Category: Law

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RMT responds to new raft of anti-union laws

RMT responds to new raft of anti-union laws

 

General Secretary Mick Cash said;

 

“We know that these brutal new anti-union laws are specifically targeted at our members in the transport sector who have shown in recent months that they have the guts to stand up and fight for jobs, pay, services and safety. The response of this Government mirrors the actions of hard-right regimes throughout history – shackle the unions, criminalise it’s members and use a raft of new laws to try and bankrupt workers’ organisations.

 

“It is not lost on us that this legislation has been tabled just a few days before we celebrate the Tolpuddle Martyrs at their annual festival – a group of Dorset farm labourers criminalised and ‎exiled for daring to organise a union.

 

“The trade union movement will unite to fight this brutal assault on the most basic of human rights and that campaign will be taken into the communities who stand to lose access to safe and reliable services as this noose of the anti-union laws is twisted round our necks. ”

 

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Blacklisting Support Group

There was stunned silence followed by audible gasps in the High Court when Matthew Nicklin QC read out documentary evidence indicating that the blacklisting firms had deliberately set out to destroy evidence of their illegal conspiracy. The unions UNITE, UCATT & GMB plus solicitors Guney, Clark & Ryan (working in association with the Blacklist Support Group) are representing 581 blacklisted union members in ‘group litigation’ against 40 of the UK’s largest construction firms, including Sir Robert McAlpine Ltd, Balfour Beatty, Carillion, Kier, Costain, Laing O’Rourke, Vinci, Skanska, Bam.

 

The procedural hearing yesterday was deciding on case management issues to be put in place before the full trial which is now confirmed to take place on 16th May 2016 and set to last 10 weeks. With directors of multinational firms and former undercover police officers set to give evidence, this will turn into a show trial for the construction industry.

 

The major issue to be decided in this week’s hearing was one of disclosure of documents to be used in the trial. The firms have repeatedly denied holding documents relating to the illegal Consulting association blacklist, despite invoices proving that directors of the companies attending quarterly meetings from 1993-2009. The told the court that to search for the relevant documentation would cost them £27million and that they had already provided a list of documents that they have found on their computers.

 

But Matthew Nicklin QC, representing the blacklisted workers from UCATT, told the court that the pitiful disclosure by the firms was “worse than useless” and that the firms were being deliberately obstructive. Nickiln QC then read out documentary evidence that showed that David Cochrane, director of Human Resources at Sir Robert McAlpine & chairman of The Consulting Association (TCA) when it was raided in 2009 instructed Ian Kerr (chief executive of TCA) to destroy blacklisting documents and to ring round others to tell them to do the same. The document was a hand written record made by Ian Kerr of a series of conversations he had with various industry grandees immediately after the Information Commissioners Office served its warrant. The relevant part of the note read to the High Court states that David Cochrane told Ian Kerr:

 

“Ring everyone – Cease trading – Close down – We don’t exist anymore – Destroy data – Stop Processing”

Later sections of the same note record conversations with other senior managers who say they have already destroyed the documents they held.

(full note attached)

 

Roy Bentham, blacklisted joiner from Liverpool & Blacklist Support Group said:

“The wheels of justice turn painfully slow but we now have a date for the full trial. In 12 months from today, I look forward to seeing those captains of industry being questioned about their illegal blacklist with ruined so many lives”.

 

Dave Smith, BSG secretary added,

“We have repeatedly called for jail sentences for these wretches who violated our human rights. If the destruction of documentary evidence is proved in court, those responsible should be prosecuted for perverting the course of justice and be sent to prison. That would be real justice”.

 

 

Other issues decided by Judge Supperstone

 

20 lead cases decided upon.

Application by defendants for further information regarding DWP and  HMRC records for lead cases regarding schedules of loss.

Length of trial – 10 weeks

2 further hearings scheduled. Next on the 14th July and two to be set in October including a costs hearing.

Expert evidence. Professor to give overview and detailed analysis of earnings and specifically loss of earnings of the claimants.

Defamation, data protection, libel, slander, conspiracy cases are all in the mix for which criteria that will be selected.

Blacklist Support Group

book: http://newint.org/books/politics/blacklisted-secret-war/

video: Blacklisting 2013 – The Workers Strike Back

blog: www.hazards.org/blacklistblog

facebook: http://www.facebook.com/groups/blacklistSG/

 

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RMT Circular

Dear Colleagues,

 

RATES OF PAY & CONDITIONS OF SERVICE 2015 – KEOLIS AMEY DOCKLANDS (DLR/0001/KAD)

 

Further to my previous Circular (IR/107/15, 23rd April 2015), the ballot has concluded and the result is as follows:-

 

Question: Are you prepared to take strike action?

 

Total Votes Cast                  398

Number Voting ‘Yes’             337

Number Voting ‘No’              61

Spoilt Papers                       0

 

The General Grades Committee is currently considering this result and I shall advise Branches of its decision in due course.

 

RATES OF PAY & CONDITIONS OF SERVICE 2015 – INTERSERVE FACILITIES (KEOLIS AMEY DOCKLANDS CONTRACT) (DLR/0001/I(KAD))

 

Further to my previous Circular (IR/107/15, 23rd April 2015), the ballot has concluded and the result is as follows:-

 

Question: Are you prepared to take strike action?

 

Total Votes Cast                  58

Number Voting ‘Yes’             51

Number Voting ‘No’              7

Spoilt Papers                       0

 

The General Grades Committee is currently considering this result and I shall advise Branches of its decision in due course.

 

RATES OF PAY & CONDITIONS OF SERVICE 2015 – LONDON UNDERGROUND (LUL/0001)

 

Further to my previous Circular (IR/107/15, 23rd April 2015), the following resolution was received from the London Transport Regional Council:-

 

“This region condemns London Underground for their naked attempt to divide the tube’s workforce by making different pay offers according to grade. LU’s claim that some grades are not impacted as much by night-tube has been made in spite of overwhelming evidence to the contrary  and represents nothing more than a cynical attempt to break the unity of RMT members across trains, stations and engineering grades.

 

LU’s offer remains a below inflation pay rise with derisory one-off payments in return for delivering night-tube. This is wholly unacceptable to our union.

 

This comes on top of fit for the future, which as it stands will leave our stations chronically understaffed and many members in unacceptable grades or locations. 

 

We applaud every member who took strike action over LU’s austerity cuts and we endorse the negotiating position of our union. Our strike action has won important shifts in LU’s position including a guarantee that no member would lose their substantive salary.

 

However, it is clear that LU’s proposals remain unacceptable in relation to both pay and austerity cuts. At the present time these include:

 

  • Below inflation pay offer
  • Demand for complete implementation of night tube tied to a no strike clause. This would include our acceptance of new rosters across functions accepting sharp increases in night and weekend working.
  • 900 job cuts on LU stations
  • Displacement of around 1500 station grades with many sent to unacceptable new locations.

 

In order to resolve these issues we will have to take significant strike action.

 

We are at our strongest when all grades are united. It would be preferable to take all grades action in order to fight on the key issues we face. We have to take account of the different mood of members in different functions. LU has pursued a deliberate strategy of imposing austerity on stations ahead of other areas and it is understandable that some members are not yet convinced of the need for immediate strikes.

 

RMT must seek to convince members that all grades action is required to ensure that night tube does not result in unacceptable rosters with more weekend and night working and to win a fair pay settlement. RMT should fight on these issues at the same time as the additional issues facing stations.

 

It may be necessary to take separate industrial action, either strikes or action short of strikes, on stations in response to LU’s fit for the future programme. In particular, LU’s continuing failure to restore significant numbers of jobs to our stations is a crucial issue, alongside issues relating to rosters and location.

 

Additionally, RMT will continue to campaign amongst passengers and the wider public against ticket office closures and job cuts on the tube.

 

The LTRC will produce regular propaganda in support of this fight. The GGC should convene reps meetings as necessary to ensure the involvement of reps in the development of our strategy.”

 

The Lead Officer and Senior Reps have attended two further meetings regarding this matter but no new offer was made and a mass meeting of members has taken place where this matter was discussed. The General Grades Committee has taken the decision to prepare an all grades ballot matrix of London Underground members as a matter of urgency. I am currently acting in accordance with this decision and would be grateful if Branches could ensure that all members’ details are correct.

 

TRANSFER POLICY – LONDON UNDERGROUND (LUL/16/2)

 

Further to my previous Circular (IR/70/15, 12th March 2015), this matter was raised at a Stations Functional Council meeting where a failure to agree was recorded over the Company refusing to honour its transfer procedure for station staff and I am currently seeking legal advice as to whether LUL’s action constitutes a breach of members’ contracts of employment.

 

A further resolution has been received from the London Transport Regional Council regarding LUL’s practice of employing CSA’s on fixed term contracts rather than moving these colleagues onto permanent CSA1 grade positions. Our Union has a history of opposing this type of contract and we should continue this tradition. The Branch calls for action including making a case for transferring members into permanent CSA1 positions and requiring a timetable for this to happen, producing literature about the issue and being prepared to take industrial action.

 

I will keep Branches advised of all further developments.

 

RAINBOW ATTENDANCE POLICY – LONDON UNDERGROUND (LUL/5/9)

 

Further to my previous Circular (IR/100/15, 16th April 2015), a resolution regarding this matter has been received from the London Transport Regional Council, which notes the recent dismissal of Noel Roberts whilst fit and at work. This amounts to a capability/rainbow dismissal which is not a recognised nor agreed procedure with our Union and leaves all LUL members vulnerable to being sacked whilst fit and at work.

 

This matter has been considered by the General Grades Committee, which has taken the decision to reiterate our position to LUL that we are opposed to the capability/rainbow disciplinaries and dismissals and to seek advice over the legality of members being sent to Occupational Health, which is perceived to be part of the disciplinary and dismissal procedure.

 

I am currently acting in accordance with this decision and will keep Branches advised of all further developments.

 

RE-GRADING OF WATERLOO & CITY LINE SERVICE CONTROL STAFF – LONDON UNDERGROUND (LUL/2/2)

 

Further to my previous Circular (IR/340/14, 19th December 2015), members will recall that the industrial action was suspended to allow for further discussions to take place and to explore a way forward that would meet our claim for Service Controller’s to be paid the SCL1 for the job.

 

Unfortunately, these talks failed to make satisfactory progress on the issue and this matter has been considered by the General Grades Committee, which has taken the decision to organise a meeting of all affected members as soon as possible. I am currently acting in accordance with this decision and will keep Branches advised of all further developments.

 

Yours sincerely

Mick Cash

General Secretary

 

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Picketing Guidelines

Dear Colleagues

 

  • Picketing Guidelines
  • The Right to Demonstrate Guidelines
  • Picket Armbands
  • Picket Posters
  • Leaflets and Stickers

 

With the up-coming Network Rail strike imminent I thought it would send Branches, Regional Offices and Regional Councils a copy of the Picketing Guidelines and The Right to Demonstrate Guidelines and these are attached. I would be obliged if these could be printed off and distributed as necessary.

 

The communications department are in the process of sending Branches with Network Rail members a number of picket armbands, picket posters together with leaflets and stickers that can be handed out to the public. Should you require any addition armbands, posters, etc., please contact your Regional Office.

 

Yours sincerely,

 

 Mick Cash

 

PICKETING AND DEMONSTRATIONS amended 14 5 15

RMT THE RIGHT TO DEMONSTRATE

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Campaign for Trade Union Freedom

To the Secretary all Branches,

Council of Executive members,

Regional Councils and Regional Offices

 

Wednesday 29th April 2015

 

 

Dear Colleagues,

 

Threat of more anti-unions laws – affiliate to Campaign for Trade Union Freedom

 

Following the general election, the prospect of even greater restrictions on the freedom of trade unions may be realised. For example, the Conservative Party manifesto proposes increasing anti-union legislation across the board but especially in a number of industries including transport. Their manifesto states:

 

“Strikes should only ever be the result of a clear, positive decision based on a ballot in which at least half the workforce has voted. This turnout threshold will be an important and fair step to rebalance the interests of employers, employees, the public and the rights of trade unions. We will, in addition, tackle the disproportionate impact of strikes in essential public services by introducing a tougher threshold in health, education, fire and transport. Industrial action in these essential services would require the support of at least 40 per cent of all those entitled to take part in strike ballots – as well as a majority of those who actually turn out to vote. We will also repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes; and ensure strikes cannot be called on the basis of ballots conducted years before. We will tackle intimidation of non-striking workers; legislate to ensure trade unions use a transparent opt-in process for union subscriptions; tighten the rules around taxpayer-funded paid ‘facility time’ for union representatives; and reform the role of the Certification Officer”.

 

If implemented this proposal would mean that in transport, if RMT balloted 10,000 members for strike action we would be required by law for 5,000 of members balloted to cast their vote and for 4,000 of those to vote in favour of action for the ballot to be valid. This would mean an 80% Yes vote would be required on a 50% turnout in every ballot.

 

Whatever the outcome of the election we will continue to fight against any attacks on trade union rights and to campaign for new freedoms. RMT is affiliated to the Campaign for Trade Union Freedom. If your branch or regional council is not yet affiliated I strongly encourage you to do so. Please visit http://www.tradeunionfreedom.co.uk/

 

Yours sincerely,

Mick Cash

General Secretary

 

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Campaign for Trade Union Freedom

CTUF Regional Tour on Labour Law and Trade Union Freedoms under Attack

First Stop…. LIVERPOOL

Defeating the Politics of Austerity and attacks on Trade Union Rights organised and supported by IER, CLASS, CTUF, People’s Assembly, Morning Star

 

25th March 2015

6pm – 8pm, Free Rally

Adelphi Hotel

Liverpool

 

Speakers include Lynn Collins (NWTUC), John Hendy QC (IER/CTUF), Carolyn Jones (IER), Len McCluskey (UNITE), Tim Roach (CLASS), Matt Wrack (FBU),

plus a short You Tube Clip of John Hendy and Keith Ewing on the role of collective bargaining in ending austerity’s inequality,

which can be found here http://www.ier.org.uk/news/new-you-tube-clip-ewing-hendy

 

 

SCOTLAND

 

 

Defeating the Politics of Austerity and attacks on Trade Union Rights, organised and supported by People’s Assembly, Morning Star, Scottish Left Review, CTUF, IER, UNITE Scotland, RMT

OTLAND

STUC 118th Annual Congress

20th–22nd April 2015

Congress Fringe Meeting 2015

Tuesday 21st April, 12.30pm – 2pm

Ayr Race Course, Venue: Red Rum Roomf

e thics of Austerity /acks on our Trade Union Rights

Speakers: Mark Serwotka – General Secretary, PCS/CTUF  Lilian Macer – Convenor, UNISON (Scotland)Rozanne Foyer – Regional Organiser, Unite (Scotland) Ben Chacko – Editor, Morning Star Chair: Phil McGarry (RMT) – Chair, People’s Assembly

 

* MORE REGIONAL MEETINGS TO FOLLOW………

 

SUPPORT THE RIGHT TO STRIKE

 

 

18 February 2015 was Global Day of Action for the Right to Strike – a right which is not enshrined in UK law.

 

The European Committee of Social Rights has stated that the UK is not in conformity with the Articles of the European Social Charter 1961 (which it has ratified) to a very significant extent in relation to the right to organise, the right to bargain collectively, the right to just conditions of work and the right to fair pay, amongst others.

 

Furthermore, the UK was the first country to ratify the International Labour Organisation Convention 87 but remains in breach in relation to the absence of the right to strike.

 

Virtually every country in the world recognises that workers have the right to take strike action. Unlike the UK, some 90 countries have it enshrined in their national constitution

 

Since June 2012, employers have been challenging the existence of an international right to strike and the authority of the United Nations International Labour Organisation (ILO) and its supervisory mechanism. The increasing use of ILO jurisprudence at national and regional level, as well as in codes of conduct on business and human rights, shows the relevance and importance of ILO standards and the need for an effective ILO supervisory mechanism. This crisis is also intended to prevent national and regional courts from deriving a right to strike from international law.

In March 2015, the ILO Governing Body has to take a decision on the resolution of this conflict that has had a chilling effect on the ILO supervisory mechanism since 2012. If no agreement can be reached, workers demand a referral to the International Court of Justice for an advisory opinion on the matter, as foreseen in the ILO Constitution. Many governments support the demand of the labour movement to respect the ILO Constitution and to bring the case before the ICJ. But some are procrastinating. These governments and all groups of employers have to held accountable for their disrespect of international law and the crucial role of the ILO.

Not only is the right to strike under attack at an international level, but the UK faces a further threat from Tory plans to further restrict the ability of UK workers to go on strike.

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Trade Union Freedom

Dear Colleagues,

 

Trade Union Freedom

As you may be aware Transport Secretary, Patrick McLoughlin, proposed anti-trade union legislation, which he claims will be included in the Tory election manifesto, in an article in the Telegraph on 9th January.

 

The proposals include:

  • a minimum of 40% of all eligible voters casting their ballot will be necessary to take industrial action across so-called essential services.
  • ending the ban on companies using agency staff to scab on industrial action
  • putting an end to rolling mandates
  • conduct a review into minimum service levels

 

RMT will be doing all in its power to fight these proposals including working with other unions and the Campaign for Trade Union Freedom.

 

One action you can take today is to petition the ILO to defend the right to strike by following this link: http://www.itfglobal.org/en/campaigns-solidarity/campaigns/defend-the-right-to-strike/

 

Yours sincerely,

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ACAS EARLY CONCILIATION SCHEME UPDATE

Branches, Regional Councils & Regional Offices; Regional Officers

Dear Colleague,

ACAS EARLY CONCILIATION SCHEME UPDATE

Further to previous Circulars. In particular NP/038/14 AND NP/053/14 and the Conciliation Booklet prepared by our Legal Team with an Introduction from me I wish to draw your attention to the following changes.

Members who wish to submit an Employment Tribunal claim cannot do so unless they have notified ACAS of their potential claim and have sought Early Conciliation of the claim. They must do so before they can submit an ET1. They must get a Certificate of Conciliation from ACAS stating that they have tried to settle their case before they can submit an ET1.

Members must complete and submit an Early Conciliation Form (ECF) online.  Please note this is separate form from an L2 (Union form requesting Legal Assistance) and an ET1 (Tribunal Application Form). The best way to register with ACAS is on line at:  https://ec.acas.org.uk

Members who don’t have access to a computer may telephone ACAS to initiate conciliation on:  0300 123 1100.

When registering on line or by phone the member will be given a unique reference number e.g. R002979/15.  If member does not have a reference then the case has in all likely hood not been registered.

Members do not need a certificate to proceed to a Tribunal from the ACAS Early Conciliation scheme in the following certain specified cases only:

  • Some multiple claims where another member has already got a certificate and the issues are the same. Note well the facts must be identical; if different then a claim must be registered.
  • Where the member is dismissed and is seeking interim relief.
  • Where the employer has requested the conciliation.
  • Cases relating to National Security.

It is essential that when completing a form or supplying information to ACAS the member uses the name and address of the employer that will eventually appear on the ET1, otherwise the claim could be rejected on the basis that the information provided is incorrect.

It is important that the Union meets the challenges that this system imposes and uses it to the benefit of our members. Therefore all Branches, Union Officers and Representatives must be vigilant and spot cases at the earliest possible opportunity. Early involvement of the Legal Department is vital if the Union is to avoid any complications.

You must refer the member as soon as practicable to your Regional Office after the member is dismissed and after the event complained of so that an L2 can be completed and sent to our legal team with the supporting paperwork. DO NOT WAIT UNTIL THE OUTCOME OF AN APPEAL before seeking Legal Advice.

 

Upon contact with the Regional Office the member will be provided with the L2 and associated forms, these will be sent to the Legal Department once signed off by the Regional Officer and he/she will be advised to contact ACAS by our Legal Team except in the case where the original time limit is close (within the week); in which case the Regional Staff will advise the member to do so to ensure that their claim is not out of time.  It is easier to use online facilities wherever possible as there is then proof that ACAS have been contacted.

 

The Legal Department or Regional Office will supply the member with the details of the Union Officer who will be conciliating with ACAS on their behalf. If the member does not wish the Union to do so then they must do this themselves. The member will be required to give written authority for our Regional Officer to handle the conciliation.   Please ensure that only a Regional Officer or person approved by our Legal Team is given to represent the member with ACAS. No other representative has authority to represent our member at ACAS unless approved. Unauthorised representatives should decline to act and if asked to represent must refer the member to the Regional Officer.

 

In response to feedback from users, ACAS have made some important revisions to the ACAS early notification form, both online and hard copy versions. These changes will make the process of notifying Acas faster and simpler.

 

They are:

  • The employer address lookup facility has been removed as it was proving difficult for claimants to give the correct legal identity of their employer. So claimants now have to manually input the correct address. This must be accurate and tally with the address given on the ET1 form.
  • Have introduced a field so the claimant can include contact details of their representative.the member has included representative details on the form, they will contact the Union directly without speaking to the member first. So it is important that if member asks you who should be put down only an authorised RO (see below) or one of our Legal Team can be submitted.

 

The changes to the form have now gone live, and ACA will be posting regular updates on Twitter at @acasorguk (using the hashtag #earlyconciliation).

 

Initially when early conciliation was introduced The Union considered that the best way forward during this initial period was to have a specified team of Relief Officers who would be the Unions Conciliation Officers. Having reviewed the matter with our Regional Officers it has been agreed that with immediate effect our Regional Officers (set out below) will be responsible for conciliation with ACAS in liaison with our Legal Team.

 

No other officer or rep is permitted to do this on the Unions behalf without authorisation from me.

 

The Conciliation Officers are

Wessex; South West and South Wales: Mick Tosh; Brendan Kelly; Phil Bialyk.  

London Transport; London Anglia & South Eastern: Brian Whitehead; Steve Smart; John Leach; Paul Cox.

Midlands; Yorkshire & N.East: Ken Usher; Dave Collinson; Micky Thompson.

Manchester; N.West; Liverpool & Scotland: John Tilley, Daren Ireland; Gordon Martin

 

It is always best to consult our Legal Team before contacting ACAS so that the Officers can ensure that the relevant and accurate information is given to ACAS so as to avoid future problems with an Employment Tribunal. Please note that the details of any ET1 form must match the details given to ACAS; so if a matter is not included in ACAS conciliation the member may have to make a further application for the ancillary matter; if it falls outside the limitation period it may be too late to do so.

 

Conciliation will take please within a month of notification. Our Officers must work closely with our Legal Team who, provided they get the paper work in time, will be able to assist our Officers with advice on the member’s case including its strengths and weaknesses and will be able to assist with settlement agreements and schedule of losses.

 

Should conciliation fail, the member will be given a certificate that conciliation is over. If the case is to proceed to a Tribunal this certificate must be submitted to the Tribunal with the ET1 and Remission form or fee. As soon as the member is given the certificate the limitation clock begins to run again; having stopped for the period of the conciliation.

 

Once a certificate of conciliation has been issued the ET1 must be submitted within 1 month or the period of the conciliation depending on when the certificate was issued. The calculation of this period can be complex and therefore it is important that if the legal team have not given an advice the papers are given to them immediately by the Regional Officer.

 

The primary limitation period of three months less one day stops whilst conciliation takes place. That is, the clock stops ticking for submitting an ET1 but begins again as soon as the certificate is issued.

 

Example 1:

Date of Dismissal /discrimination: 7th April 2015

Original Limitation: 6th July 2015

Date Early Conciliation lodged at ACAS 14TH April 2014 (DAY A): 15th April 2015

Date Certificate issued by ACAS (Day B): 12th May 2015

New Limitation date for ET1 to be lodged: 3rd August 2015

 

Example 2:

Date of Dismissal/Discrimination 7th April 2015

Original Limitation: 6th July 2015

Date Early Conciliation lodged at ACAS 12th May 2015 (Day A): 13th May 2015

Date Certificate issued by ACAS (DAY B):20TH May 2015

New Limitation date for ET1: 13TH July 2015

 

In order for this to work smoothly for the benefit of our members and to avoid problems with time limits and cases being struck out we need full cooperation from the Regional Offices; Officers; Branches and activists to reduce delays in seeking assistance from our Legal Teams.

 

Updated Training will be given to our Officers and Regional Office Staff where necessary. “The Employment Tribunal Process and Conciliation Guidance Booklet in procedure for regions reps and members” will also be amended to incorporate these changes.

 

I would be grateful if you could ensure that all your members and activists know this procedure please.

 

Yours sincerely

Mick Cash

General Secretary

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Working Time Directive: Update

Circular No NP/ 223 /14

To All Branches, Regional Offices & Regional Councils

Our Ref: LA/45/14

5th November 2014

 

Dear Colleagues,

Legal Update:  Holiday Pay.

Further to Circular NP/099/14 of the 29th May 2014  where I reported the case of Lock v British Gas, and Circular NP/149/14 dated 2nd September 2014, the EAT decided today in  Hertel,Amec v  Wood and others and Bear v Fulton favour of the workers . The appeals arise in a test case concerning the calculation of holiday pay. The appeal by Bear Scotland was against a decision by a Glasgow ET who found that the employers had made unauthorised deductions from wages of two employees by failing to include overtime and other payments associated with their work in calculating holiday pay. The second appeal was by Hertel and AMEC Group against a decision by and ET that each had made unauthorised deductions of wages by failing to include overtime when calculating holiday pay and failing in breach of contract to pay them full pay in lieu of notice when their employment ended. The third appeal Freightliner v Neal settled before the hearing but all issues were heard together. Contrary to what has been said in the press, the case is NOT about voluntary overtime. In each appeal the workers were required to work overtime, though it was not guaranteed and in fact normally worked it. But nothing was paid for overtime in respect of the four week period of holiday guaranteed by Working Time Regulations, implementing Article 7 of the Working Time Directive.

 

Article 7 of which provides that member states:

 

“shall take the necessary measure to ensure that every worker is entitled to paid annual leave of at least 4 weeks in accordance with the conditions of entitlement to, and granting of such leave laid down by national legislation and/or practice.

2) The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated”

 

The appeals raised the following issues

 

1      To determine what Article 7 required by way of paid annual leave.

Does it follow from the cases of Williams and Lock that non-guaranteed overtime and other elements of remuneration which workers received had to be included in pay during and for annual leave?

 

The Court accepted the argument for workers and rejected the arguments of the employers and BIS and held that the judgements in Williams and Lock were clear. Under Article 7, normal pay had to be paid in respect of annual leave. The overtime was required by the employers and in fact regularly worked by the workers. Overtime pay was therefore remuneration which had to be paid in respect of annual leave. No reference to the Court of Justice was necessary.

“Normal pay” is what is normally received and payment has to be made for a sufficient period of time to justify “normal”.

In cases where the pattern of work is settled there is no difficulty in identifying normal pay; but where there is no such normal remuneration an average taken over a reference period determined by the member state is appropriate. Therefore Art 7 requires and required non-guaranteed overtime to be paid during annual leave.  As it is only Article 7 leave that is covered by this, this only relates to the 4 weeks (Regulation 13) leave required by the Working Time Directive (not additional Reg 13A and/or contractual leave).

  1. For the purpose of assessing pay in respect of annual leave. PILON and or damages for breach of contract what was the claimants normal working hours and what should PILON be based on

This was a cross appeal to include two taxable payments for travel time (the Radius Allowance & Travel Time Payments) in holiday pay. The ET found these payments were likened to expenses and therefore were not to be included in holiday pay. The EAT overturned the ET’s finding – these payments were for time spent by the worker travelling to work (which is linked to work), the taxable elements  of RA and TTP were part of their normal remuneration and they should therefore be included in holiday pay.

 

  1. The Interpretation of the Marleasing principle

  

Article 7 is interpreted that workers should have been paid during holidays in respect of their overtime the question then arises whether UK legislation can be interpreted to provide for this result. The obligation on a UK Court when interpreting national legislation which implements a directive is to do so as far as possible in light of the purpose and the wording of the directive so that the principle of the directive is achieved- this is called the Marleasing principle.

The Court held that they could be. WTR were passed to implement the Directive and their essential feature was that holidays should be paid. The fundamental premise laid down by the case of Bamsey that Article 7 laid down no requirements as to payments for annual leave was now wrong. While the exact wording did not matter, words could be read into regulation 16 WTR to ensure that the overtime payments were maintained in respect of annual leave

  1. Whether the Tribunal was entitled to find that the underpayments constituted a “series” of deductions within the meaning of Regs 13 of WTR 1998 so as to give the tribunal jurisdiction to hear them?

 

The Court held that whether there has been a series of deductions or not is a question of fact, “Series” has no legal meaning.

In Revenue and Customs v Stringer the House of Lords held that a claim for holiday pay could be brought as a claim for unlawful deduction from wages. The final issue was how those provisions interact with past claims for underpaid holiday, brought as a “series” of deductions from wages. In a new development of the law, the EAT held that the sense of the legislation was that if a series was punctuated by a gap more than three months, the passage of time had broken any series of underpayments.

A series of deductions will be broken if there is a period of more than 3 months between the deductions. The Court held that the word “series” had to be understood in a legislative context – i.e. a deduction from wages claim has to be brought within 3 months, so if there is more than 3 months between deductions this will break the series of deductions.

The Judgement which may be the subject of further appeals is important as it confirms that holiday pay must include all elements of normal remuneration and that tribunals can and should interpret WTR to achieve that result. The point on unlawful deductions means for the moment at least, that claims for retrospective liability may be restricted in effect. But it creates difficulty as it means holiday pay claims either need to be reissued or amended every 3 months to include holiday pay since the date of issue and then going forward the previous amendment/re-issue. Furthermore, as expected, claims need to be submitted within 3 months of the first 4 weeks holiday in the holiday year.

We will attempt to raise holiday pay through our collective bargaining procedures but if members have claims they should contact their Regional Officer who will give them L2 forms for legal assistance. Remember time limits will apply to holiday pay claims and early conciliation also applies. ACAS must be contacted and the early conciliation certificate issued before any Employment Tribunal claim can be lodged.

 

We will keep you updated on both the legal implications and our approaches to the employers. It should be noted that it is likely the EAT judgement will be appealed.

 

Yours sincerely,

Mick Cash

General Secretary

 

Posted on

Employment Tribunal (L2 Forms)

Circular No: NP/187/14

LA/43/14

 

25h September 2014

 

TO ALL BRANCHES, REGIONAL COUNCILS & REGIONAL OFFICES

 

L2 COMPLETED FORMS AND ADDRESS OF LEGAL DEPARTMENT

 

Dear Colleague,

May I remind you to ensure that all L2 forms are signed by the member and the Regional Officer and that they are sent to the Legal Department; whose address is Maritime House Clapham Old Town, Clapham Common. London SW4 0JW.

Please do not send them to me at Unity House as this wastes time.

I would be grateful if you could bring the contents of this Circular to the attention of your Branch members.

 

Yours sincerely

Mick Cash

General Secretary

Posted on

Legal Timetable Update

LA/42/14

 

15th September 2014

 

TO ALL BRANCHES, REGIONAL COUNCILS & REGIONAL OFFICES

 

UPDATE: TIMETABLE LEGAL EVENTS

 

Dear Colleague,

 

Please note forthcoming UK and EU developments

1st October 2014

  • Increase in national minimum wage to £6.50 (adults).
  • Right for employees and qualifying agency workers to take unpaid time off work to attend up to 2 ante-natal appointments with a pregnant woman with whom they have a “qualifying relationship”. The right is available to the pregnant woman’s husband, civil partner or partner (including same –sex partners); the father or parent of the pregnant women’s child, and intended parents in a surrogacy situation who meet specified conditions. ( The Children and Families Act 2014)

2014/15

  • The Deregulation Bill is due to commence Committee Stage in the House of Lords on 21stOctober 2014; the bill will, among other things, repeal employment tribunals power to make wider recommendations in discrimination cases.
  • The Government will consult on making “caste” a protected characteristic of race as required by s97 of the Enterprise and Regulatory Reform Act 2013. Recent indications indicate that consultations would take place in the autumn of 2014.

5th APRIL 2015

  • New right to shared parental leave and pay. Under the new scheme, women will continue to be eligible for statutory maternity leave and statutory maternity pay (or maternity allowance) in the same way as previously. However if a mother chooses to bring her leave and pay to an early end , eligible working parents will be able to shear the balance ,up to a total of 50 weeks of leave and 37 weeks of pay. Eligible adopters will also be able to use the new system for shared leave and pay.
  • The Act also introduces changes to existing adoption leave and pay regime; extending it to include prospective fostering parents for adoption scheme and intended surrogate parents. In addition adoption leave and pay will be adapted to reflect entitlements that already exist for birth parents. There will not be any qualifying period for entitlement to leave and statutory adoption pay will be raised to 90% of salary for the first 6 weeks.

2015/or later

  • Introduction of tax-free childcare for working families. The Government intends to provide 20% of working families’ childcare costs up to a limit of £1200 per annum per child.
  • The Government have not yet responded to the remaining elements of its May 2011 Modern Workplace consultations on changing the Working Time Regs 1998. It is anticipated that any changes will reflect the European case law that has established that workers who are unable to take their annual leave because they are sick, maternity or parental leave in the current leave year must be able to carry it forward to the next year.
  • Repeal of the socio-economic duty in s1 of the Equality Act 2010 which will if brought into force oblige public bodies to have regard to the desirability of exercising their functions so as to reduce the inequalities of outcome which result from socio economic disadvantage.

 

I would be grateful if you could bring the contents of this Circular to the attention of your Branch members.

 

Yours sincerely

 

Mick Cash

Acting General Secretary

 

 

 

Posted on

Working Time Directive

Please see above and below
Circular No NP/ 149 /14

To All Branches, Regional Offices & Regional Councils

Our Ref: LA/42/14

2nd September 2014

Dear Colleagues,

Legal Update:  Holiday Pay.

Further to Circular NP/099/14 of the 29th May 2014 where I reported the case of Lock v British Gas. Many members have been asking questions about holiday pay, who is entitled to it and what we should be doing in light of the European case law.
 
Entitlement to statutory holidays under the Working Time Regulations 1998 applies to workers which includes those who personally provide services under a contract such as casual and freelance workers as well as zero hours workers.  Some sectors are excluded from the Working Time Regulations 1998 but have similar although not always identical provisions in separate regulations these include for example seafarers as defined, sea fishermen, workers engaged in the navigation of vessels in inland waterways and aircraft crew.
 
The Working Time Directive (WTD) provides that all workers are entitled to a minimum of 4 weeks paid holiday per year.  The WTD does not set out how holiday pay should be calculated.
 
The Working Time Regulations (WTR) 1998, which are meant to implement the Working Time Directive goes further by providing that workers are entitled to 5.6 week’s paid holiday – subject to a maximum of 28 days.  Therefore statutory holiday is made up of two entitlements; 4 weeks statutory holiday or 20 days if working a 5 day week; and additional statutory holiday which is 1.6 weeks leave, or 8 days if working a 5 day week.
 
A contract of employment can provide that a worker is entitled to more leave than the statutory leave.  This briefing does not cover how contractual holiday pay is calculated.  It only covers the statutory 4 weeks holiday
 
How statutory holiday pay should be calculated is set out in the Employment Rights Act 1996.  These provisions are complicated but broadly speaking how much statutory holiday pay a worker receives depends on whether the worker works normal working hours or has no normal working hours.  Normal working hours is where the contract fixes the working hours.  Overtime hours are not “normal working hours” unless obligatory on both sides, which means contractually guaranteed by the employer and compulsory for the employee For example, where a clause in the contract states “Your normal working hours are 37 per week”, statutory holiday pay is calculated on the basis of the normal 37 hour working week, so if overtime is worked this is not included in the calculation of statutory holiday pay, unless the overtime is obligatory on both sides.
 
If no normal hours are worked and none are set out in the contract, for example where the contract provides “Your working hours will vary according to the work that needs to be done” the rate of holiday pay will be calculated by reference to average pay over the previous 12 weeks for all sums earned.
 
There is a body of European case law which states that workers should be paid their normal remuneration when on their statutory 4 weeks leave under the WTR.  In the case of British Airways v Williams the European Court held that holiday pay should include: 
 
(i)            payments which are intrinsically linked to the performance of the tasks which the worker is required to carry out under her/his contract of employment;

(ii)          those elements of pay which relate to the personal and professional status of the worker; and

(iii)         the rate to be applied must be based on an average calculated over a representative reference period.

 
Applying those principles the European Court in the case of Lock v British Gas Trading Ltd held that a worker whose pay was made up of about 60% commission was entitled to include commission in the calculation of his holiday pay.
 
As a result of these European cases there have been a number of Employment Tribunal claims which have been brought claiming that overtime and shift premiums should be included in the calculation of the statutory 4 weeks holiday pay.  These cases are currently stayed (i.e. put on hold) pending the decision of the Employment Appeal Tribunal in the cases of Hertel (UK) Ltd v Wood & ors and Amec Group Ltd v Law & ors .
 
What does this mean for members now?
The law in Britain is not yet decided, we can rely on the European case law to argue that the payments (e.g.  Overtime, incentive bonus payments; shift premiums; standby/emergency call out payments; certain allowances; commissions) are intrinsically linked to the tasks our members are required to do under his/her contract of employment and so should be included in the calculation of the statutory 4 weeks holiday pay, but until our courts have decided the position it is too early to give a definitive advice and we should be cautious in our approach.

 

However we are not content not to do anything; so we have begun the process of writing to all our employers through the normal bargaining procedures to open up discussions with them to seek a collective resolution to the issues raised by the European Courts to secure better pay and conditions for our members. 

 
In the meantime if an individual member considers they have a pressing problem with their holiday pay they can contact their Regional Officer who will update them on negotiations and if necessary obtain legal advice. Remember time limits may apply to holiday pay claims and early conciliation also applies to holiday pay claims. ACAS must be contacted and the early conciliation certificate issued before any Employment Tribunal claim can be lodged.
 
We will keep you updated on both the legal implications and our approaches to the employers.
 
Yours sincerely,



Mick Cash

Acting General Secretary

 

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