Lily blows EXTRA time!

Posted: 20th May 2012

Nearly a year after winning substantial compensation from her former employer, brave Lily Flurey has been back to the employment tribunal with further complaints of victimization. Channel swim heroine

Having been ordered to pay substantial compensation in March 2011, and in September a contribution towards the cost of the first proceedings, former boss Ian Darbyshire decided to hit back - provoking an investigation by the Independent Safeguarding Authority (“ISA”).

At the end of June 2011, Mrs Flurey was devastated to receive a letter from the ISA telling her that the Authority was considering whether or not to include her in one or both of the Children’s Barred List and the Adults’ Barred List. In the event it was to take only until the beginning of August for the ISA to conclude that there was nothing in the complaint but for over a month Lily lived under the threat of a decision that might have ended her career.

The initial letter from the ISA noted that a referral had been made by Moorlands Residential Care Home following “multiple allegations of unprofessional conduct”. There was no other detail of the complaint or opportunity to respond at that point.

Ian Darbyshire’s response, from the time that Williamsons first wrote to him until he gave evidence in the Tribunal six months later, was to assert that he had done no more than comply with a legal obligation. He said that “someone” had given the initial information to the ISA as a result of which he had received a letter to which he was bound to respond.

What he tried to conceal throughout the process was that the “someone” was Ian Darbyshire himself. The vengeful former employer’s cunning plan relied on the expectation that the trail would never be uncovered because of data protection rules. That strategy was foiled by application for an order of the tribunal that the ISA produce all the correspondence and notes relevant to the complaint.

These revealed clear statements by Mr Darbyshire that he needed a letter “to state that I have to refer this person” because he did not want any further legal action against him. Elsewhere in the documentation were found animated accounts of the unfairness of the tribunal proceedings and allegations that could not be reconciled with the tribunal’s own judgment. That document, notably, was missing from a thick bundle he sent to the ISA.

In his formal response to the proceedings issued in September 2011, Mr Darbyshire denied the claim that he had reported the claimant to the ISA referring specifically to the fact that “someone had made a referral”. The tribunal found that statement “categorically untrue”. It observed that the statement could not be explained away by any confusion between the respondent and his legal representative. Darbyshire’s lawyers had expressed the view, two and a half months before the hearing, that “this case clearly stands or falls on who reported your client to ISA”.

The tribunal noted that Ian Darbyshire “was evasive in evidence and failed to give straightforward answers to straightforward questions. It took the tribunal a substantial amount of time to get the respondent to concede that it was he who had sent the referral and that...what was said in the grounds of resistance simply could not be correct”.

The tribunal finds that the giving of the anonymous information and then the formal referral were malicious and an attempt to get back at the claimant with the respondent believing that it would never come to light that it was him because of data protection.”

The tribunal accepted that Mrs Flurey had been extremely upset at the prospect of being barred at a time when she considered that the (first) tribunal proceedings and the dispute over her dismissal were concluded. It was said, against that, that she knew herself that she had done nothing wrong and had nothing to fear. In making another significant award of compensation the tribunal observed “the fact is however that whenever any complaint is made to a professional body with the power to bar you from working it must be worrying, however much you feel yourself to be in the right”.

Michael Williamson again acted for Lily in these second proceedings. He said, “It is another reassuring demonstration that the law will come to the assistance of ordinary decent folk caught up in this sort of nightmare scenario. That said, the respondent may have got away with this spiteful act if some of the crucial evidence had remained buried in the file of the ISA in Darlington. They would, should and did refuse to disclose any more information because of data protection rules that are there for very good reasons.”

“Fortunately, we know that it is possible to get an order from a tribunal or court that trumps that obligation of confidentiality. The problem is that it is only with the knowledge that these things are possible that you are prompted to ask the questions that then indicate that an unusual application of this nature should be made.”

Michael added, “There is increasing pressure on people now to handle these things themselves - to “self-represent” as the Government euphemistically puts it. Litigants in person, as we have always known them, simply cannot be expected to know all the rules”.

“Without that knowledge, this claim would almost certainly have failed.”

Michael Williamson has taken on a number of these types of claim, and other challenging employment cases. He acts for both employees and employers and is happy to deal with all aspects of employment law, including advice on contracts, policies, procedures and compromise/severance agreements.

Link to original story .... Lily blows time!