£70,000 charity executive claims unfair dismissal

by DOUG COLLIE 

The former chief operating officer of a Borders-based charity which supports people with learning difficulties claims to have been sacked on the spot following disclosures he made about Brothers of Charity Services (Scotland) [BOC] to national watchdog The Care Inspectorate.

Gary McManus, who was receiving a salary of £70,000 at the time of his dismissal last November, voiced concerns about several aspects of the charity's operations at a Teams meeting with the Inspectorate's Lynne Hepburn only days before his employment was terminated.

But an Employment Tribunal (ET) hearing heard that management at BOC denied any link between Mr McManus talking to Ms Hepburn and his sacking. Instead, he had been told to leave his executive post because of "issues in the working relationship" between him and BOC.

Stuart Neilson, an ET judge, has rejected Mr McManus's application for so-called interim relief to preserve his employment status until the tribunal has decided a claim for unfair dismissal.

But the written judgment explains that this decision is purely in the context of the application and has no bearing upon any final decision in the case when the Tribunal and the parties will have had the benefit of hearing oral testimony, with appropriate cross examination, and consideration of all relevant documentary evidence.

Mr McManus was employed by the charity from March 2022 until November 2023 during which time his annual salary increased from an initial £54,000 to £70,000. The claimant alleges that he was unfairly dismissed and that the reason or principal reason was due to the disclosures that he made to the Care Inspectorate.

According to the tribunal report, Mr McManus made the following disclosures to Ms Hepburn: "(a) Concerns regarding governance and compliance issues within the respondent [Brothers of Charity Services (Scotland)]; (b) That he understood there had been a practice within the respondent of falsifying the files that the respondent held for each registered manager. In particular that there was a standard file that met the requirements that the Care Inspectorate might look for with regard to a registered manager and the practice had been simply to use that standard file but change the name of the registered manager on the file – so that in reality the file did not actually relate to that specific registered manager. 

"(C) That there had been a failure to provide incident reports (“Notifications”) to the Care Inspectorate. These Notifications, which were a legal requirement, relate to any adult protection concern – which might include e.g. abuse, significant harm or staffing issues. Some of the failures went as far back as 2008/2009. (d) Issues around the undermining, by the respondent, of the approved management review and restructure that had been approved by the respondent in April 2023. (e) Flip flopping on decision making within the respondent – in terms of inconsistency in dealing with people issues such as performance."

Mr McManus alleged that he made these disclosures as he wanted to reset the relationship between the respondent and the Care Inspectorate and to demonstrate transparency and ownership of issues. This followed a Care Inspectorate report into BOC in the summer of 2023 that had given the respondent a “weak” rating.

As a consequence of making these disclosures the claimant alleged that was called to a Teams meeting on 30 November 2023 with the Chief Executive, Jane Moore and the head of HR, Fiona MacDonald. At that meeting he was notified that his employment was terminated with immediate effect. The dismissal was pre-determined. He was given no opportunity to answer any of the allegations. There was no fair process and no right of appeal.

Daniel Gorry, solicitor representing BOC, told the tribunal the respondent was unaware of the content of the discussions on the call between Mr McManus and Ms Hepburn but had been advised by the manager at the Care Inspectorate that the claimant complained about the managers within the Social Work department of the respondent’s funder, Scottish Borders Council.

The respondent was also able to point to a timeline that showed the real reason for dismissal was not linked to the alleged disclosures. In particular Mr Gorry highlighted that there were issues in the working relationship between the claimant and the respondent.

He drew attention to a breakdown in the relationship between Fiona MacDonald and the claimant from September 2023 and concerns the CEO had about unprofessional e mails from the claimant. Mr Gorry referred to e mail exchanges between Fiona MacDonald and the claimant on 27 and 28 September 2023 that he suggested showed unfair criticism of Fiona MacDonald by the claimant regarding an employee’s registration details.

Mr Gorry submitted that all of this culminated in the CEO speaking to the Chair of the Board, Brother John O’Shea, on 20 November 2023 to discuss the continued employment of the claimant. They agreed to seek legal advice and a decision was made to terminate the claimant’s employment. That was actioned on Thursday 30 November 2023 when the claimant returned from annual leave.

BOC Services (Scotland) with a staffing headcount of around 250 supports over 80 individuals in the Borders ranging in age from 22-85 years, and has also provided care at home services.

The purpose of the charity "is to provide care and support to individuals that makes a real and meaningful difference to their lives".

An annual report published in 2022 noted: "Our staff turnover rate this year hit a record high of 30% and the main contributing factors are in line with the sector-wide profile - exhaustion, anxiety, stress, frustration at the lack of recognition in the wider community of social care staff".

In that year BOC received total income of £6.7 million while the cost of delivering its services totalled £6.9 million