Category: Law


New Labour Research Department publication: Whistleblowing
The Union affiliates to the Labour Research Department (LRD) – an organisation dedicated to publishing information of use to trade unionists and employee reps.
In addition to affiliating, we also separately pay for access to a number of LRD products – including their online services.

As part of which, all RMT members are entitled to read and download every LRD booklet and magazine. The content, which is fully searchable and includes both current and back issues, can be accessed at
The logon details are:
username: rmt
password: pot427
A new publication, Whistleblowing – A guide to the law is available here –
Please bring the contents of this circular to the attention of Branch members.

RMT Legal Services

I am pleased to advise you that as promised to our Eire Branch, new contracts have been signed with Solicitors in the Republic of Ireland MJ O’Conner, resulting in new and enhanced services being provided for our members. The new services include a free Helpline, and advice and representation in Criminal and Employment matters (subject to meeting the same criteria as in England Wales and Scotland) and a Wills service to all members in the Republic of Ireland. This has been long overdue and with the signing of these Solicitors it means that this Union can now provide cover throughout England, Scotland, Wales, Northern Ireland and the Republic of Ireland.
Members in Scotland; Off Shore Workers and the Republic of Ireland should complete the Form L1 if they have had an accident at work, road traffic accident or street accident. The Form can be obtained either from Branch Secretaries or via the R.M.T. Helpline on 0800 376 3706. Once the form is completed, it must be returned to the Branch Secretary for endorsement and sent direct to Solicitors as set out below:-
Scotland & Offshore:           Thompsons, Berkeley House, 285 Bath Street, Glasgow, G2 4HQ. Tel: 08080 68 5529
Northern Ireland:          Thompsons McClure, Victoria Chambers, 171 Victoria Street, Belfast BT1 4HS
The Republic of Ireland:     MJ O’Conner, Ormonde House, 26 Harbour Row, Cobh, Co. Cork. Tel +353(0)21 4813944 / Email:
England and Wales:  Thompsons, The Synergy Building, Campo Lane Sheffield, S1 2EL or alternatively call (no form required) on 08457 125 495, 0800 0 224 224, or
Please note that for members’ family members they may use the same process for accidents other than accidents at work, member should abide by the same process. The scheme does not cover family members injured at work who are not Union members.
The Union will provide representation for members at Employment Tribunals for members only. Form L2 has been produced and must be completed by those applying for advice and representation at Tribunals for ALL regions. The Form is obtainable from Regional Organisers, Branch Secretaries, the R.M.T. Helpline on 0800 376 3706 or can be downloaded from the Union’s website and must be completed by the member and endorsed by the Regional Organiser. The Form must then be sent to the Legal Department Maritime House Clapham Old Town London SW4 0JW, and must be accompanied with all relevant documentation, such as statement of terms and conditions of employment/contract of employment, letter of dismissal, minutes of disciplinary hearing and appeal hearings. The Regional Offices have a check list of which documents are required. Without documents the case will not be processed and could result in the case being declined for lack of documents.
As has always been the case, representation is not automatic but will depend upon the prospects of success. Unless there are exceptional circumstances, representation will only be provided in cases that have a reasonable prospect of success. Branches will receive a copy of the letter sent to members advising if representation has been declined. The advice will not be sent as this is confidential to the member.  Only appeals in accordance with Rule will be considered in cases turned down, as happens with personal injury cases. All cases are assessed for prospects of success.
For cases with a reasonable prospect of success, representation will be provided by the appropriate Union Solicitor.
In all cases, the responsibility rests with the member to submit their case to ACAS, and where requested the assistance with conciliation will be provided. This will be conducted by the Regional Organiser. It is the Union’s policy that only Regional Organisers can be utilised for conciliation and in London and the South East nominated individuals who are approved by the Union. No other person may be put forward as representatives of the Union without approval of the General Secretary. The box relating to representation should only contain the name of the nominated Regional Officer.  In cases, where the member requires assistance in completing the ACAS form or Form L2, this can be obtained from the Regional Organiser.
Members should in the first instance contact the Criminal Helpline number and will be available to members, spouses/partners and children. The service will include representation at Police Stations and representation before the Magistrates’ Court, Crown Court, if necessary, in relation to criminal cases. This is the service for members arrested by police /garda and questioned under caution and for general enquires related to criminal matters.
This service is provided by:
Powell Spencer in England & Wales: Tel: 020 7624 8888
Thompsons in Scotland & Off shore: 0800 0891 300
MJ O’Connor in the Republic of Ireland: 086 3866467
Representation will be provided at Police Stations 24 hours a day, 7 days a week. The service can be accessed by phoning the above numbers.
Please note that assistance is discretionary and in all cases members are expected to apply for State Legal Aid. Should the member require assistance with the funding of their case this can be considered in relation to work related criminal matters and can only be considered upon completion of Form L3 obtainable from the Branch; the Regional Office or on line. All L3 Forms must be signed by the member and also by the Branch Secretary. In non-work criminal matters and for family members; arrangements regarding funding will be a private matter between the member and the Solicitors. Preferential discounted terms will be provided to Union members in these instances. Under Rule assistance is not provided where member is pleading Guilty to an offence unless there are exceptional circumstances to be considered.
In addition, advice and assistance in relation to criminal matters, prior to being formally charged will also be given. This will cover matters such as driving offences and other minor non‑imprisonable cases. This service will only apply to members in respect of work-related incidents. The members via Branch Secretaries can access assistance by completing Form L3. If members are in receipt of a Summons to appear in a Magistrates Court, this should be sent to the Legal Department Maritime House Clapham Old Town London SW4 0JW as a matter of urgency,  along with other relevant details such as membership number and a daytime contact telephone number.
The Union provides advice on all advice and non-work related and Union matters for members in England & Wales and Northern Ireland the service is available on the RMT. Helpline, 0800 376 3706, Monday to Friday between 08.00 to 18:00 hours, and Saturdays 09.30 to 16:00 hours.
As the legal system is slightly different in Scotland, and Southern Ireland. Thompsons Scotland and MJ O Connor will operate a Helpline for all Scottish and Republic of Ireland members Mondays to Fridays between 09.00 and 17.00 hours. Telephone 0800 328 1014  ( Scotland) and Southern Ireland 086-3866467
Should members not be able to get through to the numbers in Ireland and Scotland then they should call the RMT helpline for assistance
All member are eligible for a free basic Will without charge to members and spouses /partners. A charge will only be made for any Will involving complex matters such as specialist life interests; discretionary trusts; care home protection; foreign property; business assets abroad; foreign business assets home or abroad and estate planning for tax purposes and anything deemed complex. Should members require specialist wills then arrangements must be made with the solicitors but in all cases special discount rates will be offered to RMT members.
In England; Wales Scotland and Northern Ireland this service is provided by BBH a subsidiary of Thompsons and is offered on line: / Tel 0151 326 2188
In the Republic of Ireland this service is provided by MJ O’Connor. Email quoting Free Will Request. Tel 086-3866467
All Solicitors will provide free matrimonial enquiries to members, should members wish to use the services of the solicitors they will be offered discounted rates for RMT members.  To access Family referral call the RMT helpline on 0800 376 3706 in all instances.
In addition to all the above our Union has its own In House Legal Department which is staffed by 4 solicitors. To access the legal department you can call 0207 084 7260 should you have a problem accessing the above.
Please bring these matters to the attention of members and activists
Yours sincerely

RMT Legal Update

Circular No: NP/067/19


Our Ref: LEG/04/19


8th April 2019


To: Branches, Regional Councils & Regional Offices


Dear Colleague




1. Hargreaves v Governing Body of Manchester Grammar School

In cases of misconduct, employers have to have reasonable grounds for believing that their employee was guilty of misconduct and have to carry out a reasonable investigation. The Employment Appeal Tribunal (EAT) held that it was not unfair for the school to withhold witness statements from the claimant and the disciplinary panel which dismissed him.


Mr Hargreaves, a teacher with over ten years’ experience and a clean disciplinary record, was alleged to have grabbed a pupil, shoved him up against a wall and put two forefingers against his throat.


As part of its investigation, the school interviewed a number of witnesses three of whom had been present at the time of the incident, but who said that they had seen nothing untoward. Although there were other potential witnesses, the school decided not to formally interview them in order to prevent speculation and gossip. The information from the three witnesses were not disclosed to Mr Hargreaves or the disciplinary panel at the disciplinary hearing.


Following the hearing, he was dismissed. His appeal against the decision was unsuccessful.


Rejecting Mr Hargreaves’ argument that the investigation had been biased against him, the tribunal held that the decision taken by the school about who should be interviewed and who should not had fallen within the band of reasonable responses. It also found that it was within the reasonable range of responses for the school to decide not to inform Mr Hargreaves or the panel about interviews with people who said they had seen nothing.

According to the tribunal it did not follow that nothing had happened just because those individuals had seen nothing. The tribunal therefore concluded that, as the school had carried out a reasonable investigation, the dismissal was fair.


Mr Hargreaves appealed, arguing that given the career-changing impact of the allegations, the school’s investigation was inadequate. In particular, he argued that the tribunal was wrong about the school’s failure to disclose specific evidence from potential witnesses who all said they had seen nothing.


Dismissing the appeal, the EAT held that the tribunal had not lost sight of the potentially career-changing nature of the allegations against Mr Hargreaves and, in determining that the investigation met the requirements of the band of reasonable responses test, the tribunal had reached a permissible conclusion.


The EAT agreed with the tribunal’s finding that the three witnesses were unable to assist – although they had been present at the time of the incident, they had not seen anything untoward. The EAT noted that the area where the incident took place was crowded and that witnesses had spoken of over 100 pupils pushing and shoving their way through. The EAT also commented that this was not a case in which the claimant was unaware of the evidence in question, it was clear that he knew that the three individuals had been present in the area but he had not asked for statements to be obtained from them.


The facts of this case were unusual and it should not be regarded as establishing any general principle. It remains the case that any decision by an employer to withhold relevant evidence is likely to make a dismissal unfair. In this particular case, both the tribunal and the EAT were satisfied that the evidence of the three witnesses was not relevant. The case underlines the importance, for those representing members facing disciplinary hearings, of considering with the member whether or not there are any other witnesses the employer should interview and, if so, formally requesting that statements are taken from those witnesses.


2. British Airways v Pinaud


The law says that part-time workers cannot be treated less favorably than full-timers. The Court of Appeal held that it was clearly less favorable treatment for an employer to require a part-timer to work more than half of the hours of a full-timer but only pay them half of the salary.


Ms Pinaud started working full time for BA in 1985. On her return from maternity leave in 2005 she went part time until she took voluntary redundancy in 2015. On the same date she submitted a written grievance complaining that she had been discriminated against as a part-time worker, because although she was paid exactly 50 per cent of a full-time salary, she was required to be available to work 53.5 per cent of the time.


After her grievance was rejected, she brought a tribunal complaint arguing that she had been treated less favourably contrary to regulation 5(1)(a) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. BA argued that as both full-time and part-time crew members had to “bid” for work such that actual hours worked could fluctuate, the annual basic salary of both part timers and full timers did not vary with the number of duty hours.


The tribunal found that as Ms Pinaud had to be available for 53.5 per cent of the days on which her comparator had to be available but was only paid 50 per cent of her salary, she had been treated less favourably. Although it agreed that BA had a legitimate aim, it held the less favourable treatment was not a necessary or appropriate means to achieve it. In other words, it could not justify the difference in treatment as all it had to do to remove the anomaly was to pay an annual salary of 53.5 per cent of the full-time salary.


BA appealed, arguing that the tribunal was wrong to ignore its statistical evidence showing that in practice Ms. Pinaud and her comparator worked more or less the same number of hours. The EAT agreed that the tribunal was correct that Ms. Pinaud had been subject to less favorable treatment but remitted the issue of justification to a newly constituted tribunal. BA appealed the finding of less favorable treatment.


Rejecting the appeal, the Court held that requiring Ms Pinaud to be available for 130 days rather than 121.5 days for a full-time worker clearly constituted less favorable treatment of a part timer.


The case now goes back to the tribunal again to hear BA’s justification defense. If that is rejected, then the tribunal will have to consider the issue of compensation. The Court of Appeal has already said, however, that it would “be a very surprising conclusion” if the tribunal then went on to award compensation of 3.5 per cent of her total remuneration over the ten-year period if it turns out that she actually worked fewer pro rata days than her comparator.


3. Immigration Matters


Increasingly, members have been contacting our helpline about their status as EU Nationals as a consequence of Brexit. Issues of Immigration can be complex which is why we refer members to specialist lawyers HOWE & Co.


They have advised us of the following:


  • EU Nationals and dependant family members residing and exercising treaty rights in the UK for over 5 years are eligible for Permanent Residence on being able to provide evidence of employment/self-employment/student with health insurance/self-sufficient – cost of application £65 per applicant.
  • EU National and dependant family members with Permanent Residence for over 1yr can apply to Naturalise as a British Citizen – cost of application is £1330 per applicant.
  • EU Nationals and dependant family members residing and exercising treaty rights in the UK for under 5 yrs are eligible for a Residence Card on being able to provide evidence of employment/self-employment/student with health insurance/self-sufficient – cost of application is £65 per applicant.


AFTER 30 March 2019


A new scheme has been introduced by government whereby an EU National and their dependant family members can apply online for Settled Status (if they have been residing for over 5yrs in the UK – no fee is applicable following a Ministerial U-Turn after 30 March 2019.


The fundamental difference between Settled Status and Permanent Residence is that the evidence required for Settled Status relies on utility bills supporting a residency test rather than employment documents proving treaty rights being engaged for Permanent Residence.


Members will need to act on the above points in order to allay employers’ concerns that they are legally entitled to work in the UK.


The same is true of members who are in the UK on Leave To Remain visas (i.e. within the British Immigration Rules) as the Home Office have now moved the majority of applications online and fees for extensions of Leave to Remain continue to rise (a typical extension application costs £2033 per applicant).


Our lawyers have seen evidence of Employers becoming more nervous of employing workers who have expiry dates on their visas and thus the need to ensure that appropriate and timely immigration applications are being made by members.


RMT representatives or Regional Office staff and Officers and Branch Secretaries are not able to advise on immigration matters, this includes for example assisting in the filling in of application forms, as it is a criminal offence to provide such advice unless the advisor is registered as an accredited person able to provide immigration advice. Negligent advice would leave an advisor open to both criminal and civil liabilities. Therefore the giving of any immigration advice by non-accredited advisors is not permitted.


Should any member have any questions regarding their Immigration status whether EN or Non EU National they are advised to seek advice from a professional. The RMT work with Howe and Co who are a specialist law firm specialising in Immigration Issues. Whilst Immigration advice falls outside the Unions Discretionary Legal Assistance Scheme, eligible members are free to contact the Howe helpline number on 020 8840 4688


Please bring these matters to the attention of members and activists


Yours sincerely

Mick Cash
General Secretary


1.    Another attack on workers’ rights – small claims
The Government is pressing ahead with its plans to attack the rights of workers who are injured at work through no fault of their own.
The Civil Liability Bill is expected to complete its passage through Parliament. The government say the Bill will tackle a whiplash ‘epidemic’ but it hides a £1.3bn annual gift to the insurers, a loss to government coffers of £46m a year and an assault on access to justice that will impact on hundreds of thousands of people whose claims have nothing whatsoever to do with whiplash.
The government plans to sneak through a doubling of the small claims limit, not by an act of parliament but by statutory instrument, which means that injured people who fall into the bracket will not get their legal fees paid. Up to 40% of those injured at work will lose their rights. Many thousands of workers will be left fighting insurers on their own and in their own time. Injured people whose claim has a value of up to £2,000 for pain and suffering – up to 350,000 people a year – will be expected to take on big insurers on their own. The Government has said that these measures will be implemented as a package in April 2019.
We say that the government’s proposed changes will give a green light to irresponsible employers to cut corners on safety in the workplace because they will know that injured workers will either not seek compensation, or struggle to do so on their own. Vulnerable workers like zero hour contract workers will face difficulty if they are forced to fight the insurer on their own. Put simply, they will not claim.
The government is using the furore around whiplash claims as a smokescreen to attack vulnerable claimants and further enrich their friends in the insurance industry (who have already saved £11 billion since 2013 due to earlier injury legal reforms). 
We say that injured workers should be exempt from any increase and on behalf of those injured through no fault of their own we intend to oppose these proposals every step of the way.
Cases in the small claims court have no legal costs recovery and will have an impact on union members and on the funding and operation of union legal services.
The proposals for work related claims and other non-road traffic accident cases will be doubled to £2,000. As the £2,000 figure relates only to the pain and suffering component of a claim our calculation is that, on average, after including loss of earnings etc., cases worth up to £2,500 will be classified as small claims following this change.  Increasing the small claims limit to £2,000 would mean that workers suffering injuries that include a collapsed lung, a fractured wrist or elbow and loss of front teeth, are denied access to justice. The Government will keep the small claims limit for all personal injury claims under review and will consider whether a further increase to £5,000 for all claims is required in the future.
A statutory tariff of compensation will apply to RTA whiplash claims, including most work-related RTA whiplash claims, where recovery from the injury takes two years or less. This tariff is much lower than the compensation currently payable in these cases. This means that someone injured in the course of their employment in a road accident would receive a different award than someone who has identical injuries but injured in the workplace.
To give an idea of the impact of these changes work related claims and other non-motor cases recovering under £2,000 for pain/suffering and RTA cases under £5,000 account for 40% of the Union’s total personal injury cases referred to Thompsons in England and Wales. All of these are currently funded by the costs recovered from employers and other defendants.
This is a very serious issue and we are working closely with the shadow frontbench team and other Unions to resist these proposals.
I have, along with other General Secretaries, written a letter to the Guardian advising that we shall not sit by and accept this. Our legal team are working closely with other Union legal officers and the Labour Shadow Cabinet on a campaign to stop this attack. We will continue to work with other Unions, the labour movement and with others in the campaign against these proposals and your continued support is required and appreciated.
It is important that we continue fighting this campaign and you will be kept informed of developments. 
2.    Consultation Paper: Reforming Employment Law Hearing Structures
The Law Commission has issued a consultation paper on reforming employment law hearing structures. The issues on which it seeks views are:-

• extending limitation periods in employment tribunals, mostly to six months;

• raising or removing the £25,000 limit for breach of contract claims, and allowing tribunals to hear breach of contract claims while the employee remains employed;

• whether tribunals should have power to allow multiple Respondents to seek contributions from each other;

• giving the EAT jurisdiction to hear appeals from the Central Arbitration Committee on issues of union recognition (currently these can only be challenged by way of judicial review);

• allowing employment judges to sit in the civil courts when hearing civil court discrimination claims, or creating an ’employment and equalities’ list of specialist judges.

The Law Commission is an advisory body only; its recommendations will not necessarily be implemented.

The consultation closes on 11 January 2019.
3.    RMT win case against LUL  (Jugroop v London Underground Limited )
In September 2018, the East London Employment Tribunal decided that RMT member was unfairly dismissed by LUL.
Our member was employed as a Customer Services Supervisor and had 14 years’ service with a good attendance record. He was assaulted and racially abused at work by members of the public in February 2018, suffering facial injuries and stress, and was signed off work later that month. After several meetings with LUL, our member attended a meeting with his manager in June 2017 in which he asked for an extra fortnight or so off work to enable him to recover from the psychological effects of the assault. Despite the fact that their Attendance at Work Procedure states that an employee should not be dismissed until at least 39 weeks after being declared unable to carry out his duties for medical reasons, LUL then threatened our member with dismissal.
In July, LUL obtained a medical report from one of their Occupational Health doctors who had not examined our member. Despite the fact that he felt able to return to work in July 2017, LUL dismissed him that month, on grounds of ill health.
He appealed against his dismissal with the Union’s support. Although he provided a letter from his GP confirming his fitness to return to work, his appeal was rejected.
In deciding that our member’s dismissal was unfair, the Tribunal mentioned his long service and good attendance record. The Tribunal Decision emphasised the fact that LUL had no good reason for failing to wait 39 weeks before dismissing him. The Tribunal Judge pointed out that he had only been examined once by an LUL doctor, who had not recommended dismissal. He expressed surprise at another LUL doctor advising about his future without meeting him, and criticised the manager who used this evidence as the basis for dismissal. LUL had argued that they were worried that anger issues might result in our member acting violently at work, thereby jeopardising colleagues and the public. The Tribunal concluded that there was no evidence of our member ever acting violently in the workplace. LUL were also criticised for failing to consider alternatives to dismissal.
The appeal process was also criticised as LUL failed to follow its own procedures. Our member should have been allowed to appeal against the medical evidence used to dismiss him; and then to appeal against the dismissal itself. In fact LUL only allowed one appeal against dismissal. The appeal manager failed to consult with LUL’s Head of Occupational Health but instead relied upon another medical report written by a doctor who had not seen him. The appeal manager was found to have ignored our member’s evidence that he was fit to return to work. On the evidence available at the time, the appeal manager should have either referred him to an independent occupational health advisor or allowed him back to work. As he did neither, the Tribunal concluded that the appeal was ‘…substantially and procedurally unfair.’
This case exposes an employer who did everything wrong in taking the decision to dismiss. The Tribunal Decision explains how LUL could have dealt, fairly, with our member’s case. Our members deserve better treatment. This decision can be used to enable us to ensure that members attacked and injured at work are treated fairly in future.
  1. TUPE & variation of contract –  (Tabberer and ors v Mears Ltd and ors,)
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), employers cannot vary a contract if the reason for the variation is the transfer. The Employment Appeal Tribunal (EAT) held in this case that employers can, however, vary a contract if the relevant contractual term is outdated and unfair.
The claimants were electricians who had originally been employed on a contract with Birmingham City Council.  Following a number of TUPE transfers, their employment transferred to Mears Ltd in April 2008. As Council employees, they had received a payment known as the Electricians Travel Time Allowance (ETTA) to compensate them for the loss of an historic productivity bonus caused by the need to travel to different depots. Mears argued that as the rationale for paying the allowance no longer applied (there was no longer any productivity bonus and only one depot) and was unfair to the rest of the workforce who did not receive it, the electricians had lost their contractual entitlement to it. Some of the electricians brought claims which were upheld by both the tribunal and the EAT, the “Salt” litigation.
Mears then gave notice that it intended to unilaterally vary the electricians’ contracts by stopping payment of the allowance from 1 September 2012. The claimants objected, arguing that the reason for the variation to their contracts was a relevant transfer for TUPE purposes and therefore void under regulation 4(4) of TUPE.
Regulation 4(4) TUPE states that any “purported variation” of a contract is void if the “sole or principal reason” for the variation is the transfer itself.
The tribunal agreed with the company that, as the decision to stop making the payments was because they were outdated, the “operative reason” for the variation of contract was not the transfer itself or a reason connected with the transfer. As such, the decision to vary the contract was different from the earlier litigation and was taken for different reasons.
The claimants appealed on the basis that the tribunal’s judgment ignored the fact that the entire subject matter in Salt was the 2008 TUPE transfer to Mears.  It was therefore perverse for the tribunal to find that the company’s reason for the unilateral variation was not connected to it.
The EAT held that the first thing that the tribunal had to do was to ascertain, as a question of fact, what caused the employer to do what they did. In answering this question, the tribunal had found that the Salt litigation was not inextricably linked with the transfer, but rather that it had formed the context for the company’s decision to get rid of a contractual entitlement to an outmoded payment. It was not therefore an attempt on the part of Mears to harmonise terms and conditions, post transfer, but instead was motivated by the need for fairness across different job groups, regardless of the transfer.
The tribunal had clearly found that the reason, or principal reason, for the company’s decision to ensure that contractual entitlement to ETTA was brought to an end was because it believed that it was outdated. This did not therefore create a connection to the transfer and was a conclusion that the tribunal was entitled to reach.
This case is a reminder that a post-transfer variation to terms and conditions will only be void under TUPE if the sole or principal reason for the variation was the transfer.
  1. Disability Discrimination – (Mutombo-Mpania v Angard Staffing Solutions Ltd)
In order to prove disability discrimination under the Equality Act, workers have to show that the impairment has an “adverse effect on their ability to carry out normal day-to-day activities”. In this case, the EAT held that this involves providing evidence listing the specific activities that the worker could not undertake because of the alleged disability.
When filling in his application form for Angard Staffing, a recruitment agency which provided casual staff for Royal Mail, Mr Mutombo-Mpania did not indicate that he had a disability, although he had been diagnosed as suffering from essential hypertension in 2011. 
From November 2015 to November 2016 he worked for Royal Mail on a late shift which finished at 10pm. In the run up to Christmas 2016 he accepted a night shift booking covering the period from 21 November until 13 January 2017.  However, prior to starting the booking he emailed Angard explaining that he could not work night shifts because of his “health condition”.
After failing to attend work on four occasions between 21 November and 15 December 2016, the agency told Mr Mutombo-Mpania that the Glasgow mail centre no longer wished him to work for them. He replied saying this was unfair as he had told the agency about his health condition and that, in any event, he had never asked to be transferred from days to nights in the first place.
He brought a number of tribunal claims, including one for disability discrimination. Dismissing his claim, the tribunal found that Mr Mutombo-Mpania had failed to demonstrate how his health condition had a “substantial adverse effect on his ability to carry out normal day to day activities”, not least because he had not provided any evidence of any activities that had been impacted nor in what way. In effect, he had given “no insight into any limitations on his day to day activities caused by the physical impairment of essential hypertension”.
Even if he had established that he was a disabled person under the Equality Act, the tribunal held that his employer could not have reasonably been expected to know as he had not mentioned it when he joined. Nor could his employer have had constructive knowledge of his disability as he had previously worked night shifts and voluntarily accepted the block booking. Although the agency should have made further inquiries once it became aware of his health condition, the tribunal held that this was not enough to infer constructive knowledge of disability.
The EAT agreed with the tribunal holding that it was not enough for Mr Mutombo-Mpania to refer to headaches, tiredness and so on without linking those symptoms to his inability to carry out the activity he had been undertaking for the agency or his alleged inability to carry out regular night shifts. In particular, he had not listed the specific activities that he could not do or could only do with difficulty because of the impact of his hypertension. The burden of proof was on him and he had failed to discharge it.
As for the tribunal finding that the agency should have made further inquiries, it agreed with the employer that this was simply to ascertain information about the “health condition” that Mr Mutombo-Mpania had informed them about. This was not the same thing as a disability and did not therefore represent a finding that the employer had failed to take reasonable steps to ascertain whether he had a disability or not.
  1. Disability Discrimination – Reasonable Adjustment –  (Archibald v Fife)
The duty to make reasonable adjustments is triggered where an employee becomes so disabled that he or she can no longer meet the requirements of his or her job description.
Once triggered, the scope of the duty is determined by what is reasonable in all the circumstances of the case. In some circumstances, the duty could require an employer to transfer a disabled employee to a vacant post at a slightly higher grade, if the employee is qualified and suitable for the job, without requiring him or her to undergo a competitive interview.
The House of Lords’ decision is a significant one in that it confirms that the duty applies not only to the arrangements that an employer makes in regard to matters such as access to employment and promotion, but also to the situation of an employee who becomes unable through disability to perform his or her current job.
The decision confirms that an employer should consider transferring such an employee where appropriate and that the statutory duty may even require an employer to override its usual redeployment policy in order to accommodate the disabled employee.
The case is still good law and is useful to consider and argue when applying for a reasonable adjustment, not surprisingly the employers will often overlook it.
In most cases the question will not be as simple as whether or not a transfer to an existing vacancy itself is reasonable. The terms of the transfer, such as how the employee is required to apply for the new role, the pay in the new job, the hours of work etc. will all play a part in the reasonableness.
In Archibald the Court emphasised that the duty to consider a reasonable adjustment is not simply to create a level playing field, in many cases the duty to make reasonable adjustments requires the employer to treat the disabled person more favourably in order to remove the disadvantage which is attributable to their disability. This necessarily entails positive discrimination. It is important to bear this in mind since many employers do not give priority consideration for disabled employees.
In Archibald once the claimant became incapable of doing her road sweeping job, the respondent required her to undertake competitive interviews for the jobs which she applied for because they were at a higher grade, it would have been reasonable simply to transfer the claimant to one of the existing vacancies rather than requiring her to undertake competitive interviews. Further training can be provided if necessary.
The case does not mean that an employer must always redeploy rather than dismiss employees who become disabled. And it certainly does not mean that such employees should be given favourable treatment in the sense of promoting them to jobs beyond their qualifications or experience.
Everything will depend on the circumstances and the question of reasonableness.
7. Employment Tribunal Statistics
The Tribunals and Gender Recognition Certificates quarterly statistics for the period April to June 2018 published on 13 September 2018 reveals that the number of single employment tribunal claims lodged at the employment tribunals has more than doubled (165%). For the first time this quarter they are higher than the level in July to September 2013 (the last quarter before fees had an effect). However the success rates of employment tribunal claims for discrimination continue to be low.
Cases successful at tribunal;
Age                             0%
Disability                    3%
Race                           3%
Religion & Belief      1%
Sexual Orientation  2%
Sex                             2%
The median compensatory awards are as follows:
Race                           £11,299
Sex                             £10,638
Disability                    £16,532
Religion & Belief      £5,696
Sexual Orientation  £12,550
Age                             £6,184
Please draw these matters to the attention of our members and activists.
Yours sincerely
Mick Cash
General Secretary

Summer II Legal 2018 Update

Summer II Legal 2018 Update:


  1. Caste off

The government has announced that, following a consultation on caste discrimination, it will not make caste an aspect of race discrimination under the Equality Act 2010.


The consultation, which received over 16,000 responses, considered two different options to protect people from this form of discrimination. The first (which it has now rejected) was to implement a duty introduced by Parliament in 2013 to make caste an aspect of race discrimination under the Equality Act 2010. The second was to rely on emerging case law showing that a statutory remedy against caste discrimination was already available through existing provisions in the Equality Act.


Just over half of the respondents to the consultation (53 per cent) wanted to rely on the existing statutory remedy and repeal the duty, while 22 per cent rejected both options (mainly because they wanted the government to proscribe the concept of caste in British law altogether), while about 18 per cent of respondents wanted the duty to be implemented.


The government has now said that it is clear from the judgment of the Employment Appeal Tribunal in Chandhok v Tirkey (weekly LELR 409) that someone claiming caste discrimination can rely on the existing statutory remedy under section 9(1)(c) of the Equality Act if they can show that their caste is related to their ethnic origin.


The government therefore intends to legislate to repeal the duty for a specific reference to caste as an aspect of race discrimination in the Equality Act once a suitable legislative vehicle becomes available. Whilst recognising that this is an area of domestic law which may develop further, the government has also said that it will monitor emerging case law in the years ahead. To make clear that caste discrimination is unacceptable it will, if appropriate, support a case with a view to ensuring that the higher courts reinforce the position set out in Tirkey.

In order to ensure that people know their rights and what sort of conduct could be unlawful under the Equality Act, the government also intends to produce short guidance before the repeal legislation is introduced. Although it is mainly aimed at individuals who feel they may have suffered discrimination on grounds of caste, it should also help employers, service providers and public authorities who are outside those groups most concerned with caste and who may have little awareness of caste divisions.


Our lawyers advise that the Equality Act 2010 was amended on 25 June 2013 to put a clear duty on Government to specifically include caste as a form of race discrimination. This followed a Government commissioned report by the National Institute of Economic and Social Research which found evidence of caste discrimination and concluded that the Equality Act “cannot cover caste discrimination and harassment as effectively as caste specific provisions would”.


The Government should have included protection from caste discrimination then. It didn’t. Instead, it launched a public consultation between March and September 2017. The decision not to include caste discrimination as a specific form of race discrimination and instead rely on ‘the flexibility of case law” provides limited, if any protection.  To see a copy of the report you can visit the government website to read a copy of the government’s response and its analysis report



  1. Consequence of disability (City of York v Grosset)

In this case the Court of Appeal has set down the proper interpretation of the legislation relating to “something arising in consequence of” disability; stating that it is not necessary that the employer knows that the ‘something’ arises from the disability. The law says it is discriminatory to treat a worker unfavourably (for instance, by dismissing them) because of “something arising in consequence of” their disability. In this case, the Court of Appeal held that it is still discrimination even if the employer was unaware of a link between the disability and the worker’s misconduct.


Basic facts

Mr Grosset, a teacher, suffered from cystic fibrosis. The school had made various reasonable adjustments but when a new head teacher took over, he was not told about them. He then increased Mr Grosset’s workload, putting him under severe stress.


While suffering from these high stress levels, Mr Grosset showed an 18-rated horror film to a class of 15-year olds without obtaining approval from the school or the pupils’ parents. Mr Grosset agreed that it had been inappropriate to show it, but that he had done so because of the high levels of stress he was under as a consequence of his disability. The school summarily dismissed him for gross misconduct.

Mr Grosset claimed unfair dismissal and discrimination arising in consequence of his disability under section 15 of the Equality Act 2010.


Relevant law


Section 15(1) states that:

  1. a) it is discrimination for an employer to treat a worker unfavourably because of “something arising in consequence of” their disability, and
  2. b) the employer cannot show that the treatment was “a proportionate means of achieving a legitimate aim”.

Tribunal and EAT decisions


The tribunal dismissed his unfair dismissal claim, holding that it was within the range of reasonable responses for the school to reject his argument that he had shown the film because he was so stressed out.


However, it agreed with him that the school was in breach of its duty to make reasonable adjustments for his disability and that it had treated him unfavourably in consequence of his disability. Pointing out that he had never previously made a similar error, the tribunal said it was clear that he had shown the film when suffering from high levels of stress arising from his disability. As section 15 did not require an immediate causative link with that disability, the tribunal held that the error of judgment for which Mr Grosset was dismissed arose “in consequence of [that] disability”.


Although the school had the legitimate aim of protecting children and maintaining disciplinary standards, the tribunal held that, given the circumstances, a formal written warning would have achieved that aim as there was no real risk of him repeating the error, as long as the undue levels of stress were removed. On that basis, the tribunal found that his dismissal was not justified under section 15(1)(b) and was an act of disability-related discrimination.


The EAT upheld the tribunal’s decisions and the Council appealed on the basis that, under section 15, the school had to know that there was a link between Mr Grosset’s decision to show the film (the relevant “something”) and his disability.


Decision of Court of Appeal


Dismissing the appeal, the Court held that section 15(1)(a) did not require the school to be aware of the link between the decision to show the film and his disability. Instead, it consisted only of two questions. Firstly, did the employer treat the worker unfavourably because of an (identified) “something”; and (ii) did that “something” arise in consequence of the worker’s disability? The first issue involved an examination of the employer’s frame of mind, whereas the second was an objective matter, which, in this case, the tribunal found to be proven.


With regard to the issue of justification, the Court held that the tribunal’s assessment contained no error of law in terms of finding that dismissal was disproportionate in the circumstances.

The case is of enormous use to our members when considering whether a claim for disability discrimination arises. It also seems more unlikely that an employer would be able to justify the discriminatory act if they have failed to make reasonable adjustments.


  1. Useful Numbers

RMT helpline (for advice on all work and non-work related and Union matters. The lines are open Monday to Friday 08.00 to 18:00 and 9.30 to 16:00 Saturdays)

England and Wales 0800 376 3706

Scotland & offshore 0771 841 6084


Criminal helpline (for members arrested and questioned under caution and for general enquiries related to criminal matters. Line open 24 hours per day 7 days per week. The member may use the helpline for family members; but the Union will not be responsible for any costs incurred as a consequence of the family member instructing the solicitors)

England and Wales: 0207 604 5600 (office hours)

                                   0207 624 8888 (out of office hours and weekends)

Scotland & offshore: 0771 841 6084


Personal Injury line (for members involved in workplace and non-workplace accidents and road traffic accidents and work related diseases and conditions. Family members may use the service for non-work related accidents.)

0845 712 5495


Free Wills: 01513262188

Or email:



Circular No 056 spring UPdate 2018

Please  see above and below Circular No: NCP/056/18

Our Ref: LA/15/03/2018

15th March 2018


To: Branches, Regional Councils & Regional Offices

Dear colleague,

Spring 2018 Update:

1.Compensatory Rest Breaks (Crawford v Network Rail Infrastructure)

This was one of our cases where the EAT found in our favour.

The Working Time Regulations 1998 introduced a right to rest breaks for all workers if their daily working time is more than six hours.  A rest break should be an uninterrupted period of at least 20 minutes, and a worker is entitled to spend it away from the workstation if he or she has one.  A worker may be required by the employer to work during a period which would otherwise be a rest break.  In such a case, the employer must allow the worker, wherever possible, to take an equivalent period of “compensatory rest”.

Mr Crawford is a railway signalman working on a single manned boxes on 8-hour shifts.  He had no rostered breaks but was expected to take breaks when there were “naturally occurring breaks” in work whilst remaining “on-call”.  Although none of the individual breaks lasted 20 minutes, in aggregate, they lasted substantially more than 20 minutes.

Mr Crawford claimed that he was entitled to a 20 minute rest break under the working Time Regulations or “compensatory rest”.  The Employment Tribunal found that the regulation did not apply and that the arrangements were compliant with the regulations.

Mr Crawford appealed to the Employment Appeal Tribunal on the basis that “an equivalent period of compensatory rest” must comprise one period lasting at least 20 minutes.  His appeal succeeded in the light of a case called Hughes v Corps of Commissioners and in particular to the judgement of the Lord Justice Elias which appeared to lay down such a requirement and to be part of the reasoning and binding on the Employment Appeal Tribunal. The EAT held that where the normal entitlement to rest breaks under Reg 12(1) of the WTR 1998 is excluded by a “special case” exemption, the equivalent period of compensatory rest given under Reg 24(a) must, as far as possible , amount to a break from work that lasts for at least 20 minutes. Allowing our member to take a number of shorter breaks throughout his eight hour shift, which in aggregate, amounted to substantially more than 20 minutes, did not amount to the provision of equivalent compensatory rest.

The case highlights that there are differences between a rest break under Reg 12(1) and compensatory rest under Reg 24(a) in that a person can be on call during compensatory rest but not during a Reg 12 rest break. The essential element to both is that the worker must have an uninterrupted single period of at least 20minutes rest. Where a special case exemption applies and there are objective reasons why such a period of compensatory rest is not possible then the employer must afford the worker appropriate health and safety protection under Reg 24(b). It isn’t clear from the case what this protection might be could include additional supervision; health assessment checks to consider the employees fitness to work; reducing the workload or perhaps transferring the employee to a temporary position on less onerous duties.

Network Rail has appealed this decision to the Court of Appeal. We will advise you of the outcome in due course.

  1. Data Protection: Employer vicariously liable for employees data breach ( Various Claimants v Morrison Supermarkets plc ; High Court)

This is the first group litigation data breach case to come before the courts. The High Court held that the employers were vicariously liable for the actions of a rogue employee who disclosed the personal information of around 100,000 colleagues on the internet. The disclosure took place outside working hours and from the employee’s personal computer, but the court found that there was a sufficient connection between the employee’s employment and the wrongful conduct for it to hold the employer liable. The Court rejected the employer’s argument that the DPA 1998  did not recognise any form of vicarious liability fir unauthorised acts of employees and that only the primary data controller is subject to civil actions.

  1. Trade Union Activity ( Ltd v Denby EAT)

The Employment Appeals Tribunal (“EAT”) upheld the decision of an employment tribunal that a pilot, who was turned down for employment with an airline he had previously worked for because of his earlier campaigning on behalf of the trade union BALPA, had been refused employment due to his trade union membership.

The EAT considered that since the legislation was concerned with protecting job applicants from being denied employment because of their status as trade union members, it would leave a gap in the statutory protection, contrary to the legislative intent, if an objection to trade union activities that were incidental to membership could not be construed as an objection to membership itself. Furthermore, a broad construction of the term ‘membership’ was necessary to give effect to the right to freedom of association under Article 11 of the European Convention on Human Rights.

  1. Working Time and Stand by (Ville de Nivelles v Matzak   European Court of Justice)

Confirmed that stand-by time spent at home may constitute ‘working time’ where the geographical and temporal constraints imposed by the employer objectively limit the worker’s opportunities to pursue personal and social interests. This was so in the instant case, where M, a firefighter, was obliged to respond to calls and be at his place of work within eight minutes. He was thus obliged to be physically present at a place determined by VN (albeit that place was M’s home, rather than his workplace).


Could you please draw this to the attention of our activists and members.

Yours sincerely

Mick Cash

General Secretary








New Year Legal Circular

Please see above and below
Circular No: NCP/009/18
Our Ref: LA/01/2018
17TH January 2018

To: Branches, Regional Councils & Regional Offices
Dear colleague,
New Year Legal Update
1. Helplines Numbers and Update in L2 form
RMT Helpline – 0800 376 3706. England and Wales.
In Scotland and Off Shore members the number has changed to: 0808 068 5529
This is for advice on all work and non-work related and Union matters.
The lines are open 8:00-18:00 hours Monday-Friday, 9.30-16:00 hours Saturday.
Or email:
Criminal Helpline – 0765 911 8181
Criminal Helpline (Scotland & off Shore members) – 0800 089 1300
Personal Injury Claims
This service covers:
• RTA accidents to and from work where the member is injured, this also covers family members;
• accidents at work claims for members only;
• industrial disease claims for members only;
• non work related accidents for members and their families;
• Clinical negligence is not covered by the scheme but members can use the numbers below to get expert general advice.
The service is accessed
In England and Wales by calling 0845 712 54.
In Scotland and Off Shore members by calling: 0800 022 4224
In Southern Ireland should complete an L1 form available on line or from their Branch Secretary and submit to the Legal Department.

Up to date Employment Assistance Form (L2). Should a member require legal assistance for an employment tribunal, they need to fill in an L2 form and pass this with the relevant documentation as quickly as possible to their Regional Organiser. Amended L2 forms have been produced and circulated to Regions. All old L2 forms should be destroyed. The form is accompanied by a checklist for the region and member to enclose the relevant documents and a declaration form which our legal team will require before they can deliver advice. We will not accept instructions on old L2 forms. All Legal Forms are also available from the RMT website.
Legal representation is not automatic. Unless/until legal representation is granted the member remains responsible for lodging ACAS conciliation and ET1 claim form within the time limit and keeping all Tribunal and Court dates.

2. Potts & others v Nexus –Unlawful Deduction of Wages

The Union have recently been successful in this important case. Judgment being handed down this week. The member’s conditions of service are governed by the Nexus collectively agreed Conditions of Service.
Employees who work shifts are entitled to shift allowances, and the allowances are calculated with reference to “basic pay”.
Pay discussions took place in 2012. Nexus offered to consolidate a £200 Red Book bonus into basic salary and also to consolidate a productivity bonus into basic pay. This had the overall effect of increasing basic pay. Nexus said that the offer had to appear cost neutral. There was no discussion about how an increase in basic pay might affect shift allowances that were calculated with reference to the rate of basic pay.
The offer was accepted by the members in December 2012. This meant that both the bonus and productivity payments became part of the basic pay.
Rather than paying shift allowances with reference to basic pay however Nexus realised they had made an error and instead split the member’s wage slips into something called “Basic 1” and Basic 2”. This was not something that had been discussed with the union.
Nexus consolidated basic pay and the Red Book bonus and called this “Basic Annual 1”. Nexus consolidated basic pay, the Red Book bonus and the Productivity Allowance and called this “Basic Annual 2”.

When it came to calculating any allowances which were determined in accordance with the rate of basic pay, Nexus calculated these based on “Basic Annual 1” which was the lower amount. The Red Book bonus and the Productivity Allowance had become basic pay when the pay deal was accepted. The Conditions of Service provided for allowances to be based upon basic pay, which was in fact, “Basic Annual 2”.

The union brought a claim for unlawful deductions from wages.

The Respondent argued at the tribunal that the agreement was that the payment had to be cost neutral and the agreement as interpreted by the union did not make commercial common sense. The Employment Tribunal found that the Respondent’s offer was not made on that basis of it being cost neutral but that it had to “appear” cost neutral. The Employment Tribunal found that the members had been underpaid and that the allowances had to be paid based upon Basic 2.

Nexus appealed and the union defended the appeal.

On Appeal nexus sought to raise a new point that the tribunal had no jurisdiction to hear the claim at all following the case of Agarwal v Cardiff University and Another UKEAT/0210/16/RN. Nexus said that Agarwal said that a tribunal had no jurisdiction to construe contractual provisions and that this was a case about what the contractual terms were.
The Agarwal decision was not followed by the EAT in a later case called Weatherilt v Cathay Pacific Airways Ltd UKEAT/ 0333/16/RN and so the EAT had to decide whether Agarwal or Weatherilt was right. The EAT agreed with the decision in Weatherilt and confirmed that the tribunal did have jurisdiction to construe contractual provisions and so that ground of appeal failed.

Their second ground of appeal was that the judge went wrong in his construction of the agreement / contract. The EAT decided that whilst he approached the question in the wrong way, he came to the right answer and that ground of appeal also failed.

Nexus have 21 days to appeal. If they do not then this will be remitted to the Employment Tribunal for a remedy hearing.

3. Chief Constable of Norfolk v Coffey UKEAT/0260/16/BA
The Employment Appeal Tribunal (“EAT”) upheld the decision of an employment tribunal that a police officer suffered direct discrimination because of a perceived disability.
In 2011 the Claimant applied to become a police constable with the Wiltshire Constabulary. She attended a medical, at which it was discovered that she suffers from mild hearing loss with tinnitus. Although the Claimant’s hearing loss was outside the range set down by the Home Office for police recruitment, the Wiltshire Constabulary arranged a practical functionality test which the Claimant passed. In 2013 the Claimant applied to transfer to the Norfolk Constabulary. She attended a pre-employment health assessment, where the medical adviser noted that her hearing was ‘just outside the standards for recruitment strictly speaking’ but that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. He recommended that the Claimant undergo an ‘at work’ test.
This recommendation was not carried out by the Assistant Chief Inspector (“ACI”). The ACI declined the transfer request and did so on the basis that the Claimant’s hearing was below the recognised standard, and that the transfer would risk increasing the pool of officers on restricted duties.
The Claimant brought an employment tribunal claim for direct discrimination. It was not alleged that she had a disability. Instead, it was argued that she had been treated less favorably because she was perceived to have a disability, in the form of a progressive condition. The tribunal considered that the only way to interpret the ACI’s comments about the risk of the Claimant ending up on restricted duties was that she perceived that the Claimant had a potential or actual disability which could lead to the Constabulary having to make adjustments to her role.
Since this perception was the reason for refusing the Claimant’s transfer request, the tribunal upheld the claim.
The Respondent appealed arguing that the tribunal had erred both in respect of its finding that the ACI perceived the Claimant to be disabled and its finding that the Claimant had been treated less favorably because of that perception.
The EAT stressed that the question of whether A perceives B to be disabled depends on whether A perceives B to have an impairment with the features which are set out in the legislation. The Equality Act 2010 makes special provision in respect of progressive conditions. Where a person has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future.
The EAT found that the tribunal had been entitled to find that the ACI perceived the Claimant to be disabled on the basis that the reference to the risk of the Claimant being on restricted duties could only be read as the ACI perceiving that she had a progressive condition which could worsen.
The EAT also found that the tribunal was entitled to conclude that a person with the same abilities as the Claimant, whose condition the employer did not perceive to be likely to deteriorate so that he or she would require restricted duties, would not have been treated as the Claimant was.
The tribunal did not therefore err in law in concluding that she had been subjected to direct discrimination.
Could you please draw this to the attention of our activists and members.
Yours sincerely

Mick Cash
General Secretary

Tribunal fees Update

Tribunal fees Update


I refer to my earlier circular of the 26th July 2017 where I advised   that as of 26th July 2017, fees are no longer payable when bringing an employment case to tribunal. This means no one has to pay a fee to lodge a claim nor does a hearing fee have to be paid. If a claim has already been lodged and a notice to pay the hearing fee has been issued it will not have to be paid.

The Government have agreed to reimburse those who had paid the fees, the mechanism for reimbursing fees has not yet been announced. Further guidance will be given once we know the mechanism for recovery of fees. This is still under consideration by the MOJ. Preliminary meetings with the MOJ and Union Legal Officers would indicate that the application process is still under consideration. Our Legal Department is working with our Legal Suppliers to determine how much has been recovered from Respondents who will be entitled to claim back the fees where ordered by the Tribunal to pay them (except in the case of COT 3’s where it is unlikely that they will get refunds) and how much fees the Union have paid in unsuccessful cases. This in most cases will be a matter for the Union since we have paid the fees of members whose cases we have said have reasonable prospects. It is hoped that the Union will be able to claim these fees direct from the Tribunal rather than getting our members to apply for the fees back and then having to get the refund from them.


It is unclear also whether we shall be entitled to claim Interest on the fees. It is probably the case that this process will take months.


In addition the Court has ruled that those cases that were struck out for non-payment will need to be reinstated as though they were never struck out. This does not affect our members since we paid the fees. Reinstated cases and the process involved will be dealt with after the issue of reimbursements have been dealt with.


Will Regional Officers and Branches please note that the L2 forms and Guidance Notes and Repayment of Fees forms are being amended and reprinted. With immediate effect members are no longer required to complete the Form headed “Repayment of Fees” these should be destroyed. New Forms will be sent to the Regions when printed.


Yours sincerely

Mick Cash

General Secretary

Legal Update: Autumn 2016

Legal Update:  Autumn 2016

  1. Uber Drivers are Workers


The Employment Tribunal found that Uber drivers were not self-employed nor independent contractors but were workers who are entitled to essential workers’ rights for the purposes of the Employment Rights Act 1996 and therefore are entitled to the following: to be paid the National Minimum Wage, 5.6 weeks paid annual leave, a 48 hour average working week and rest breaks and whistleblowing protection.

Uber’s argument was that the drivers were not entitled to these fundamental rights. They argued that it was a technology company not a taxi provider and that it did not provide a transportation service. They argued Uber drivers worked for themselves as self-employed businesses. Thankfully, the Tribunal saw through this and was very critical of Uber stating that it did not reflect the reality of what was happening. They stated that Uber had resorted to fictitious, and even brand new, terminology in its documentation. Their suggestion that 30,000 Uber drivers were all small businesses operating in and around London linked only by a common technology platform was ridiculous.

Some of the relevant factors behind the decision include:

  • Uber purports to be the drivers’ agent yet asserts that it has sole and absolute discretion to accept or decline bookings;
  • Uber interviews and recruits drivers and to be admitted and they must attend an induction, watch a video and produce documents to Uber such as NI certificate, both driving licences, Public Carriage office licence, PHV licence, log book, MOT and Insurance Certificate;
  • Uber controls the key information e.g. passenger surname, contact details and the intended destination which is not available to the driver;
  • Drivers are required to accept, and not cancel trips and drivers in breach of this are given warnings and logged off the system;
  • Uber fixes the fare;
  • Uber imposes numerous conditions on drivers (e.g. limiting the choice of acceptable vehicles; they prefer black or silver), instructs them how to work and controls them in performance of their duties;
  • Uber has a rating system which amounts to a performance management/disciplinary procedure;
  • Uber determines rebates to the passenger often without involving the driver;
  • Uber handles complaints made by the passenger including complaints about the driver;
  • Drivers were not permitted to share accounts; IDS or be replaced by a substitute.

As regards working time, the Tribunal found that a driver is “working” when he has switched on the APP, is in the territory in which he is licenced to use the APP and is ready and willing to accept trips.

Uber’s arguments included that drivers are only working when they are driving passengers was rejected. It is an essential part of Uber’s business that there is always a pool of drivers ready to be called upon when demand for driving services arises, so being available is an essential part of the service rendered by the driver. The Tribunal did agree with Uber that time spent travelling to and from the territory (i.e. from home) would not form part of working time in the circumstances. These findings will have implications for the calculation of the National Minimum Wage payment, as at present drivers receive fares from customers but there is no remuneration for the time spent waiting.

When the APP is switched off there is no contractual obligation to provide driving services, but when switched on, the legal analysis is different. The Tribunal reached the conclusion that when the driver has switched on the APP and is in the territory he is authorised to work and is able and willing to accept assignments, so long as those conditions remain he is under a worker contract. This would also cover some drivers where the driver had passengers on board and some where they were waiting, the reasoning was that Uber aim to maintain a pool of drivers to satisfy demand. The Tribunal found that in order to satisfy that demand, being available was essential part of the service. If the Tribunal were wrong on that point they found that at the very latest the driver is working for Uber from the moment when he accepts any trip.

It followed, according to the Tribunal that the driver would be “working” under his contract while returning to the territory with a view to undertaking more trips but the point was not raised by the parties and not debated so no definite ruling was made on this point.  The Tribunal found that subject to the case where a trip takes him or her outside their territory the Uber drivers working time starts as soon as he or she is within their territory, has switched on his APP and is ready to willing to accept trips. Time spent by a driver driving from home to the territory he works in and returning home does not form part of his working time.

The Tribunal were unable to determine whether journeys outside territories amounted to working time because it was not argued before the Tribunal. If the Tribunal were wrong they concluded that working time begins at the latest when a driver accepts a trip and ends when the trip is completed. But hours spent returning from an out of territory trip back to the territory where the trip had begun in the territory could count as reckonable time for the purposes of Reg 47 of National Minimum Wage Regulations.

The case is fact specific to Ubers business model but could catch all bogus self-employment situations and have implications for what is referred to as the “gig” economy.

Uber may appeal the decision and we will report to you further with any developments.

  1. Settlement Agreements and Tribunal Jurisdiction.

The EAT (Glasgow City Council v Dahhan) upheld a decision of the Tribunal that the Tribunal does have jurisdiction to assess whether an otherwise valid settlement agreement is unenforceable because one of the parties lacked the mental capacity to enter into it. In this case the Claimant was a teacher alleging victimisation; discrimination and signed the agreement; a couple of days later the Claimant wished to withdraw from the agreement and proceed to a Tribunal on the basis that they did not have the mental capacity to sign the agreement.

The EAT confirmed that the Tribunal does have jurisdiction to assess whether the Settlement Agreement is otherwise valid. The Tribunal has a duty to consider when raised by a party the mental capacity of the individual at the time of signature and if after reviewing the evidence they deem the individual did not have capacity then the agreement will be unenforceable in its entirety.

  1. ACAS : “Guide to Sexual Orientation: Key Points for the Workplace”

This booklet provides insight into how sexual orientation discrimination can occur in the workplace and how to prevent it. It covers recruitment; pay; terms; promotion; training; and dismissals.

  1. Union Forms and Help lines

To remind you the following forms should be completed when member requires legal representation and advice:

L1: Request for Personal Injury advice and representation; these should be completed by Scottish; Southern Irish and Off Shore workers and sent by the Regions to the RMT Legal Department.

In the case of England; Wales and Northern Ireland members can complete an L1 but forms should be sent direct to Sheffield call handling centre. To avoid paper work members should call direct 0845 712 5495 which is more direct and cuts down paperwork and time.

L2: all requests for legal advice and assistance in relation to an employment issue. All L2 should be submitted to the Regional Office as these need to be signed off by the Regional Officer and papers sent with them before the RMT Legal Department can deal with them.

L3: all requests for legal assistance in a work related criminal or driving (work related) offences or driving licencing appeal. The decision to grant this is discretionary and based on the facts and prospects of success. These forms must be signed off by the Branch Secretary who must support the request. All documents and court documents must be sent with the L3 to the RMT Legal Department at Maritime House. Old Town Clapham London SW4 0JW.

In the case of non-work related crime and driving offences members should be given the criminal helpline number 0765 911 8181 and in Scotland 0800 328 1014. Lines are open 24 hours a day 7 days per week.

Members who are arrested by police and or questioned under caution should, in the first instance, call the helpline numbers.

General Advice on all work and non-work related and Union matters should call 0800 376 3706 in England Wales and Ireland and Offshore. Scotland 0800 328 1014. The lines are open Monday to Friday 08.00 to 18:00 hours and 09.30 to 16:00 hours on Saturday.

Free Wills: Members enquire as to free wills from time to time. We can facilitate a free will for basic wills however, anything complicated will be charged at preferred rates for RMT members.  I am in the process of arranging with some of our lawyers to provide an on- line service and shall report to you again shortly when details have been finalised. In the meantime should members enquire please direct them to the following contacts.

Members in England, Wales and Northern Ireland can call 0845 712 5495 or email for a free will pack.

Members in Scotland should call Drummond Miller on 0800 328 1014.

Offshore workers should call Thompsons in Scotland on 0141 221 8840.

Members in Southern Ireland should call 080 376 3706.


Yours sincerely,

Mick Cash

General Secretary


Dear Colleague,




Please find attached a briefing note which has been requested on the rights of members who work past their statutory retirement age. Should you have any queries on this document, please refer to our legal team.


I would be grateful if you could bring this circular to the attention of all members.


Yours sincerely,

Mick Cash

General Secretary






RMT to raise concerns over Redundancy Payment Cap

The RMT are to raise concerns with LUL at Company Council level regarding the proposed CAP to leaving payments. This is likely to affect Redundancy Payments and it has also been suggested that it may also affect Pension Lump Sums.

The consultation period is now over with the Government and it looks likely that they will steamroller this Law through and it is important that the RMT challenges any changes that will or may directly affect our members to understand how this may affect our members and all implications this change in Law will have


Exit Programme 2016





 The Trade Union Bill has continued its passage through Parliament and was progressed to the Report Stage on 16th March 2016.

As you are aware, the Bill is a draconian piece of legislation which threatens the basic right to strike, in addition to placing massive burdens of various types on the trade union movement.

One aspect of the Bill is an attack on check-off (also known as ‘paybill’), or the deduction of union subscriptions from wages, in the public sector. Public sector employers are defined as follows:

  1. a)     An employer is a relevant public sector employer if the employer is a public authority specified, or of a description specified, in regulations made by a Minister of the Crown.
  1. b)    A Minister of the Crown may by regulations provide, in relation to a body or other person that is not a public authority but has functions of a public nature and is funded wholly or partly from public funds, that the body or other person is to be treated as a public authority for the purposes of this section.

This means that Tory ministers can force companies to withdraw paybill deductions from our members who currently pay their Union subscriptions by that means.

The Union has identified that we have members paying their subscriptions via check-off in Network Rail, TOC’s and Bus companies.  We have sought legal advice but the Executive Committee believes that we should encourage our members to transfer to direct debit to thwart the government’s blatant attack on our Union.

The matter was placed before the National Executive Committee at the March Statutory Meeting. The following report from the Organisation, Training and Education Sub-Committee was adopted by the National Executive Committee:

“That we instruct the General Secretary to initiate a campaign to encourage all members on paybill deductions to transfer to Direct Debit.”

As part of this campaign, it has been identified that there is a body of administrative work that will be required which will need to be overseen and project managed. Dave Jones, our Regional Administration Manager from Birmingham, has been temporarily seconded to this project to coordinate our efforts until its eventual conclusion. I have therefore made arrangements for the Midlands Regional Office to be covered during Dave’s secondment.

Over the coming weeks we shall be contacting members affected to ask that they transfer to Direct Debit and would encourage members, representatives, branches and regional councils to support our efforts to get a maximum sign up for Direct Debit

I shall be writing again with further details.

Yours sincerely