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