Labour Party to promise new flexible working rights

The whole strategy of political parties briefing on what a politician ‘will say’ and the media reporting on what is just a PR exercise is something that infuriates me rather than, you know, wait until the politician has made their speech and then reporting on that.

With that in mind what follows will strike readers as somewhat hypocritical – guilty as charged!

It is reported that Dawn Butler, Shadow Minister for Women and Equalities, will commit that a Labour Government will reform current flexible working rights. Under current legislation any employee  who has worked for an employer for 26 weeks can make a statutory request and have the right for that request to be reasonably considered (although it can, and often is, refused), and only one request may be made per year.

Much reporting of Labour’s legislative commitment focuses on the pledge that instead of the qualifying period of 26 weeks the right will be a ‘day one’ right. This emphasis has drawn some kneejerk criticism that it is a tinkering around the edge and does nothing to address the core issue that there is no right to work flexibly, just the right to request it. The criticism of Stefan Cross QC is indicative of this trend.

I am very conscious that I am relying on press briefings and have seen nothing but the BBC report suggests there will be at least three aspects of the policy, some of which point towards Labour having a substantive right to work flexibly in mind and having this much more accessible without needing the recourse to the law.

First,  there is the the suggestion that the right to request becomes a day one right. If this were all that was proposed then I can see some merit in the pusillanimous allegation, although it would be churlish not to recognise that attaining a right – even if not an especially valuable right – at the very beginning of one’s employment is a step forward. In itself though this is not a major step forward as unless backed up with significant anti-avoidance mechanism (I am think here of punitive compensations awards for breaches) it is not hard to see that most employees will be dissuaded from exercising that right given they are in a new job and potentially not secure since still subject to a probationary period.

Second, we are told that Labour would create a “presumption in favour of flexible working,” presumably a statutory presumption. It is unclear precisely what this would mean, it may mean that every employer would be under a statutory duty to ensure that, unless unfeasable, every post was actually available to be worked flexibly. Alternatively, it could mean that in the event of a flexible working request there is a statutory presumption that the request should be accepted unless that presumption was rebutted and so make the enforcement of flexible working working rights in the employment tribunal more effective. Or both.

The signs are that this is a positive move that if implemented will be positive for all employees. What is not clear yet is whether, as the current rights are, the right to flexible working will remain the preserve of employees only and whether Labour will retain the thoroughly iniquitous employee/worker distinction that would prevent many workers exercising these rights.

Third, another interesting aspect of this the focus on women’s equality in the workplace. Butler is reported to say that “this change to the law is essential to closing the gender pay gap and dismantling the structural barriers that hold women back from promotion and progression.”

The reason I say this is interesting is because in terms of enforcing rights to flexible working women will often find themselves able – because of systemic sex bias in society towards women caring for children and disabled relatives – to pursue flexible working refusals not only under the pretty ineffective remedies under flexible working legislation but also as a indirect sex discrimination claim that is often less likely to apply to men seeking to enforce flexible working rights. This means that insofar as enforcing flexible working rights (and in this respect only) many women who do need flexible working for caring reasons are at an advantage.

My assumption is that Labour think that, if enacted, then women will not need to enforce these sex discrimination rights as far more requests will be granted at first instance so they will no longer be at a particular disadvantage – this certainly seems the thrust of the very bold assertion of Butler’s that under “Labour’s plans, no woman will be shut out of the workplace because they’re a mum or they care for a parent or a disabled loved one, or both.” If that proves to be the case then it will be a success.

The related consequence and one that deserves more emphasis is, as Butler says, that the policy “may also result in more men taking on caring responsibilities themselves, finally lightening the load that women bear.” Of course, if that is a policy aim – and I see no reason why it shouldn’t be – then the next appropriate policy to be looked at is whether there should be equality of rights in respect of may be enhanced pay for both maternity and paternity leave.

Still, with all the recent acrimony it is good to see some coverage of the work Labour is doing to improve the lot of working people and their families.

Employment Tribunal Fees to Return

FrazerLast year’s monumental decision by the Supreme Court in Unison ruled that  the introduction in 2013 of fees for claimants to bring discrimination, unfair dismissal and other employment claims was unlawful.

This was an excellent decision, for which Unison deserve a lot of credit. In the aftermath I discussed this case with colleagues and the Government’s likely response and expressed the view that I expected fees to return.

In a worrying sign Lucy Frazer MP, a barrister and Under Secretary of State of State for Justice has today answered a written parliamentary question as follows (emphasis added):

On 26 July 2017, the Supreme Court handed down judgment in the case of R (Unison) v Lord Chancellor in which the court quashed fees in the Employment Tribunals and the Employment Appeal Tribunal. Employment Tribunal fees were stopped in light of the judgment and, on 15 November a scheme to refund all those who had paid was launched. A review is being conducted on how we charge fees in light of Unison details on the proposed approach will be published in due course.

What is unfortunate is that the response makes clear the review is not to consider “whether fees should be charged” but simply “how we charge fees in the light of Unison.” The response does not set out the level (or to whom the fees will apply, claimant, Respondent or both) but it makes clear the Government intends fees to in some form return. That response itself suggests Unison is  not being adequately grappled with. To quote Lord Reed’s constitutional commentary in the case

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.

Given this constitutional role of Courts and Tribunals in upholding laws as something more than just “dead letters” isn’t the more fundamental question which Frazer’s answer evades whether fees should be charged at all?

Holiday Pay and Voluntary Overtime

Readers will remember that last November employment law broke the ranks of the obscure blogs and hit the mainstream as the likes of the BBC reported that millions of workers who perform regular overtime could benefit from a claim brought by the Unite Union (alright, the fact that this was a union backed case was not that prevalent).

The case in question was Bear Scotland Ltd & Ors -v- Fulton & Ors. At the risk of gross simplification the case can be summarised by the following example: an employee (let’s call her Emma) has a contract that pays her £500 a week basic pay for 40 hours of work.  However, she is also required by her contract to perform an extra 5 hours a week overtime for which she is paid an additional £100 a week. Therefore, every week she works she receives pay of £600 a week.

Emma has four week’s (28 days) holiday a year. She chooses to take one week’s leave. This case addressed the question of how much she would be paid for that leave: would it be £500 which is her normal basic pay for a week’s work or would it be £600 to include the £100 pay she would received for the overtime she did not need to work but would have done had she not taken a week’s leave?

The case of Bear Scotland was based on the Working Time Regulations. Regulation 13 of these requires that employers must five an employee 28 days leave a year and that this leave must be paid. Regulation 16(1) requires workers are entitled to be paid for annual leave at the rate of a week’s pay in respect of each week of leave – therefore the case turned on what was “a week’s pay”. The EAT found that they had to interpret UK legislation in the light of the Working Time Directive (which the WTR purported to implement) and that, following article 7, the week’s pay should be the normal week’s pay. In Emma’s case, therefore, since she was always paid £600 when working, her pay on her week off should also be £600. If in fact her employer paid her just her normal basic pay on her week off then Emma would have a claim that her employer had made an unlawful deduction from her wages.

That was an important win for many employees and one for which due credit should go to the Unite Union. The fact that the judgement had the potential improve the working lives of British workers can be seen in the haste in which the Coalition Government sought to minimise its impact. At the same time that David Cameron was telling the media that what British workers needs a pay rise his government and which could not find the time to commit to outlawing Caste discrimination because of a lack of parliamentary time, could find the time to introduce the The Deductions from Wages (Limitation) Regulations 2014 to limit the effectiveness of the judgement and so prevent workers making a claim (and potentially receiving a pay rise) for anything more than two years of unlawfully withheld salary.

Voluntary Overtime

As soon as the Bear Scotland decision had been promulgated there was uncertainty over the extent to which the judgement applied to regular voluntary overtime. Suppose, for example, that that Emma’s five hour’s a week overtime is not contractual but just the average amount of overtime she did per week. Should she still be paid £500 or £600 for her week off on holiday? Given the reference to “normal” salary and the similar findings that commission is included in salary (see the judgement of the ECJ in Lock v British Gas Trading Ltd) it seemed likely that it was. However, there has still been no clear decision at appellate level on this question in England and Wales.

Nonetheless, although not binding on English and Welsh Tribunals the decision of the Northern Ireland Court of Appeal on this very issue in Patterson v Castlereagh Borough Council is a strong indication that voluntary overtime should be included in calculations on holiday pay. Mr Patterson averaged four hours a week voluntary overtime but was not paid for this when his holiday pay was calculated. The Court of Appeal, overturning the first tier tribunal, found that normal salary must include average overtime.

Although, as I say, the judgement is not binding on English and Welsh Tribunals the case is a reminder that in a time of wage restraint the Holiday pay rulings whether in respect of contractual or voluntary overtime represent a good organising forum for trade unionists – I am certainly aware of many employers who habitually fail to incorporate voluntary overtime into holiday pay arrangements. We need to alert to such situations as they are ripe for collective organising and claims that not only represent an opportunity for real pay rises for members but also an opportunity to enhance the standing of trade unions in the workplace.


Cases cited:

Lock v British Gas Trading Ltd (Judgment of the Court) [2014] EUECJ C-539/12

Patterson v Castlereagh Borough Council 26 June 2015 NICA

Bear Scotland Ltd & Ors -v- Fulton & Ors [2014] UKEAT 0047_13_0411

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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.

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.