Tribunal victory for Unite rep blacklisted by construction bosses ‘draws line in the sand’

blacklist-zebraReposted from the Unite website:

A Unite workplace rep, who was blacklisted by his employer Interserve Industrial Services because of his union activities while working at a power station at Runcorn, Cheshire, has won his employment tribunal (ET) case for unfair dismissal.

Unite, the country’s largest union, hailed this as ‘a great victory which draws a line in the sand’ for construction industry bosses who victimise union representatives.

John Kelly, a rigger/erector who worked for three years at the energy-from-waste power station being built at Runcorn, was awarded a total of £3,253.11 by the Liverpool tribunal for unfair dismissal (£2,003.11) and damages for injured feelings (£1,250).

The tribunal decided that as the work at Runcorn was coming to an end in July 2014, John Kelly – described as ‘a good worker with considerable experience’ –  was not offered work at the Capenhurst site, also in Cheshire, because he was a workplace representative and a member of Unite.

The judgement  stated that Unite regional officer Steve Benson was ‘a credible and believable witness’, while the construction manager, Trevor Collins, responsible for hiring new labour, had made Facebook entries to his friends, expressing his dislike for the ‘Liverpudlian elements’ in the workforce – a large percentage of whom were from Liverpool.

The judgement stated: “The tribunal did not find it credible that the claimant (John Kelly) had been considered for vacant positions by Trevor Collins.

“In short, Trevor Collins did not want the claimant (an employee representative for Unite and activist) working on the Capenhurst project under his management, he was motivated by the claimant’s membership of Unite and his known activities in that capacity.”

Unite assistant general secretary Gail Cartmail said: “Unite will not tolerate abuse by employers of our elected representatives. This successful employment tribunal decision shows Unite will not suffer in silence while employers try to stifle our voice on construction sites.

“This is a great victory which draws a line in the sand for construction industry employers who are tempted to victimise and blacklist our members for carrying out legitimate trade union activities.

“We welcome Labour’s pledge to outlaw the odious practice of blacklisting once and for all.

“Tomorrow (Tuesday 28 April) workers across the world mark International Workers’ Memorial Day when we remember the dead and fight for the living. Unite reps are workers frontline defence against hazardous working conditions and deserve to be applauded not victimised for their efforts”.

John Kelly said: “I feel very pleased that I took this company on with the help of Unite, as this shows that bad employers can be stood up to and be defeated. The main reason was to show other lads and shop stewards we are getting blacklisted and we should stand up for our rights.”

John Kelly was dismissed in April 2014, but subsequently found work with another company unconnected with this case.

Unite director of legal, affiliated services & membership Howard Beckett said: “This is a fine example of how Unite’s legal services fight – and is successful – on behalf of our 1.4 million members. It shows the strong benefits of belonging to a trade union to obtain representation. We would like to thank the efforts of EAD Solicitors in bringing John Kelly’s case to a successful conclusion.”

Read the full ET judgment [PDF]

Unite Union, Labour, and Zero Hour Contracts

milbandIt is certainly not a new tactic: when a politic party makes a proposal with which the other parties are not too enamored they adopt a guilt by association posture. And so it was last week, fresh from the Labour Party launching its Business manifesto cracking down on zero hour contracts, the Tory cheerleaders at the London Evening Standard targeted Unite (and by implication Miliband) on Thursday (on the eve of the leadership debates) for hypocrisy.

Unite the Union is the Labour Party’s largest financial backer which is the basis for the LES to run a story on Thursday that ‘Labour’s biggest union donor used zero hour contracts’. The background is what is assumed to be a Preliminary Hearing at the London South Tribunal for Martyn Reuby who is bringing an unfair dismissal claim against Unite the Union. Mr Reuby had delivered training for Unite at many local colleges; he contended that he was an employee of Unite, whilst Unite contended he was either self-employed or employed directly by the colleges. In order to make that claim Mr Reuby would need to establish he was an employee, hence the reason for the judgement which was not about whether he was on a zero hour contract but whether he was an employee.

In its judgement, which Unite have said it is appealing, the tribunal determined that Mr Reuby was employed on a series of short term contracts. It was Mr Reuby’s solicitor, not the tribunal, that suggested he was ‘effectively’ on a zero hour contract (the use of such an adverb usually in my experience has the same intellectual coherence as ‘I am not a racist, but …’ The Unite response to the LES’s story is pretty unambiguous: “Unite does not use zero-hours contracts and it is misleading to say so”.

On that basis the story is a pretty empty attack piece lacking in substance but of mud slinging. When the politics of employment law apocalypse fail, the next recourse is claims of hypocrisy. But here, it is not even Miliband being accused but a Labour Affiliate.

Still, while the charge of hypocrisy may be technically incorrect and represent some pretty petty political pointscoring the tribunal judgement does again bring into focus the tendency of some parts of the Union movement, when employing staff, to adopt some pretty shoddy employment practices. This is something I have picked up before. Here, even by their own admission, Unite have been procuring the services of a worker who even in the very best designation (the one Unite tried to argue) was a self employed worker who would preferred to have been an employee. In fact, however, the Tribunal’s judgement is that he was an employee in a succession of fixed term appointments – this is precisely the insecure type of employment which the union movement has criticised as being the basis of the ‘economic recovery’, workers with no security of employment. Whether or not the union succeeds in its EAT appeal the fact remains that in a duty core to the union (education) that is not going to diminish any time soon the union has chosen to deprive workers of secure employment. That is not a decision of the Labour party but a decision taken on behalf of the Unite executive.

It is right that questions about this conduct in union recruitment practices are asked. What is unfortunate however is that these question are being asked by right wing press barons (and here, unlike here, the term is appropriate) given the issues are raised by them as a matter of political opportunism and not the rank and file membership itself.

In Mr Reuby’s case Unite are defending the claim of unfair dismissal on the basis that he was not an employee. It is a defense that is certainly open to them to make legally, but the decision to pursue such a defense is morally questionable. A matter of days ago Unite published a review of Dave Smith and Phil Chamberlain’s Blacklisted (a review will follow here on Employment Writes soon).

Blacklisted tells the story of the scourge of blacklisting in the construction industry – there is a wealth of evidence that many construction companies sacked trade union representatives when they raised concerns or even when they first became known as a union activist. This affected many workers – when it became known that these companies had sacked their employees for raising concerns many of those affected, understandably, sought to lodge employment tribunal claims. One of the primary defense strategies these companies was to deny that the workers were employed but that they were ‘self employed’ or agency workers, if they are not an employee they do not have a legal remedy for unfair dismissal. It is the reason Dave Smith lost his recent Court of Appeal case of unfair dismissal. Following the outcome Dave Smith commented (and I entirely agree):

What is the point of employment law or the Human Rights Act? Even with mountains of documentary evidence and an admission from the company that they blacklisted me because I was a trade union member who had raised safety concerns, I still cannot win. This might be the law, but it is not justice.

The endemic use of agency workers, zero hours contracts, umbrella companies and bogus self-employment means that millions of workers are being treated as second class citizens.

The result of this tactic was that the overwhelming majority of those who submitted employment tribunal claims lost them because the courts found they were not employees because of their particular working arrangements. How disappointing then that Unite, who have made very positive moves in the anti-blacklisting campaigns and supported many of these claims have adopted the very same strategy and have sought to deprive workers of the right to legal remedy by contesting the fact that those who work for them on a continuous basis are in fact employees. This is especially the case since as a matter of policy (see 2014 Policy Conference motions) Unite are opposed to bogus self-employment. It may be that Mr Reuby’s claim is without merit and that Unite have not subjected him to any detriment for whistleblowing but the decision to seek to deny him a hearing is certainly questionable.

This is something members should be raising with their union executives with some earnestness with or without press coverage at election time.

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