CAROL MCDONALD AGAINST DUNDEE CITY COUNCIL

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SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE

 

[2015] SCDUN 74

A145/12

JUDGMENT OF SHERIFF MUNGO BOVEY QC

 

In the cause

 

CAROL McDONALD

 

Pursuer;

 

Against

 

DUNDEE CITY COUNCIL

 

Defenders:

 

Act:   Hay, advocate, instructed by Allan McDougall, Solicitors, Edinburgh

Alt:   O'Brien, advocate, instructed by Simpson & Marwick, Solicitors, Edinburgh

 

Dundee,   December 2015

The Sheriff, having resumed consideration of the cause:-

Sustains the second plea in law for the defenders and assoilzies the defenders from the first crave of the initial writ; reserves meantime all questions of expenses.

 

FINDINGS IN FACT

No	Finding in Fact
1	The pursuer is a qualified social worker. The defenders are a local authority. The pursuer began employment with Tayside Regional Council, the statutory predecessor of the defenders, as a social worker on 22 June 1992 and remained continuously employed, latterly with the defenders, until she resigned with effect from 5 September 2008.
2	At all material times, the pursuer was employed with the defenders' Access Team at the Nethergate Centre in Dundee. At all material times the pursuer required to be, and was, registered as a social worker with the Scottish Social Services Council[1].
3	From about 2001 until 1 June 2008 the pursuer was line-managed by Dawn Kirk, a more senior social worker employed by the defenders. Miss Kirk was transferred to manage another team of social workers on around 1 June 2008. Thereafter, the pursuer's line manager was Lynne McBean who is also a social worker.
4	The Access team was the point of first contact for many of those in need of the defenders' social work service including many children. Over the period of the pursuer's time there, the workload increased and they were often understaffed. Things were particularly difficult in this regard between February 2007 and July 2008. Ms Kirk’s management did not involve formal supervision meetings. Following the death of a child on 16 March 2008, those charged with leading and managing child protection services in Dundee commissioned two separate reviews which were not published until August 2009[2]. A separate inspection of child protection arrangements in Dundee was undertaken by HM Inspectorate of Education and that report was published on 23 June 2009. At all material times, therefore, the department of which the pursuer was part was under intense investigation of its conduct in relation to this event.
5	On 5 June 2008, Lynne McBean and the pursuer had a meeting at which the pursuer's case-load was discussed. The number of home visits carried out by the pursuer was discussed.
6	By letter dated 15 July 2008[3] Ms McBean invited the pursuer to attend a meeting on 23 July under the defenders' disciplinary procedure “...to investigate allegations of concerns regarding your practice.” Ms McBean was entitled, as the pursuer's manager and in terms of the defenders' disciplinary procedure, to arrange such a meeting.
7	On or about 20 July 2008 the pursuer submitted an application for renewal of her registration as a social worker with the SSSC. This application was countersigned on behalf of the defenders.
8	The pursuer was absent from work on sickness absence from 2 July until her employment ended on 5 September 2008.
9	The investigatory meeting scheduled for 23 July 2008 did not take place because it was postponed at the request of the pursuer. The meeting was rescheduled for 18 August 2008. The pursuer did not attend that meeting and it did not take place. The meeting was not re-scheduled.
10	In the course of July and August 2008 and, in any event, before 26 August 2008, the pursuer applied for a post as a social worker with Angus Council, attended an interview for that job, and was verbally advised by Angus Council that her application had been successful. In respect of this application, Miss Kirk and not her line manager, Ms McBean, was the pursuer's referee.
11	The pursuer was interviewed by Angus Council on or about 4 August 2008 and offered a job on about 8 August. Although she had by then received the letter of 15 July 2008 [4]requesting her to attend an investigatory meeting into allegations of concerns regarding her practice, she did not disclose this.
12	By letter dated 11 August 2008[5], the pursuer tendered her resignation from her post with the defenders on four weeks' notice. By letter dated 15 August 2008[6] Ms McBean accepted her resignation on behalf of the defenders.
13	By letter dated 26 August 2008[7], Alistair Pender of Angus Council wrote to Margo Dymock, Ms McBean's line manager in the following terms: “Further to our telephone conversation, I understand that you may have additional information that you wish to make available to me in the context of our current recruitment and the reference provided by a member of staff of Dundee City Council Social Work. “I would be grateful if you would forward that information to me so that we can reflect on the offer of appointment that we have made...”
14	By letter dated 1 September 2008 Ms McBean replied to Mr Pender: “I am writing in response to a letter to Margo Dymock Service Manager, which she received from Alistair Pender following a telephone conversation he had with her. During this telephone conversation it was agreed that we would provide additional information to supplement the reference you had already received from Dundee City Council which had not come from her current line Manager. “That additional information is as follows: “I have been Ms MacDonald’s Line Manager since 1 June 2008. Very shortly after my arrival to the team I noted significant concerns regarding Ms McDonald’s practice. An investigatory meeting was arranged under Dundee City Council’s disciplinary procedure for 23rd July 2008; Ms MacDonald postponed this meeting. A further date was set for 18th August 2008 which Ms MacDonald did not attend. Ms MacDonald has been absent from work due to sickness since 2 July 2008, she has now resigned from her post so this investigation has not been concluded and we therefore cannot advise you of an outcome.”
15	On or about 5 September 2008 the defenders contacted the SSSC by telephone to advise them of the outstanding disciplinary investigation in relation to the pursuer. By letter dated 8 September 2008[8], Ms Dymock wrote to the SSSC giving some detail of the outstanding investigation. Following on receipt of that letter, the SSSC carried out an investigation. At about this time, the pursuer told Angus Council of the SSSC investigation.
16	By letter dated 15 September 2008[9] the SSSC wrote to the defenders asking for copies of any investigatory notes or paperwork held by the defenders relating to allegations against the pursuer. That request was reiterated on 29 September, 17 October, 14 November and 11 December 2008[10]. On 2 October and 5 November 2008[11], the defenders sent holding replies.
17	On 22 September 2008 the pursuer attended an investigatory meeting with employees of the defenders. 6/5 of process is a minute of that meeting prepared after the meeting by a member of the defenders' staff who had been there. Thereafter, as part of the investigation, Ms McBean took a statement from Miss Kirk on 22 October 2008[12]. The outcome of the investigation was communicated to the pursuer by letter dated 25 November 2008[13] which the defenders forwarded to the SSSC. It was to the effect that there would have been enough evidence to proceed to a disciplinary hearing in respect of four of five allegations made against the pursuer. Dismissal would have been one possible outcome of such a disciplinary hearing.
18	In or about December 2008 or January 2009 Angus Council withdrew the offer of employment made to the pursuer four or five months earlier citing the lack of an outcome to the SSSC investigation.
19	By letter dated 14 January 2009[14] the SSSC forwarded to the pursuer the material they had received from the defenders. By letter dated 3 February 2009[15] the pursuer responded to that letter. On 2 February 2009[16] the SSSC asked the defenders for further details about certain of the allegations against the pursuer. Enclosed with a letter dated 17 February 2009[17] the defenders set out the information that would have been provided to a disciplinary hearing had the pursuer continued to be an employee of the defenders[18]. It contains an accurate summary of the content of the relevant files of the defenders. By letter dated 25 February 2009[19] a Conduct Case Officer of the SSSC wrote to the pursuer forwarding the defenders' letter of 17 February and its enclosure for comment. On or about 3 March 2009 the pursuer responded by a letter erroneously dated 3 March 2008[20].
20	In a letter dated 11 March 2009 the SSSC sought further information from the defenders[21]. The defenders replied by letter dated 30 March 2009[22] which contains an accurate summary of the content of the defenders’ files. On 1 April 2009 the SSSC forwarded this to the pursuer for comment. She responded on 14 April 2009[23].
21	By email dated 5 May 2009[24] the SSSC intimated an intention to inspect the defenders' files. On 15 May representatives of the SSSC attended at the defenders' offices and conducted an interview with Margo Dymock[25].
22	In response to a request on 26 May 2009[26] Lynne McBean met representatives of the SSSC on 3 June 2009[27].
23	On June 2009 the SSSC collected files from the defenders in connection with their investigation into the pursuer. By 24 July 2009 the defenders had provided all the information requested by the SSSC in connection with its investigation into the pursuer.
24	On 14 August 2009 representatives of the SSSC met the pursuer in response to a request from her referred to in their letter of 21 July 2009[28]. Pages 110 to 148 of 6/1 are a transcript of that meeting.
25	By letter dated 23 December 2009[29] the SSSC wrote to the pursuer notifying her of the outcome of its investigation and advising that on balance it was of the view that her conduct did not call into question her suitability for registration and would take no further action in that regard.

 

 

FINDINGS IN FACT AND LAW

1          The defenders are not in breach of their duty of care to the pursuer in the giving of a reference to Angus Council.

2          The pursuer has not suffered any loss through the fault averred against the defenders.

 

NOTE

[1]        The proof before me was limited to the issues of liability and, if there was a negligent act on the part of the defenders, assessment of the loss of chance of the pursuer obtaining employment with Angus Council.

[2]        I heard evidence on 16 and 17 February and 11 and 14 September 2015 and submissions on 14 September 2015. I was assisted by a significant joint minute and written submissions for the parties.

[3]        On matters of law, Counsel were agreed that the leading case is decision in the House of Lords in Spring v Guardian Assurance plc[30]. Both also referred to Bartholemew v London Borough of Hackney[31] and Cox v Sun Alliance[32] in the Court of Appeal.

[4]        From these cases, one can  extract the following propositions:

The provider of a reference owes a duty of care to the subject of the reference in respect of the preparation of the reference.

1.     The provider of a reference owes a duty of care to the subject of the reference in respect of the preparation of the reference.

2.     That duty is to give a true, fair and accurate reference.

3.     The truthfulness, fairness and accuracy of a reference require to be measured in the round and in context.

4.     A reference must not give an unfair or misleading impression overall even if its discrete components are factually correct.

5.     A reference mentioning incomplete disciplinary proceedings is not unfair where it confines itself to a small number of factually indisputable statements.

[5]        Although Mr Hay commended his own witnesses and sought to criticise the defenders', it does not appear to me that the issues that I have to determine turn on any substantial contradiction between the evidence of the various witnesses. Much of it appears from the written material and the joint minute. Much of the rest is inference that builds on the gaps in what they said rather than requiring me to reject evidence.

[6]        The focus of this claim is the letter of 1 September 2008. In his submission, Mr Hay said that the reference given should have provided a balanced view of the areas of practice that the employer was concerned about and should have detailed facts and circumstances known to the defenders which might provide some explanation for the matters complained of. In this context, they should have said that the pursuer had not had the benefit of formal supervision for some significant period.

[7]        By letter to the SSSC dated 17 February 2009 the defenders set out the information that would have been provided to a disciplinary hearing had the pursuer continued to be an employee of the defenders. The parties agreed in paragraph 18 of the joint minute that it contains an accurate summary of the content of the relevant files of the defenders. In relation to paragraphs 1 and 3 on page 255 of 6/1, the pursuer accepted in cross-examination that, in that circumstance, the matters narrated in these paragraphs would give an employer reasonable cause for concern. She agreed that the matters narrated in paragraphs 5   to 7 on page 256 would justify further enquiries.

[8]        Where a social service worker resigns in circumstances where, but for the resignation dismissal on the grounds of misconduct would have been considered by the employer, the employer is required forthwith to notify the SSSC of the resignation and, in doing so, provide them with an account of the circumstances which were present when the resignation took place[33]. It is not suggested that notification to the SSSC was not necessary.

[9]        My clear impression of Mr Pender's evidence is that, once aware of the existence of disciplinary proceedings and an enquiry by the SSSC, Angus Council would not progress an appointment. They held the pursuer’s appointment open for her for a significant time. It was the fact of the SSSC enquiry and not the terms of the reference that caused the loss of the pursuer's new job. The terms were almost immaterial and not, as such, the subject of criticism. There is nothing to make me think that the additions sought by Mr Hay would have persuaded Angus to keep the pursuer's job open for longer.

[10]      Delay on the part of the defenders in dealing with the enquiries from the SSSC was not relied on as a ground of fault in Mr Hay’s closing submissions. The defenders reported the pursuer to the SSSC on 8 September 2008. They did not provide substantive criticism of her until they forwarded their letter of 25 November 2008 to the SSSC. This in turn was forwarded to the pursuer on 14 January 2009. Between 8 September 2008 and 25 November 2008 the defenders carried out an investigation in which the pursuer participated which may account for their failure to provide substantive information to the SSSC in that period. It was not explored in evidence who was responsible for the apparent inactivity between 25 November and 14 January. Although the SSSC did not issue its decision until 23 December 2009, no part of the period from 14 January has been laid at the door of the defenders.

[11]      Mr Hay complained that the reference to disciplinary procedures in the letter of 1 September created an unfair innuendo that the pursuer had jumped before she was pushed. I do not consider that the letter is unfair to the pursuer in this regard: the pursuer quickly saw that she could not work under Ms McBean’s management and made efforts to avoid her having involvement in her getting a new job by getting a reference from Miss Kirk instead of Ms McBean. Although Angus accepted this, it is more usual to have a reference from the current line manager.

[12]      The pursuer was interviewed by Angus on or about 4 August 2008 and offered a job on about 8 August. Although she had by then received the letter of 15 July 2008 requesting her to attend an investigatory meeting into allegations of concerns regarding her practice, she did not disclose this. I do not accept that when telephoned and offered a job, she “didn’t think of” the forthcoming investigatory meeting. Standing the nature of the job she had and was applying for, I consider that it was incumbent on her to disclose the disciplinary proceedings.

[13]      It was legitimate of the defenders, on learning that someone other than the pursuer's current line manager had given her a reference to take steps to inform the new employer of the existence of disciplinary proceedings.

[14]      In the circumstances, I reject the claim that the reference given by the defenders to Angus Council was not true, fair and accurate and within a reasonable time.

[15]      Ms McBean was clearly unsympathetic to the pursuer. She denied knowing of the lack of formal supervision of the pursuer by Miss Kirk. She appears not to have considered putting her up for further training rather than invoking the disciplinary procedures although she acknowledged that this would have been possible. She acknowledged that further training was a possible outcome of the disciplinary proceedings but nothing in the written material before me or her oral evidence suggested that she ever considered it. She was at pains to paint the pursuer as having an arrogant attitude as well as bad practice.

[16]      While this may be so, I consider that the attitude of Ms McBean as the pursuer's line manager was the immediate cause of her resignation. The outcome of the SSSC enquiry demonstrates that the failings of the pursuer were not such as to render her unfit for employment as a social worker.

[17]      It is entirely understandable that the death of a child and the consequential investigations of the department should prompt a more strict attitude to record-keeping and home visits than had been in place but it does not follow that the pursuer's failings in these regards were incapable of resolution. I consider that a more moderate approach on the part of the defenders' management to the pursuer and her failings might well have resulted in retaining her services.

[18]      In the foregoing circumstances, however, the claim fails and I will assoilzie the defenders.

[19]      Nothing was said about expenses and I reserve the issue of expenses for further submissions if necessary.

 

 

 

 

 

Mungo Bovey QC

Sheriff                                                                                                 December 2015

 

[1]    “the SSSC”

[2]    Page 13 of  6/1

[3]    Page 1 of 6/4 of process

[4]    Page 1 of 6/4

[5]    Page 2 of 6/4

[6]    Page 3 of 6/4

[7]    Page 4 of 6/4

[8]    Page 305 and 306 of 6/1

[9]    Page 304 of 6/1

[10]  Pages 302, 300, 296 and 294 of 6/1

[11]  Pages 301 and 299 of 6/1

[12]  Pages 288 & 9 of 6/1

[13]  Page 14 of 6/4

[14]  Page 286 of 6/1

[15]  Pages 258 to 281 of 6/1

[16]  Page 282 of 6/1

[17]  Page 254 of 6/1

[18]  Pages 255 to 257 of 6/1

[19]  Page 252 of 6/1

[20]  Pages 248 to 251 of 6/1

[21]  Pages 245 to 247 of 6/1

[22]  Pages 239 to 241 of 6/1

[23]  Pages 225 to 2236 of 6/1

[24]  Page 221 of 6/1

[25]  Pages 217 to 220 of 6/1

[26]  Page 215 of 6/1

[27]  Pages 205 to 215 of 6/1

[28]  Pages 178 to 179 of 6/1

[29]  Pages 11 & 12 of 6/1

[30]  [1995] 2AC 296

[31]  [1999] IRLR 246

[32]  [2001] IRLR 448

[33]  Regulation of Care (Scotland) Act 2001 asp 8 Section 57A