Charity Commission wins appeal against constructive dismissal claim by former case worker David Orbison

Orbison resigned from the regulator in 2010 over its handling of an inquiry into African Aids Action

David Orbison
David Orbison

The Charity Commission has won an appeal against a claim for constructive unfair dismissal by one of its former senior case workers.

David Orbison resigned from the commission in 2010 after a dispute over its handling of an inquiry into African Aids Action, a small charity he had been assigned to investigate.

Orbison felt senior staff had handled the case too leniently, leading him to make a complaint under the Public Interest Disclosure Act 1998, which is intended to protect whistleblowers. Disagreements over the case led to a deterioration in his relationship with senior management and he was eventually signed off work suffering from stress.

It was suggested that he attend a meeting with Lynn Killoran, then head of compliance at the commission, to talk about a return to work.

Orbison said this was unreasonable because of the breakdown in his relationship with Killoran. He later resigned and filed claims for unfair dismissal and discrimination.

In 2012, an employment tribunal upheld Orbison’s claim for constructive unfair dismissal, but rejected three other claims, for detriment and unfair dismissal, indirect discrimination and discrimination due to a disability, which related to a clinical diagnosis of anxiety and depression.

The regulator then appealed to the employment appeal tribunal on the matter that it lost.

The appeal tribunal’s judgment, which was issued in June, ruled in favour of the commission and said that the original tribunal’s decision was unsatisfactory because it did not identify the nature of the "substantial disadvantage" suffered by Orbison because of his disability – anxiety and depressive disorder – in relation to the meeting with Killoran.  

A spokeswoman for the commission said: "The tribunal recently dismissed Mr Orbison’s claim for constructive unfair dismissal and set aside the finding that the commission failed to make reasonable adjustments.

"In July 2012, the tribunal had already found that the commission's management had acted entirely appropriately in both their management of the claimant and the case in which he made a public interest disclosure.

"The tribunal found that the commission did not discriminate against the claimant for whistleblowing, or treated him less favourably, or subjected him to any detriment, and that there was no discrimination on the basis of disability.

"The tribunal’s rulings give a clear and independent view that we would encourage any interested parties to read for themselves."

Orbison said that he was seeking pro bono support to take the case to the Court of Appeal and said his concerns about weak regulation by the commission had been upheld by subsequent reports from the Public Accounts Committee and the National Audit Office

"Sadly, this whole saga is just another case of a bad employer missing an opportunity to put things right," he said. "Rather than listen to staff concerns, the commission chose to attack me as some form of dissident.

"Perhaps now is time for the chair and chief executive of the Charity Commission to ask what went wrong.

"I believe that management used the tribunal route as a tactic to dispense with a dissident. Thank goodness the PAC and the NAO were not so easily misled. My only crime was to question management’s running of the Charity Commission."

African Aids Action has since been removed from the commission’s register because it ceased to operate.

Andy Ricketts

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