Mark Serwotka Responds on Suspension of PCS Union Elections

Serwotka's response to legitimate questions of union members leaves a lot to be desired.
Serwotka’s response to legitimate questions of union members leaves a lot of questions unanswered.

The decision of the PCS Union’s National Executive Committee to suspend the union’s internal democracy as it relates to elections for the NEC and group committee is understandably a very contentious one; it is also one I disagree with as I have set out before.

One PCS branch, the Bootle HMRC branch (I am sure there have also been many others) wrote to the Union’s General Secretary asking a number of questions about the decision. The letter send can be read here, but the letter begins with a comment criticising the decision on the basis of the lack of consultation and then proceeds to ask two questions:

  1. The branch asked, noting that legislation requires only the NEC election to be conducted by means of a postal ballot why the NEC felt there were no alternatives to reduce the costs of the election in the other ballots (for example, by holding an electronic ballot); and
  2. The branch also asked why the NEC had relied on a supplementary rule of the union to suspend elections that are required by a Principal Rule of the union when these Rules require that in the case of any conflict it shall be the Principal Rule of the Union that shall take precedence.

These are not unreasonable questions.

On 27 February Mark Serwotka responded to the branch, the letter is available to read here. Readers can have of course make their own minds up on Serwotka’s response but to me it fails to really grapple with the questions that were posed to him. No one is going to disagree that the attack is an ideological one, particularly given the PCS’ offer to fund the running costs of check-off, a point reinforced by Danny Alexander’s “no fiscal case” letter to Permanent Secretaries sent from the Treasury.

But Serwotka’s response, in detailing the time line doesn’t answer the question why the NEC felt it had no alternative but to suspend elections with no consultation. He has said clearly that the decision was not a surprise and that this issue was a constant one through the last year; it was surely right for the union to politically campaign to avert the possibility of check off being removed but his answer seems to come down to the following: we couldn’t consult because we didn’t know how many people would switch and so, and I infer this (it is not set out clearly) therefore the union did not know what the financial implications would be for the union until we had gone through the process in one department, namely the Home Office. With that information the union could set a benchmark for what kind of income loss the union could reasonably expect. An accurate assessment was always difficult but, as Serwotka has said elsewhere, this was always a “herculean task” and other union’s faced with such a threat have consistently fared less well than PCS have in retaining over 70% of its membership. Therefore, it seems to me that with the real prospect of a withdrawal of check off there were good reasons for believing the financial pressures on the union would be worse than they actually now are. Consulting members earlier on the financial situation and actions the NEC would consider as a result of this would then seem to have been a more responsible course of action.

There may be a reason why earlier consultation with branches was not practical, even though there was a clear financial threat to the union that was known for a long time (e.g., negotiations behind the scenes in confidence). However, if there was it is not one Serwotka has explained here. I am also conscious that I am criticising Serwotka’s reply but in fact he was for significant periods – quite reasonably due to ill-health – not available to lead the union and so the blame for this failure to consult does not rest with Serwotka himself.

On the question of what other thoughts were given to other forms of elections which would be less costly there is, as far as I can see, no response given.

In respect of the second question what is noticeable is that there is no real attempt to answer the question at all. It would have been quite easy to answer to say this is a complex matter but the union sought legal advice who advised that their proposed actions were lawful and while regrettable felt the NEC had to take the course of action it did. Instead, it failed to engage on the question of the Union Rules at all – that failure to address the point at issue is itself quite telling.

No action on Caste Discrimination

A couple of weeks ago I posted a comment on Race and Caste Discrimination in reference to the Employment Appeal Tribunal decision in Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.

A couple of days later the issue was raised in the House of Lords (with thanks to Law and Religion for highlighting this:

Lord Avebury: To ask Her Majesty’s Government what is the timetable for implementing the legislation to incorporate caste as a protected characteristic under the Equality Act 2010.

Baroness Garden of Frognal (LD): My Lords, we have no immediate plans to incorporate caste into legislation. We are aware of the recent Tirkey v Chandok Employment Appeal Tribunal judgment and are considering its implications for discrimination law. The judgment opens the possibility of a legal remedy for claims of caste-associated discrimination under existing legislation, in the ethnic origins element of Section 9 of the Equality Act 2010. We note this potential protection and have always stated that we completely oppose caste discrimination.

Lord Avebury (LD): My Lords, can my noble friend give an undertaking on behalf of the Government that, if they are re-elected in May, they will pursue this matter to completion, as recommended by the UN Committee on the Elimination of Racial Discrimination? As regards the tribunal case of Tirkey that she mentioned, have the Government considered the opinion of the EHRC that it is not binding on all future cases of caste discrimination and that an express provision in the Equality Act, which has already been decided by Parliament, is necessary for reasons of legal clarity?

Baroness Garden of Frognal: My Lords, I cannot make promises on behalf of a future Government not yet elected, but post-election, of course, the incoming Administration will need to consider how to discharge their legal obligations in respect of the outstanding duty to legislate. On my noble friend’s second question, we of course take note of what the EHRC says, but I should make it clear to the House that this view was expressed by the commission in its submission on the Tirkey case and not part of the judicial decision.

Baroness Thornton (Lab): My Lords, it is almost two years since this House voted by a very large majority that caste should be considered for inclusion in the Equality Act 2010. As the noble Lord, Lord Avebury, has said, the recent employment tribunal judgment reinforces the point that caste discrimination is an issue coming before the courts and that clarity of the law is required. This issue cannot be ignored or sidelined, so what exactly is the Government’s timetable for taking this forward after this terrible delay?

Baroness Garden of Frognal: My Lords, we are conscious of the delay in this matter. During the passage of the Enterprise and Regulatory Reform Act 2013, when the need for explicit caste legislation was debated extensively, it was generally acknowledged that a full public consultation should be undertaken, not least because there was no general consensus on even basic concepts, such as a workable definition of caste itself. Because of a number of delays, there is no longer sufficient time before the election to put it through.

Lord Deben (Con): My Lords, my noble friend will remember that in those debates this House specifically refused to support the Government’s position and refused to accept the delay. We voted for a change in the law. We are now two years later and that change has not been implemented. The Government owe it to this House to say that they will implement it, and that any future Government made up of the two parties of this Government will also implement it.

Baroness Garden of Frognal: My Lords, I recognise the frustration around the Chamber over this matter. However, the debates during the final stages of the then Enterprise and Regulatory Reform Bill made clear that caste is a controversial and difficult issue, and that the Government would need to proceed carefully, involving public consultation. I believe that the Tirkey v Chandok case, which was unknown at the time those debates took place but which has potentially significant implications for the law in respect of caste and race discrimination, clearly illustrates the need for caution.

Lord Harries of Pentregarth (CB): Does the Minister agree that it would be quite inadequate to leave issues of racial and gender equality to employment tribunals? What is different about caste discrimination, when the judge in the Tirkey v Chandok case said that his judgment applied only to the facts of that particular case, and did not make any ruling about caste in general?

Baroness Garden of Frognal: Indeed, my Lords, but the Employment Appeal Tribunal is an authoritative court and, for the time being at least, its judgment in that case is the law of the land. The EHRC intervened in the appeal and I imagine would wish to consider another intervention, if it thought that was necessary.

Lord Cashman (Lab): My Lords, all discrimination is difficult to deal with, but such procrastination is entirely unacceptable when more than 200 million people experience caste discrimination every single day. Therefore, will the Minister please report back the strength of feeling in this House that the procrastination is entirely unacceptable?

Baroness Garden of Frognal: I will, indeed, report back the frustration of this House but I come back to one of the difficulties, which is that there is no agreed definition of caste. Many cases which are in the pipeline could be brought under the ethnic origins discrimination legislation.

To translate that into plain language: we’ve said we would do something, had a lot of time to to something, but decided not to do anything after all.

Changes of Contract and the Equality Act

ContractClaims under sections 19 and 20 of the Equality Act 2010 require that a provision, criterion or practice place (or in s.19 would place if applied) an individual with a protected characteristic at a substantial (in the case of section 20) or a particular (in the case of section 19) disadvantage.

In Edie & 15 Ors v HCL Insurance BPO Services Ltd  [2015] UKEAT 0152_14_0502 the Employment Tribunal asked the question as to whether the imposition of new – and detrimental – contractual terms could amount to a PCP with reference to section 19(1) of the 2010 Act. I don’t see why this would not equally apply to the PCP in section 20(3) of the Act.

In many ways this is a commonsense decision but the clear authority that a change of contract situation does not just raise prospects of a common law/constructive dismissal remedy but also (especially) protection on indirect discrimination grounds is a welcome one. This is because it gives a more tangible protection to workers than the theoretical option of constructive dismissal arguments (if you’re on the breadline walking away from an income even if a breach is grievous and fundamental it is not often a realistic option and this gives employers a license impose inequitable changes).

Certainly in my experience members in the PCS Union  are seeing a raft of changes in the workplace, changes that in my view are likely to amount to contractual variations. Many of these do place particular groups (expecially on age and disability grounds) at a disadvantage. So, for example, changes to a contractual grievance procedure that applies to all employees and make it harder to have grievances heard may still place disabled employees at a disadvantage if disabled staff are five times more likely to submit a grievance than non-disabled staff.

This doesn’t change much but at least it makes it a bit easier to force employers to objectively justify their discriminatory conduct since it is less easy to evade the issue by denying contract changes are a PCP.

A PDF of the judgement.

Priced Out

A letter signed by the TUC’s Frances O’Grady and Len McCluskey of Unite among others calls for the scrapping of Employment Tribunal Fees:

Since July 2013, when the government introduced fees for anyone taking their employer to an employment tribunal, there has been a huge drop in claims. This is denying workers access to justice – and in particular women with discrimination claims. Official statistics show an 81% drop in claims lodged between April and June 2014, compared to the same time in 2013. All types of discrimination claims, for which a fee of up to £1,200 is now payable, have fallen: the worst affected being sex discrimination cases, which are 91% down. Even “straightforward” claims for unpaid wages attract a fee of £390, which may, in some cases, be more than the amount sought by the worker.

Despite ministers’ assertions that the change was needed to prevent unfounded and vexatious claims, no evidence has emerged that shows the drastic decline is attributable to the falling of such claims. On the contrary, evidence gathered by the TUC, Citizens Advice Scotland, Citizens Advice (England and Wales), the Law Society of Scotland and the universities of Bristol and Strathclyde shows that workers with genuine cases are being prevented from lodging their claims simply because of their inability to pay the fees.

This effectively means that a growing number of unlawful employment practices are going unpunished. When ministers say it’s not right that taxpayers should foot the bill for employment tribunals, they overlook the fact that the workers bringing claims are themselves taxpayers.

The government is currently reviewing its fees policy. It must, as part of this process, conduct a full equality impact assessment highlighting just how the charges are affecting workers bringing claims relating to sex, age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, and sexual orientation. Workers’ access to justice cannot be guaranteed while fees remain in place. The government must end this unfair and inequitable policy by abolishing fees at the first opportunity.

I fully endorse the appeal. Whilst I think the early conciliation moves are broadly a good idea – despite in my experience central government employers showing an absolute reluctance to conciliate – the introduction of fees have been disastrous for workers. I have certainly seen individuals with good cases, who have tried to resolve matters internally but failed, be dissuaded from pursuing their cases.

But one of the notable omissions from the letter is Dave Prentis, General Secretary of Unison whose union has again lost its most recent challenge to the fees system because, in the words of Mr Justice Foskett:

For my part, I would anticipate that if the statistics upon which reliance is placed in support of this application were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an Employment Tribunal through lack of funds which would not have been the case before the new regime was set in place. However, that assessment has to be seen as speculative until convincing evidence to that effect is uncovered.

I am sure they knew what they are doing but I have too say i am extremely surprised Unison did not try to demonstrate precisely the type of cases referred to. In any case, leave to appeal has been granted, here’s hoping it will be successful.

Reference: Unison (No. 2), R (on the application of) v The Lord Chancellor [2014] EWHC 4198

Blacklisting and Human Rights

From Garden Court Chambers:

In an unusual step, the UK government has joined a test case being heard at the Court of Appeal this week as an intervener. Judgment is being made on whether the blacklisting of engineer Dave Smith breached the European Convention on Human Rights (ECHR).

Carillion (JM) Ltd admitted that staff supplied information to the Consulting Association blacklist about Smith because he was a Safety Representative for the construction union, UCATT.

Smith lost his original Employment Tribunal in 2012 because he was employed via an employment agency, (rather than working directly for the company) and only direct employees are protected by the employment law in question.

The original Employment Tribunal judgment on the case concluded that Smith “…suffered a genuine injustice and we greatly regret that the law provides him with no remedy.” 

On 4 February 2015, in the Court of Appeal, John Hendy QC and David Renton argued that blacklisting is a breach of Articles 8 (Right to respect for private and family life) and 11 (Right to freedom of assembly and association) of the ECHR. Therefore if Smith is not protected by UK employment law, then UK law itself cannot be compatible with the Convention rights. They asked the Court of Appeal to agree a ‘declaration of incompatibility’.

The UK government, as the intervener, has also presented legal submissions. The government admitted that the blacklisting of trade unionists is a breach of Articles 8 and 11 of the ECHR, and that Smith only lost his original case due to his employment status. Despite this admission, the UK government argued that the Court should not issue a ‘declaration of incompatibility’.

John Hendy QC and David Renton responded by stating:

The European Convention is to be considered in the light of the fact that it was drawn up in the aftermath of the Second World War to prevent in future the development of totalitarian regimes such as that of Nazi Germany by forestalling the incremental abuses of human rights which led such regimes ultimately to the grotesque atrocities for which they are responsible. Blacklisting of workers was precisely one of the early abuses by which the Nazis suppressed opposition to their rule from the labour and trade union movement”.

David, representing Mr. Smith, was instructed by the Free Representation Unit (FRU).

David Renton is a member of the Garden Court Chambers Employment Team.

David Renton also blogs at Struck Out

Whistleblowing: not just and equitable

wbA scenario: Sarah, who is an employee, suspects that the company’s finance officer is ‘cooking the books’ by skimming company funds into his personal accounts having come across a printed document left on the printer in the office.  Concerned about this Sarah reports her concerns to the company’s HR director and explains that she thinks the finance officer who assures her she will investigate and handle the situation.

The following week the worker applies for a promotion opportunity in the company and on the 19th September is told her application is unsuccessful, the reason given is she is not a ‘good fit’ for the role and there were other better qualified candidates.

Unknown to Sarah the HR director and finance officer are good friends. Without investigation the HR director decided that there was no substance to allegation of theft because, being a friend, he knew that the finance officer was a person of impeccable character. And upon hearing that Sarah had applied for promotion and was about to be offered the role the HR Director directed the interviewing officer not to give Sarah because she was a troublemaker but to tell her she was simply not the best candidate for the job.

Then on 19 December (exactly 3 months after the unsuccessful application) at a Christmas company do the HR Director having had one too many drinks Michael, the HR Director’s PA, blurted out to Sarah that the reason she was not successful for the job was because she had made the complaint to the HR Director that the finance officer had defrauded the company and that the complaint had been brushed under the carpet and not been investigated.

Distraught, the one week later ater collecting her thoughts Sarah files an Employment Tribunal claim alleging that the rejection of the job was a detriment for whistleblowing.  After discovering her allegation had not been investigated Sarah also reports the alleged theft to the Police. Their investigation reveals the finance officer had been stealing from the company for many years and he is convicted and imprisoned for theft.

Sarah’s complaint to the Employment Tribunal would be a claim under section 47B of the Employment Rights Act 1996 (the ERA) which stipulates that a “worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” On the facts as set out above Sarah would have a strong case that she was subjected to a detriment for having made a protected disclosure. However, section 48 of the of the ERA directs Employment Tribunals that they “shall not” consider a complaint unless the claim is submitted within three months of the “the date of the act or failure to act to which the complaint relates” (section 48(3)(a)). For Sarah that act complained about is the failure to promote her, and that happened on 19 September. Therefore, the three months would expire on 18 December.

There is clearly an unfairness here; soon after Sarah was aware of the claimed unlawful act she initiated proceedings but despite the clear evidence that she has acted quickly and was penalised for blowing the whistle on a serious matter she would appear not to have any legal redress for the wrong done to her.

It was this precise issue that was addressed by the Employment Appeal Tribunal in  McKinney v London Borough of Newham [2014] UKEAT 0501_13_0412. The claimant had submitted that the time limit for making a complaint detriment because of whistleblowing ran from the point he became aware of the detriment (in his case, when he received an outcome through the post), not the day the grievance outcome (the alleged detrimental treatment) was sent. Clearly, without any real enthusiasm, the EAT at paragraphs 6 and 7 found the effective date in which to submit a claim begins on the date the detriment takes place “whether or not he is aware that a detriment has been suffered”:

(6) It seems to me that the current state of the authorities is less than satisfactory.  Nevertheless, a clear thread is now emerging (see Mensah; Virdi; Garry; Warrior Square) which points towards the counter-intuitive position that time begins to run against the Claimant relying on a detriment, both under the Employment Rights Act and the Equality Act whether or not he is aware that a detriment has been suffered.  I agree that the wording of section 48(3) Employment Rights Act is focused on the employer’s action (or omission) and that a detriment may be suffered without the Claimant being aware of it.  For example, a difference in treatment which may be on the grounds of race (see Garry).  Indeed section 48(4)(b) provides that a deliberate failure to act shall be treated as done when it was decided on, not, I would add, when the Claimant learned of the omission.  That is consistent with the Mensah line of authorities in relation to the employer’s act.  Whilst the need for knowledge is reinforced by the Supreme Court in Barratt when considering the effective date of termination I accept that section 97(1)(b) Employment Rights Act raises a different question from section 48(3).  The Claimant is entitled to know that he is dismissed before the dismissal takes place.  He may suffer a detriment without that knowledge.

(7)           In these circumstances, and being unimpressed by Mr O’Dempsey’s public policy argument, I am driven, without enthusiasm, to accept Ms Balmer’s submissions as a matter of construction and authority.  The Employment Judge was right to treat time as running from the date of the Respondent’s grievance decision, 8 October.  By way of analogy, time runs for bringing an appeal to this Tribunal from the date the Employment Tribunal Judgment is sent to the parties, not when it is received by them.  Thus, the section 47B complaint was out of time.  The Employment Judge went on to consider the reasonable practicability escape clause and rejected it (paragraph 32); there is no extant appeal against that ruling.

On the basis of the legislation I think the EAT are right but it is clearly an unpalatable state of affairs that can lead to injustice and gives employers an opportunity to discriminate against whistleblowers and still evade legal scrutiny. I do not know if this decision is being appealed but it seems to me that in a case such as Sarah’s she has been deprived of her right of legal redress that potentially raises Article 6 ECHR issues (along similar lines to that advanced in Williams v Ministry of Defence [2012] UKEAT/0163/12/JOJ.

The clearest change that needs to be effected, it seems to me, is for section of 48 of the ERA to be amended so as to align itself with section 123(1) of the Equality Act 2010. Although the time limit provisions in the ERA are nearly identical to those in the EA 2010 an out of time claim may be allowed where it is just and equitable to do so, a provision the ERA omits. The Court of Appeal has accepted that whisteblowing protections are anti-discrimination laws (see Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). Relying on the House of Lords’ finding that there is a public interest in discrimination cases being heard set out in Anyanwu and Another v. South Bank Student Union [2001] UKHL 14 LJ Kay commented that “in my judgment the same or a similar approach should generally inform whistleblowing cases” (paragraph 32). And so, were an out of time whistleblowing claim allowed to because it was “just and equitable” to do so then there would be a strong public policy reason to allow the claim to proceed. In short, Sarah would have a good chance of getting her day before the Tribunal.

The difficulty is that the construction of the right to lodge a claim in the ERA does not permit an Employment Judge to hear such a claim – that needs to change. If it doesn’t then whistleblowers will be deprived their right to challenge unscrupulous employers.

For reps wanting to understand whistleblowing law I recommend a visit to the Public Concern at Work website.

PCS Union win court victory on changes to terms and conditions

PCS has today announced that its challenge of the National Audit Offices decision to unilaterally change terms and conditions of service from its employees has been successful:

On 15 December, PCS won the important case against the NAO’s decision to reduce the contractual sick pay and leave of its existing staff.

This dispute started in late 2012, when the Cabinet Office wrote to all government departments, asking them to make sure the terms and conditions on offer to civil servants were in line with those provided by a “good, modern

employer”. In practice, this meant suggesting reductions in various terms and conditions, such as entitlement to sick pay. PCS organised a national response to this with the ‘Don’t rip up our rights’ campaign.

The Cabinet Office did not write to the National Audit Office, since the NAO is not part of government. Instead, it works directly for Parliament as its ‘spending watchdog’— certifying the accounts of government bodies and producing value-for-money reports on public spending.

Strong defence

But despite being independent of government, the NAO decided to reduce the terms and conditions it offered anyway. In fact, it decided to go further than government departments, and impose reductions on the contractual terms and conditions of its existing staff.

We mounted a strong defence, including a joint grievance, comprising 10% of the entire NAO workforce, a motion from the PCS group of MPs, and industrial action.

NAO management would still not come back to the negotiating table or make changes to their proposals. So, in 2014 we supported 2 members who took a test case to an employment tribunal. NAO management argued that the wording of the contracts allowed them to make changes to the terms and conditions of staff even without their agreement.

The NAO won this original tribunal case, having claimed they were following the example of Asda-Walmart, which had previously succeeded in doing something similar. But our legal advice said this was flawed.

In December, PCS took the case to an employment appeal tribunal and won. The EAT ruled that the NAO did not have the right to change the contractual terms of its staff without their agreement.

This ruling does not just benefit staff at the NAO. It also sets a legal precedent which should help to protect workers across the country from employers trying to impose detrimental changes in similar circumstances.

Although not stated in the briefing the case would appear to be that of Norman v National Audit Office. It does not look as if the reasons for the EAT’s judgement have yet been published.