ECJ up the ante on Working Time Records

While the UK remains a member of the EU the decisions of the ECJ on employment law will be binding on UK employers/the Government (depending on the circumstances). Indeed, as I have discussed before, even after the departure the decided cases of the ECJ are likely to be binding after Brexit.

Last week the ECJ promulgated its decision in the case of Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE , a case which  brought by a Spanish Trade Union. The basis of the case was that CCOO asserted that to comply with its Working Time Directive obligations an employer must record all the time that an employee worked. If it did not then how can the employer show it has taken all necessary steps to ensure its workers were not working excessive hours? The court heard evidence that 54% of overtime that was worked was not recorded by employers.

The ECJ found agreed with the CCOO’s arguments and, in a key passage, noted that:

The classification of hours as ‘overtime’ presupposes that the amount of time worked by each worker concerned is known and therefore measured beforehand. The requirement to record only overtime hours worked does not therefore provide workers with an effective means of ensuring, first, that the maximum weekly working time laid down by Directive 2003/88 — which includes overtime hours — is not exceeded and, second, that the minimum daily and weekly rest periods provided for by that directive are observed in all circumstances. In any event, that requirement is not capable of compensating for the lack of a system which, as regards workers who have not consented to work overtime hours, could guarantee actual compliance with rules concerning, inter alia, maximum weekly working time.

The effect of the case is that in order to comply with the Working Time Directive and employer must have  an effective system to monitor all working time of an employee, including all overtime, whether paid or unpaid.

In a UK context the Working Time Regulations (which give effect to the Working Time Directive) require an employer to maintain “adequate” records. It is clear that this should now be interpreted in line with the ECJ’s judgement here and that if all paid or unpaid overtime is not recorded then the records are not adequate. The Health and Safety Executive have responsibility for Regulation 9 (in which the record keeping requirement is set out).

For trade unions it strikes me this decision is provides an opportunity to press for better consideration on the amount of ‘off the books’ work an employer’s workers undertake. The TUC already have a work your proper hours day but this allows unions to lobby employers to ensure that these records are maintained and shared with recognised unions. Not only will this assist in arguing for properly staffed workplaces but could, conceivably, also in the right cases also form the basis of so unlawful deduction of wages claims.

It is certainly the case that in many areas the actual work an worker does – whether paid or out of hours and even on holiday periods – exceeds that which they are contracted to do. This requirement to record all hours potentially provides unions with an organising opportunity to resist the long hours culture.




PCS Elections

The last couple of months have been a bruising one for the PCS Union in respect of ballots and elections.

Across the union there was huge amounts of work to get members to vote in the industrial action ballot against the government’s pay policy, that is content that is content to force its own staff into the arms of the benefits regime because of their own pay. Across the country this includes civil servants being paid less than the living wage. Unfortunately, despite receiving its biggest ever industrial action mandate with over  124,000 votes case and a 78% support for industrial action. However, the votes cast only equaled 47.7% of the members included in the ballot and so marginally missed out on the 50% threshold imposed by 2016 Trade Union Act. It is a galling decision given that no other comparable election is required to meet such a threshold. As the IER notes the ballot came “in the week that local council elections produced an estimated turnout in the 30-40% range, falling well below the standard expected for unions, yet affecting the everyday lives of millions of residents.” It is all the more galling, and indicative of the government’s real agenda that it is happy to apply this more stringent test whilst simultaneously continuing to drag its heels on the review of the need for postal ballot votes which becomes more and more of an anachronism with every passing day.

And, in internal union elections, the result of the union’s Assistant General Secretary and NEC elections have been announced with John Moloney of the Independent Left (IL) faction securing the post. In the NEC elections there were also three IL posts although the majority of the NEC still held by Left Unity. These were far more bruising elections than has been the case in recent years as the Left Unity vote was split between Chris Baugh the official LU candidate and Lynn Henderson supported by Mark Serwotka.

Home Office in £1 Million Discrimination Payout

In 2017 the extremely important Supreme Court decision of Essop v Home Office was determined that clarified and to some extent, simplified indirect discrimination law for all UK workers. The issue in the case was it is alleged that the Home Office’s internal staff promotion policy place workers over the age of 35 and workers of non-white racial groupings at a material disadvantage.

Following the Supreme Court decision the case was remitted to the Employment Tribunal. PCS Union, which together with Prospect, brought the discrimination case has reported that that case has after over  seven years has settled whilst hearings were in progress for over £1 million:

Employment Tribunal claims were initiated against the Home Office, claiming indirect discrimination and arguing that the CSA was nothing more than an extra hurdle used to sift out BME and older workers.

The Home Office disputed these claims until the day before the Tribunal hearing, when it supplied a series of internal and confidential reports to Thompsons and the unions, one of which agreed that the CSA unjustifiably treated BME and older workers unfairly.

The Home Office then agreed part way through the Tribunal hearing to settle the claims, without admission of liability, and to pay the claimants compensation totalling more than £1 million.

Kate Lea from Thompsons Solicitors said: “While the settlement represents a fantastic result for each claimant and the union, it….defies belief that the Home Office knew of the internal findings yet decided to only disclose them the day before the tribunal hearing. The Home Office’s failure to cooperate until the very end caused an avoidable and costly legal battle – wasting time and taxpayer’s money.”

This is a fantastic result for PCS which follows the recent £3 million settlement the union obtained against DWP for breach of contract and an excellent example of why every civil servant should join PCS. 

The case is one in which I had some very minor involvement, involved enough so I know just how much work PCS other PCS reps and members put into not only running this case but getting the case off the ground in the first place – congratulations to everyone involved.

All’s Fair?

Being ‘fair’ is, according to to Cambridge Online dictionary, the act of treating someone in a way that is right or reasonable.’ That being the case when the Employment Rights Act 1996 boldly asserts that every  employee “has the right not to be unfairly dismissed by his employer” it looks like Parliament made an expansive and meaningful law in defence of workplace justice.

A closer look will show that by a series of ‘ifs and buts’ the expansive right against unfair dismissal has been whittled down to a much smaller proportion of the UK workforce applying only to employees and not workers, excluding major public service workers like the armed forces and police, only those who have been employed for two years or more, etc. In the interests of plain English section 94 of the Employment Relations Act should perhaps read “some employees have the right not to be unfairly dismissed by her employer.”

However, one of the more important lessons I have learned representing employees and applying employment law to their situations is that even for those who do have this right not to be ‘unfairly’ dismissed the concept of fairness really is not the focus of unfair dismissal law. If it were, the focus of the unfair dismissal decision would be on whether the decision to dismiss was justified but, instead it is on whether in the mind of the decision maker acted reasonably by making a decision that was within a ‘range’ of allegedly reasonable decisions they could have made.

And so, as it has been applied by the courts there is nothing intrinsically unfair in an employee being dismissed from a job for misconduct even if the tribunal can categorically see that the employee was not guilty of the alleged infraction so long as at the time (perhaps before the evidence was available) the employer acted reasonably at the time of dismissal. Or, to use a real life example (Parr v Whitbread [1990] IRLR 39), there is nothing intrinsically unfair in an employer dismissing four employees because the employer thinks one has probably stolen from them but they cannot tell which one (if any). It is ‘fair’, so says the EAT, for the employer to dismiss all four employees, potentially placing four or more families into poverty, despite knowing three are innocent and the other may be as well.

Such a scenario is, far from being fair, actually fairness’ antithesis. What an employee has is not the right not to be unfairly dismissed but the right to be dismissed for a ‘potentially fair reason’ so long as some imprecise procedural formalities are adhered to by the employer. I cannot help but think the UK population have been sold a dud, they either don’t join a union or if they do, only do so on a insurance basis believing if their employers treat them unfairly there is an adequate redress in unfair dismissal law when there isn’t.

I recall one case in which an employee was unfairly dismissed, victimised on the basis of trade union activities in fact. The union, rightly, adopted an industrial response and strike ballot in response alongside legal challenge. The employer’s inevitable response in dissuading workers from voting to take industrial action was to say that if said employee felt he had been treated unfairly he could complain to a tribunal that he had been unfairly dismissed. In the rare cases of an industrial response to a dismissal this is I am sure a common response depending on workers not looking too closely what ‘fairness’ really means.

Of course a major impetus for the establishment of the employment tribunal system was to move disputes from the industrial to the tribunal arena and there is no doubting that has happened. In view of the inadequacy of employment law to deliver on the grand claims that there is a right not to be unfairly dismissed perhaps it is time to start making industrial responses to unfair dismissals a more central plank of union organising alongside lobbying for laws that protect workers from dismissal and warnings that actually place fairness at their core.

Plato, Pay and PCS’ Independent Left

The PCS Assistant General Secretary elections are now in progress with each candidate on the search of branch nominations, the magic number being fifteen at which a candidate guarantees a place on the ballot of all members. I do not think  any candidate is likely to struggle to meet this number.

Jon Moloney, the candidate for the Independent Left faction is making a great play on the promise that he will, if he wins, be paid a worker’s wage and reject the approximate £90,000 per year the AGS post pays.

This promise got me thinking about the tax implications and practicalities of this approach and came across the 1933 High Court decision in Reade v Brearley (1933) that set out the general position that:

It is, I think, equally clear that–I will not say in every case, because these cases, I think, have to be judged upon their own facts–but, I think, it is clear that at least in a large number of cases the voluntary foregoing of a salary due to a person ought to be regarded by the Court, and would be regarded, simply as being an application of the income

It seems to me then that upon appointment a candidate could not – bar a contract agreement of a salary much lower than the going rate – actually voluntarily only take only a ‘workers wage’, if he did so then Jon Moloney would nevertheless be responsible the tax due on the entire £90,000 salary, including the majority he had ‘given up.’ What the candidate would need to to is take the net working pay, but pay the full tax at the salaried level to HMRC. Which brings us to Plato and his observation on the current PCS election that “When there is an income tax, the just man will pay more and the unjust less on the same amount of income.”

PCS Union AGS Election

PCS Union will hold an election for the union’s one Assistant General Secretary post in 2019.

This morning the results of the election to determine who would be Left Unity’s nominee as PCS’ Assistant General Secretary were released, with Chris Baugh being the elected candidate (subject to any appeals, etc).

Those who have followed the election will know this follows a protracted and strongly contested process. Chris Baugh, the current AGS post holder was challenged by PCS President Janice Godrich. Godrich in fact won that election late last year but for personal reasons  withdrew her candidature. A new Left Unity candidate, Stella Dennis, put herself forward and this morning it was confirmed that Chris Baugh won the Left Unity nomination by a small margin.

Therefore, there are now three declared candidates the election later this year, although there is of course time for additional candidates to put themselves forward.

Chris Baugh, the current PCS Assistant General Secretary will be running on the Left Unity slate. Chris’ statement released when his candidacy was first announced is here.

Lynn Henderson, currently a National Officer of the union and President of the Scottish TUC  is the only candidate not running a slate. There is a launch video and statement available here.

John Moloney, is a lay activist and running on the PCS Independent Left slate. John’s election platform is set out here.

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.