The Sellafield site
First hurdle over clearing the way for a two day hearing in January to decide on whether the 13 grounds mean the ruling is overturned
An employment appeal judge has ruled that the decision by Judge Philip Lancaster dismissing whistleblower Alison McDermott’s case against Sellafield and the Nuclear Decommissioning Authority can be challenged now on no fewer than 13 grounds.
This extraordinary ruling on Friday in London by Employment Judge Tucker took less than 10 minutes to grant after she read the submission by Andrew Allen, KC, Alison’s counsel , means practically everything Judge Lancaster decided is open to challenge at an Employment Appeal Tribunal hearing in January. She decided she did not need to hear oral submission from Andrew Allen.
Alison McDermott; Pic credit BBC
In an earlier particularly harsh decision Judge Lancaster had decided that she wasn’t even a whistleblower, for producing, at Sellafield’s request, a damning report revealing serious issues in the HR function including allegations of bullying and harassment. Prior to this Alison had raised repeated concerns about racism, homophobic and foul language and a workforce too frightened to complain to senior management there.
Despite admitting that some of the concerns Alison raised were: ‘very offensive and concerning ” the judge ruled: “The Claimant has not, on the facts, established any alleged disclosure which is properly capable of amounting to a protected qualifying disclosure or the doing of a protected act, or that there is any causal link between what she actually said or wrote.”
It is worth providing a brief recap of what Sellafield and the NDA have done to Alison. She spoke out repeatedly about serious abuses of employees, including abject failures within the HR department, when the HR Director, Heather Roberts dismissed her overnight, allegedly for financial reasons. But when Alison started litigation, Sellafield changed its tune and Ms Roberts said she had had concerns about her performance and had only mentioned financial reasons to be kind.
Sellafield then dragged out litigation for three years before making a last-minute offer of £160,000. When they realised the carrot hadn’t worked, they decided to go on the attack and subjected her to a brutalising cross-examination in which her character and competence were repeatedly vilified until she finally broke down on the witness stand. But even then, they weren’t finished with her. As soon as Judge Lancaster ruled in their favour, they lost no time pursuing her for costs And all of this will have a hugely chilling effect on their 11,000 nuclear workforce.
Judge Lancaster claims he concentrates on anti-discrimination cases
Judge Lancaster, who says he specialises in anti-discrimination cases, went on to support Sellafield’s allegation of “underperformance” describing the report as ” questionable and insubstantial ” and without ” meaningful analysis”. Judge Lancaster completely ignored that management consultants PwC ruled that the HR function was not fit for purpose some three months later.
By then Heather Roberts, then the HR director at Sellafield, had already sacked her on the spot and immediately buried the damning report and admitted to lying about the reasons. Despite knowing that Alison had become so ill and had no income, the judge made a costs order against her and allowed Sellafield and the NDA to put in a claim for £40,000 costs against her.
Now Judge Lancaster’s own judgement will be in the firing line in January when an appeal tribunal examines 13 arguable grounds of appeal. In a skeleton argument, citing a previous judgement, Andrew Allen, KC, finds a plethora of errors in law which led to Judge Lancaster’s bizarre judgement that she was not a whistleblower. One paragraph that encompasses this – citing no fewer that eight grounds that the case could be challenged gives a flavour of this.
“It is an error of law for a tribunal to fail to give adequate reasons for its decisions so as to enable the losing party to understand why she has lost. The EAT has already decided that it is arguable that this tribunal have erred in law: in applying s27 EqA – in failing to recognise protected acts; in applying s109(2) EqA in identifying the correct relationship in dealing with agency; in failing to engage with the Claimant’s submissions in particular on adverse inferences, protected acts and agency; in failing to take a step back and look at the totality of the evidence; in failing to be Meek compliant; in failing to ensure compliance with the overriding objective to ensure that the parties are on an equal footing; in failing to ensure that the hearing was heard in public in failing to recognise that the Claimant has advanced argument on the facts and the law in relation to the agency point; and in failing to comply with the overriding objective in dealing with the case fairly and justly.”
Andrew Allen KC
Andrew Allen, KC also argued that the tribunal had failed to follow the principles of the law in pursuing costs again Alison which says should only be made in exceptional circumstances especially in the case of whistleblowing cases.
This case and Sellafield’s response is attracting wider attention. It is not just the UK press. On Friday, representatives of a prominent Norwegian environmental campaign group, Neptune Networks flew in from Oslo to attend the hearing.
Norwegian national press to follow the case
Neptune Networks has been raising serious concerns about Sellafield for the last two decades and confirmed that they will be attending the main hearing on 17 and 18 January 2020 and they will be accompanied by members of the national Norwegian press.
Finally a little note about Judge Lancaster. He is also the chair of directors of a Christian charity, Spacious Spaces, based in Leeds, which offers treatment programmes for alcoholics and drug takers. Here he is known simply as ” Phil”. This is the note about him on their site.
“Phil Lancaster practised as a barrister, specialising in criminal cases. He is now an Employment Judge dealing primarily with the anti-discrimination laws. He is a member of St George’s Church, where he has been a church warden and served on the parochial church council. He is married with fairly recently grown-up children and a large collection of Bob Dylan cds.”
I find it a little perplexing given his Christian background and commitment to treating drug addicts and alcoholics that he is not concerned about what Alison McDermott exposed about the pressures on staff inside Sellafield who are working in the most hazardous nuclear site in Europe. I also find it deeply disturbing that he made snide and pejorative comments about Alison both during the ET hearing and in the merits and cost judgment.
An example of this is the nasty insinuations he made about Alison when he accused her in the costs judgment of bringing a claim ‘to advance her career across the nuclear sector’ even though she had turned down a £160,000 to bring her claim to court. He also seems oblivious of the huge strain and damage whistleblowers face to their careers when they blow the whistle. If his judgement is found to be so badly wrong by the Employment Appeal Tribunal, there must be some serious questions about justice in the employment tribunal system.
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