangements.

Mr Mountney asked that if someone was working for Wirral Council at that time might they be fearful of blowing the whistle or raising a grievance?

Mr Tour said that he recognised that improvements needed to be made, there was a revised whistleblowing policy and a follow-up report.

Mr Mountney asked if most employees were fearful of whistleblowing or raising a grievance?

Mr Tour said that they “would or could be concerned” but referred again to the revised whistleblowing policy and the commissioning of the Anna Klonowski Associates report.

Mr Mountney asked how long it took to resolve Martin Morton’s whistleblowing?

Mr Tour answered that it took a few years to resolve.

Mr Mountney referred to paragraph 14 in reference to the major impact on Mr Tour’s time due to day-to-day issues.

Mr Tour replied that much time was spent on the Improvement Plan and sustaining improvement.

Mr Mountney asked if it was really the case that Mr Tour had dropped one?

Mr Tour admitted it was “challenging”, as there was a “lot to address” and then commented on the “level of work”.

Mr Mountney asked a further question if whistleblowers got the time they deserved?

Mr Tour said it was clear there were conversations with Mrs Mountney and that all staff were communicated to about the improvements. There had been work undertaken. Mr Tour felt that Wirral Council dealt with the issues needed to be dealt with effectively, but there had been demands on time.

Mr Mountney referred to Mr. Tour’s witness statement and that for two to three lives it had been a priority to address the issues which were compounded by two public interest reports. One of the issues had been called in and at the time it was described as a “dysfunctional Council” and a damaging place to those who brought grievances over whistleblowing complaints.

Mr Tour said he was aware of the issues of Martin Morton and other whistleblowers. That they were linked was not something he was sure of. However he said, “it was a challenging time”.

Mr Mountney referred to another public interest disclosure and asked if it was resolved to which Mr Tour said it was still ongoing.

Mr Mountney asked when the second note was made? Mr Tour answered that the public interest report by the Audit Commission was in June 2012 and that it had been prior to this.

Mr Mountney asked if that was before it was published in June 2012. Mr Tour answered 5 years but it was not resolved, but that wasn’t through lack of trying.

Mr Mountney asked how many employees Wirral Borough Council had to which Mr Tour responded four thousand.

Mr Mountney asked if the HR department had eighty staff? Referring to paragraph 23, he asked Mr Tour to clear up a date which had been referred to also in Kate Robinson’s witness statement. He asked if it referred not to February 2012, but December 2011?

Mr Tour answered that he didn’t recall. Mr Mountney again referred to that Mr Tour had told Kate Robinson he could not recall, but this didn’t mean he hadn’t been told?

Mr Tour said that he genuinely didn’t recall. Mr Mountney asked another question to which Mr Tour answered that he didn’t recall. Mr Mountney asked if he [Mr Tour] was told or made aware of Alison Mountney’s whistleblowing? Mr Tour said that he didn’t recall, but that if it had been raised with him that he would have been addressing it. Mr Mountney referred to page 28. Someone asked if he meant paragraph 28 to which Mr Mountney replied yes.

Mr Mountney asked a question about Mr Bradfield to which Mr Tour replied with a comment about Mr Bradfield and part responsibility.

Mr Mountney referred to page 10. EJ Robinson said, “What?” to which Mr Mountney replied 6.10. He referred to the bottom appearing above the reference to poll clerk and other posts and asked if it wasn’t up to Alison Mountney, it was up to Kate Robinson?

Mr Tour referred to promotions. He said that Alison Mountney couldn’t remove where an appointment had been made.

Mr Mountney asked another question about staff to which Mr Tour answered no.

Continues at Employment Tribunal Day 6 of 10: Cross-examination of Surjit Tour (Part 1).

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