Ex-Council Senior Manager Wins Employment Tribunal For Unpaid Leave

Neville Gardner receiving a leaving gift from Chairman Amanda Martin last year.

Neville Gardner receiving a leaving gift from Chairman Amanda Martin last year.

The Council will have to pay its former Chief Technical Officer money owed in accrued holiday pay after losing its case at an employment tribunal.

It will also now be liable for the legal costs incurred by both parties in the action.

The hearing in Bristol on 10th October was attended in person by Neville Gardner, who also served as the Council’s Deputy Chief Executive. The Council was represented by the Chairman Cllr Amanda Martin, who took part by a video link from the islands.

Employment Judge Christa Christensen heard that over a 17-year period, Mr Gardner built up 109 days of accrued leave because various unplanned operational demands, as well as twelve weeks needed to recover from a broken femur, didn’t allow him to take his full holiday entitlement of 30 days each year.

Mr Gardner took voluntary redundancy in November 2013 after 39 years of service, but launched action against the Council when they failed to pay him for 90.5 days of that accrued holiday, which he repeatedly claimed he was owed.

Mr Gardner wrote several times about his leave whilst still employed at the Council but had no response to any of his letters.

The Council’s leave policy at the time said that more than five days holiday could be carried forward “in exceptional cases” and this needed to be signed off by the employee’s line manager, which in Mr Gardner’s case was the former Chief Executive Philip Hygate.

Mr Gardner was able to produce those signed records to support his claim.

However, the Council said that their leave policy didn’t have any contractual force, that employees could only carry forward up to five days holiday and that Mr Gardner couldn’t establish what the exceptional circumstances were for not taking his full leave entitlement.

They also said he’d waived any right to the payments by accepting voluntary redundancy.

But Judge Christensen rejected those arguments. She said Mr Gardner’s contract did allow him to carry forward his leave, that he’d done it properly and that there was nothing in his voluntary redundancy agreement to stop him claiming for it.

She also said it was entirely conceivable, given the size of Scilly’s Council, that Mr Gardner would build up a large amount of untaken leave. The Judge saw evidence of precedents whereby other Council employees had built up leave as a result of operational demands.

Judge Christensen said Mr Gardner was at the top of the list of people who had been called out in an emergency, including shipwrecks, breaches of the sea wall and the threat of saline intrusion into the water supply.

The Judge agreed with Mr Gardner’s claim that the Chairman, Cllr Martin, had used “inference, innuendo and unsubstantiated allegation” to make out that he had acted unfaithfully or dishonestly to the Council.

But the Judge said there was “no proper basis for this approach” by the Council.

She said if they had genuine concerns about the way leave was accrued, they had ample opportunity to investigate it, which they didn’t.

She also said that the Audit Commission had looked into the situation in September 2012, and they said the leave records “were accurate and that amounts of leave were fairly stated.”

Shortly afterwards, in a confidential meeting held behind closed doors, the Council voted to turn down claims from staff for untaken leave, even though legal advice suggested the policy was ambiguous.

It was after this that Mr Gardner first registered objections to the loss of his accrued leave.

Mr Gardner, who was supported throughout by his union, Unison, told Radio Scilly that he sought to settle the case on two separate occasions, firstly through his solicitor and then through the arbitration service, ACAS.

He says he did this because he was clear on the strength of his legal position and had no wish to cause the community “the significant and needless additional expense of going to court.”

A letter setting out risks to the Council and sent to auditors Grant Thornton in May this year said the authority would need to make contingency for two employment cases being brought against it.

But in September, Chairman Amanda Martin told councillors that it wasn’t a forgone conclusion that the Council would have to pay out, after a provision was made in the authority’s Statement of Accounts.

The Council did not want to talk to us about losing the case, or how much it has cost the authority.

We formally asked the Council for details of the likely payments that will now be made to Mr Gardner, as well as the legal costs, and why they had pursued the case to this point at significant cost to taxpayers. They wouldn’t answer, saying that they couldn’t comment on individual employment issues.

However, based on Mr Gardner’s final salary with the authority, we estimate that the unpaid leave alone could total around £27,000.