Former council health and safety officer Brian Gourlay out walking his dogs on Sunday stops to pay tribute to the fallen at the war memorial in his home village.
By Bill Heaney
West Dunbartonshire Council victimised and discriminated unlawfully against a disabled employee – he was suffering from Multiple Sclerosis – by failing to make reasonable adjustments to his work station, computer and telephone when they moved him up to the fourth floor of the former council headquarters at Garshake in Dumbarton.
After ten years of wrangling over his future, the council fired Brian Gourlay on the spot for responding to them in a manner which they thought was insolent and disrespectful, but which the employment tribunal judge considered reasonable given all the circumstances.
The council’s staff relocation process at Garshake was an experiment in “hot-desking” called Office of the Future at a time when the dated ‘Fifties building was falling apart and earmarked for demolition and the council had its eye on moving to the old Burgh Hall in Church Street, which has been refurbished at a cost of more than £16 million.
Now, because of the cack-handed way they dealt with this, the cash-strapped local authority will have to fork out even more cash to financially compensate with taxpayers’ money Mr Gourlay, who was ironically a health and safety officer on the council staff at the time.
After interminable meetings, e mails and appearances before an employment tribunal, Mr Gourlay was fired on the spot by chief officer Steven West for challenging senior the council officials, including Victoria Rogers, strategic lead for people and technology, and her fellow chief officer, Angela Wilson, who were said to be part of a group who were fed up and desperate to get shot of him.
West Dunbartonshire Council chiefs Angela Wilson, Joyce White and Victoria Rogers.
This was despite the fact that his disciplinary record was “clear of default” during the seven years he had worked with the council.
Mr Gourlay was frequently referred to by some members of staff as “the employee from Hell” because he stood up to the bosses when they dealt with him, giving him warnings about his attendance at work which he said affected his mental health and made his life unbearable.
By a majority however, with employment judge Ian McPherson dissenting, the tribunal, which for various reasons including illnesses, took nearly ten years to complete, found that the Council did not discriminate against Mr Gourlay by treating him unfairly because of his MS disability.
The panel did, however, agree that Mr Gourlay, who had complained from time to time about little being done by the council to help resettle him at his new work station, had been victimised by their decision to suspending and dismiss him in a manner contrary to employment law.
During the months and years when this seemingly interminable hearing was running, West Dunbartonshire Council’s management and spin doctors were busy portraying the council as a caring employer.
Only last week The Democrat revealed exclusively that 445 staff, around nine per cent of the total, have resigned from the council since April, 2020, which hardly paints a picture of a happy atmosphere and good staff relations there.
For example, out of a staff compliment of 25 in the planning department, where there have been unconscionable delays in processing applications for planning permission in recent times, 22 people are said to have resigned alleging that a bullying environment exists there.
This was the atmosphere while chief officials and members of the SNP administration, who should have been seeking a solution to their ongoing staff problems, were squabbling over corruption allegations in their procurement process, which remarkably against every rule in the book had been non existent for four years.
More recently, the public were fed a line that mental health first aiders were being introduced “in a bid to keep the workforce healthy”. Staff would be trained to recognise the crucial warning signs of such illness and help build up the confidence of the people suffering from stress and anxiety.
Council officials said they wanted to smash stigma around mental health and revealed how sickness absences caused by mental health and stress among their staff was “a concern” for them.
A leading figure in this initiative was Victoria Rogers, strategic lead for people and technology, who said it was a drive “to embed a culture which encourages staff to speak openly about their mental health”.
Ms Rogers, who was promoted to her £90,000 a year post – there are eight officers on or around that salary – added: “Every one of us has mental health. Poor mental health can impact on any one of us at any time regardless of age, gender, societal background or role, with one in three people affected each year.
“Statistics mean that at some point in our lives, most of us are likely to experience a mental health issue and even those who do not directly experience it themselves are highly likely to know or care for someone who has.
“Over the last year, in addition to promoting the supports available to those who may be suffering from a mental health condition or feeling distressed, we have been working diligently to ensure we embed a culture that enables our workforce to speak openly and seek help.
“By raising awareness and providing information on mental health conditions we hope to increase under-standing and empathy and remove any associated or perceived stigma.
“Mental health conditions are not always obvious and we want employees, at every level, to know what to look for and recognise signs that someone may be struggling.
“No one should suffer in silence.”
Two mental health first aiders, who have been funded by trade unions, are already in place at the council.
Ms Rogers added: “They will offer a listening ear in confidence and our aim is for them to be as widely known and recognised as the general first aiders we have in place.”
However, in the real world of work, things were quite different with more and more people becoming mentally and physically ill with the onset of the pandemic.
Mr Gourlay wasn’t suffering in silence. He had told officers his new work environment was not conducive to his MS condition and within a short time frame his physical condition/symptoms deteriorated, and he started to suffer stress and anxiety. A request for help to obtain physiotherapy and other medical assistance was ignored by the management.
When, away back in 2013, Mr Gourlay was asked to attend a meeting the following day, which he understood was to discuss his concerns and the stress from which he was suffering, Mr Gourlay said he couldn’t be there because he had not had time to arrange for a representative to accompany him.
He was told coldly that “being accompanied was a courtesy rather than an entitlement.”
There were also issues about the IT system. Mr Gourlay had not had training in the one being used on the fourth floor computer he was given and he couldn’t cope with having to go up and down the stairs to use a printer. The management refused his request to have one close to his work station.
It was when talks started about early retirement on health grounds, that Vicki Rogers was consulted and it was decided the council should hold off with that for further consideration, but no wheels turned in that direction.
Then there were complex discussions about lodging a grievance when a person already had another grievance pending. There was disagreement too about who should chair an appeal and what level in the management hierarchy that person would have to be.
Mr Gourlay said that contrary to what Vicki Rogers had stated he was not questioning the competence of another member of the HR staff, Angela Terry.
He told the tribunal that he found the whole approach by Vicki Rogers was “intimidating” and “bullying” and that the point he was making had nothing to do with Ms Terry’s competence. Indeed, he found Ms Terry to be “a highly proficient HR manager”.
Given the way Mr Gourlay was feeling about this situation, and the way it was being handled by Vicki Rogers, he felt that he had no option other than simply to accept that Angela Terry would hear his appeal and he confirmed this in an e-mail.
His earlier objection to Ms Terry taking his appeal hearing had been that her grade in the management hierarchy was not appropriate to that task.
Mr Gourlay also explained in that email that he was unable to attend the meeting scheduled for 8 December 2014 as he had been instructed by his consultant nurse to arrange an appointment with his GP as soon as possible because, at that time, he was having great difficulty swallowing, and he had already undergone an urgent endoscopy on 4 December 2014, but they pressed on.
Then Vicky Rogers sent an email to Stephen West and Paul McGowan, of Human Resources, stating that there was a “growing potential for disciplinary process being invoked”.
Mr Gourlay was said to be unaware at the time that disciplinary action was already on the council’s mind – “All he was doing was raising concerns around the way his grievance was being handled.”
When Vicki Rogers confirmed to the claimant that it would not be appropriate for him to raise a separate grievance, Mr Gourlay felt that he was being given inconsistent information.
He raised seven concerns including Vicki Rogers presenting an autocratic, bullying and intimidating style of management plus his e-mails being deleted without consultation with him, which was “not conducive to a healthy workplace”.
He was uncomfortable regarding Vicki Rogers who, he claimed, had made unfounded statements about him in which she had described herself as, amongst other things, “balanced and a perfectionist”.
To the contrary, it was his view that she had acted unprofessionally in the way she had handled his concerns.
This was a war of attrition. Claims and counter claims were being made, which are annotated in a 200-page document accompany the tribunal judgment.
One note referred to council’s Code of Conduct which said: “Employees should respect each other, different beliefs and opinions, and behave in an appropriate manner at work.”
Angela Wilson alleged that Mr Gourlay had made “numerous unfounded and disparaging comments which he had circulated to others regarding your colleagues within this Council”.
She was said to be “particularly concerned” with his statements in relation to Vicki Rogers “which could be viewed as a personal attack towards her.”
When Mr Gourlay’s GMB trade union representative submitted his document to the Appeals panel, and
read it out, he highlighted how:
“In all my experience as a trade union , as a shop steward, Branch Secretary and full time union official ; in every circumstance where a grievance and disciplinary have involved the same individual, the grievance is always heard first. Why? Because that is in accord fair play and natural justice.
“In such cases it is accepted that an aggrieved individual will be allowed to make their case at a grievance hearing first as this procedure holds no potential for sanction against the aggrieved. To insist that a disciplinary hearing precedes a grievance is to leave the aggrieved individual at the mercy of a process where one possible sanction is dismissal. This is precisely where we find ourselves today.
“Mr Gourlay has been dismissed before the understandable concerns he was obliged to present as grievances have been given a fair hearing. I would ask panel members, is this fair? Is that just? Also, when we reflect that Mr Gourlay has been dismissed for his written opinions, it is significant that the Disciplinary Hearing Officer in March 2015 recommends that a further investigation should be considered to properly understand the context of Mr Gourlay’s statements regarding his Council colleagues. Mr Stephen West determined that this reasonable suggestion was not necessary.
“Remarkably in September 2015, he then heads a Disciplinary Hearing in which Mr Gourlay was dismissed for precisely those very comments that Mr West deemed not worthy of further investigation.
“I would suggest that Mr Gourlay has been failed by West Dunbartonshire Council. He is a professional Health and Safety Officer of long standing who finds himself on the dole because management were discomforted by his insistence on doing his job properly.
Before and after during demolition – the headquarters of West Dunbartonshire Council at Garshake in Dumbarton.
“Of course, Mr Gourlay did use terms which may reasonably be viewed as challenging. But given the intransigence and obstructive reactions of West Dunbartonshire Council HR Department, along with the lamentable lack of proper attention to his concerns by his immediate Managers, it is not surprising that
Mr Gourlay became frustrated and disillusioned.
“It’s not surprising that he concluded that the professional standards he demanded of himself were noticeably absent from the colleagues he was reliant upon to take those concerns seriously, and to act upon them appropriately.
“Mr Gourlay may be worthy of sanction over this matter, but I would submit that the sanction of dismissal is grossly unfair and disproportionate. There have been failings on both sides for sure. But Mr Gourlay is paying for his perceived failings with the loss of his job and livelihood.
“He is 54 years old, he suffers from Multiple Sclerosis, a lifelong, potentially degenerative condition, and he has been dismissed on a charge of gross misconduct. He is virtually unemployable whilst those that ignored his pleadings, failed to follow procedure and obstructed due process are free to carry on as before.
“Is this what the Elected Members would consider to be a satisfactory outcome to this sad chain of events?
It is unfair that Mr Gourlay finds himself out of a job because he had the temerity to speak out against the many corporate failures he witnessed and was subjected to. I would ask the Panel to recognise this unfairness and overturn the decision to dismiss.”