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| Argus Article - 5 November 2012 on the sacking of whistleblower |
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| Group Foto - Cllr Smith, Carolyn Simmons, Cllrs. Mears and Wells, Tony G |
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| Tribunal Judgement Finding that Caroly Simmons was automatically unfairly dismissed for making what is called a protected disclosure i.e. exposing theft and corruption |
Worker Sacked for Exposing Fraud at Charity - Deans Youth Project
Green Council Does its Best to Help Those Who Covered Up the Fraud as New Labour keeps a Trappist Silence
In my other life, as well as being a political activist and a campaigner around Palestine, I am also one of the few people left who provide advice and representation to workers who have been unfairly treated or dismissed by their employers.Earlier this year I became involved with Carolyn Simmons, an office worker who last July exposed the fraudulent submission of invoices by a fellow worker, at £250 a time, to the charity she worked for, Deans Youth Project in Brighton. Carolyn was a UNISON member but I have long specialised in Whistleblowing cases [see Employment Appeal Tribunal Lucas v Chichester Diocesan Housing Association] [2005] UKEAT 0713_04_0702 1994
The Chair of Trustees to whom Carolyn disclosed both the fraud and the unilateral variation, without their knowledge, of 2 other workers' contracts, was Linda Newman, ex-New Labour President of the Universities and College Union, who works in the General Secretary, Sally Hunt’s office. When faced with the fraudulent invoices Ms Newman had a simple way of 'clearing up the confusion' - she shredded copies of the invoices and is suspected of having arranged for the originals to be stolen and destroyed.
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| Group photo - left to right - Cllr. David Smith, Carolyn Simmons, Cllr. Mary Mears, Cllr Wells and TG |
In March this year, with the help of another charity, the Trust for Developing Communities, Carolyn faced wholly bogus charges of having overpaid herself and was accused of theft and dishonsty. The Trustees, consisting of Newman and a Tory Councillor Dee Simson, summarily dismissed her.
What was unique about the case was that other Conservative Councillors – including the ex-Leader of Brighton Council, Mary Mears, local councillors Geoff Wells and David Smith, as well as the former Cabinet member for Finance, Jan Young, who had been brought into investigate the DYP, gave evidence for the claimant!
In August a 3 days hearing at the Havant employment tribunal heard the case and unanimously ruled that Carolyn Simmon had been dismissed for making a protected disclosure. Perhaps the final nail in the coffin of the respondent’s case was the fact that they had dismissed her grievance at a Management Hearing on 13th February 2012 and then gone on to hold a disciplinary hearing on 2nd March!! In fact the latter was nothing more than a disciplinary hearing fishing expedition designed to extract information under false pretences. Unfortunately for the trustees, not trusting them as far as I could throw them, I took the precaution of secretly tape recording the meeting held by Dee Simson and the equally prejudiced CEO of the Trust for Developing Communities, Barry Hulyer.
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| Cllr. Geoffrey Wells, Tony Greenstein and Emily, a worker whose contact was altered without her knowledge depriving her of the right to take holidays out of school term |
Below is a letter I’ve sent to every single Green Councillor asking whether there are any principles they still stand for and whether they even understand the concept of whistleblowing – a radical piece of legislation brought in by New Labour – as a result of the terrible disasters such as Piper Alpha, Clapham, the sinking of the Herald of Free Enterprise and the mass murders or Harold Shipman. Dame Janet Smith, latter of the Court of Appeal’s Shipman Report recommended making whistleblowing more easy. In fact it will become much more difficult as the present Liberal-Tory coalition propose to charge anyone who whistleblows £450 to get a claim in and another £1,050 to get the case listed!
Below are a few photos from a celebration drink we held at the Black Horse in Rottingdean! It is probably one of the few occasions that I’ve have ever been snapped sharing a pint with Conservatives, but it says something about politics today that the Green Party backs the guilty party and New Labour has said nothing!
Tony Greenstein
Saturday, 24 November 2012
Dear Green Party Councillor,
On 5th November I wrote to every single Green Party councillors informing them of the outcome of a whistleblowing case, in which I had represented a worker, Carolyn Simmons. The case was precisely the kind for which the whistleblowing legislation (PIDA 1998) had been introduced.
As the Argus article of 5th November makes clear, Carolyn, had discovered that another worker, Gary Rolf, had been submitting, over a long period of time, fraudulent invoices for monies which he paid to himself. Money incidentally which originated with Longhill School in Brighton but which was channelled via the Deans Youth Project. The role of Longhill, although tangential, in turning a blind eye to what happened and continuing to deal with Mr Rolf is another story.
Instead of the trustees, Linda Newman and Cllr. Dee Simson, immediately suspending Mr Rolf, it was Carolyn Simmons who was accused of theft and dishonesty, dismissed and reported to the Police. The employment tribunal found that these allegations were wholly untrue and were devised with the sole purpose of getting rid of someone who had exposed fraud.
Well before the tribunal hearing I went out of my way to keep the cabinet member, Sue Shanks informed. I held a meeting at King’s House with her, in order that she could be apprised of the situation. She in turn assured me that no legal or other help was being extended to the trustees.
I was later to discover, when we obtained disclosure, that this was not true. In the minutes of a Management Committee of 13th February 2012, I found the following:
‘LN has updated Kerry Clarke on the issues facing the project since June. Kerry confirmed she is happy that the project is being managed and the issues are being dealt with. Kerry also suggested that the LA may be able to offer legal assistance.’
It later transpired that the Council’s own employment solicitor, Ian Yonge, through a private arrangement, was and is acting as solicitor to the DYP trustees. This was as clear a conflict of interest as it is hard to imagine. It also indicates that the Green Party may be in office, but it is the Officers who continue to hold power since, as far as I’m aware, no action whatsoever has been taken to remedy the above.
Only last week I discovered that the post of Senior Youth Officer had been advertised. The previous holder of the post, Helen Baxter, the partner of Mr Rolf had resigned. Two other workers at the Project, Donna Wilson and Emily Packham had been made redundant from youth worker positions and not told about this or any other similar posts. It was only after I threatened to bring two more actions at the employment tribunal that Linda Newman (see below, 15 November) withdrew the advertisement for the post.
Sue Shank’s last communication with me (19th November) was to let me know that she had had a long conversation with Dee Simson and that an offer would shortly be made. It would seem that the cabinet member responsible now sees her role as little more than a post box for trustees who have become utterly discredited. Quite why Sue Shanks is holding ‘long conversations’ with Ms Simson, given that her own evidence was comprehensively discredited, defies belief.
I have been forced to send to Linda Newman, two different schedules of loss. One for about £7,000 if Carolyn Simmons is reinstated and another for about £33,000 if she is not reinstated. If the current trustees, who repeatedly lied and dissembled on oath, and who conspired to manufacture a wholly bogus case of theft and dishonesty against an innocent employee, are allowed to remain in post, then reinstatement will clearly be impossible. Yet the interests of the charity are clearly that there should be a new set of trustees.
Whilst the Council cannot directly impose new trustees it can, through the freezing of its grant and through liasing with the Charity Commission, exert a considerable influence. Instead Sue Shanks, led by Kerry Clarke, seems content to continue with the existing trustees whereas their resignation should be a condition of any grant continuing.
I have already made a complaint to the Charity Commission against that body’s lethargy and they have now begun a new investigation. If necessary I shall make a complaint to the Local Government Ombudsman concerning the Council’s own role.
I also have a few comments of my own.
The Green Party came to power promising a new broom. It claimed to be a principled party standing up for the citizen yet, irony upon irony, it has been Conservative councillors and ex-councillors who were prepared to support Carolyn Simmons at Tribunal. If ever there was an issue on which the Green Party should have made the running it should be on the question of whistleblowing. PIDA was one of the few pieces of radical legislation that the last Labour government introduced. Suffice to say that a combination of the Piper Alpha and Herald of Free Enterprise disasters plus Harold Shipman, convinced the establishment in this country that whistleblowing legislation was a necessity. It was introduced with all-party support.
It therefore beggars belief that Britain’s first Green Party Council seems to be led by a tame tabby cat and a group of erstwhile radicals who, instead of giving guidance to their officers, seem to lean on them for support. I am therefore writing to you to demand, not ask, that you take decisive steps to ensure that youth provision in the Deans is maintained, that all measures are taken to rid the Deans Youth Project of existing trustees and that those who stuck their heads above the parapet, not only Carolyn Simmons, are not penalised for their honesty.
Is that too much to expect of a Green administration?
Tony Greenstein
>>From: Linda Newman
To: 'tony greenstein' & others
Sent: Thursday, 15 November 2012, 22:07
Subject: RE: Appointment of Senior Youth Officer - Detrimental Treatment of Emily Packham and Donna Wilson
Dear Mr Greenstein,
For the record, I posted a copy of the job pack to XXXX on the day before the advert went live on our website, a clear indication that she was invited to apply for it. A role of that level should properly be the subject of competition. XXX has the required level 3 qualification required by BHCC for the service provision contract that they have just awarded to the B&H Youth Collective (of which DYP is a member). XXX does not have the required qualification.
When there were no suitable applications by the closing date, the Trustees reasonably assumed that Donna had decided not to apply. Her recent postings on Facebook are confirmation of her feelings about working for the DYP.
The vacancy has been completely withdrawn.
Linda Newman
From: Sue Shanks
To: tony greenstein
Sent: Monday, 19 November 2012, 19:24
Subject: RE: Tribunal Judgment - Without Prejudice save as to costs
i had a long discussion with Dee last week and i understand they will be making you an offer shortly.
From: Kerry xxx
To: tony greenstein
Sent: Wednesday, 14 November 2012, 17:50
Subject: protected: Deans Youth Project
Dear Tony,
I have seen that you have written to the Deans Youth Project and the response that I am receiving is that they are consulting with their legal adviser, whom I will be making them aware of their responsibilities to minimise loss, as well.
I too, hope this manages to get resolved as soon as possible and as I said in my email, I have asked the Youth Collective to ensure there is a back up plan to ensure youth provision is available to young people if required.
Kerry xxxx
Strategic Commissioner,
Children, Youth and Families.
XXX
email: kerry xxx@brighton-hove.gov.uk
From: tony greenstein
Sent: 09 November 2012 17:47
To: Linda Newman
Subject: Re: Tribunal Judgment - Without Prejudice save as to costs
Dear Ms Newman,
I wrote to you on 26th October regarding the outcome of the tribunal. The parties have been allocated 4 weeks before they should apply to the Tribunal to set a date for a remedy hearing. I have not received a response.
I would prefer to have this matter wrapped up as soon as possible and to avoid, if possible, further delay and I would therefore be grateful if you would provide a response as soon as possible.
regards
Tony Greenstein
From: tony greenstein
To: Linda Newman
Sent: Friday, 26 October 2012, 22:16
Subject: Tribunal Judgment - Without Prejudice save as to costs
Dear Ms Newman,
I assume that you have now received the decision of the employment tribunal that the claimant, Carolyn Simmons, was automatically unfairly dismissed for having made a protected disclosure, as well as having found that she was wrongfully dismissed and therefore being owed holiday pay.
Although you do, of course, have the right to appeal to the Employment Appeal Tribunal, I should imagine that your own counsel would advise against this since you would be appealing in essence against findings of facts and an appeal on the grounds of perversity has to surmount an extremely high threshold in accordance with Yeboah v Crofton. It would be highly unlikely that an appeal would even get beyond the sift stage, so the real question is one of remedy.
I would hope that you agree that the best course of action would be for the the present trustee board to resign and set in train an emergency meeting of members of the company in order that new trustees could be elected. The findings of the tribunal were pretty decisive on all the main issues. It is extremely unfortunate that you chose to listen to the advice of Barry Hulyer and target Carolyn, since I offered at the meeting I had with him, a fair settlement, but one that involved the continuing employment of Carolyn.
It would clearly be impossible for Carolyn to be reinstated whilst the current trustees are in position but if you are prepared to allow others to take over and thus enable Carolyn to be reinstated, then the amount of compensation would be limited to her losses since dismissal rather than future unquantifiable damages that could jeopardise the future of DYP.
I would therefore hope that you, as Chair of the Trustees, would put in place arrangements for the election of a new trustee board and thus enable a settlement to go ahead without the need for a remedy hearing.
In the event that we are forced to go to a remedy hearing, then we will be seeking, on behalf of the unemployed centre, substantial preparation time costs as I personally spent a very considerable time preparing this case, researching the law and perusing the documents and comparing them with one another.
Regards
Tony Greenstein
Claimant Representative
From: tony greenstein
To Green Party & other Councillors
Sent: Monday, 5 November 2012, 16:55
Subject: Whistleblowing - Deans Youth Project - Argus article 5.11.12
Dear Councillor,
If you read the Argus today (p.5) there is an article ‘Charity sacked worker for being whistle-blower’ subtitled ‘Manager had reported alleged fraud at Tory-run charity’.
The main headline is true, the sub-heading is not true, as charities cannot be run by a political party! But the story underneath, with one or 2 minor exceptions, by Ben Parsons is accurate although by no means the whole story.
Back in July 2011 the office and finance worker for Deans Youth Project, Carolyn Simmons, reported to the Chair of the Management Committee & Trustees Linda Newman (not Centre manager as in the article) that she suspected another worker Gary Rolfe had been submitting false invoices at £250 every other week for fishing trips for youngsters from Longhill School. Her suspicions proved correct.
There was another more minor disclosure, that 2 other workers’ personnel files had been accessed and the middle pages of their contracts removed and another page substituted, removing their right to take leave outside of school holidays.
However nothing was done about either disclosure and when pressure was put on to do something it ended up, as is often the case with the person blowing the whistle being dismissed on trumped-up charges of having overpaid herself. Her dismissal letter accused her outright of theft and Carolyn was reported to the Police, who not unnaturally were not interested.
The worker guilty of fraud was, after pressure from members of the Management Committee finally dismissed, 5 months later only to be reinstated. The advice to reinstate came from the CEO of another charity which had been involved with DYP, the Trust for Developing Communities. The TDC, which was involved in helping the DYP become a limited company, had no expertise in employment law and the advice given, that the worker who had admitted fraud could take them to an employment tribunal and obtain £50,000, was the kind of advice you would receive from a drunk in a bar. Any organisation giving advice should stick to its own area of expertise.
At the end of August there was a 3 day hearing at an employment tribunal in Havant where I represented the claimant. The evidence against the 2 trustees running DYP - Linda Newman and Cllr. Dee Simson was damning. Eg. a grievance complaint by the claimant was turned down in mid-February by the Trustees and yet 2 weeks later they held a grievance hearing!
Virtually all the facts in contention were decided in the claimant’s favour and the decision was that Carolyn Simmons was automatically unfairly dismissed for making a protected disclosure.
The Argus sub-heading is wrong because in fact most of the Conservative councillors (the DYP covers Woodingdean and Rottingdean/Saltdean) were eased out by Ms. Newman and Cllr. Simson. 3 current Conservative councillors (Mary Mears, Geoff Wells and David Smith) gave evidence for the claimant, as did one ex-Tory councillor Jan Young, as opposed to one Tory councillor who gave evidence for the respondent, Dee Simson. It is much to the credit of Mary Mears, Geoff Wells and David Smith that they either resigned or refused to become trustees of what they considered to be a fraudulently run organisation.
We are calling on the Council, which has been very dilatory so far, to suspend their grant pending the election of new trustees and the reinstatement of Carolyn Simmons. We would also like to see two other workers, who also suffered detrimental treatment, being reinstated.
Tony Greenstein
The Argus, Monday, November 5, 2012
Charity Sacked Worker for being whistle-blower
Manager had reported alleged fraud at Tory-run charity
by BEN PARSONS
A CHARITY run by Conservative councillors sacked a woman because she blew the whistle on a colleague's alleged fraud.
The Deans Youth Project was found to have wrongfully dismissed Carolyn Simmons in March, after she claimed to her boss that a worker, Gary Rolf, had falsified invoices worth more than £7,000.
An employment tribunal found that Councillor Dee Simson and centre manager Linda Newman sacked her because they were unhappy that the other worker had had to leave.
The charity, based at Woodingdean Youth Centre in Warren Road, Woodingdean, runs projects with "disengaged pupils" and others aged 13 to 19.
Mrs Simmons became office manager in December 1999, with duties including bookkeeping.
The tribunal heard that in July 2011, she told Mrs Newman, chairwoman of the charity's management committee, that Gary Rolf had been falsifying £250 invoices for fishing trips to Passie's Pond, at Church Farm, Coombes, Lancing.
Mrs Newman shredded the invoices but copies showed they totalled £7,650.
No action was taken until October that year. A panel made up of councillors Mary Mears, David Smith and Geoff Wells was set up to investigate the falsification of invoices. They raised concerns about the shredding.
Mr Rolf, who said he had falsified the invoices for ease of accounting, was sacked, then reinstated but then resigned and left in March this year.
In March, Mrs Simmons faced a disciplinary process accused of overpaying herself. She was sacked but took the charity to a tribunal claiming wrongful dismissal.
The tribunal, which sat at Havant in August this year, heard that Coun Wells was of the view that there was undue haste to progress allegations against the claimant and in his view this contrasted quite markedly with the treatment afforded to Mr Rolf.
Coun Mears told the tribunal she thought the allegations against Mrs Simmons were brought "to deflect away from the original investigation regarding the fraudulent invoices".
In its judgement, issued on October 25, the tribunal panel found that Mrs Simmons did not deliberately overpay herself or breach her contract. It found that she had been wrongfully dismissed because she had made a "protected disclosure" by blowing the whistle on the invoices.
It concluded: "Although Ms Newman and Ms Simson were ultimately concerned with the success of the youth project, in relation to the claimant's dismissal we nonetheless find that they were motivated by the claimant's protected disclosures.
"In particular, they were not happy that as a result of the claimant's endeavours Gary Rolf, in effect, had been forced to resign from his position because of the allegations made against him."
Tony Greenstein, who represented Mrs Simmons at the tribunal, has called for her to be reinstated and has complained to the Charity Commission about the case.
Sussex Police confirmed a 39-year old man was arrested on suspicion of fraud at the centre on December 23 last year.
They later released him with no further action against him.
Neither Coun Simson nor Mrs Newman were available to comment yesterday.
Conservative councillors Dee Simson, Mary Mears, David Smith and Geoff Wells were part of the charity's management committee until it was disbanded in December 2011.