h1_bkg

Orbison was on to something

The more you read the National Audit Office report on the regulatory failings of the Charity Commission, the clearer it becomes that David Orbison, the former commission case worker, was onto something significant when he rebelled over the case of African Aids Action. He protested at the decision by senior management to close the case because he was convinced from his inquiries that there were serious shortcomings at the charity that required more determined intervention. The ensuing row led to his resignation and eventual success in claiming constructive dismissal, a decision against which the commission is currently appealing.

Looking back, AAA was a prime example of what the NAO is talking about when it refers to the commission’s failure to take tough action over serious regulatory concerns and its propensity to allow non-cooperation by trustees to delay investigations unreasonably.  Third Sector published a leaked copy of an early draft of the report and was eventually able to compare it with the final report: the former had its defects and was arguably too undeveloped and aggressive, but the latter read like an extended exercise in the appeasement of an adversary that was quick to make accusations of racism and intemperate threats. In the context of the time, it appears likely that the commission was running scared of a racial discrimination action or a re-run of a recent case at the charity tribunal, which had lambasted the commission for its cavalier handling of a case where, paradoxically, it had actually gone in too hard and unfairly disqualified a trustee of a Hindu temple in south London.

Meanwhile, Orbison is still waiting for the much-delayed announcement of the decision on the commission’s appeal against his partial victory in the employment tribunal. Its argument all along has been that he was just an insubordinate employee who wouldn’t toe the line.  He might have been an awkward customer in some ways, but recent developments confirm there was always a lot more to it than that. In a more decent world, the commission, which has already spent more than £100,000 of its dwindling budget on this case, would withdraw its appeal and close the matter. This seems highly unlikely, given organisational pride and the commission’s legalistic and bureaucratic instincts. No doubt it will see the case through to the bitter end: but there’s little prospect, all things considered, that it will go down to the credit of the commission and its senior management in the long term.

  • Michael Levitt

    From the point of view of another ex-employee and former union rep whom Mr Obison consulted informally at times over his issues (though I did not handle his case), I believe that Stephen Cook has done a remarkable job for an outsider looking in to the Commission through the opacity of circumstance, confidentiality, staff concern and management reticence, plus a little spin near the top of the organisation (though less at the very top than there has been in the past). What Stephen Cook has written, in my view, exactly reflects the reality of the situation.

    Orbison took a stand on moral grounds, because he genuinely believed that what he was being asked to do with his case was wrong morally, if not legally. It took guts, and many other staff who had been in similar positions over many years envied his guts to do so, because it takes strength and courage, and you lay your job and character on the line potentially if what you are doing will shine a light which exposes something embarrassing or awkward to the organisation. It has cost Orbison in every sense to stand by his principles, and he has not sought to be bought off for his troubles, which, presumably, is why the case came to tribunal and then appeal.

    Yes, Orbison is an “awkward customer” in that he is scrupulously honest, doggedly persistent and will dig deep in his casework to get to the truth. He got top class appraisals for these traits (until management decided he was a troublemaker). Being an awkward customer is a nice paraphrase for precisely what the Commission asks for in its job adverts, and many compliance staff have been recruited from the police and intelligence communities, or other senior positions outside the Commission in recent years for just these skills. But within weeks of starting, such staff find, as Orbison did, that the reality is that senior management is far too afraid to actually use these skills to the full, often pulling back on nasty cases where individual officers would want to go further.

    There have been others who have refused to pull back, but few have had the strength to do so for long, going alone down the path which the Commission chooses, to tribunal. Orbison did not wish to go there, and on many occasions offered other ways of dealing with his complaint. After all, his initial action on being fobbed off all the way up the management chain was to whistleblow, which is supposed to be a procedure protective for an employee acting in good faith where he believes something is not being done correctly. Dave Orbison was indeed onto something, and did his best to give the then chief executive and board the heads-up. But they didn’t want to know, and treated him as an insubordinate upstart from the first, claiming this later at tribunal.

    Thus there is a real sense in which Orbison’s case being aired in public has directly led to the interest of MPs, the Public Administration and Public Accounts committees, and now the NAO, facilitated by the unfortunate incident of the Cup Trust. All this could have been avoided if the Commission’s senior management had listened to and acted upon what Mr Orbison was telling them about the way it ran its compliance casework. He was their early-warning system, and they missed it, because of a low opinion of staff on the ground. But it isn’t too late, the Commission can still listen and act, but now it must listen to public committees in the open glare of the public.

    So yes, there were few staff on the ground at the Commission, in compliance at least, who did not believe that at some point, when “the wheel came off,” the NAO and others would take an interest. And there were few who did not joke, with a worried tone in their voices, that the NAO and others would conclude in precisely the way they have done, assuming they were as tenacious and awkward in getting to the truth as Dave had been.

    A lot of the problem at the Commission has to do with under-resourcing, which PCS union tried to point out before the cuts, in an unsuccessful attempt to stave them off. But a lot also has to do with a management mentality which I cannot pretend to understand, but whose effect is a fear which causes it to drop balls, and appease awkward characters in its casework,. A paper tiger, but one staffed by good and experienced people, many of whom have sharpened teeth they have for years been itching to use, but whose talents are at present being squandered and teased.

  • John Weth

    A timely and well-merited plea from Stephen Cook in the final paragraph of his blog, and revealing comments from Michael Levitt who writes with insider knowledge of the Commission’s conduct in the case.

    Stephen Cook correctly surmises that the Commission’s treatment of David Orbison, both as an employee, and later as an appellant at the Employment Tribunal brings no credit to the Commission, its Board or senior management. Others have attempted to obtain a measure of justice for David Orbison, thus far without success.