Middlesbrough Council worker in tribunal over ‘GDPR breach’ dismissal
Brian Foulger spent 20 years working for Middlesbrough Council, initially in children’s safeguarding, and was employed as a senior transport officer before his dismissal in July last year.
He was present at a meeting last February involving former interim chief executive Clive Heaphy and an employee which was called over a potential whistleblowing allegation and grievance by the member of staff, who claimed she had been subject to race discrimination.
Mr Foulger, who was representing the GMB union at the meeting with another trade union rep also present, went on to discuss the matter on the telephone with an officer in the council’s HR department in which the identity of the potential whistleblower was either revealed or inferred from what he was saying.
He was suspended after the officer reported it to her manager and later fired by the council, having been accused of a breach of General Data Protection Regulations (GDPR) said to amount to gross misconduct.
The 59-year-old from Stockton continues to be paid by the council following a previous ruling which saw him granted interim financial relief with the local authority being ordered to continue his contract of employment until the determination or settlement of his claim.
An employment tribunal at Teesside Magistrates Court was told that Mr Foulger “had a hand” in an audit investigation, the findings of which were made public in 2019 after raising concerns about the maintenance and management of Middlesbrough’s Transporter Bridge and was of the opinion that after this a “target had been put on his back”.
He complained he had been treated unfairly and “punished” due to his role as trade union convenor, which he had been in for 15 years.
Council chief executive Erik Scollay, who in November last year replaced Mr Heaphy, was tasked during his previous role as director of adult social care with deciding the outcome of disciplinary proceedings brought against Mr Foulger.
Mr Scollay said there had been a “high degree of sensitivity” in what had been aired at the meeting at the centre of the case and the claimant had been “guilty of a serious breach of confidentiality”.
He also believed Mr Foulger had “stepped outside an agreed course of action” Mr Heaphy was said to have proposed.
Referring to the telephone conservation, he said it became apparent the identity of the potential whistle blower had been established, but rather than Mr Foulger stopping the conversation, it “carried on for 46 minutes”.
A range of other things were said to have been discussed of a confidential and sensitive nature.
Mr Scollay said: “Neither party should have maintained that conversation.”
There was disagreement over whether Mr Foulger had the authority to speak on the whistleblowing employee’s behalf, as she was not a member of the claimant’s union, and whether he had been given consent to share any information from her.
Neil Sharples, a regional legal officer from the GMB, put it to Mr Scollay that he had already made his mind up to sack Mr Foulger before the disciplinary hearing he chaired, something the council chief denied.
Mr Sharples said it had never been explained to Mr Foulger exactly what bit of council policy he had breached.
Mr Scollay said he did not believe the claimant had been provided with a copy of the council’s GDPR policy, nor was it discussed at the disciplinary hearing.
He also acknowledged he had not checked Mr Foulger’s disciplinary record, which was unblemished.
Mr Sharples said dismissing Mr Foulger in the circumstances was “not remotely reasonable”.
Mr Scollay replied: “On the basis of the information shared and the significance of the information [which was] at the centre of a potential whistleblowing allegation, and the seriousness of the breach of confidentiality, I believed it was reasonable.”
He said it was “absolutely not” the case that Mr Foulger was dismissed because of his trade union role.
Mr Scollay was also objecting to Mr Foulger being re-employed, something that was being considered by the tribunal, because of what he deemed to be a “fundamental breakdown of trust”.
Earlier, Sam Gilmore, head of economic growth at the council, stated how he had been instructed to establish if disciplinary proceedings should be triggered with other options including no further action, or support and additional training.
Mr Gilmore said he was satisfied that there was the need for a disciplinary hearing and also described “inconsistencies” in a statement Mr Foulger supplied.
He said it was not his job to establish if there was any misconduct resulting from a breach of policy, merely to decide on the next step to be taken.
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Mr Gilmore said: “The question was whether highly confidential information had been shared with another member of staff, I found that it was.”
Mr Sharples suggested that Mr Foulger had been “scoping out” the merits of the member of staff lodging a grievance, although Sam Healy, for the council, disputed this.
The tribunal in front of employment judge Kirti Jeram continues.