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'Tainted' dismissal

A tribunal says North Ayrshire got rid of Keith Barker unfairly. Neil Munro reports.

THE change-over to the new local authorities left a former union officer in a jobs "no man's land" after which he was dismissed in circumstances which were "irremediably tainted".

This was the finding of an industrial tribunal which, after taking six days of evidence in Glasgow, concluded that North Ayrshire had unfairly dismissed Keith Barker, who was Strathclyde secretary of the Educational Institute of Scotland from 1987 to 1995.

Mr Baker then moved from his EIS post to be development officer in multicultural education in the old Ayr division of Strathclyde. Ironically he was later seconded to work on the break-up of the region.

North Ayrshire inherited Mr Barker from Strathclyde. But while North Ayrshire was liable for any failings on its predecessor's part, it is clear the tribunal reserved more criticism for the former region.

Strathclyde failed to give North Ayrshire adequate notice of Mr Barker's position, the tribunal found, and his name was not on the "transfer list" when he approached North Ayrshire for work. "The council were taken aback to learn that the applicant expected to commence work for them in April 1996," the tribunal noted.

North Ayrshire argued that it had already set up its staffing structure and there was no place for a post in multicultural education. Neither East nor South Ayrshire wanted him either. So Mr Barker ended up on North Ayrshire's books only because it was the largest of the new Ayrshire councils.

Mr Barker was offered a teaching post. But, having last taught in 1987, he turned that down and held out for "a management post commensurate with his more recent experience and status". Disagreement persisted and Mr Barker was made redundant in February 1997.

A claim by North Ayrshire Strathclyde that Mr Barker was the author of his own misfortune was dismissed by the tribunal. The employers said he had failed to return a preference sheet in time, which meant his name was kept on a "not yet allocated" list until his wishes were known.

The tribunal said: "We reject any suggestion that any failure on the part of (Mr Barker) caused his name to be omitted from the transfer list - at the very least to the extent of exculpating the respondents completely."

It added: "We would not have found (Mr Barker) in any way at fault or, at least, that any fault caused or contributed to his dismissal." He may have been responsible for delays in getting information to his employer, the tribunal said, but this did not outweigh Strathclyde's "total failure" in the case.

The report continues: "There is a very high degree of probability, more than 80 per cent in our view, that (North Ayrshire) could have employed (Mr Barker) in some kind of advisory and administrative post. The delay in putting (his) name forward inevitably meant that arrangements were too far advanced for (him) to be accommodated."

But the tribunal sympathised with North Ayrshire which "could not be expected to unpick the administrative structure which they had adopted, or were about to adopt".

The outcome represents a considerable victory for Mr Barker, who was not represented by the union. He appeared on his own behalf at tribunal hearings, putting to good use his current experience as a law student at Glasgow University.

The tribunal, however, refused any compensation. Mr Barker had received redundancy payment of pound;37,578 , well above the pound;16,301.25 which the tribunal calculated as his salary loss.

The judgment also decided against ordering reinstatement. This was "simply not practicable", since it would have involved Mr Barker returning to North Ayrshire as a development officer in multicultural education, a post declared redundant months ago.

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