All Change at RCN?

rcnIn August the General Secretary of the Royal College of Nursing (RCN), Janet Davies, resigned from her post in the wake of anger at alleged misinformation provided by the union to members to induce them to agree a multi-year pay deal.

There is anger across the health sector unions over allegations of misrepresentation but the situation for RCN is particularly dire after the union admitted that it wrongly informed members that they would all receive a 3% pay rise in the first year, when in fact only proportion of nurses would. It was in the wake of that admission of error that Janet Davies resigned.

Any hopes of the executive council that that resignation would assuage member anger and put a lid on the issue were destroyed yesterday however. In an unusual move the union were forced under membership pressure to convene an Emergency General Meeting and vote on a motion of no confidence that read:

“We have no confidence in the current leadership of the Royal College of Nursing, and call on Council to stand down”.

The motion was overwhelmingly carried with just under 79% supporting the motion. Danielle Tiplady, a nurse and the speaker for the motion, has said that this is a opportunity for a renewal of the union.

But will the Council actually resign? The Chair’s response to the vote is opaque at best: “Today’s honest and open debate in Birmingham has cleared the air and the college will emerge stronger as a result.” And the official response on the RCN website does not assist either as members are told simply that “Council members and the College are now considering the next steps to be taken as RCN Council enters a period of transition.”

There is no statement that there will be resignations in an orderly time just that they are considering “next steps”. Could one of those next steps be to refuse to stand down as required by the motion (albeit with no timescale specified in the motion)? It is certainly not heard, as my union will itself attest, for a vote of members to be ruled invalid if the result does not suit. I would be surprised if they would go for this option but it is not conceivable, more likely perhaps is a fresh round of Council elections with the hope that a majority will still retain their seats.

The next month or so will be interesting to see what change really takes place in RCN HQ.

UVW Members in Trade Union Victimisation Victory

topshopThe UVW union (United Voices of the World} have this week announced that a case which its Petros Elia, a member of the union’s Executive Committee, has described as  the “most significant tribunal case in UVW’s history” has concluded.

The employment tribunal heard evidence, after a ten day hearing, that Susana was dismissed because of trade union activities in helping to organise for UVW and campaign for  London Living Wage. Carolina was also found to have been dismissed for union activities but, interestingly, the employer did not even pretend to deny his having conceded liability on the first day of the hearing (I wonder if the union will be seeking costs from the employer?)

The employer, Britannia Services Group, provided cleaning services for Topshop and one of the cleaners had been cleaning the flagship store for seven years when she was dismissed. Her offence? Taking part in a union demonstration calling for Topshop to ensure all those working for them, directly and indirectly, be paid the London Living Wage and carrying a placard which read “Topshop shame on you.”. Evidence showed that her dismissal was made under pressure  from Topshop management. Topshop’s actions followed national coverage of the dispute and the Topshop’s withdrawal of a policy document that they supported a living wage after the ill-treatment of outsourced workers was highlighted.

Judging from UVW’S published information it is not clear that there has been a remedy hearing and the outcome has not been finalised. In fact, is although the Respondent is said to have admitted the reason for the dismissal was to inhibit trade union organising and for trade union reasons it is not clear that there has yet been a formal decision on liability. In terms of remedy, the best that can be hoped for is a reinstatement order or aggravated damages, personally I don’t think that is not adequate enough and where there is wilful action to impede the exercise by staff of their human right to organise (as seems to be the case here by both Topshop and Britannia Services Group, there should be a penal element to any judgements.

Nonetheless, this is a brilliant outcome by UVW, a small union who have consistently punched well above their weight for a number of years now.  Hopefully, if nothing else, when the judgements are published (assuming they are) this will be picked up by the media and a light will be shone on the corrupt practices of those managers who were content to allow workers to continue to suffer under intolerable pay systems but dismissed them when they sought to unionise and better their lot.



Broken Promises and (allegedly) Bullying Managers

Broken PromisesI have spent Saturday morning, as every sane person does, skim reading historic EAT judgements, and in the process stumbled upon the decision in USDAW v Burns. USDAW v Burns is a 2014 unfair dismissal case, the background to which will be familiar fare to many trade union reps, notwithstanding that the Respondent in this case was a trade union.

Mr Burns worked within recruitment for USDAW raised a concern about bullying by his manager and at the relevant time had been absent for over a year, one assumes this absence was related to the workplace situation but it is not explicitly stated. A grievance was investigated and the tribunal found that this was a reasonable conscientious investigation; at the same time Mr Burns was deemed to be fit to resume work.

However, Mr Burns refused to return to work for Mr Aylward (the manager he had accused of bullying him) but expressed a desire to return to work and remain in the employment of USDAW. Since all recruitment work was in the same division and reported to Mr Aylward there was no possibility of performing his role elsewhere. However, in a meeting with the union’s General Secretary Mr Burns was told that they would explore if there were any other vacancies he would be suited for.

At a meeting four days later the General Secretary informed Mr Burns that there were no other vacancies and he was dismissed, the reason for dismissal being some other substantial reason. However, in point of fact, the tribunal found that USDAW had not completed any skills appraisal of Mr Burns or made any enquiries before they communicated their decision to dismiss.

The employment tribunal found that this broken promise was a material factor when considering the reasonableness of the dismissal and determined that the dismissal unfair. In fact, the tribunal went further and suggested that that in all cases of dismissal for some other substantial reason an employer should “take all reasonable steps to find suitable alternative employment.” On appeal the EAT (38) squashed this wider point robustly:

We do not consider there is any such duty arising either at common law, through employment law or through a code of practice.  It is stated too absolutely.  No ground of appeal was founded upon it nor argued before us, so we do not need to consider it further.  But, because we are conscious that this judgment may see some currency elsewhere, we want to make it clear that we do not accept that approach

Nonetheless, the EAT dismissed USDAW’s appeal and found that the having made a promise to explore other opportunities a failure to do so is a key factor to be considered in determining whether a decision to dismiss an employee is reasonable (under section 98(4) of the Employment Rights Act 1996).

Whilst it is not the case that any broken promise by an employer will mean a dismissal is unfair if the takeaway (and common sense) take away point is that if an employer promises to do something that may mitigate an issue for which dismissal is contemplated and then fails to do that then that is a potentially strong ground upon which an appeal or unfair dismissal claim can be based.



Dismissal for Minor Misconduct

firedThe recent decision of Quintiles Commercial UK Ltd v Barongo addresses the question of whether a dismissal of an employee for a first offence which does not rise to the level of gross misconduct is necessarily an unfair dismissal.

The ACAS Code of Practice explains that misconduct at work can be three types: minor misconduct, serious misconduct, and gross misconduct. Gross misconduct is explained as:

Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence.

By implication the ACAS Code therefore suggest that serious or minor misconduct is not “so serious in [itself]” that dismissal without notice for a first offence is appropriate. The recent decision in Quintiles Commercial UK Ltd v Barongo potentially casts that view into doubt.

Mr Barongo worked for a pharmaceutical company and his employer had two pieces of mandatory training he was obligated to undertake, he did not complete either. Mr Barongo did not dispute that this was misconduct but that he had been under pressure at the time.  A disciplinary hearing was convened and the decision was that Mr Barongo’s misconduct amounted to gross misconduct and he was at that time dismissed.

The claimant appealed the disciplinary warning and the appeal manager determined that the claimant’s misconduct was best descried as serious rather than gross misconduct. However, the appeal manager made a decision that the employer’s trust and confidence in the claimant had broken down and so upheld the dismissal anyway.

As an aside one interesting aspect of the case is that there was no issue of some other substantial reason (trust and confidence) being the reason for dismissal rather than conduct itself. Presumably the immediate context of disciplinary hearing and an earlier misconduct finding (thankfully) tied the Respondent’s hands in terms of their legal case.

The Employment Tribunal made a finding that

once the misconduct is characterised as serious and not gross, it means that warnings are to apply.  This Claimant had no previous live warnings on his file.  That meant he came as someone with a clean record into this disciplinary hearing.  If the Respondent had believed and reasonably so that his misconduct had been gross, then that could furnish a reason for not applying warnings.  However, the characterisation of the misconduct as serious on appeal means that the failure to issue a warning renders the dismissal unfair.  Serious misconduct would have entitled any sort of warning including a final written warning but the express rejection of gross misconduct renders this dismissal unfair.

The ET further identified that in such a situation the dismissal was necessarily unfair:

the misconduct was not reasonably characterised as gross rather than serious; and indeed, the Respondent on appeal characterising it as serious rather than gross means that a warning was the only reasonable response, and dismissal was outside it, within the terms of the Respondent’s policy and general unfair dismissal law, the Claimant having a clean record.

Therefore, the central decision which was subject to appeal was whether revoking the dismissal was “the only reasonable response.” On my reading the ET’s decision is entirely consistent with the ACAS Code.

The Appeal Tribunal, in a short judgement, upheld the employer’s appeal. Noting that section 98(2) of the Employment Rights Act 1996 set out that a dismissal may be fair where it “relates to the conduct of the employee” without any reference to whether that conduct is gross misconduct. Whether a dismissal is reasonable is determined by the conditions in section 98(4) of the 1996 Act and there is no rule that a failure to issue a warning before dismissing an employee for serious or minor misconduct is necessarily unfair.

The Appeal judgement criticised the  original decision for failing to explain why the decision was unfair and found this was most likely because the ET simply assumed that a dismissal for a first offence of serious misconduct must necessarily be unfair.

I would be surprised if the outcome of the remitted hearing is not that the dismissal was unfair and that is surely the right outcome.

The Quintiles decision is a good reminder that ‘common sense’ experience of industrial relations that the ET was meant to embody is not synonymous with the development of unfair dismissal law and there has been a parting of the ways.

In terms of its development the decision is I think legally correct based on the current state of the law but it is I think a sign of the horrible effect the band of reasonable responses test – which is the lens through which section 98 of the 1996 Act must be viewed by employment tribunals – has on workplace justice and in impeding judges from making genuinely fair decisions on the material facts of a case. What should be an obvious decision, that dismissing someone for a minor first offence is unfair is cast into doubt. What is worse is that employers will know that it will only be a minority of dismissed worker who will pursue a complaint and even those that do will be able to be dissuaded from continuing to the end by reliance on band of reasonable response shenanigans.