Over more than two weeks the Employment Tribunal in Liverpool heard a claim of constructive dismissal and disability discrimination brought against the Charity Commission by one of its former employees in the city, David Orbison.
The case stems from a controversial investigation by the commission between 2008 and 2010 into the charity African Aids Action. This was conducted by Orbison and involved allegations of racism, a change in approach by the commission halfway through the inquiry and a leak of a draft of the inquiry report to Third Sector.
The three members of the tribunal will spend two days in closed session this week and announce their decision in due course. A summary of the origins of the case, below, is followed by summaries of the argments of the protagonists from their written submissions to the tribunal.
African Aids Action: The root of Orbison’s complaints
When he joined the Charity Commission’s compliance unit in June 2008, David Orbison was asked to investigate African Aids Action, a charity planning to build a $500m (£314m) retroviral drugs factory.
The regulator had received a complaint that the charity’s limited funds were being used for the benefit of the chair, Eyob Ghebre-Sellassie, and his family. It decided to freeze the charity’s bank account.
A meeting with the charity trustees resulted in an allegation by Orbison of intimidation by Ghebre-Sellassie and a complaint by the latter about the conduct of the inquiry. This complaint was not upheld by the commission’s internal procedure.
Early in 2009 the commission made an order for the trustees to wind up the charity, then discharged it because the proper legal procedure had not been followed. It began investigating another complaint by AAA, including allegations of racism.
Soon afterwards the commission varied, then discharged, the freezing order and issued regulatory guidance and an action plan to the charity. In November it declared the substantive phase of the inquiry to be over.
This prompted a complaint by Orbison under the Public Interest Disclosure Act that the commission was breaching its statutory duty by failing to take more robust action. His relations with senior management began to deteriorate.
In February 2010 the commission’s customer service review dismissed AAA’s racism allegation but acknowledged failure to give reasons for the freezing order and the mistake in making the winding-up. Relations deteriorated further.
In March a short, hard-hitting draft of the inquiry report was leaked to Third Sector and a leak inquiry began. In August, a longer, more mildly worded final inquiry report was published.
By this time Orbison was on sick leave, negotiating with his employer through his solicitor. In November 2010 he resigned and lodged a claim for constructive dismissal and discrimination.
The employee’s view: ‘I felt stitched up’
David Orbison’s witness statement depicts the Charity Commission as unduly insecure about being challenged in the charity tribunal over its inquiry into the charity African Aids Action. It says this determination to avoid the tribunal led it to neglect its statutory duties and fail to conduct thorough investigations of wrongdoing.
He and colleagues working on the statutory inquiry into AAA had used the regulator’s powers to freeze the charity’s bank account because they were concerned about "possible misappropriation of funds, including theft".
His statement says the regulator decided to close the case and discharge the freezing order after a trustee of the charity, Eyob Ghebre-Sellassie, threatened to appeal to the tribunal on the grounds that the commission’s use of statutory powers was unnecessary. This would make it difficult for the tribunal to consider the case, it says.
"The new strategy, as determined by senior management, was wholly driven by the Charity Commission seeking to avoid charity tribunal proceedings at all costs," the statement says. Orbison made a complaint to his employer on 3 November 2009, which he believes was in line with its whistleblowing policy and the Public Interest Disclosure Act 1998, which offers legal protections to whistleblowers.
"In the disclosure, I made it absolutely clear that I believed that criminal offences had been committed (personal use of charitable funds, a fraudulent grant application, theft)… and that by the commission failing to act against the charity or any of its trustees a miscarriage of justice had occurred because, in effect, they were getting away with criminal or inappropriate activity," it says.
After the Public Interest Disclosure was made, the statement says, "it became clear that I was being subjected to detriment because of the disclosure I had made. In effect, I was being positioned as the ‘fall guy’ and this can only be because of my PID."
It says a report by the commission about his PID "was nothing more than a sham report with management closing ranks… By this stage I felt totally stitched up."
The statement says the commission’s investigation into the March 2010 leak to Third Sector of a draft report on AAA "suggested that he was involved if not responsible". It says this "was part of a calculated smear simply aimed at further attacking my integrity".
Orbison made a formal appeal about his PID to the Civil Service Commissioners in April 2010. Soon after, his witness statement says, "I felt bullied, humiliated and trapped. I took the next day off and hoped to recover over the weekend. I was no better and went to my GP. I have been signed off work ever since."
Orbison’s submission to the tribunal says he was then "continuously subject to detriments whilst off sick from work". He appointed a solicitor to deal with the commission on his behalf on 5 July.
The statement says the commission halved his pay in October 2010, and he resigned the following month. It concludes: "Senior managers of the Charity Commission collaborated against me and bullied me simply because, in good faith, I sought to raise a number of legitimate issues."
The commission’s view: ‘he just wants a pay-off’
Documents submitted to the tribunal by the Charity Commission contain a critical assessment of David Orbison’s character, a dismissal of his arguments and an assertion of the rightness of its own actions.
"He was a difficult employee who was hostile towards senior management for a substantial part of the limited time he was employed," says the regulator’s skeleton argument.
"Examination of the correspondence will demonstrate an employee who regularly offered comment and criticism of all parts of the commission’s business, but did not take well to receiving criticism of his own actions.
"It demonstrates a lack of objectivity, coupled with a conviction of the rightness of his own position (despite his extremely limited experience) and a refusal to accept the legitimate decisions of managers."
Despite this, the commission treated Orbison with courtesy and respect at all times, the document says, and his complaints were fully investigated. After he went on sick leave in April 2010, it provided stress counselling, took no disciplinary action under its sickness management policy, repeatedly attempted to engage with him and proposed mediation.
It says his claim for disability discrimination is therefore baseless. It also refutes his arguments for constructive dismissal, which it says could succeed only if he establishes that the main reason for his dismissal was his Public Interest Disclosure and that this materially influenced the commission’s treatment of him.
His PID was "unquestionably" a response to the decision to close the AAA inquiry with an action plan rather than stronger regulatory action, the document says. But it says the commission was entitled to take this decision and it was not unlawful.
The PID was investigated by David Locke, the commission’s executive director of charity services, whose meeting with Orbison "illustrates his misunderstanding of the role of the commission generally". Locke’s inquiry concluded that the commission did not act unlawfully, but accepted there had been inadequate supervision of Orbison, leading to some case management failings. But Orbison refused to discuss the inquiry pending an appeal to the Civil Service Commissioners.
"His case on causation is less than hopeless," the document says. "There is no evidence whatsoever that the commission did not treat his PID with seriousness and victimised him because of it."
The document also deals with the results in February 2010 of the investigation into AAA’s complaint about the conduct of its case. The inquiry rejected allegations of racial discrimination but admitted there had been a mistake in the winding-up order and no ‘statement of reasons’ for the freezing of the bank account.
It says Orbison’s response was "irrational, inflammatory and intemperate", accusing the person who conducted the investigation of bias and refusing to withdraw that accusation.
Shortly after the final version of this complaint investigation was sent to AAA, an early draft of the AAA inquiry report was leaked to Third Sector. Orbison eventually resigned in November 2010. "It is the firm belief of the commission that he never intended to return to his employment and his lack of cooperation can be explained by his motivation simply to obtain a pay-off," says the document.