Thursday, 3 December 2009

Tales from the Tribunal Part 4

I was going to wait until I received the employment tribunal's full statement of reasons for its decision before doing another TftT but that's probably going to be some time so I thought I'd write about one of the issues where NCC fell down big style.

It concerns the issue of weighing up evidence and the related matter of deciding the credibility of witnesses. Throughout the tribunal it became crystal clear that, when deciding disputes via its own internal procedures, NCC doesn't bother with any of that.

Take two examples of how Lisa Black dealt with this when deciding on some complaints made against me.

First example. Imagine that you have three witnesses stating that scenario A was true and one witness saying that scenario B was true. Add in the fact that the one witness arguing for scenario B has a strong interest in that being accepted because if scenario A wins the day they are likely to face disciplinary action. Assume that, on the face of it, both scenarios A and B are plausible but contradictory.

Now a sensible intelligent person would conclude that, on the balance of probability, scenario A is correct. You couldn't really go any other way in the vast majority of circumstances.

Now guess what Lisa Black decided? Fair play, she couldn't quite go as far as saying that scenario B was correct but she decided that it was "ambiguous" whether scenario A or B was correct.


It just so happened that this issue had major repercussions on my ability to return to work as my position would have been seriously undermined.

Second example. In one dispute a certain witness made a rather extreme claim that, to be honest, just reading it in isolation would make you burst out laughing. This claim was flatly contradicted by five other witnesses.

In the same dispute another witness made a very specific claim in their written statement but changed their story very significantly in the internal decision meeting. This same witness made another claim that Lisa Black said later that she had disregarded.

During cross-examination Lisa Black made it absolutely clear that at no stage had it even entered her head to consider whether the credibility of either of these witnesses was possibly compromised. During the tribunal she gave a fairly robust explanation why she believed the second witness's account in the main but then couldn't explain how she squared that with disregarding the second claim he had made.

Believe me this is all basic stuff. In any dispute you will get contradictory accounts as to what happened and you have to make a decision as to which is the correct one. You have to give rational reasons why you have made that decision. If you can't evaluate evidence then you might just as well spin the bottle.

As if it were not bad enough that the Head of the Housing Benefits service cannot understand the importance of such basic decision making skills, the decisions of hers that these scenarios (along with many others) fed into were appealed via NCC's grievance procedure. There are two stages to this and in my case each stage was heard by a Director.

At the first stage, heard by Hugh White who is Director of Sport, Lisa's decisions were largely upheld although he did criticise the length of time taken to make them. At the second stage Helen Shipway, the Director of Customer Services, went as far as saying that she couldn't overturn Lisa Black's decisions because they were so well reasoned.

Under cross-examination both Directors had to admit that it did not occur to them that Lisa's decisions may be flawed because there had been no consideration of the credibility of witnesses. In fact Hugh White was almost pathetic to watch as it became increasingly clear that this was a totally alien concept for him, he looked more and more at sea until by the end of his time on the stand he looked like he needed his mum. I found myself checking under his chair expecting to find a little trail of wee but thankfully he was clear in that respect.

This might seem a little dry and lawyerish but it potentially affects anybody currently working at NCC. This total lack of rationality in decision making will potentially affect any internal council processes such as grievance, harassment and discrimination or disciplinary procedures. Take it from someone who knows, such matters can be career destroying and I know I'm not the only one this has happened to.

What's worse is that if you take out the rationality you open up far more scope for nefarious types to manipulate the processes for their own ends. Essentially there are people working at NCC who are effectively untouchable because they have their feet under the table with the right people. They have nothing to fear of people complaining about them because it's so easy for their mates to come to the rescue. I am 100% convinced that Lisa Black is one of the people who benefits from this situation, however, once the decision making got outside of NCC to an employment tribunal she could no longer rely on her protectors and she doesn't come out of it looking good.

Of course the final aspect of this is that NCC's Legal Services didn't see any of this coming. They were absolutely confident of winning and spent who knows how much on a London barrister for what was originally going to be a 12 day hearing. As I've pointed out before, only a tiny number of employment tribunal cases against NCC get as far as a full hearing, the vast majority are settled.

It is essential that Nottingham City Council initiates a comprehensive retraining programme for the people it charges with the huge responsibility of officiating over formal internal disputes. There should also be an investigation of a sample of past cases to establish those who have the least ability to hear cases properly and ensure that they do not hear any further cases until the council has satisfied itself that they have been brought up to scratch.

Not only does getting it wrong cost a fortune, it ruins people's lives. I think NCC has got just a little bit too casual about both.

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