Kath Harmeston / Co-op Employment Tribunal (part 3) – the Consequences

We return to Marie Clair Kidd's report on the Kath Harmeston / Co-op Employment Tribunal Hearing - see part 1 here and part 2 here. Whilst the Co-op is presenting this as a victory, it is clear that their reputation is not totally unsullied. However, Harmeston's judgement in hiring her preferred consulting firm must be questioned too.

After two weeks of court hearings, 4,386 pages of evidence and two months of deliberation, both sides are now counting the cost of the case, not least in terms of reputational damage.

The panel was critical about the way in which many of the witnesses conducted themselves, both before the hearing and while giving evidence. It said Andrew Pope, who conducted the investigation into Ms Harmeston’s relationship with SLP for the Group, included inaccuracies in his witness statement “designed to make us think badly of the claimant”.

“The way in which he carried out his investigation seemed to us to be inconsistent with his assertion that he had not received any executive steer at all as to what the outcome should be,” the judgement said.

Simon Mills, HR partner at the Group, was “visibly uncomfortable” in court. The panel did not believe that the Group’s executive had not hinted to him that the outcome of the investigation was predetermined

Former Group chief strategy officer Paula Kerrigan’s negative impression of Ms Harmeston “may have been exaggerated”. Pippa Wicks’ witness statement appeared to go out of its way to exaggerate perceived problems with Ms Harmeston’s attitude.

The panel was concerned that members of the group which planned the investigation into Ms Harmston’s relationship with Silver Lining Partners (the consulting firm she introduced to the business)  gave contradictory evidence, and there were no notes or minutes of its meetings. But it also found aspects of Ms Harmeston’s evidence “hard to accept”, including the extent of her communication with Gerard Soames of SLP.

The Group’s disciplinary hearing, led by Mrs Kerrigan, found Ms Harmeston had contravened procurement policy in hiring the firm. She had worked with it at the Royal Mail and, according to an anonymous letter sent to the Co-op, had known it had been investigated for malpractice there. It became claer that she left the Royal Mail with a "compromise agreement" in place.

During the hearing, Kerrigan found Harmeston guilty of misconduct around the hiring of consulting firm Silver Lining Partners, but not gross misconduct  She could not be sure Ms Harmeston had deliberately failed to get approval for SLP’s recruitment from Ms Wicks, she said. The tribunal concurred it was likely a “misunderstanding”.

Group Human Resources chief Sam Walker recommended Ms Harmeston’s suspension after receipt of the anonymous letter, but the Group kept both the letter and subsequent communications about Ms Harmeston with anonymous sources at the Royal Mail secret from her.

The panel also drew attention to inaccurate and misleading assertions by the Group’s legal representatives. An adulterated email submitted by its lawyers concealed not only the identity of the whistleblower at the Royal Mail, but also knowledge of the source’s identity and that he was prepared to make contact.

A Group employee had redacted the email. “It is highly likely that at least one of these witnesses, whose involvement in the claimant’s suspension and dismissal was pivotal, must have had a hand in allowing this misleading information to be put forward,” the verdict says. “We decided, therefore, that we would have to proceed cautiously in relation to all of them.”

According to the panel, it appeared Ms Harmeston had the engagement of Silver Lining Partners (SLP) in mind from the start, and she had certainly hired them outside proper process. It found that while the disciplinary was unduly harsh at times, Ms Harmeston must have known recruiting SLP was not compliant with Group procurement policy.

It added that that Mrs Kerrigan was not influenced by Ms Harmeston’s so-called whistleblowing. Neither were Mr Pennycook, Ms Wicks and Mrs Walker when they chose to dismiss her. Mrs Walker said in her evidence that dismissal was due to behavioural and performance issues, conduct that was “seriously wanting” and a broken relationship with senior management.

There had been issues with Ms Harmeston from the outset, Mrs Walker said, including complaints about her relocation to Manchester, the location of her desk, inappropriate use of executive meeting rooms and reluctance to share her personal assistant.

The verdict says: “The reasoning of Mrs Walker and Mrs Wicks was not entirely free from improper considerations of the fact that the claimant [Ms Harmeston] had made protected disclosures. But we cannot say that these considerations amounted to anything like the sole or principle reason for dismissal ... there were much more significant factors at play.

“If we had to pick out one factor that was more influential than any other it would be Mrs Wicks’ inability to trust the claimant because of the claimant’s failure to disclose SLP’s history at the Royal Mail".

“Mr Burns [representing the Group] told us that the respondent [the Group] had tied itself in knots in its attempt to conceal this reason from the tribunal. We agree. This judgement is our best attempt at untangling the web spun by the respondent.”

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