THE INDUSTRIAL TRIBUNALS

CASE REF:   2136/16IT

CLAIMANT:	Martin Crossland			

RESPONDENT:	Resource Centre Derry

DECISION

By a majority decision the tribunal dismisses the claim.

Constitution of Tribunal:

Employment Judge:		Employment Judge Travers

Members:				Mr C McIlwaine
					Mr I Foster

Appearances:

The claimant was represented by Mr McCabe of NIPSA. 

The respondent was represented by Mr Friel, Barrister-at-Law instructed by 
Messrs Brendan Kearney & Co., Solicitors.

REASONS

Issues

1.	At the date of termination of the claimant’s employment, he had been working for the respondent for less than one year.  The claimant alleges that the true reason for his dismissal was that he had made protected disclosures and that consequently his dismissal was automatically unfair.

2.	The following issues fall to be considered in this case:-

(i)	Did the claimant make a protected disclosure under the Employment Rights (Northern Ireland) Order 1996 [the ‘ERO’] Articles 67A and 67B?

(ii)	If so, was the reason for the claimant’s dismissal the fact that he had made a protected disclosure, thus rendering his dismissal automatically unfair within the terms of Article 134A of the ERO?

(iii)	In the event that the tribunal finds that the claimant’s dismissal was automatically unfair, the claimant invites the tribunal to consider 

Facts

3.	The following findings of fact have been reached on the balance of probabilities on the basis of the evidence and submissions presented to the tribunal. 

4.	The respondent is a not for profit organisation which is registered with the Charity Commission for Northern Ireland.  Since 1974 it has provided an impressive range of services intended to address the needs of the most vulnerable and disadvantaged members of its local community. 

5.	On 04/04/16 the claimant began employment with the respondent as its Finance Manager, following the departure of the previous post-holder, Mr Ieuan Phillips.  It was a permanent position, subject only to continued funding. 

6.	The job description stated that the Finance Manager would be:

‘Accountable to: 	Board of Directors
 Reports to:		Director of Services’.

The purpose of the job was stated to be, ‘To manage the accounting operations of the Resource Centre Derry Group’. 

The supervisory duties allocated to the post were stated as, ‘To supervise support and direct the work of the Finance Officer and any other staff within the Finance function, including trainees’. 

The post-holder was also required, ‘To take responsibility as part of a Senior Management Team for the overall effective operation of the Group.  To deputise where necessary for other Senior Managers.  To attend and report to meetings of the Board of Directors where required.’

7.	The job description was said to reflect, ‘the general duties of the job but it is not a detailed description of all duties which may be inherent to the position.  The Resource Centre Derry may assign reasonably related additional duties to individual employees consistent with policy and agreements.’

8.	The written statement of the claimant’s terms and conditions of employment provided that:- 

‘There is a probation period of six months for new employees, during which time you shall be subject to one week’s notice.  The disciplinary scheme shall not apply during this period’.

The Staff Handbook provides at paragraph 3.2 that: ‘RCD recognises its obligation to ensure that each employee, during his/her probationary period, is fully assisted in understanding and becoming familiar with their duties.  Any problems or difficulties encountered within this period must be thoroughly discussed and attempts will be made to resolve them satisfactorily’.

9.	The claimant was deemed to be well qualified for the job.  He has more than 10 years experience working in the charitable sector in England, including positions as, ‘Community Accountant / Finance Manager’ and ‘Strategic Development and Charity Manager’.  The claimant is a Level 3 qualified Accounting Technician.

10.	During the course of his previous employment in the charitable sector, the claimant had experience of ‘restricted funding’ and its accounting treatment.  This is funding which has been provided to the organisation for a specific purpose and which is said to be restricted to being used for that specific purpose.  

11.	At the time the claimant joined the respondent there was ongoing tension between the respondent’s board of directors/trustees who are unpaid volunteers, and the then full-time employed Director of Services Kenny McAdams.  This explains the exchange which took place between the claimant and the board of directors at a meeting which took place on 05/04/16. Mr Keith Cradden, treasurer, was not present at the meeting. Mr Cradden was the only board member who was called to give evidence. 

12.	The meeting was held the day after the claimant had started work and he was told that he was answerable solely to the board rather than to Mr McAdams.  The claimant was told to disregard any instructions given to him by Mr McAdams.  Given that the claimant’s job description stated that the claimant was to report to the Director of Services, this was an extraordinary state of affairs.  It was an unhappy position for the board to place the claimant in on his second day at work.

13.	The claimant set about his duties as Finance Manager with diligence and vigour.       

The Kitchen Deficit

14.	One of the services run by the respondent involves the provision of meals.  Prior to the claimant’s employment, an ongoing financial deficit arising from the operation of the kitchen had been a longstanding concern for the respondent’s board.  Concerns had included whether food paid for by the respondent was going missing due to theft or otherwise. 

15.	On commencing his employment the claimant took up the challenge of resolving the issue of the kitchen deficit.  In the context of an anticipated deficit for the respondent overall of £80,000 over the year to 31/03/17, any scope for reducing unnecessary expenditure or wastage would be valuable.

16.	At a meeting between the senior management and the board on 04/05/16, the minutes record the claimant’s concerns about the growing kitchen deficit and a projected shortfall in respect of this activity alone of £16,000.  He expressed concern about rising costs due to over-ordering, the lack of agreed menus, and non-payment by some staff for food and drinks.  The claimant told the meeting that, despite the longstanding concern about the issue, he perceived a, ‘culture of complacency, where the agency is effectively turning a blind eye to avoid confrontation’.   

17.	On the afternoon of 04/05/16 the cook came to the claimant’s office to discuss the information which the claimant sought concerning the operation of the kitchen. Following that meeting the cook complained to Betty Feeney, a senior member of the respondent’s board, about the manner in which the claimant had spoken to her and the questions he had asked regarding the kitchen, food and stock.  

18.	Ms Feeney assured the claimant that he was only doing everything requested of him. She told the claimant that she and all the directors were extremely happy with his work, his approach, and the thorough way in which the claimant was undertaking this task. 

19.	On the morning of 05/05/16, the cook confronted the claimant and instructed him to stay out and away from her kitchen otherwise she and others could make trouble for him.  Unsurprisingly the claimant was upset by this and raised a formal complaint in writing with Betty Feeney about the cook’s conduct towards him.

20.	The claimant prepared a five page report dated 07/05/16 concerning the kitchen deficit.  He analysed and made recommendations concerning the ordering or food, portion sizes, food wastage, staff paying for food, menu plans, and cooking in the kitchen for third party outside events.  The claimant estimated that there was an annual loss of income in respect of unpaid meals of £8,000, and an annual overspend on food of £10,000.  It is clear from the report that some of the concerns expressed by the claimant, if well founded, potentially reveal issues of criminal dishonesty. 

21.	The claimant’s recommendations and analysis were expressed forcefully. He reminded the directors that:    

‘The Resource Centre Derry is now registered with the Charity Commission for Northern Ireland and as such must comply with a strict set of governance, operational, financial guidelines and also demonstrate direct benefit to our members and project beneficiaries.  The trustees (for charitable purposes) must ensure that sound financial management and operational systems are in place to reduce fraud, theft or direct personal benefit, either in goods or in kind (whether indirect or not), which if identified must be openly disclosed within its Annual Report and Accounts.  Where conflicts of interest are identified, these too must be recorded and managed in an open and transparent manner.  The issues relating to the kitchen are not new or recent. Reports pertaining to the same concerns, relating to the same individuals and the same issues go back as far as 2013 and have been presented for the directors to implement systems, better manage stock ordering, along with identifying who and who does not pay for their meals. These issues are not minor or inconsequential.’

22.	During the course of his consideration of the kitchen deficit, the claimant was struck particularly by the fact that while the number of customers for ‘meals on wheels’ was reduced, this reduction was not reflect in a commensurate reduction in costs. 

23.	On 11/05/16 a kitchen planning meeting took place between the claimant, 
Mr McAdams, a senior care manager Patricia Morrow, and Josephine Doherty a director of the respondent. 

24.	The meeting had two stated objectives.  The first was to agree measures to prevent irregularities/unnecessary waste occurring in the kitchen.  The second was to ‘address the plan to carry out an investigation into evident irregularities within the kitchen’. 

25.	At the meeting the claimant discussed, ‘the potential for governance to be challenged by the Charities Commission’.  Ms Morrow noted that the Western Health and Social Care Trust should be informed of the potential misuse of public monies’.  The meeting concluded with an agreement to reconvene the following week. 

26.	At the request of the directors a meeting of senior managers took place on 16/05/16 to discuss management of the respondent’s overall anticipate deficit of £80,000 in the financial year to 31/03/17.  Insofar as the kitchen was concerned the minutes of the meeting note only that, ‘An investigation has started into costs associated with the kitchen, and in view of this little comment will be made today, other than to ensure that the needs of clients and quality standards are met.’.

27.	On 17/05/16 the claimant conducted what he described as a stock inventory of the kitchen, including its fridges, chest freezer and storage shelves.  He returned to the kitchen on the morning of 18/05/16 in the company of Ms Morrow and he undertook what he describes as a further inventory check.  He took photographs of kitchen stock with the express intention of showing them to the directors to demonstrate that theft had occurred. 

28.	The cook was not present when the claimant attended to take photographs, but there was another member of kitchen staff present.  When the cook and other staff learned of what he had done there was a staff walkout to complain about the claimant’s behaviour.  The staff returned to work following intervention from Betty Feeney.

29.	The claimant did not discuss in advance his proposed action at either the meeting on 11/05/16 or on 16/05/16.  He should have done. 

30.	The claimant did not tell his line manager, Mr McAdams Director of Services, what he intended to do.  Mr McAdams, while sympathetic to the claimant’s motivation thought that the claimant’s unilateral action in conducting his own photographic stocktake without wider consultation or authorisation had only exacerbated the difficulties in the kitchen. 

31.	At a meeting on 18/05/16 between the senior management and the board members, Mr Cradden the treasurer noted the seriousness of the situation with 8 or 9 staff having been prepared to walk out.  It was recorded in the minutes of that meeting that the board thought that the claimant’s actions were inappropriate. 

32.	On 23/05/16 at a meeting between senior management and the board it was directed by the board that a line was to be drawn under the kitchen investigation.

33.	The claimant prepared a document entitled ‘Summary of Kitchen Enquiry’ dated 29/05/16 addressed to Mr McAdams, Ms Morrow, Ms Doherty and Mr Cradden.  In the course of that document he noted that a line had been drawn under the kitchen enquiry but in a ‘final recommendation’ expressed concerns about that decision and the ongoing deficit referable to the kitchen. 

34.	This was followed up by an email dated 06/07/16 addressed to Ms Morrow but cc’d to Mr Cradden and Ms Doherty.  The email expressed his ongoing concerns about the kitchen costs against the income received. It also included his view that, ‘Food is still not being paid for!!!  Food is still going missing!!!!  Costs continue to increase!!!!!  There has been no significant change in food quality or variation!!!!!!’.

Accounting Treatment of Restricted Funding

35.	The claimant reviewed the respondent’s pre-audit schedules for 2014 and 2015 and compared them to the final audited accounts.  He noted that a number of balances of funds provided to the respondent for a restricted purpose had been written off against other costs not associated with those funders.  As a professional experienced in accounting for funding which was provided to a charity for a restricted purpose, the claimant was concerned.  In his professional opinion that was not an appropriate way to deal with the balance of such funds.

36.	The claimant raised the issue with Mr McAdams who suggested that the claimant should speak to the former Finance Manager, Mr Phillips.  The claimant did so and what he was told by Mr Phillips only served to increase his anxiety about the issue.  

37.	In the past Mr Phillips had raised with Ms Feeney and other directors the accounting treatment of an underspend in restricted funding provided by the Western Health and Social Care Trust in respect of specific projects.  Mr Phillips shared the view of the claimant that any underspend in restricted funding should be carried forward into subsequent financial years and reflected in the accounts as restricted funding rather than utilised for other projects/expenditure.

38.	The claimant had a number of meetings with Betty Feeney where he raised his concerns about issues about the accounting/use of restricted funding.  He was told by Ms Feeney that the matters he raised were none of his concern and that she had a special relationship with the funders.  All she had to do was ask and funders would give the respondent money.

The Resource Centre Derry Community Shop

39.	The claimant also raised with Ms Feeney his concern that the income from the community shop run in the respondent’s name was not being accounted for by a proper audit trail and that income from the shop was being paid into an account in the name of ‘The Friends’.  Ms Feeney told the claimant the respondent’s community shop in fact belonged to The Friends and would never be a financial burden to the respondent.  The claimant’s concerns were not allayed by the response. 

The respondent’s whistleblowing policy

40.	The respondent’s employee handbook sets out what is described as its ‘Whistleblowing Policy’ over four pages.  The policy states, amongst other things, that:

•	‘The respondent is committed to the highest possible standards of openness, probity and accountability. In line with that commitment we expect employees…who have serious concerns about any aspect of RCD’s work to come forward and voice those concerns.’ [para 1.2]

•	The policy, ‘is intended to encourage and enable employees to raise serious concerns within RCD rather than overlooking a problem or ‘blowing the whistle’ outside.’ [1.3]

•	The matters intended to be covered by the whistleblowing policy include, ‘conduct which is an offence or breach of the law…the unauthorised use of public funds…possible fraud and corruption…other unethical conduct’ [2.2] 

•	As a first step concerns should be raised with, ‘your immediate manager or their superior’  [7.1]

•	‘The Director of Services…has overall responsibility for the maintenance and operation of this policy’ [9.1]

•	The policy also sets out a number of external organisations which may be contacted if the employee wishes to take the matter outside the Respondent. These include the Charity Commission for Northern Ireland. 

Disclosure to Charity Commission

41.	The claimant contacted the Charity Commission for Northern Ireland on 26/05/16, ‘about a number of concerns and issues I had been made aware of, had identified or had been reported directly to me by other managers within RCD pertaining to:

•	Financial impropriety
•	Poor governance
•	Financial mismanagement
•	Unauthorised use of public funds
•	Concealment 
•	Theft’

42.	Subsequently the claimant had a meeting with the Charity Commission on 06/06/16 which was recorded with his consent.  On 15/06/16 he sent the Commission a copy of an email concerning a discussion which he had had with Josephine Doherty about the relationship between the Resource Centre Derry Community Shop and ‘The Friends’.

43.	The Charity Commission wrote to the claimant on 12/01/17 to confirm its policy not to send details of a complainant to a charity unless the complainant has given their consent or has identified themselves to the charity already. 

44.	While he was still in employment the claimant did not disclose to the respondent that he had contacted the Charity Commission to raise his concerns.  The respondent denies that it was aware of the claimant’s referral to the Charity Commission until after the directors had decided to terminate his employment. 

45.	The evidence does not establish that the respondent’s directors knew of the complaint to the Charity Commission prior to their decision to dismiss the claimant.

Communication with Western Health and Social Care Trust

46.	On 03/06/16 the claimant met with Nicky Fallon, Surestart manager at the Western Health and Social Care Trust [‘WHSCT’], and discussed the concerns/questions which he had about the accounting for underspends in respect of two WHSCT funded projects.  He followed this up with an email to Ms Fallon on 08/06/16.  Ms Fallon passed on the concerns to the then Head of Service for Family Support at WHSCT, 
Mr Pat Armstrong. 

47.	As a result of these communications Mr Armstrong arranged a meeting to discuss the concerns with Ms Feeney in July 2016.  Ms Fallon told the claimant that he may be required to attend.  Ms Feeney was aware that the claimant’s expressed concerns were the reason for the meeting being scheduled. 

Preparation of accounts  

48.	The tribunal heard evidence from Gerard Murray, an accountant from the respondent’s external auditors.  He had been asked by the respondent’s directors to prepare a response to the claimant’s witness statement and he did so.  It was a document dated 04/05/16 and drew upon what he had been told by the members of the board in respect of their response to the evidence of the claimant. 

49.	Ultimately this document was submitted to the tribunal as Mr Murray’s witness statement.  The words, ‘Witness Statement of Gerard Murray’ had been written by hand at the start of the document above the original title, ‘Response of Resource Centre Derry Ltd to Witness Statement of Martin A Crossland, dated 31 March 2017’.  

50.	It transpired when Mr Murray gave evidence that the words describing the document as a witness statement had not been written by him.  He was unaware that the document had been submitted as his witness statement until he was told that he was being called as a witness.  He had not compiled it with a view to it being presented as his own witness statement.

51.	Mr Murray told the tribunal that he is an experienced witness who understood how to prepare a witness statement and would have been able to prepare a witness statement setting out his own evidence if he had been asked to do so.  He readily and helpfully edited the document to exclude all those matters which are not within his personal knowledge.  It was a substantial edit.  Of the original 38 paragraphs approximately 7 survived. 

52.	Mr Murray described the delays experienced by the external auditors in obtaining financial information from the claimant in order to complete the accounts to the year end 31/03/16.  The claimant missed at least four deadlines set for the provision of relevant financial information.  Ultimately when boxes of financial information were provided to the external auditors substantial information was still outstanding which necessitated further queries being raised of the claimant by the accountants. 

53.	The external auditor did not agree that the treatment in the accounts of the underspend of restricted funding was inappropriate and advised the respondent accordingly.
 
Termination of the Claimant’s Employment

54.	The only member of the respondent’s board to give evidence was Keith Cradden, the treasurer. He is unpaid.  Mr Cradden is a retired civil servant and became involved with the respondent 4 or 5 years ago.  It was clear from his evidence that his involvement is driven by a sincere personal commitment to assist the most vulnerable in society. 

55.	Mr Cradden described an unhappy situation where the board had lost confidence in the management.  He said that there were unpaid ‘working directors’ who were at the respondent’s premises four days a week. 

56.	Minutes of a directors meeting on 20/07/16 report the following:

‘Directors met to discuss the situation in finance. Gerry Murray updated us re Martin Crossland’s non-compliance or understanding of voluntary funding. Gerry and Peter Barr have tried to work with Martin but are finding it very difficult. It was decided that we would recommend to full board that we would not offer Martin permanent employment’.

57.	As with all the minutes of board meetings presented to the tribunal in respect of the decision to terminate the claimant’s employment, the minutes were handwritten and brief to the point of inadequacy.

58.	The respondent went on leave for two weeks from 23/07/16. 

59.	On 28/07/16 a further board meeting was held where the decision to terminate the claimant’s contract of employment was confirmed. Remarkably there is nothing in the minutes detailing the discussions or reasons behind taking what was a devastating decision for the claimant.  The entire minute, including the note of attendances, comprised just 11 handwritten lines.  Mr Cradden in his evidence described the informal way in which the board likes to work.  It appears to the tribunal that there are however occasions when a greater deal of formality is required.  This was one of them.  

60.	On his return from holiday the claimant met with Mr Cradden and one other board member who had been delegated to inform him that his employment was being terminated.  The handwritten minute of this meeting on 08/08/16 records that, ‘Keith spoke to Martin re the Directors’ decision about not offering him a permanent contract. Keith began to explain re difficulties with auditors and the fact he went too far in the kitchen situation.  At this point Martin decided to leave without any further conversation and informed he was going to contact his union rep.’

61.	The unhappy inadequacy of the minutes of the board meetings is highlighted by the fact of Mr Cradden on 08/08/16 telling the claimant that the ‘kitchen situation’ was a factor in the board’s decision.  This is not recorded as a reason for dismissal in the minutes of the meeting on 20/07/16 when the decision to dismiss the claimant was taken by the board. 

62.	It is a mark of the dysfunctionality of relationships between management and board that the first time that the Director of Services, Mr McAdam, became aware of the proposed dismissal of the claimant was when the claimant came to see him on 08/08/16 after being informed that he was to be dismissed.

63.	Mr McAdams went straight to Mr Cradden to seek to persuade him to reconsider the decision. He referred to the claimant not going quietly and the claimant making veiled threats about funding.  The matter was referred back to the board the next day.  The board confirmed the decision to dismiss. The handwritten minutes of that meeting on 09/08/16 record only that, ‘After a discussion there was a unanimous decision that we could not retreat from our original position despite the threats.  We are more than happy that we are clean in all our dealings and can stand over everything’.

64.	The letter formally notifying the claimant of his dismissal was dated 10/08/16 and gave three reasons:

a.	Difficulties with the relationship with the auditors including failing to provide information in a timely manner for the audit.

b.	Returns not made to the European Social Fund.

c.	The claimant’s actions in taking photographs of the kitchen without authorisation which was said to have, ‘greatly aggravated staff and prejudiced consideration of problems in the kitchen’.

65.	The reference in the dismissal letter to the claimant’s alleged deficiencies in making returns to the European Social Fund is curious.  The notes of the directors meeting on 08/08/16 attended by Mr Cradden record him telling Mr McAdams that 
Mr McAdams is ‘totally responsible’ for the difficulties. 

Law

66.	The Employment Rights (Northern Ireland) Order 1996 [‘ERO’] at Article 126 provides that an employee has the right not to be unfairly dismissed by his employer.

67.	Under Article 134A,  ‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.’

68.	Under Article 67A of the ERO, ‘a “protected disclosure” means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with Articles 67C to 67H’.

69.	Under Article 67B(1), ‘a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—

(a)	that a criminal offence has been committed, 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 obligation to which he is subject,…

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

70.		Under Article 67C(1), ‘A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith—

(a)	to his employer, or

(b)	where the worker reasonably believes that the relevant failure relates solely or mainly to— 

(i)	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 other person.

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.’

71.	The tribunal was referred by the parties to extracts from Harvey and from Whistleblowing Law and Practice by John Bowers QC. The tribunal was also referred to a number of cases including: Cavendish Munroe Professional Risk Management Limited v Geduld [2010] ICR 325 and Babula v Waltham Forest College [2007] EWCA Civ 174. 

72.	The following principles, among others, emerge from the foregoing:-

•	A qualifying disclosure must consist of information not just allegations.

•	The worker making the disclosure must have a reasonable belief that disclosure is in the public interest.

•	Where, as in this case, the claimant lacks the qualifying period of employment to make an ordinary unfair dismissal claim, the burden of proving the reason or principal reason for the dismissal falls on the claimant.

Conclusion

The Issues

73.	During the course of the hearing and submissions the claimant sought to raise a complaint under Article 70B of the ERO that he had been subjected to a detriment by reason of making a protected disclosure.  This complaint was not raised either in the claim form or during case management. Consequently the tribunal has not considered the issue.

74.	The claimant’s case is that he has been unfairly dismissed by reason of making protected disclosures to his employer and to partner agencies. In a statement of legal and factual issues submitted to the tribunal during a case management discussion the protected disclosures were said to relate to: the fact that surplus balances from restricted funding were not properly accounted for; that income from the Resource Centre Derry Community Shop were not declared within the respondent’s audited accounts nor to the Charity Commission of Northern Ireland; and to the claimant’s investigation of the kitchen deficit. 

Protected Disclosure

75.	In respect of the kitchen deficit, this was not pursued in the claimant’s written closing submissions as an example of a protected disclosure.  It was in any event an investigation which was undertaken with the consent of the respondent.  The difficulties in respect of the kitchen investigation arose in respect of the manner in which the claimant undertook the investigation rather than the fact of the investigation itself. 

76.	In his closing submissions the claimant focussed on the accounting treatment of the underspend in restricted funding. 

77.	The tribunal is satisfied that the claimant had a reasonable belief that the directors were failing to comply with their legal obligation under the terms of restricted funding to disclose any underspend and/or to apply the restricted funding only for the purpose for which it was advanced.  The fact of the claimant’s reasonable belief does not of itself demonstrate that the directors were in fact in breach of their legal obligation.   

78.	The claimant made his disclosure in good faith to his employer through Mr McAdams and Ms Feeney.  Disclosure was also made in good faith to the WHSCT via Ms Fallon, and also to the Charity Commission for Northern Ireland. 

79.	The alleged protected disclosure in respect of the Resource Centre Derry Community Shop was made to the Charity Commission of Northern Ireland.  In view of the tribunal’s finding of fact that the respondent did not know about the disclosure to the Charity Commission until after the decision had been made to dismiss the claimant, this disclosure cannot have been the reason or the principal reason for his dismissal under Article 134A of the ERO.  In the circumstances it is not necessary to further consider the issue of whether this disclosure to the Charity Commission was a protected disclosure. 

Majority decision

80.	The majority of the tribunal members are not satisfied that the protected disclosure made by the claimant was either the reason or the principal reason for the dismissal of the claimant.  Consequently the claim is dismissed. 

81.	The claimant insisted to the respondent, rightly or wrongly, that the accounts had not been properly prepared in respect of accounting for restricted funding. The respondent had contrary advice from its longstanding external auditors which conflicted with the advice they received from their new Finance Manager.  The respondent chose to rely on the advice of their longstanding advisors. 

82.	The fact that the claimant highlighted his concerns about the accounts was not the reason for the decision to dismiss.  The auditors described the claimant to the respondent as being difficult to work with and not meeting necessary deadlines.  In circumstances where the claimant remained on probation the respondent chose to dismiss him to resolve the problem. 

83.	The decision to dismiss the claimant was fuelled by the history of the claimant’s conduct of the kitchen investigation.  His decision to enter the kitchen with Ms Morrow while a member of kitchen staff was there, in order to take photographs and to conduct a stocktake was ill-advised at best.  At worst, it was a foolish and provocative action which should not have been taken without express authorisation from at least the claimant’s line manager.  The outcome of the claimant’s action was significant staff unrest. 

84.	There are serious inadequacies in the minutes of the respondent’s meetings relating to the decision to dismiss the claimant.  On balance the majority is not satisfied that this is due to a desire to conceal the true reason for the claimant’s dismissal.  It is instead the product of an overly casual approach to the serious business of making records about an important decision.  Mr Cradden described the board members as amateurs.  The tribunal does not disagree.  What may have been adequate in earlier days when the respondent was a smaller organisation is inappropriate now that the respondent is an employer with a significant turnover.  

85.	The majority is not satisfied that the making of a protected disclosure was the reason or the principal reason for dismissing the claimant. 

Minority

86.	The minority decision is that the inadequacies and inconsistencies in the record keeping of the decision to dismiss the claimant point to a desire to cover up the real reason for the dismissal.  The claimant did make a protected disclosure and on balance that must have been the true reason or the principal reason for dismissing the claimant. 

Employment Judge:

Date and place of hearing:  19-23 June 2017, Belfast.

Date decision recorded in register and issued to parties: