Month: May 2015

Mark Serwotka on sacked PCS rep Candy Udwin

Published on by employmentwrites

pic_PCS-NationalGalleryStrike3-2-15mp6Earlier today PCS Union General Secretary Mark Serwotka has written about the long running dispute at the National Gallery which has culminated in the dismissal of PCS rep Candy Udwin on the Peoples Assembly website. PCS does have questions to answer on the support it offers to victimised reps but here I entirely and unreservedly endorse PCS’s stance as set out by Serwotka. Please consider showing your support.

By Mark Serwotka

PCS is in dispute with the National Gallery over their proposals to privatise 400 of the 600 staff who work there. The first act of the National Gallery management, following the election is to sack one of our senior reps. This is a direct attack on our union and we will fight it every step of the way.

Our members there have already taken 23 days of strike action this year and a fresh wave of action will now be held. On Saturday 30 May we will hold a demonstration against the privatisation plan on the institution’s doorstep in Trafalgar Square in London. We already have some excellent speakers lined up and will be using our annual conference to help mobilise support for it.

Let’s look at the facts. Candy Udwin has been a PCS rep at the gallery for many years and has fulfilled her role brilliantly, standing up for her colleagues and holding the senior managers to account.

When the plans to sell off all the gallery’s visitor services were announced – something no other major museum or gallery has ever done – she was at the forefront of our opposition and, when the dispute reached Acas, was part of our negotiating team.

The first Acas meeting was held on Friday 30 January and our first strike was scheduled to start four days’ later. On the Monday, Candy was called in and told she had been suspended from work, a move that the gallery tried to claim also meant she could longer participate in the talks.

The ‘case’ against her was that she shared information about the use of a private security firm with her full time union official and asked him to take up the matter with the gallery. If that is not a bona fide thing for a trade union rep to do – and sacking her on the eve of a strike for doing it is not victimisation – then I don’t know what is.

No union rep worth their salt ever stood for election because they thought it would be good for their career. But to be victimised by your employer on that basis is a gross abuse of power.

We want everyone who opposes this unnecessary and damaging sell-off, and who supports the right of elected trade union representatives to raise questions on matters of strong public interest, to join the protest. This will also be an opportunity to protest against the kind of Tory cuts being cited as the reason for this privatisation, and against attacks on trade unions.

Tens of thousands signed our petition against the proposals, almost 10,000 people added their names to a statement calling for Candy to be reinstated and artists Grayson Perry, Mark Wallinger, Ryan Gander and Peter Kennard have signed a separate letter calling for a halt to the privatisation.

We have massive public support and we are determined to win. With your help I believe we can.

Mark Serwotka, General Secretary, Public and Commercial Services Union

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Discretion on the Sift

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decisionWhen a claimant lodges an employment tribunal claim the case does not always get so far as the Respondent even needing to decide whether they contest the case and need to submit an ET3 (the document setting out a Respondent’s Grounds of Resistance). Sometimes an employment judge reviews the case at the outset and determines the case should not proceed (called ‘the sift’) and strikes out the claim.

Three appeal cases on this practice have been issued in the last two weeks and they offer a timely reminder to take care when lodging tribunal claims.

Cranwell v Cullen is a case in which the Appeal judge evidently had a great deal of sympathy for the claimant. In order to submit an employment tribunal claim it is a mandatory requirement (with very few exceptions) that a claimant must go through ACAS’ Early Conciliation process. This is evidenced by a EC certificate issued by ACAS, the number of which must be added in a claim.

The claimant alleged that the Respondent has subjected the claimant to sexual harassment and it is clear the issues between the two parties were extremely serious since the Respondent was prohibited from contacting the claimant. Understandably, given the gravity the claimant did not consider early conciliation would resolve the issue but evidently was not aware that while conciliation was not mandatory, approaching ACAS and explaining the position was.

In the event the claimant lodged an ET claim but did not approach ACAS before doing so. Despite the very serious complaint of sexual harassment against the Respondent the claim was struck out as no EC certificate had been issued which is a mandatory requirement. This was done without any hearing of the claimant’s explanation why the requirement had not been followed. At the appeal the EAT confirmed that in the application of this Rule an ET judge has no discretion even if, as in this case, a strict application of the law amounts to the denial of justice to an unrepresented claimant. Reading the law at issue it is difficult to conclude that this decision is correct insofar as the interpretation of the Rules goes but it is also difficult to avoid the conclusion that it is the absolute bar on discretion – even if that is just judicial discretion to further extend time limits to allow a claimant to follow the EC process – is an impediment to access to justice. The one sop is the judge’s indication that were the claimant to resubmit, having gone through the appropriate process, then even if out of time which seems to be almost certainly the case, the claimant may have good grounds to argue the case should nevertheless proceed to hearing but even hear there is no certainty.

Sterling v United Learning Trust covers similar terrain to Cranwell in that it also concerns the ACAS EC process as a necessary prerequisite to submitting a tribunal claim. Although the circumstances are less severe the circumstances are equally concerning. Here it appears the EC process had been followed by the claimant. The claimant submitted a claim, with an EC certificate, four days before the time limit expired but the EC number had a mistake on it. The Tribunal returned the form to the claimant to correct the error but addressed the envelope to the wrong address.  The claimant made the claim, with the correct information, as soon as she was able to but by that time the claim was out of time. As a result the claimant’s claims of unfair dismissal was struck out. Again, an analysis of the initial tribunal decision by the EAT did not find the decisions to be unlawful despite the errors of the tribunal itself (worryingly, this seems not to be a isolated incident where the tribunal’s address errors affects a claimant’s ability to have their claim heard – see Carroll v The Mayor’s Office for Policing and Crime).

Unlike the previous two cases Higgins v Home Office does not concern ACAS EC (but again (!) suggests that Tribunal staff made errors in addressing correspondence – see para 11). The claimant resigned her employment in 2007 and evidently had significant health concerns. Six years later the claimant in what was a very muddled ET1 (she was not represented) claimed she had been constructively dismissed, she submitted medical evidence that she had been too unwell to submit a claim. The EJ struck out (semantics notwithstanding) under Rule 12 of the Tribunal Rules which means the case was stopped without any hearing. The initial decision was a harsh one and the EAT allowed the appeal and remitted the case to a different EJ to consider afresh whether the claim can proceed.

So, what is the common thread in these three decisions. Leaving aside the apparent propensity of Tribunal staff to send incorrectly addressed correspondence to claimants (see Higgins, Carroll and Sterling) the issue in Carroll and Sterling is the absence of judicial discretion in the application of Tribunal Rules. While others in the union movement disagree by and large I think the addition of mandatory Early Conciliation process is by and large a positive one. However, it also introduces new requirements that give rise to additional errors claimants can make. The ET system is one which was intended to be “easily accessible, informal, speedy and inexpensive”. I suspect if you were to ask the claimants in Carroll or Sterling whether their experience was one which was ‘easily accessible’ or ‘informal’ you may find the answer is negative.

The Rules imposed by the last Government (which in respect to EC are, I think, positive) allowed no discretion for the exceptional case, such as the claimant in fear of her safety or the claimant whose claim is late because of Tribunal sent a form to the wrong address. The result is claims in such circumstances are legitimately refused lawfully whilst at the same time presenting a barrier to justice. That dichotomy needs to change.

More broadly however for employee representatives the cases above also offer a reminder on the need for care when presenting claims. I, like many reps, too frequently leave submitting claims to the very limits of the limitation period, not necessarily out of design but because of workload. That may often be a mistake – had the claimant in Sterling submitted the claim three week’s before the limitation period ended rather than four days previously there is every chance the error (if there was one) would still have been caught in time even if there was an error in the claimant’s address. Likewise, how often do we cross check the ACAS EC number we provide on the form (or check we’ve submitted one) before submitting? Failing to do so could result in a employee being deprived of the opportunity of presenting their case. And again, do we ensure the claim and tick boxes match and the actual nature of the claim is clearly spelt out (especially if a claim form is written by an employee rather than a rep – which may not be advisable but frequently happens). Failing to do so gives a Tribunal the opportunity – however unfairly – to strike out a claim.

Cases:
Cranwell v Cullen [2015] UKEAT 0046_14_2003

Sterling v United Learning Trust [2015] UKEAT 0439_14_1802

Higgins v Home Office & Anor [2015] UKEAT 0296_14_0605

Carroll v The Mayor’s Office For Policing And Crime [2015] UKEAT 0203_14_0902

Access to Work Funding to be Cut

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accessA mere six month’s ago a group of MPs reported that the Department of Work and Pension’s Access to Work scheme was failing to reach the people it needed and that further work was needed to increase its coverage. The then Minister for Disabled People Mark Harper MP (Con) encouraged all business to utilise the support Access to Work offered to businesses and disabled people in ensuring access to the workplace on the same terms as their non-disabled collegues.

Indeed, the last Government’s review of disability support (which resulted in the controversial closure of the Remploy factories) was gushing in its praise for the the Access to Work Scheme. In the then Government response to the Sayce Report which was endorsed by Ian Duncan Smith the government accepted that the Access to Work scheme was “cost effective” and the “best kept secret in government” and had the potential to assist disabled worker into employment. The fact that two years after the Remploy closures hundreds of the workers who lost their jobs remain out of work suggests that much more “cost effective” investment is needed.

It is then scandalous that one of the first acts of the new Conservative led government was to confirm a decision to slash funding for the scheme. Rather than provide a cost effective route to reduce benefit bills and increase disability employment the decision has been taken to slash funding. It is, I fear, the first in what will be a long line of cuts that a) harm society’s most vulnerable citizens and b) make little economic sense as they just push costs from one segment of the benefit bill to another. A reduced budget will mean more and more employers failing to take the risk on employing disabled staff as the cost of adjustments will be too onerous, especially for small businesses.

This is something trade unions need to start actively campaigning on.

There is Power in a Union

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Michael Reed is a solicitor and principal legal officer for the Free Representation Unit (the FRU). I should say at the outset that I have immense respect for the work of the FRU (and if you can, I would encourage you to support them).

As a union rep I have also referred cases to FRU and always been impressed with their work in securing good results for our members.

All of the above is by way of preamble to introducing a post Michael has posted on power relations in employment. Here’s a taster:

If we’re worried about people being mistreated and exploited in employment, the people we need to be concerned about are those who lack power. That means people working in unskilled and commoditised jobs, who are likely lack the cultural capital and personal characteristics to balance the employer’s power.

The point of employment law, really, is to give those people, without other sources, a bit of power. That, we hope, means they will be treated better than they otherwise would.

That’s what makes things like employment tribunal fees and zero-hours contracts so dangerous. They take power away from people who are already in an unbalanced power relationship with their employer. And the more unbalanced that dynamic becomes, the more likely they are to be badly treated.

There really is nothing in the post itself to disagree with. It is certainly the case that the greater the power differential in employment (as in the rest of society) the greater the extent of exploitative employment practices. Sometimes this is down to plain exploitation (I am thinking here of companies like Sports Direct who keep the majority of their staff on vulnerable employment contracts); but equally, sometimes there dynamic comes from more ‘soft power’ sources such as being from the same social grouping as ‘the bosses’, being a skilled worker (and thus harder to replace), or even just being more erudite.

But what baffles me about Michael Reed’s post is the complete absence of any reference to trade unions. Although trade union membership  has undoubtedly declined in the last three decades it still remains the largest political grouping in the UK, at just under 6 million workers. And although a significant percentage of trade unionism is within the public sector there are signs that the levels of membership private sector are on the rise.

Power in the workplace as it relates to trade unions works in different ways. On one level there there are occasions where a union being present or asking questions reduces inequitable treatment. On a personal level this does sometimes happen in disciplinary and grievance cases. A worker raises a question and they have no joy resolving an issue or are subject to disciplinary proceedings on tenuous grounds but when a union rep is involved the employer takes a different tact – more assiduously complying with fair processes for example.

To give a recent example I was recently approached by a union member who had had about 10 days annual leave from his allowance at the end of a leave year. He had previously tried to book that leave earlier in the year but had been refused and when he tried to book it again he was again refused as ‘he did not give enough notice’ despite giving trying to book over one month in advance. Despite the member escalating the issue through their line management chain they had no joy – however, after coming to PCS a simple question about how their decisions could be consistent with the Working Time Regulations resulted in the decision being overturned. Because of union intervention that member did not have lose 10 days leave and this was done without any need for an unlawful deduction of wages claim using an employment tribunal.

But the advantage is not just personal. One of the problems of modern trade unionism is it has a tendency to follow the individualistic turn or broader society. It is this type of tendency that leads to the the trade union as individual insurance policy type of approach. The main benefit of trade unions is on the collective rather than purely individual level, this is what TUC refer to as the Union Advantage. Trade Unions do deliver benefits to employees. Where a union is recognised for collective bargaining (which can only happen if individual membership reaches a critical density) members do get better pay and conditions of service which themselves minimises the power differential Michael Reed referenced. At it’s most basic that power is itself in the hands of members themselves. Individually an employee can be picked off by an employer and reject their grievances but if each employee stands together – for example, by unanimously taking industrial action together – those same grievances can be remedied. It is the union, therefore, that offers a remedy to the power differential which Reed referred, even more than an employment law system whether access to it is restricted or not.

I will leave you with the Billy Brag classic There is Power in a Union. But before I do so if you are not a trade union member why not join today? Not only is it in your interests but also in the interests of your colleagues.

Socialist Party Comes Out Against the Postponement of Elections!!!

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Facing Reality

socialist_party

From the CWI website, February 2015 

“We of the Socialist Party …………. condemn the recent postponement of the 2015 …….elections ……….. We hold that it completely begs the question for ….. to postpone the elections by six weeks on the basis of the ……….! We condemn the………. interfere in the electoral process.

We view the empty arguments employed in postponing the elections as a deep reflection of the ineffectiveness of the …………………………….. We demand that the elections should be held in spite of the fact that the failure of the labour movement leadership to form and build a formidable mass working people political alternative ……….. we are totally opposed to any erosion of the democratic rights of the working people, including their suffrage rights under any guise. We are strongly opposed to any strategy……….. to compromise the elections in a bid to extend its tenure …………

We call on…

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Choice of Decision Maker made Dismissal Unfair

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inexperienced
Choice of an inexperienced manager to hear a disciplinary case may make decision unfair.

I referred to the case of Thomson v Imperial College Healthcare NHS Trust about a week ago in respect of disability related misconduct dismissals. The case has been more widely reported in respect of its unfair dismissal findings, however.

The ACAS Code of Practice on Disciplinary and Grievance Procedures, which is intended to provide “basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace” surprisingly has very little guidance on choice of decision makers.

To the extent that there is guidance it sets out that:

  • A different person should normally carry out an investigation and disciplinary hearing; and
  • A decision to dismiss should only be taken by a person with the authority to dismiss; and
  • An appeal manager should normally be a different person to the person who made the decision.

And that’s it!

In Thomson all these guidelines were complied with: The claimant, a senior Hospital official had an independent Dr sit on the disciplinary case who was specifically chosen because other local staff of the requisite authority to hear the case were involved in the case. The selection of the hearing manager was also made in line with the employer’s disciplinary policy, and an independent appeal manager was appointed. However, in Thomson the claimant alleged that the hearing manager, Dr Palazzo, was too inexperienced to hear the case (which was alleged to be a potential gross misconduct case and involved alleged disability discrimination) even though no complaints were made by the claimant before at the disciplinary hearing itself. At the first tier tribunal found, as a matter of fact, that “Dr Palazzo told us that he had never before chaired a disciplinary hearing.  Nor had he been trained in the conduct of disciplinary proceedings.”

In its judgement the Tribunal (ET) concluded “It is self-evident in our view that this employer did not act reasonably in giving the case to Dr Palazzo.  To do so was not fair to the decision-maker.  But more importantly, it denied the Claimant a fair hearing.  As a minimum, fairness entails, amongst other things, a decision by someone equipped with ability and experience commensurate with the demands of the case … It is no answer to say that Dr Palazzo was within the class of persons who were eligible to chair the disciplinary hearing under the Respondents’ written procedures.  Fairness does not depend on a ‘box-ticking’ approach to procedures.  An unfair process does not become reasonable simply because it does not conflict with a written procedure … and we hold that the defect here identified is sufficient to place this case outside the range of permissible action open to the Respondents and accordingly renders the dismissal unfair as a matter of process.”

In paragraph 40 of the EAT judgement the Tribunal’s reasoning was affirmed:

In our judgment the Employment Tribunal did not err in finding that the involvement of Dr Palazzo as chair of the disciplinary panel hearing the proceedings against the Claimant rendered the dismissal procedurally unfair. Although he was in the category of those qualified to chair such a panel it seems that there was no evidence that he had training or experience to carry out that duty.

The failure to include any guidance on who is an appropriate person to hear dismissal or grievance cases does I think highlight a major gap in the ACAS guidance that reflects real issues in workplace disciplinary matters. For example, twice in the last week I have had to make formal objections on the choice of decision makers in disciplinary matters for union members, despite the employer being a big employer well able to identify independent decision makers.

In this regard Thomson does strike me as a helpful case. Where the matter under consideration is a serious one that could result in a gross misconduct finding or discrimination complaints it may be advisable for reps to out the question of experience firmly on the agenda by asking a decision maker what training they have received and what experience they have on these matters with a view to potentially using this as a future ground of appeal.

In Thomson it is clear that this inexperience was not just a procedural matter (although the dismissal was found unfair on these grounds alone as well) but this inexperience was a key factor in the Dr Pallazzo dismissing for ‘gross misconduct’ when he himself accepted the alleged misconduct was not capable of amounting to gross misconduct under the Respondent’s disciplinary policy. This does raise the prospect that where the choice of decision maker is the ground of an unfair dismissal claim any victory will be a pyrrhic one as the Tribunal may come to the view that had a fair choice of decision maker been made the outcome (dismissal) would be the same and limit any compensation award.

References:

Thomson v Imperial College Healthcare NHS Trust [2015] UKEAT 0218_14_3001