Whistleblower was unfairly dismissed by ‘unfit and dictatorial’ HR team, tribunal finds

12 Jan 2018 By Marianne Calnan

Royal British Legion case shows HR must be seen to act impartially and respect confidentiality when handling grievances

This article has been amended to confirm that it was Mr France, not Mr Sked, who reacted negatively to the whistleblowing and suggested it was a sackable offence. People Management apologises for this error in the original article and any confusion arising from it.

The HR team of a charity that supports British Armed Forces members and veterans has been branded “unfit for purpose, dictatorial and unhelpful” by an employment judge, after it failed to “understand the meaning of the word confidentiality” in an unfair constructive dismissal case.

In a decision published this week, the Southampton Employment Tribunal allowed case worker Ms Bickerstaff’s complaint of unfair constructive dismissal against the Royal British Legion (RBL), concluding that she had been subjected to detriment by reason of making a public interest disclosure. 

The tribunal heard on 15 November 2017 that Bickerstaff worked as a case officer for RBL from 3 October 2013 until she was signed off sick in May 2016. She occasionally worked at the organisation’s ‘pop in’ centre for ad hoc enquiries, a responsibility she shared with another case officer.

When her line manager, Mr Sked, was away from the office because of a recurrent illness during 2015, Bickerstaff felt under pressure in her work. At these times, she emailed area manager Mr France, stating that she needed someone to cover her responsibilities at the centre as Sked was off sick.

France responded that the centre was a “priority”, and told Bickerstaff that if she chose to give a “lesser priority to one of your other tasks, you just need to be prepared to justify this should an issue result”.

Bickerstaff lodged a confidential email complaint with HR on 15 July 2015 about France’s failure to deal with her complaint. She stated that she was worried about repercussions given that she had gone above France’s head. The email was then forwarded to France by HR.

In September, she met Sked and France to discuss her stressful working situation and the complaints she made about colleagues who “did not work proper hours and spent too much time on Facebook”. According to the judgment, France was “confrontational” and “aggressive” at the meeting, and stated that, as he was the senior member of staff, she should never impugn his authority in this way again. 

The HR team asked Bickerstaff on several occasions if she wanted to raise a grievance, to which she confirmed she did but did not want France to deal with her return to work.

The tribunal found her second grievance was whistleblowing, because of Bickerstaff’s allegations that blank cheques were written for “emergencies”. The judges found this was a public interest disclosure as the public being made aware of the matter could lead to RBL losing public funding.

France reacted negatively towards the whistleblowing, describing it a sackable offence, the tribunal found. Bickerstaff was told that she was not permitted to enter the office until her grievance procedure had been resolved.

On 30 September 2016, she went on sick leave with what turned out to be a heart condition that required medical attention and remained off until 5 January 2017. She was unsatisfied with how her grievances were handled and therefore resigned.

Finding Bickerstaff had been unfairly dismissed, the tribunal concluded that it had subjected her to detriment because of her public interest disclosure. The judge found that RBL’s HR team was “not fit for purpose… dictatorial, not impartial and unhelpful”, in its handling of the case. 

The judgment said no resolution had been put forward to enable Bickerstaff to return to work, and the HR team seemed “not to understand the meaning of the word confidentiality”. 

The judges said they felt a great deal of sympathy for Bickerstaff given the way her former employer treated her, particularly the way her complaints were passed on given the subject matter, and the lack of respect for confidentiality. 

Stephen Ratcliffe, partner in Baker McKenzie’s employment and benefits practice, told People Management that HR needs to “be and be seen to be impartial” when dealing with complaints and grievances. In this instance, he said, they were not.

Ratcliffe said the HR team failed to give complete advice to the manager about what whistleblowing actually meant. “The employee should have had protection against being subject to any detriment. That simply didn’t happen here,” he said.

Philip McCabe, principal solicitor at McCabe and Co Employment Solicitors, urged HR professionals to “take concerns over complaints of an excessive workload seriously but most importantly be impartial when an employee brings a complaint concerning working practices and especially a manager. The role of HR is not to ‘circle the wagons’ around the employer and managers.”

The case will now be relisted for a remedy hearing.

A spokesperson for the Royal British Legion said: "We are not able to comment on the specifics of this case, but we review all grievances to ensure we are continually improving our internal systems and delivering the best support for all of our staff. 

“The legion’s HR department has undergone changes in the previous 12 months as we continue to modernise the charity in our drive to deliver excellence for all of our staff and ultimately our beneficiaries.”

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