David Orbison wins constructive unfair dismissal case against Charity Commission

Employment Tribunal rules against him on three other counts relating to his disagreement with the regulator over the African Aids Action case

David Orbison
David Orbison

The senior case worker who resigned from the Charity Commission in 2010 after a dispute over an inquiry has won a claim for constructive unfair dismissal at the Employment Tribunal in Liverpool by a majority verdict.

But the three members of the tribunal unanimously ruled against David Orbison on three other claims, for detriment and unfair dismissal, indirect discrimination and discrimination due to a disability, which relates to a clinical diagnosis of anxiety and depression.

The tribunal included two lay members and a judge. The judge’s opinion was that all claims against Orbison failed, while the two lay members backed his claim that the commission had breached its "duty to make reasonable adjustments" by insisting that he meet one of his senior managers to discuss a return to work after he had been signed off with stress.

The judgment, released this week, says Orbison’s claims came after a series of disagreements between him and his managers over the case of African Aids Action, a small charity he was assigned to investigate – he felt the chair of the charity was using charitable funds for personal benefit.

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 whisteblowers. Disagreements over the case led to a deterioration in his relationship with senior management, the judgment says.

A draft of the inquiry report into African Aids Action, which was critical of the charity, was leaked to Third Sector in 2010. A less critical revised final inquiry report was published later in the year.

After long-running internal disputes, Orbison was signed off work suffering from stress. After a number of exchanges between his solicitors and the commission, it was eventually suggested that he attend a meeting with Lynn Killoran, 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.

The judgment says that Orbison claimed his complaints about the charity were sidelined, that he had been misled and not supported by the commission, that he had unfairly been subjected to threats of disciplinary procedure, that he had been subjected to stress and that he had endured "public humiliation and criticism" without the right to respond.

However, the judgment says that senior management were supportive towards Orbison and that they made efforts to accommodate his feelings, to manage his workload and to protect him from harassment by the chair of the charity.

The judgment says the commission’s insistence that Orbison meet Killoran, rather than a diversity officer, constituted a breach of the commission’s duty as an employer to make "reasonable adjustments" to support him. The judge who wrote the report did not agree with this view, however, and said that "no matters leading up to his resignation together amounted to a breach of contract".

A spokeswoman for the commission said: "We are pleased the judgment has found that the commission's management acted entirely appropriately in both their management of the claimant and the case in which he made a public interest disclosure."

The spokeswoman said the regulator might appeal against the one majority judgment in Orbison’s favour.

Orbison said he was disappointed with some aspects of the judgment but that it proved he had not been financially motivated and had acted in good faith throughout.

"I believe I have come away from this with my integrity intact, having tried to do ‘the right thing’," he said. He remained convinced that the commission had not acted properly as a regulator in the case of African Aids Action, he said.

"Throughout this, my principal concern was that the commission had become so risk-adverse as to become a wholly ineffective regulator," he said. "I really think that the commission lost sight of who it should be regulating. It seems as if it is yet another ‘no-touch’ regulator."

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