ACAS Code of Practice after Toal v GB Oils

In 2013 the Employment Appeal Tribunal delivered its important judgement on trade union rights in Toal v GB Oils.

The case was in the interpretation of the right of a worker to be accompanied at a disciplinary or grievance meeting by a trade union representative of their choosing. Section 10(2) of the Employment Relations Act 1999 sets out that:

(2)Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who— (a)is chosen by the worker and is within subsection (3),

In the case an employee was called to a disciplinary meeting and requested that he be accompanied by a named representative of his trade union (Unite), who was based some distance away. The employer refused the request because it did not consider the request reasonable, but did allow the employee to be represented by another worker.

In the ACAS Code of Practice then extant the reasonableness of the request included the choice of the companion, hence if the choice of accompanying union rep was ‘unreasonable’ it could be read as being capable of refusal:

To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.

The last sentence was clearly apposite here.

However, Toal, at paragraph 20 of the judgement, found the ACAS Code to be in breach of the text of the 1999 Act: “there is, in our view, no lacuna to be filled. Section 10 of the 1999 Act works perfectly well read and understood in accordance with its straightforward language.” The result of this is that if a trade union rep meets is a properly accredited representative then an employee may request accompaniment by the representative and this must be allowed by the employer (it does not in fact matter if the employee is even a member of that trade union or whether the rep is a employee of the employer) – it is necessarily reasonable.

In the PCS context it seems likely to me that it was on the basis of Toal that PCS rep Lee Rock was able to win the reportable out of court settlement on representation rights after DWP refused permission for a PCS member to represent a PCS member.

In light of the embarrassing exposure that the ACAS Code of Practice was in fact incompatible with the legislation it was giving guidance from it has this week issued new guidance on the right to accompaniment of workers.

Civil Service Recruitment and Agency Worker Regulations

I have just been made aware of an interesting first tier tribunal decision that is becoming more and more of an issue for union members who are agency workers on long term contracts.

Paragraph 13 of the Agency Worker Regulations 2010 states that

13.—(1) An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.

In this case (Coles v MoD) the claimant had been an agency worker under contract to the Ministry of Defence since 2005 until 2013, when his contract was terminated. In early 2013 MoD conducted a redundancy exercise that resulted in 500 staff being redundant. Presumably as part of a redundancy avoidance exercise the MoD advertised the claimants role under stage 1 of the civil service recruitment process (which limits applicants to those at risk of redundancy). The claimant was not informed about this advertisement until a few days before the closing date and to access information the claimant needed to register on the Civil Service recruitment website – it does not look as though the claimant did so. He was however also advised that he was unable to apply for the role, and would be only able to do so at the point that it was advertised to external applicants (namely, stage 4).

In the event the post was given to an applicant who was a permanent employee  of MoD and was at risk of redundancy and, as a result, the claimant’s contract was terminated in August 2013.

The claimant made two claims to the Employment Tribunal (both with reference to section 13 of the AWR 2010):

  • The Respondent had failed to advertise all available absences to the claimant; and
  • In refusing the claimant permission to apply the Respondent the Respondent did not give the “agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.”

The ET found in favour of the Respondent on both points, and on the basis of what I have seen I think it do so correctly. Information on the advertisements was readily open to the claimant. On the second point the tribunal considered that the legislation does not prevents an employer from giving priority when vacancies arise to permanent staff who are at risk of redundancy and/or have been placed in a redeployment pool during a restructure.

It seems to be the decision was the right one. However, whilst the judgement, rightfully, allows preferential treatment to be given to workers at risk of redundancy what of those not at risk? Unfortunately, the ET looks as though it failed to address this issue which, to me, seems to be the most appropriate “comparable worker”. Is a civil service employer entitled to refuse the opportunity to agency workers to apply for posts at stage three of the civil service recruitment process (as they have been doing with some regularity)? That issue remains unclear but, given the decision is in Coles is apparently under appeal to the EAT, this is something which will hopefully be clearer soon.

That of course does not change the fact that there is clearly an issue of injustice here – after over 7 years doing the same job it is clear that the claimant should never have been in such a precarious employment situation in the first place. Although not as precarious as the scourge of zero hour contracts this is an area employment legislation needs to address by exploring a statutory right for agency workers to have a right to be converted to permanent employees after a period of time where the recruitment is clearly not ‘exceptional’ or ‘temporary’.

Case ref: Coles v Ministry of Defence [2014] ET/1603792/2013

Brito-Babapulle, Mark II

Back in 2013 the EAT issued the the important decision in Brito-babapulle v Ealing Hospital NHS Trust [2013] UKEAT 0358_12_1406 which that found that the Employment Tribunal’s finding that “[o]nce gross misconduct is found, dismissal must always fall within the range of reasonable responses” was an error of law. Specifically, “the Tribunal misdirected itself as to whether it was simply sufficient to identify whether the conduct taken into consideration without regard to mitigation justified dismissal and by assuming, wrongly that to label conduct gross misconduct answered that question when it did not.”

However, the appeal in Brito-bapulle was on two points. In addition to the question of mitigation, which the EAT upheld there was also an appeal on whether a finding of fraud was open to the Respondent since the investigation had only alleged dishonesty. That appeal was lost and, on that ground, the claimant appealed to the Court of Appeal and judgement was delivered last month in Brito-Babapulle v Ealing Hospitals NHS Trust [2014] EWCA Civ 1626.

The Court of Appeal accepted it “is of course an elementary rule of natural justice and disciplinary proceedings that the individual concerned must know the case she has to meet” but, worryingly, did not seem to be concerned that a subsequent change of ‘label’ affected the case. Therefore, what was an alleged act of dishonesty had morphed in the dismissal letter to an act of fraud. Although not affirming the Respondent’s conduct it found a change of label to one which an employee had not been warned was being considered did not render a dismissal unfair.

That seems to be a regrettable finding – even if the basic narrative remains the same an allegation of dishonesty is one thing but an allegation of fraud – with its attendant implications of criminal conduct – seems another altogether. LJ Bean and fellow judges unfortunately found that such ambiguous terms and plain misrepresentation in what was a serious disciplinary process is ‘fair’.

Academics call on Civil Service to adopt a more constructive approach to industrial relations

Professor Gregor Gall has joined 32 other academics in criticizing the Civil Service’s approach to industrial relations in a letter to The Independent last Friday:

As scholars of industrial and employment relations, we condemn the unilateral action by the Coalition Government to remove the “check off” arrangements from the Public and Commercial Services (PCS) union. This follows on from other actions against PCS, including reducing facility time for union reps, victimising reps, marginalising PCS in multi-union negotiations, and supporting a breakaway union in the HMRC.

Such actions go against the spirit and practice of conducting good industrial relations, promoted by the likes of the Advisory, Conciliation and Arbitration Service and by the UN International Labour Organisation (of which Britain is a member).

The way to resolve any industrial dispute is to conduct negotiations in good faith with the bona fide representatives of the workforce. We expect higher standards of conduct from the employer in industrial relations here because these industrial relations concern the running of public services.

We urge the Coalition Government to withdraw its notice of termination of “check off” arrangements and to allow an independent third party to conduct a review of industrial relations in the Civil Service with a view to making recommendations for the return to orderly industrial relations. We note the such a review was used to good effect and with the consent of both unions and management in the smoothing out of many industrial relations issues in the Royal Mail.

Professor Gregor Gall

University of Bradford

Professor Stephen Bach

King’s College, University of London

Professor Susan Corby

University of Greenwich

Professor Ian Greer

University of Greenwich

Professor Irena Grugulis

University of Leeds

Professor Miguel Martinez Lucio

University of Manchester

and 27 others

There is no question that there is a concerted effort to harm PCS, be far the largest trade union in the civil service, but given the last Tory government’s attacks in GCHQ that should be a surprise to no-one. This time round it is the abolition of Check-Off that is the primary means of attack, a move that has been snuck in before the General Election in May 2015. But one of the sub-plots is the government’s maintenance and encouragement of alternative staff associations in an attempt to divide union memberships such as is seen in the National Crime Agency and HMRC. Given just days after this call HMRC reneged on an earlier pledge not to abolish check-off I think the signs of a mea culpa from the Government can best be described as ‘remote’.

But what of inter-union relations within the TUC? Perhaps the most pernicious move of this Government, which has attracted limited public attention, was Francis Maude’s direct instruction that Unision, a union with next to no membership base in the civil service should be given negotiating rights. As Left Unity make clear, and I fully agree, this is “a drive to divide the union movement.”  In the same way that PCS must, if given a similar ‘offer’ in say healthcare refuse so Unison should refuse this offer. It is pleasing that some Unison figures such as Jon Rogers have called on Unison to reject the offer:

It is deeply unfortunate that Tory Minister Francis Maude dictated that UNISON should be give negotiating rights in the civil service in circumstances in which this could so easily be made to appear a reward for UNISON having done the employers’ bidding over pensions. (We don’t need such rights and ought really to repudiate this unwelcome offer).
I am sure we in UNISON never meant to make ourselves look like Tory stooges in this way!

Now would be a good time for us to make our support for PCS crystal clear.
Gregor Gall is right to call for a more constructive approach to industrial relations from civil service leaders. But equally, let’s also have a clear commitment from TUC unions to refuse to be pawns in the political machinations of those leaders. To date, unless I have missed it, Unison has given no clear rejection of Maude’s offer.

Dismissal and Culpability

The central case dealing with the fairness of conduct dismissals is undoubtedly British Home Stores Ltd v Burchell [1978] UKEAT 108_78_2007. It was this case that is the source of the “Burchell Test”, here it is in the judgement itself:

What the tribunal has to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, … the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation in the matter as was reasonable in all the circumstances of the case

In short,

  • the employer must genuinely believe that the reason for the dismissal is the real reason (usually this means that there is a genuine belief that the employee did do the misconduct); and
  • the employer must have reasonable grounds for that belief; and
  • In order to reach the above two states of mind the employer must perform a reasonable investigation.

Although not making reference to Burchell a recent case, Burdett v Aviva Employment Services Ltd, asks whether an employee’s dismissal for a clear gross misconduct offence (e.g., violence at work or theft) when they admit that they did the alleged act is fair? Normally, this will be the case. If an employee admits doing an act that is an act of potential gross misconduct (e.g., punching a co-worker) then it will not be a surprise that most disciplinary processes will find that the alleged misconduct is proven! An investigation would nearly always be necessary but not usually an especially onerous one.

However, Burdett is a case I think has the potential to be of use to union reps, the EAT clearly affirmed that the finding by an employer that an employee has committed gross misconduct in these circumstances is not always fair (this is to be distinguished from the separate issue of whether dismissal for proven misconduct is fair).

An employer to meet the second bullet of the Burchell test above must not only be satisfied that an employee committed the act but that they had the intention to do so (or was negligent) – in other words, that they were culpable for the alleged misconduct. This reaffirms the instructions in Sandwell & West Birmingham Hospitals NHS Trust v. Westwood [2009] UKEAT 0032_09_1712 that Gross Misconduct “involves either deliberate wrongdoing or gross negligence”. In other words, to justify a finding of proven misconduct an employer must have reasonable grounds for believing the employee engaged in the misconduct but also that this misconduct wrongdoing was deliberate. In my experience it is a regular, albeit not frequent, suggestion that misconduct is not committed intentionally. A clear cut example would be a shopworker with Tourette’s syndrome who has a complex tic that results in her hitting out and, unintentionally, hitting a customer causing physical injury. There is no doubt that hitting a customer is gross misconduct but here, where if the defence of lack of intention is offered because of disability and there is evidence supporting this no reasonable employer could conclude that there was “deliberate wrongdoing”.

In Burdett the alleged misconduct was that in April 2011 the claimant sexually assaulted two female employees, threatened to assault a security guard who challenged the claimant’s conduct and, upon leaving the workplace, assaulted a member of the public. That the claimant did these acts was not disputed. However, Burdett suffered from a paranoid schizophrenic illness that was controlled by medicine. However, unfortunately he stopped taking that medicine. In his disciplinary process Burdett made clear that he did not dispute that he assaulted or threatened to assault his co-workers and a member of the public but submitted this was not intentional and a direct consequence of his disability (the claimant was in the immediate aftermath of the incident detained under the Mental Health Act).

In the disciplinary hearing the proven nature of the misconduct allegation was assumed, with the decision maker began the meeting with the following observations:

  • incidents such as those of 26 April 2011 would “normally result in dismissal for gross misconduct”
  • The decision maker’s role was now to determine the appropriate sanction”

In other word’s a proven case of misconduct was assumed. The Employment Tribunal found in favour of the Respondent as follows:

The ET found that the reason for the dismissal was gross misconduct. The Claimant had admitted the gross misconduct, as he had admitted the sexual assaults. He had also admitted a “serious error of judgment in discontinuing his medication without medical advice”. As the Claimant had “openly admitted his misconduct”, very little investigation had been called for; clearly the Respondent had reasonable grounds for its belief. Dismissal was within the range of reasonable responses available to the Respondent: “Quite clearly, any Respondent, given the nature of the misconduct, would have invoked a sanction of dismissal.” The ET thus found that the dismissal was “quite clearly fair”.

In doing so the EAT found the ET had erred

On the unusual facts of this case, the ET needed to do more than simply consider whether there were reasonable grounds for concluding that the Claimant had performed the act in question; it also had to ask whether there were reasonable grounds for concluding that he had done so wilfully or in a grossly negligent way.

This the ET failed to do and on that basis the EAT determined that the previous determination that the Respondent had fairly dismissed the claimant was unsafe.

What Burdett re-emphasises is that Gross misconduct must be conduct that is deliberate (or grossly negligent) and an employer must have a reasonable basis for belief (the second Burchell test requirement). Where there is an ostensible case that misconduct has taken place I think the lesson here is that reps should seek to ensure questions about culpability are raised during the investigation and disciplinary process so there can be no excuse for the employer failing to consider this. And, if they don’t, this may then be a ground of appeal.

Although I don’t think the relevance to of Burdett to the issue of culpability is limited to that of disability related alleged misconduct this is where the issue is, I think, most relevant. In my experience disability issues in disciplinary matters where they touch on culpability are frequently considered under a mitigation heading – this merely repeats the precise error the EAT criticised the ET and employer for in Burdett. That is not to say, per Sinclair v Wandsworth London Borough Council, that disability is a free pass on culpability grounds but Burdett does make clear that, at a minimum, there must be a reasonable examination of the issue [1].

[1] At paragraph 46 of Sinclair the EAT (referring to another EAT judgement) that “In short (see paragraphs 39 to 40 of the EAT judgment) the EAT found that the fact that the matters were said to have arisen as a result of the mental illness of the Claimant in that case was no excuse. With respect, we agree with that conclusion. It cannot be said that totally unacceptable conduct in an employment context (or in a criminal context) can be excused by reference to a background or underlying illness. The fact is that the employer has been faced with unacceptable conduct in the workplace.”

PCS/Unite merger still alive, allegedly

Labour Uncut is reporting that the Unite/PCS merger is still a distinct possibility, and expects the NEC to put forward a motion to this year’s ADC. Here’s a snippet of the article:

PCS has been wracked by well documented financial problems. The sale of the union HQ, which was agreed at the union’s national executive meeting at the start of December, was meant to have placed PCS on a more sustainable financial footing.  But just days later, an emergency executive meeting was called for the 18th December.

With one hour’s notice before the meeting, executive members were given papers that included a proposal to suspend next year’s internal election. The reasoning was that the £600,000 cost would sink the union and delaying it by upto year would help enable PCS’ survival. The motion was passed but with no wider debate across the membership.

PCS insiders have taken this as the clearest sign that merger plans are being revived.

Few believe their leadership’s explanation that this is about cost. Why wasn’t suspending the election discussed as an option along side sale of the HQ? What changed in the week following the scheduled NEC meeting in early December? Many view the emergency meeting as a means to railroad the suspension of internal democracy, which in turn allows the core leadership to fast-track negotiations with Unite, unencumbered by the accountability of elections in 2015.

The power of the Socialist Party cabal at the top of PCS, and their desire to link up with their party comrades in Unite is viewed as the primary driver for merger. The financial crisis merely provides a convenient rationale.

Post-merger, the unified PCS and Unite contingent from the Socialist Party (SP) would take control of the left of the new union, building SP support, much in the same way that its predecessor – Militant – once dreamed of building out its support from the left of the Labour party, if and when the Bennites took over the leadership.

The expectation is that a merger proposal will be put to PCS’ annual conference in May, just days after the general election. The motion will likely be wreathed in warnings of imminent financial disaster (unmet pensions obligations, redundancies and insolvency) if it isn’t supported and, in an atmosphere of panic, passed.

Is there any truth in the suggestion? I have no idea but can’t say it would be a surprise if such a motion was proposed, although how the Standing Orders Committee would justify its inclusion would be interesting since there is already a clear position on the matter by ADC.

Why trade union elections are expensive

The reason the PCS Union NEC cancelled suspended elections this year is because of the financial cost. The figure given is that the cost to the Union is £590,000, it is not known how much of that comprises the cost of the NEC elections. Let us say however, that it is £300,000 (half the total).

In this post I want to set out why these union elections are expensive. It is PCS policy that all lay posts shall be elected annually, this includes the entire NEC, including the Union President. That is not a statutory requirement, which requires that these posts must be subject to election only once every five years (as the Union’s General Secretary and Assistant General Secretary are). The requirement for the Union’s President to be elected at least every five years is set out in section 119  of the Trade Union and Labour Relations (Consolidated) Act 1992. This requirement applies irrespective of any requirement in the Union’s rules.

In addition, each member of the Union’s executive, meaning “the principal executive committee of the union” (and, like Highlander, there can be only one) which in PCS is the NEC must also be elected once every five years.

It is of course right that unions should hold elections and holding elections five years seems a reasonable maximum period, particularly given it now concurs with the interval between General Elections. But the 1992 Act does not just require elections but requires that these elections (namely, the election of the NEC) shall be conducted by means of a postal ballot (Section 53, TULRCA 1992) and be subject to independent scrutineers (Section 49, TULRCA 1992).

When enacted trade unions (in the Trade Union Act 1984) were able to receive a partial refund on the costs of these undoubtedly expensive elections. In 1993 that partial refund was abolished by the Conservative government.  So, since 1993 trade unions have had to bear the full cost of all statutory ballots it is required to take.

Although the requirement to hold statutory elections only requires five-yearly elections (which would require an outlay of c. £300,000 on the above figures, or by my reckoning £0.73 per member) because PCS’ constitution requires annual election that outlay increases to £1.5m over five years.

This is a very high cost for elections, and much higher than necessary. It is entirely possible, as the TUC have argued in the context of strike ballots which operate on similar restrictions, to run independent scrutineered ballots and much lower costs than that required by the 1992 Act that would also increase turnouts. So, although Jon Rogers may be right that the PCS NEC’s decision is a gift to the Tories, it remains the case that they could have made legislative changes that would have increased worker’s engagement in workplace democracy but have chosen not to.

There is certainly a question of procedural injustice here – a union, like PCS, that has an explicit policy to be far more democratic than the statutory minimum (5 elections held where only one is required by legislation) is given a significant financial obligation (in PCS’ case approximately and additional £1.2m over five years) by needing every NEC election to be conducted by postal ballot. Any political party professing to support workplace democracy needs to address that.

In short, none of the above alters the fact that PCS’ rules require annual elections and the NEC have made a decision to not abide by that requirement this year but the pleadings that the elections are a significant financial burden certainly has merit. And that requirement is required by the UK’s industrial law – the NEC could have made a decision to run an election on a non-statutory basis but that would, in all likelihood, have caused even more of a financial burden and, possibly, have spelt the end of the Union.

However, as others have pointed out these onerous requirements only apply to the principle executive body of the union, and not subsidiary bodies such as Group Executive Committees. Here, there is no legal requirement for any election to be postal. It is unclear why the NEC did not decide that group elections could not be made by workplace balloting or by much more cost effective digital voting platforms.